Bailey v Auckland Council - [2022] NZHC 2632

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001801

[2022] NZHC 2632

IN THE MATTER of an application for review under the Judicial Review Procedure Act 2015

BETWEEN

GORDON MARTIN ROSS BAILEY

First Plaintiff

COOPER SCIENCE CONSULTING LIMITED
Second Plaintiff

AND

AUCKLAND COUNCIL

First Respondent

JOHN BARRY BOLLAND and JUSTIN MARK JAMES WYBORN

Second Respondent

Hearing: 6 October 2022

Appearances:

A J Sherlock, S J Ryan and A C Eager for the Plaintiffs No appearance for the First Respondent

D M Salmon KC and R M Keane for the Second Respondent

Judgment:

12 October 2022

JUDGMENT OF DUFFY J

This judgment is delivered by me on 12 October 2022 at 4 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:Hesketh Henry, Auckland (A J Sherlock, A C Eager) Lee Salmon Long, Auckland (R M Keane)

Counsel: S Ryan, Barrister, Auckland
D Salmon KC, Auckland

BAILEY v AUCKLAND COUNCIL [2022] NZHC 2632 [12 October 2022]

[1] The first plaintiff is the sole trustee of a bare trust which holds 7 Marine Parade and the second plaintiff is a company with an interest in that property.1 I refer to them jointly as “the plaintiffs”. The second respondents own (more or less) adjacent land at 13 Marine Parade.2 Both properties front on to a sea cliff which has the Waitematā Harbour at its base.

[2] On Thursday 22 September 2022, the plaintiffs filed proceedings and two applications for urgent interim relief being:

(a)An application for an interim injunction in relation to the construction of a swimming pool and cabana, landscaping and earthworks, pruning of protected trees and coastal works for a boat shed at 13 Marine Parade, Herne Bay; and

(b)An application for interim orders under the Judicial Review Procedure Act 2016 (JRP Act) prohibiting the second respondents or their contractors from undertaking or continuing works at 13 Marine Parade and in the adjacent coastal marine area.

[3] The plaintiffs sought, but did not receive, an agreement from the second respondents that work would be stopped until the application for an interim injunction/order could be heard. Therefore on 30 September 2022 I urgently heard the parties and granted “interim interim” orders protecting the plaintiff’s position (via cessation of work) until the present hearing. I granted these orders pending the hearing for interim relief, which was heard on Thursday 6 October 2022. My judgment on that application now follows.

[4] The first respondents, Auckland Council, did not appear before me for the purposes of the opposed interlocutory hearing.

1 Cooper Science Limited was previously named Marine Parade Ltd and the subject encumbrance is registered in favour of the previous name.
2 There is a small strip of land between the properties belonging to 11 Marine Parade.

The dispute

[5] The dispute relates to the second respondent planning to undertake development to build a swimming pool, cabana and boat shed. Auckland Council decided that the relevant resource consents…

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: [2022] NZHC 2632
Decision Date: 12 October 2022

CaseChat Overview and Summary

The plaintiffs in Bailey v Auckland Council sought an interim injunction and orders under the Judicial Review Procedure Act 2016 to restrain the second respondents from undertaking works at 13 Marine Parade, Herne Bay, including the construction of a swimming pool, landscaping, earthworks, pruning of protected trees, and coastal works for a boat shed. The plaintiffs claimed the works would breach an encumbrance registered over the property, which they hold. The second respondents argued the encumbrance was not enforceable and had been breached by previous owners. They also claimed the plaintiffs were estopped from enforcing the encumbrance. The court found the plaintiffs had a seriously arguable case that the encumbrance was enforceable and protected the natural landscape, trees, and vegetation in the covenant area. The proposed works would likely breach the encumbrance. The balance of convenience favoured granting interim relief as the proposed works could not be reversed and the loss of amenity could not be compensated with damages. The court also found the plaintiffs had a position to protect regarding the non-notification of the resource consents. Accordingly, the application for an interim injunction and orders under the Judicial Review Procedure Act 2016 was granted. The second respondents were restrained from undertaking or progressing the proposed works until further order of the Court.

Orders