Banora v Auckland Council - [2017] NZHC 3276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-003203 [2017] NZHC 3276

IN THE MATTER OF
an Appeal under Section 299 of the

Resource Management Act 1991

BETWEEN

ALEXANDER BANORA and EMANUELLA BANORA Appellants

AND

AUCKLAND COUNCIL Respondent

Hearing: 3 October 2017

Counsel:

N W Woods and K R Prasad for the Appellants
K E Krumdieck for the Respondent

Judgment:

21 December 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 21 December 2017 at 10.30 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicit ors : Rice Craig, Auckland
DLA Piper Ltd, Wellington

Copy To : S F Quinn, Wellington

BANORA v AUCKLAND COUNCIL [2017] NZHC 3276 [21 December 2017]

Introduction

[1] By judgment dated 9 December 2016, the Environment Court made enforcement orders against Mr and Mrs Banora in respect of their property in Auckland.1

[2] Mr and Mrs Banora appeal that decision pursuant to s 299 of the Resource Management Act 1991 (RMA). The three questions of law set out in the notice of appeal are:

(a) Was the hearing conducted fairly and in accordance with principles of natural justice?

(b)Did the Environment Court erroneously confine issues before it and thereon the evidence which it was prepared to hear to the exclusion of relevant and probative evidence?

(c) Did the Environment Court consider irrelevant evidence and place weight upon evidence that was plainly wrong?

[3] The Council denies that the Environment Court erred in law and says that the appellants’ arguments infringe on the Environment Court’s fact-finding role.

Background

[4] Mr and Mrs Banora own a property at 82 Wolverton St, Avondale. At the south-western boundary of their property is Te Whau stream. The site is also partially bounded by a strip of land owned by the Council which is used as an access-way from Wolverton St to the esplanade reserve along Te Whau stream.

[5] The Banoras purchased the property in 2006. A land information memorandum (LIM) obtained for the property identified that the land might not be suitable for particular development or land use because the soil quality was poor, the land was flood prone, and it also had a watercourse passing through it.

[6] In 2007 trees were removed from the adjoining Council land. Mr Banora alleges that the Council also removed trees from within his property. It was around this time that the Council installed the stormwater culvert under the Council access- way.

[7] From 2010 onwards, Mr Banora made a series of complaints about this stormwater culvert, a retaining wall constructed by his neighbours, the subdivision of neighbouring properties, and tree removals. Further complaints in relation to the retaining wall were lodged between 2011 and 2016.

[8] From October 2015, the Council and Mr Banora exchanged correspondence about the waste materials at the rear of the car parking area within the flood plain and flood prone parts of the property. Mr Banora was…

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.

Keep reading for free

Create a free CaseChat account to read Banora v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 3276
Decision Date: 21 December 2017

CaseChat Overview and Summary

The appeal was brought by Mr and Mrs Banora against a decision of the Environment Court which had made enforcement orders against them in relation to works undertaken on their property. The appellants appealed the decision on three grounds: whether the hearing was conducted fairly and in accordance with principles of natural justice; whether the Environment Court erroneously confined the issues before it; and whether the Environment Court considered irrelevant evidence and relied on evidence that was plainly wrong. The Auckland Council opposed the appeal, arguing that there was no error of law and that the appellants’ arguments infringed on the Environment Court’s fact-finding role. The Court found that the Environment Court had not committed an error of law and dismissed the appeal. The Court also found that the Council was entitled to an award of costs.

Orders