Anderson v Auckland Council - [2014] NZHC 1480

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001046 [2014] NZHC 1480

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of a decision made pursuant to s 95B of the Resource Management Act 1991

BETWEEN

IAN AND NORMA ANDERSON First Plaintiffs

PENE PATI and NORMA ANDERSON Second Plaintiffs

AND

AUCKLAND COUNCIL First Defendant

BODY CORPORATE 145836
Second Defendant

GHUZNEE HOLDINGS LIMITED Third Defendant

Hearing: 17 June 2014

Counsel:

A McDonald and R Ashton for Plaintiffs. Assisted by DR Bigio for part of hearing.

D Neutze and S Schlaepfer for First Defendant
HP Holland for Second and Third Defendants

Judgment:

27 June 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 27 June 2014 at 5 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Pidgeon Law, Auckland. Brookfields, Auckland.
Bramwell Grossman, Hastings.

ANDERSON v AUCKLAND COUNCIL [2014] NZHC 1480 [27 June 2014]

Introduction

[1] The first plaintiffs, Ian and Norma Anderson, and the second plaintiffs, Pene Pati and Norma Anderson as trustees of the Tasi Uno Trust, have been engaged in litigation against Ghuznee Holdings Ltd (Ghuznee), the third defendant, which owns a complex of buildings previously known as Culverden Retirement Village (the complex). The Andersons have occupied and wish to occupy two units in that building. Ghuznee does not believe the Andersons occupy the units, or have any right to occupy them.

[2] In this particular proceeding the Andersons seek a declaration of the first defendant, the Auckland Council, “that a resource consent converting a previously consented retirement village into residential dwellings with the addition of two residential units within an existing building be approved” is invalid and of no effect. They also seek orders quashing or setting aside a decision not to extend the time for filing submissions, and an order quashing or setting aside a decision made by the Council as to how it would notify the resource consent application.

Background

[3] The basic facts that have led to the present impasse between the parties are not complex. The Andersons claim that from 1992 until 12 November 2013 they have lived at Unit Q, an upstairs unit above the community area of the complex. This was previously the manager’s unit in the complex. They also assert that they were the original trustees of the Tasi Uno Trust and that Unit C in the complex is the property of that trust. They subsequently resigned as trustees of that trust, although Norma Anderson has become a trustee again, replacing a Mr Ricardo Marques.

[4] Although the statement of claim refers to Unit C owned by the second plaintiffs, in the course of submissions Ms McDonald who appeared for the plaintiffs accepted that no relief was sought in relation to Unit C, and that the plaintiffs’ complaints were focussed on events relating to Unit Q. I will therefore make only limited further reference to Unit C.

[5] The complex was originally known as Culverden Retirement Village and owned by Culverden…

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: [2014] NZHC 1480
Decision Date: 27 June 2014

CaseChat Overview and Summary

Ian and Norma Anderson, along with Pene Pati and Norma Anderson as trustees of the Tasi Uno Trust, initiated proceedings against the Auckland Council, Ghuznee Holdings Ltd, and Body Corporate 145836, contesting a decision by the Auckland Council to approve a resource consent that would convert a previously consented retirement village into residential dwellings. The Andersons, who had previously occupied Unit Q in the complex, claimed that they had a right to occupy the unit based on a Deed of Life Interest, and sought to invalidate the resource consent approval, as well as challenge the Council’s decision regarding the notification process and the extension of time for filing submissions. The court had to determine whether the Andersons had a valid claim to occupy Unit Q, if the Council’s notification process was adequate, and if there was any error in the Council’s decision to not extend the time for filing submissions.

The court found that the Andersons did not have a valid claim to occupy Unit Q, as they were evicted on 12 November 2013 and had no right to be served with notice regarding the resource consent application. The court also determined that the Council’s notification process was adequate, as the notice was addressed to the correct unit and was delivered successfully. The court further found that the complaints about the advice given to the Andersons' lawyers and the extension decision were invalid, as no submission was filed in relation to Unit Q, and therefore, no extension was sought. The court concluded that there was no basis for review of the Commissioner’s final decision, as it did not appear to be in error and there was no indication that a further hearing would result in a different outcome.

The court dismissed the claim, stating that even if an error by the Council had been made out, there would be good reason for the court not to intervene, as it seemed certain that the Commissioner would reach the same decision if there was a further hearing. The judge hoped that costs could be agreed upon, but if not, the defendants could file submissions within 14 days, with the plaintiffs having a further seven days to reply.

Orders