Ancona Properties Ltd v Auckland Council - [2017] NZHC 594

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2338 [2017] NZHC 594

BETWEEN
ANCONA PROPERTIES LIMITED

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: On the papers

Judgment:

29 March 2017

JUDGMENT OF WHATA J

ANCONA PROPERTIES LIMITED v AUCKLAND COUNCIL [2017] NZHC 594 [29 March 2017]

This judgment was delivered by me on 29 March at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

CIV-2016-404-2296

BETWEEN BAYSWATER MARINA LIMITED

Appellant

AND AUCKLAND COUNCIL

Respondent

CIV-2016-404-2340

BETWEEN P L AND R M REIDY, A J AND P M KLOETEN AND RUATOTARA LIMITED

Appellants

AND AUCKLAND COUNCIL

Respondent

CIV-2016-404-2319

BETWEEN SOUTHERN GATEWAY (MANUKAU) LIMITED

Appellant

AND AUCKLAND COUNCIL

Respondent

CIV-2016-404-2347

BETWEEN WASTE MANAGEMENT NZ LIMITED

Appellant

AND AUCKLAND COUNCIL

Respondent

CIV-2016-404-2312

BETWEEN WAYTEMORE FORESTS LIMITED

Appellant

AND AUCKLAND COUNCIL

Respondent

CIV-2016-404-2460

BETWEEN MALCOLM WOOLMORE AND ALASTAIR MORRIS AND SONYA MORRIS

Appellants

AND AUCKLAND COUNCIL

Respondent

Introduction

[1] Various decisions of the Auckland Council (the Council) to adopt recommendations of the Independent Hearings Panel (IHP) in respect of the Auckland Unitary Plan (the Unitary Plan) have been appealed to this Court. This judgment addresses the request for consent orders in relation to proceedings commenced by:

(a) Ancona Properties Limited (Ancona);1

(b) Bayswater Marina Limited (Bayswater);2

(c) P L and R M Reidy, A J and P M Kloeten, and Ruatotara Limited (Ruatotara parties);3

(d) Southern Gateway (Manukau) Limited (Southern Gateway);4

(e) Waste Management NZ Limited (WML);5

(f) Waytemore Forests Limited (Waytemore);6 and

(g) Malcolm Woolmore, Alastair Morris and Sonya Morris (Woolmore).7

[2] Having had the benefit of detailed submissions, I am satisfied that the consent orders should be granted as sought for the following reasons:8

Ancona Properties Ltd v Auckland Council CIV-2016-404-2338.
Bayswater Marina Ltd v Auckland Council CIV-2016-404-2296.
PL and RM Reidy, AJ and PM Kloeten and Ruatotary Ltd v Auckland Council CIV-2016-404-2340.
Southern Gateway (Manukau) Ltd v Auckland Council CIV-2016-404-2319.
Waste Management NZ Ltd v Auckland Counci CIV-2016-404-2348.
Waytemore Forests Ltd v Auckland Council CIV-2016-404-2312.
Malcom Woolmore and Alastair Morris and Sonya Morris v Auckland Council CIV-2016-404-2460.
As Wylie J in Man O’War Farm Limited v Auckland Council [2017] NZHC 202 put it at [33], the Court must first be satisfied that the decision challenged on appeal was made pursuant to error of law. See also
my decision in North Canterbury Fish and Game Council v Canterbury Regional Council [2013] NZHC
3196 at [2].

(a) The consent orders reflect the proper resolution of issues of law raised by the appellants;

(b)The proposed amendments and the resolution of the appeals is consistent with the purpose and principles of the Resource Management Act 1991 (RMA), including in particular Part 2;

(c) Approval of the proposed consent orders would also be consistent with the purpose and intent of the Local Government (Auckland Transitional Provisions) Act 2010 (the Act), namely Part 4, which provides a streamlined process designed to enable the Unitary Plan to become operative within a short period of time;

(d)The orders may be granted pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 594
Decision Date: 29 March 2017

CaseChat Overview and Summary

In Ancona Properties Ltd v Auckland Council, the High Court of New Zealand was required to determine several appeals regarding the adoption of recommendations by the Independent Hearings Panel (IHP) in respect of the Auckland Unitary Plan (the Unitary Plan). The appeals raised issues concerning errors of law in the IHP recommendations and their acceptance by the Auckland Council (the Council). The legal issues centred on whether the Council erred in law by adopting recommendations that contained internal inconsistencies or did not reflect the agreed positions of the parties. The court had to decide whether the consent orders sought by the appellants, which aimed to correct these errors, were appropriate and aligned with the purpose and principles of the Resource Management Act 1991 (RMA). The court also had to consider whether the proposed amendments were within the scope of the appeals and whether the relief sought was of narrow enough scope to avoid the need to remit the matter back to the IHP. The court found that the consent orders should be granted as sought because they rectified errors of law that materially affected the Unitary Plan, were supported by the parties, and were consistent with the RMA and the Local Government (Auckland Transitional Provisions) Act 2010. The court concluded that the amendments were appropriate and that the appeals should be allowed with final consent orders made in relation to all of them.

Orders