Bylaws restricting trading activity cannot be arbitrary and imposed without consultation the High Court ruled, invalidating a Queenstown Lakes bylaw having the perverse effect of requiring mobile food outlets to close for thirty minutes after every hour’s trading regardless of whether customers were waiting.
The bylaw made its way on to books of Queenstown Lakes District Council after a bylaw restricting busking was extended to mobile traders.
Lake foreshore promenade at Queenstown is approximately 150 metres long and six metres wide; prime real estate for businesses seeking to attract passing trade.
The High Court was told frequent complaints about buskers had previously led to Council intervention, requiring registration and limits on how long a performer could monopolise one foreshore spot.
As part of Queenstown Lakes regular review of existing bylaws, a new 2023 bylaw saw busking restrictions extended to mobile food outlets also working the promenade.
Evidence was given that no public notice was given of this intended change. It was inserted for Council approval only after an earlier Council planning hearing had heard public objections to other planned bylaw amendments.
Affected mobile shop operators sued: complaining it was totally impracticable to require mobile shops to close periodically during trading hours; claiming enactment of the bylaw was invalid.
Customers would be left waiting in line, unable to be served for the next thirty minutes. Outlets serving hot food faced further difficulties in keeping food safe.
It was also inadequate to impose a bylaw that there must be a fifty metre distance between mobile shops, they claimed. It may be necessary to keep buskers fifty metres apart, but only three mobile traders could operate along the promenade at any one time if the same rule were to apply to them.
Justice Lang ruled Queenstown District’s operating and spacing rules were invalid as applied to mobile traders. The bylaw is arbitrary and potentially unjustified, he ruled.
Council process in approving the new bylaw was flawed in that affected businesses were not given an opportunity to be heard, Justice Lang ruled.
Burton v. Queenstown Lakes District Council – High Court (6.05.26)
26.152