High Court judgment on Tasman District Council’s representation review

The local elections are over. And so is the case in the Wellington High Court which reviewed the Local Government Commission’s Determination for the representation arrangements in the Tasman district. Like any other local authority, the Tasman District Council is required to review their representation arrangements for local elections every six years and was due for this year’s election. 

The Council made its final decision in October 2024. Because some wards being out of line with the statutory limits and because of appeals to the Council’s proposal, the final decision was required to be made by the Local Government Commission. They released their determination in March 2025.

Despite a clear dissatisfaction with the work that was prepared by the Council, the Commission did still pass the Council’s proposal (apart from a reasonable, but minor boundary change) because it needs to see more evidence that change is what’s best for the district. The deliberation notes make it clear that the Local Government Commission was concerned about pursuing change when none of those possible options were actually prior consulted on by the Council. The Commission noted in its determination that the Council had a strong mandate to consider the options presented by the two appellants for their next review in six year’s time.

Tasman Democracy Inc. appealed against this determination to the High Court. A hearing was held in August and the judgment was released in September 2025. We raised five grounds of appeal and the High Court agreed with one of them. The Court “has found an error of law has occurred”. The High Court directed the Local Government Commission to reconsider their determination, by addressing the number of councillors per ward.

Justice Gendall equally made comments for the Tasman District Council:

“I emphasise that it may be necessary for the Council to revisit these arrangements before the next review is required by statute given the combined observations of the Commission and this Court.”

It must be said that all parties involved - us, the Commission as well as the Court - were working within statutory timeframes and tried to find way how the outcome of this High Court appeal could be binding for this year’s election. However, it became quickly clear that this was in no way possible. Given the circumstances, we are very grateful that Justice Gendall found before the elections took place.

What were the key issues we raised?

In summary, we were very unhappy that the Local Government Commission, despite acknowledging a compelling case for change, decided to keep the status quo when even in their own words not enough evidence was provided by the Council to demonstrate that no change would be required.

We did not see that the legislative framework provided for a barrier of “sufficient evidence of community views” in order to truly consider an option for change. We highlighted that a consultation process, contrary to a referendum, is a qualitative process relying on a voluntary contribution of people. Those who contribute can only put their best case forward. Their evidence does not become better or worse by the fact that only few others or maybe even nobody else contributed.

The problem is further that basically deferring a valid argument to a later point in time, because of a failure on the part of Council to consult on it, would risk that representation arrangements can remain not satisfactory for another six years and therefore detrimentally affect the voters of a district for two more elections. In addition, councils that do not discharge their duties properly by consulting in a meaningful way, will not be held to account and have effectively a way to bypass voices they don’t want to hear for whatever reason. There were a number of other issues but this was really the core of the matter.

What was the key take away from the judgment?

The High Court did not agree that the Local Government Commission who was tasked to make the determination instead of Council can do so without consultation as this is an overarching principle in current local government legislation.

However, the High Court agreed that the Commission did not give reasons as to why it concluded on a total of 14 councillors. The High Court found this to be an error of law and directed the Commission to consider this matter anew.

The current legislative framework appears to be limited in achieving accountability of local authorities who do not provide a good array of evidence for their representation arrangements or worse, who do not seem to be much interested in taking the procedure all too seriously.

Justice Gendall noted:

“it is regrettable that ‘consultation fatigue’ as Mr Smith put it, or ‘engagement pressures’ as the Commission termed it, resulted in a relative vacuum of information upon which the Commission had to find a path forward, within a tight statutory timeframe.

Justice Gendall further noted in his judgment:

"TDI's intention was that the appeal would be heard prior to the Local Government elections due to take place on 11 October 2025. However, Gwyn J concluded it was ‘plain that the timeframe could not be met’ and ‘any order that the matter be heard urgently would be ineffective.’ Regardless, TDI has continued with its appeal, as it is entitled to and as is logical, given the arrangements for representation may well continue to the 2028 local government elections."

We consider these observation very relevant for Parliament to have a look at.

It is clear that the Commission was well aware of the shortcomings of Council’s proposal for which they did not carry any responsibility and yet it was the Commission who had to appear in Court (as non-partisan assistance to the Court). The Tasman District Council decided simply stay out and not to comment on their own decision. Yet, the people in the district are dependent on whether or not the Council listens to the recommendations from the Court and the Commission, or if they simply ignore it.

Learnings from the Court proceedings

1. Council was not interested in becoming party to the proceedings

When appealing a determination made by the Commission, the appellant becomes party to the proceedings. The Council can also decide to become party to the proceedings. In our case, the Council did not show any interest in participating in those proceedings and defended its proposal. However, the Commission as the decision-maker has got a very different role. It appeared in the proceedings merely to assist the Court in respect of the legal framework and had to maintain a non-partisan approach, which is a very difficult thing to do when there is no “real” respondent to the appeal (e.g. the Council).

It would have been of massive benefit to all parties involved, had the Council decided to join so that the Commission did not have to take on that very difficult role. It was unfortunate that the Council elected not to respond to the Notice of Appeal and that it was only through a formal report in a Council meeting that we learnt it was not intending to join. The Local Government Commission tried to engage with the Council for a statement which was finally received despite being past the deadline (the memorandum to the Court was due on the previous day).

2. The record of proceedings - what it contained and what it did no contain

As part of taking a matter to court, each party gets access to relevant documents. Unfortunately, reading the complete record of documents, we had to realise that none of the deliberations from Council meetings were part of what was before the Commission because the Council did not provide this information. Further, the minutes (presented to the Commission) of the two public meetings were different from those available on Council’s website. One document was also omitting our public forum presentation on the matter. Once we noticed these differences we approached the Commission who replied promptly and professionally confirming those changes were not made by them, but the documents received in exactly that state from the Council. In general, we were very happy with the way we could interact with the counsel for the Local Government Commission who was very polite, professional and responsive.

Quite interestingly and concerningly at the same time, the record of documents contained staff notes from confidential workshops. Notes that were never presented or adopted by elected members. Those notes make it clear that elected members weren’t even informed about the content of the early feedback received by the Council - in more specific terms than to say that some people were happy with how things are whereas others suggested change.

We consider this relevant as the early feedback should inform Council when drafting possible options for representation arrangements. It turns out that Council only ever modelled their one proposal and roughly sketched a few other options which in our opinion were mere lazy options, like combining the Golden Bay ward and the Motueka ward. Anyone even remotely connected to this district would surely not even come to the idea of changing anything to the Motueka ward towards Golden Bay as opposed to looking further into the Motueka Valley or the Moutere.

3. Council staff, contractor and Commission’s Senior Advisor during the Council’s representation process

It needs to be said that the record of documents reveals that the Council had two of his high level staff oversee the representation review as it was carried out. It also contracted an external person for more than $20,000 to assist with the representation review. The Council’s newly appointed legal counsel was involved in parts and the Local Government Commission provided one of their Senior Advisor for assistance to the Council. Both the external contractor and the Commission’s Senior Adviser were both very knowledgeable about the legislation and explaining the process in much detail, providing detailed and consistent assistance to the Council. In addition, the Local Government Commission issued a total of 13 Panui papers which were intended to provide relevant and timely information to councils in order to assist them in conducting their representation reviews.

Just to illustrate the level of detail: the Council was putting together their schedule for the representation review and the Local Government Commission would provide assistance as to whether the schedule was consistent with the statutory requirements. It was also the case that the Senior Advisor read through the staff reports for the public council meetings, gave advice (before the meeting) and even watched the meeting recordings.

We saw the level of detail contained in the presentations of the contractor assisting elected members during those confidential workshops and he was clearly pointing out what was required.

However, it is concerning that despite all of that skilled assistance no sensible work was done by the Council. What did they spend the money for? Why did they even bother spending all that money? Why were the questions presented to the Council not followed up with responses? Who oversaw the process as a whole? Who carries responsibility for such a serious lack of meaningful engagement with the issue and the public?

What the Council could learn from this representation review

It is worth noting that many submitters to the Council’s proposal made their views known about Maori wards, which was not part of the consultation. It is unfortunate and telling that for some reason so many people were misguided and therefore missing the point. We consider this would provide a good starting point for the Council to assess what could be done differently in future consultations so that people who take the time are actually made well aware of what the scope of the proposal is and what it is not.

In addition, we consider it worth adding that the consultation was only one out of five running basically at the same time (the other 4 were bylaws). If one were to accuse someone of consultation fatigue, then we would add that there is only so much someone who is not being paid by Council can reasonably be expected to read within 4 weeks. It must not be forgotten that people are by default excluded from Council workshops and it would appear somewhat nonsensical that any ordinary resident could easily make up their minds and come up with an informed opinion based on staff reports presented as part of public meetings. Also, it should not be forgotten that the public has significantly lost trust in the Council and in how their feedback is being dealt with.

Quite often we hear from the Council that they are very unhappy because much of what they do is dictated by Wellington. Here, where a council has been given a lot of discretion for local decisions, we have seen just how negligent and apathetic the process was run. We would even dare say with a focus on avoiding any change as much as possible. We do not wonder in that context that Parliament is restricting local authorities’ discretion as sometimes that discretion is abused.

We agree 100% with the observations and recommendations by both Commission the and the High Court and can only hope that the Council considers those with an open mind and makes a decision in best public interest.

We suggest that no further $20,000 are necessary to be spent on an external advisor as this information remains relevant and current and is held by Council. We would wish to see the Community Associations actually being fully engaged and getting a good overview of the topic ideally via workshops that are open to the public. We are very certain that meaningful engagement would end up in a very good solution for this district going forward.

What Parliament could learn from this representation review

With the local government reforms in 2001, local authorities were given more powers and theoretically more accountability. One of those mechanisms is for a member of the public to challenge a local authority’s decision. This is exactly what happened in this case. We were not happy with what the Tasman District Council did in order to arrive at its final proposal. Unfortunately, every upside has got a downside.

Much information provided to the Local Government Commission was from confidential workshops - information which cannot be scrutinised. Given the importance of such a process, we highly recommend reconsidering legislation around confidential workshops.

We hope that Parliament equally takes notice of the limitations of appropriate and timely remedy under the current legal framework and the realistic constraints faced by the Local Government Commission when it is tasked to make determinations as opposed to a local authority. It provides food for thought on how a local authority should minute their public meetings and how it can be made sure that it forwards the accurate documents to the Local Government Commission when required.

Parliament enacted that decision by the Local Government Commission can be appealed to the High Court. However as seen in this case, such an appeal cannot provide a sufficient remedy for an error of law, because of fixed timelines the outcome had no effect on the election. This High Court judgment is a clear call to Parliament to make a change. It must be possible that the outcome of a successful appeal is binding on and useful for the issue under appeal.

Despite it being a rather niche topic going unnoticed by many, we think it was worth appealing because the issue lies at the heart of local democracy. We are convinced that this recent judgment has value for Parliament, the Commission, the Council and the community as a whole.

Background information

2025 Tasman District Council representation review

It all started with an early engagement consultation over Christmas 2023. Unfortunately, there were in total three different deadlines provided for members of the public to give feedback. This early feedback generated 16 responses one of which came from Tasman Democracy Inc. In the previous review from six years ago, merely the same number of submissions were received as part of the formal consultation process on Council’s proposal.

Following from that were a number of confidential workshops which ended up in the Council presenting their initial proposal in July which invited submissions from the public. The initial proposal did not at all factor in what was suggested by us or any other person who provided early feedback to the Council. Therefore, we appeared in public forum and raised our concern about a lack of Council’s engagement with early feedback it received.

Everyone who presents in public forum will be well aware that all you get for speaking in public is silence and so it was for us as well. The meeting resolved to consult on this initial proposal and again, we were part of those around 100 who took the time and submitted. We also appeared in person to speak to our submission in October 2024. That meeting included the Councillor’s deliberations and resolved that the initial proposal would equally be the final proposal.

However, two appeals to the Council’s final proposal were received. Because of this and because of the fact that three wards were outside the 10% margin for fair representation, the Council had to forward their proposal to the Local Government Commission to make a determination.

The Local Government Commission’s determination process

The Commission decided that a hearing was required because more information was needed. It held a hearing and invited the Council and the two appellants to speak on their appeals and to answer to some specific questions.

The Local Government Commission as some point during the hearing addressed Mayor Tim King and noted that one was going around in circles and that a bit more than just “hearsay” was required for that process. Both the Mayor and Christeen McKenzie were explaining how they had informally engaged with various communities but non of which was recorded in any shape or form. It also became clear that the Mayor wasn’t a big fan of the whole process and expressed his compassion towards the Commission who would have the joy of dealing with numbers to which the Commissioners rather dryly responded that they are tasked to deal with statutory requirements.

The Council’s lack of meaningful engagement did not go unnoticed by the Local Government Commission who used very clear and explicit language in their deliberations following the hearing (“Apart from appellants felt entire thing was apathetic”) and in their determination. The determination highlighted that the appellants showed an understanding of the process which would be equally expected of Councils and provided good examples and a compelling case. They also noted a lack of analysis of available information on the part of Council, such as travel patterns, settlement patterns, council facility use, etc., which would be able to assist drafting suitable representation options especially when community feedback was low.

What are representation reviews?

The representation arrangements are a fundamental issue for electoral purposes and therefore right at the centre of democracy. Local Government especially has been struggling with low voter turnouts for a long time - one of the key issues the local government reforms from 2001 wanted to address. The Local Electoral Act 2001 is the main legal framework for the representation review process, but cannot be considered in isolation from the Local Government Act 2002.

The idea behind it is to think about who would be suited most to understand the specifics of an area, lifestyle, certain needs of communities to advocate for those around the council table. This does not in any shape or form influence each councillor’s duty to represent all people in a district fairly in accordance with the office of office. It merely provides voter with an extra layer of confidence that particular candidates have a good understanding of various local needs which may differ between let’s say Tapawera, Pohara or Mapua.

The process is distinct from a district choosing its election method - Tasman uses the First past the Post (FPP) method and e.g. Nelson elected to use the single transferable vote method (STV). However, it may be worth considering a referendum on the voting method before conducting a representation review.

Representation reviews are fundamentally a matter of public interest. They are also a matter which does not end up with huge financial private gains for a party who is unhappy with a finding.

The remedy for parties who are unhappy with a finding is that the determination is quashed and a new determination is made which satisfies the fair and effective representation as was envisaged by Parliament for the voters of a district. This may have contributed to the fact that there was only one decision prior to this one under the current legal framework. An important decision from 2005, called the “Ford” decision. It raised significant point and contributed to more clarity around the legal framework and is well reflected in the Local Government Commission’s Guidelines on representation review.

One could ask why those arrangement are to be reviewed every six years. That is because populations change across time and decrease or increases may not be evenly distributed across a district.

The idea of representation reviews is to divide the district in such a way that all people and communities receive fair and effective representation in local body elections. In a nutshell, a division of a district into wards is intended to reflect existing communities of interest, that are groups which share distinctive features and interests with one another and less with others in the district and how those can be best represented by individual elected officials. Relevant for that division is what is called the political, functional and perceptional dimensions. Those look into geographical features, where people live, work and have strong connections with, where they spend their money and time. In short: where do people most likely wish to have influence via their vote in a local election?

Once a district is divided into wards, a council is required to think about how many councillors to elect across the district and then, how many councillors are to be representing each ward. The Local Electoral Act sets out a minimum of 6 and a maximum of 29 councillors who can be elected per district. The decision on how many councillors per ward is largely dependent on the population of each ward in relation to the overall population of the district.

Further to fair representation, there is a requirement to achieve effective representation. Having community boards or local boards can be considered under this umbrella. How would or would not such arrangement assist local communities’ representation?

There are many moving parts and much discretion in legislation as to how a local authority could arrive at a solution which works for a particular district. The legislation is clear that it is intended to allow for local diversity.

What that also means is that there are many different options possible for Tasman alone.

Do we favour wards? Or a district without wards? Do we favour community boards? In all wards or only in some? In none? Where are our rural areas? Where do people send their children to school, join clubs, spend time and money? Where do they live? Or work? What is the age or our residents? The overall interest? Or needs for certain facilities? Or access to Council facilities? Do we need more playgrounds or more parks and reserves? Wider or narrower streets? Cycle ways? The list and questions goes on… However, what is required is that Council effectively engages honestly and with an open mind with the people in the district. On the other hand, in order to get a good outcome, a council needs to understand how its district actually works and thrives. Ideally, its people would respond with many meaningful submissions which could form the basis for council to make good decisions.

For example, the commission contemplated possible scenarios for the Moutere-Waimea ward after the hearing it conducted:

“Each other ward has service centre, but this doesn’t. Has 8 community associations, tend to cluster into 2 halves, tend to align with school boundaries. Lack of high school generally go either way, suggest would be a way to create 2 new wards that would be somewhat future proofed, suggest could have larger urban centre with rural hinterland, could look at options for community boards for rural hinterland etc, and want this to be looked at next time, robust community engagement issues that provide evidence and confidence that have adequately sought the views of their communities.”

The current situation in the Tasman District

The Tasman District is currently divided into five wards which are largely based on borough structures from before the local government amalgamation in 1989. Those are the Richmond, Moutere-Waimea, Motueka, Golden Bay and Lakes Murchison wards.

Here in Tasman, Richmond and the Moutere-Waimea wards take most of the population growth. Both wards have moved outside of the limit for fair representation (+/- 10% rule). Moutere-Waimea has been out for the last three reviews worsening each time (currently +19%). As we see with areas like the Golden Bay, certain geographical realities may justify a deviation from strict numeric rules. Legislation acknowledges this. Golden Bay is either over- or underrepresented by having one or two councillors. However, the effect of overrepresentation in Golden Bay is twice as significant compared to the underrepresentation from only having one councillor. The Lakes-Murchison ward is now overrepresented as well due to the Local Government Commission shifting ward boundaries. To illustrate the issue: one Councillor in the Moutere-Waimea ward represents more than 5,200 people as opposed to a Golden Bay Councillor representing around 2,800 people.