The sequence of successful judicial reviews against the
government on earthquake related matters continues with the second
court decision to overturn a school restructuring decision of the
Minister of Education. Clearly very significant for the
school, staff and families involved, the decision is a reminder on
good consultation processes.
A primer on the case
The case, Board of Trustees of Phillipstown Primary School v
The Minister if Education, involved judicial review of the
Minister of Education's decision to merge Phillipstown School
with Woolston Primary School. The Minister was required by
the Education Act to consult with the School board before merging
or closing a school.
Following the earthquakes, the government decided to review the
school network in Christchurch. One proposal was to merge
Phillipstown School with Woolston School. Consultation
initially began on the right footing, with the release of the
Minister's proposed decision and supporting information in
September 2012, but subsequently appears to have gone awry.
Subsequent information indicated a variety of reasons for the
merger: the small roll of Phillipston, oversupply of primary
schools in the area compared to demand, building damage,
geotechnical concerns with the site, costs of earthquake
strengthening and weathertightness concerns. Detailed
information on some of these points was requested and, to some
extent provided by the Ministry of Education. Indeed, the
Ministry diligently tried to provide the necessary information to
In its submissions to the Minister, the school focussed on
educational and community reasons for retaining the school on the
Phillipstown site. The Minister, however, made her decision
taking into account the relative costs of remediation at the
Woolston site compared to Phillipstown.
Phillipstown School had not made submissions on the costs issue,
believing that it would not be a factor in the decision. This
belief arose in part from an indication by a Ministry official that
the costs were not the Minister's main focus, an inability to
access the primary data initially used by the Ministry, and the
absence of an explanation as to how the information was gathered,
its purpose and how the cost estimates that were provided were
The Court decision
The Court held that the school had not had reasonable access to
the information and judgements being relied upon by the
Minister. The Crown negotiated in good faith and even went to
considerable effort to consult. However, the Court found that
this did not go far enough and that the Minister had failed to
consult to the standard required by law. As a result, the
Court declared the Minister's decision invalid.
The Minister has subsequently decided to reconsider the
decision, and is undertaking further consultation with both
Phillipstown School and Woolston School. Further information
will be provided and additional resources made available to support
the schools in the consultation.
In making its decision, the Court applied the principle
established by the Court of Appeal in the 1993 Wellington
International Airport Ltd case that in order for consultation
to be meaningful the party being consulted must be given a
reasonable opportunity to state its views. This means that
party must be provided with sufficient information to enable it to
be adequately informed so as to be able to make intelligent and
Better consultation processes
The Phillipstown case emphasises three points.
First, that the issue of whether or not the party being consulted
has been provided with sufficient information needs to be judged
from its perspective, or at least taking into account its
The second point is that if the responses of the party being
consulted seem misdirected or appear to misunderstand crucial
issues, that could be a clue that they have not been provided with
Finally, it may be necessary for the decision-maker to prepare
information especially for the consultation. Part of the
problem in the Philllipstown case was that the Ministry
provided reports prepared for other purposes, that did not present
the information in a format easily understandable by the school and
that were focussed on different issues than the point on which the
Minister made her decision.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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