Banora v Auckland Council - [2017] NZHC 1705

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-003203 [2017] NZHC 1705

IN THE MATTER
of an appeal under section 299 of the

Resource Management Act 1991

BETWEEN

ALEXANDER BANORA EMANUELLA BANORA

Appellants

AND

AUCKLAND COUNCIL

Respondent

Hearing: 24 April 2017

Counsel:

N W Woods for appellants
S F Quinn for respondent

Judgment:

21 July 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 21 July 2017 at 3.30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Rice Craig, Auckland
DLA Piper, Auckland

ALEXANDER BANORA EMANUELLA BANORA v AUCKLAND COUNCIL [2017] NZHC 1705 [21 July
2017]

Introduction

[1] In a decision dated 9 December 2016, the Environment Court found that the appellants, Mr and Mrs Banora, had undertaken major earthworks on their property in Avondale without resource consent, in contravention of both the operative Auckland District Plan and the proposed Auckland Unitary Plan.1 Various enforcement orders were made in respect of the breaches, including orders aimed at stabilising and remediating the land.

[2] Mr and Mrs Banora have appealed the Environment Court’s decision. Pursuant to s 299 of the Resource Management Act 1991 (“RMA”) any appeal must be limited to questions of law. The three questions of law set out in Mr and Mrs Banora’s notice of appeal are:

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

(b)Did the Environment Court erroneously confine the issues before it and therefore the evidence that 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] An appeal will generally proceed on the evidence that was before the decision-maker at the time of their decision. Mr and Mrs Banora, however, seek leave to adduce the affidavit of a civil engineer, Samuel Warwick Marshall, as fresh evidence on appeal. A number of requirements must be met before new evidence will be allowed in an appeal. The Council says that those requirements are not met
in this case.

1 Auckland Council v Banora [2016] NZEnvC 246 [Environment Court Decision].

Fresh evidence on appeal - legal principles

[4] Section 299(2) of the RMA requires that this appeal proceed in accordance with the High Court Rules 2016 (“HCR”). The parties are not entitled, as a matter of course, to attempt to bolster their case by filing new evidence in support of an appeal. Consistent with this longstanding principle, r 20.16 provides that further evidence may be adduced only with the leave of the court. The court, in its discretion, may grant leave only if there are special reasons for hearing the
evidence.2

[5] In exercising its discretion, the court will generally have regard to the following factors:

(a) Whether the evidence could have been obtained with reasonable

diligence for use at the trial (in other words, whether it is “fresh”).

(b)Whether the evidence is material (in other words,…

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 1705
Decision Date: 21 July 2017

CaseChat Overview and Summary

In Banora v Auckland Council, the appellants, Mr and Mrs Banora, challenged the Environment Court’s decision that they had conducted major earthworks on their property without the necessary resource consent, in breach of both the Auckland District Plan and the proposed Auckland Unitary Plan. The Environment Court had ordered various enforcement measures aimed at stabilising and remediating the land. The Banoras appealed to the High Court, raising three questions of law. The central issue before the court was whether the Banoras could introduce new evidence in the form of an affidavit from a civil engineer, Samuel Warwick Marshall, to support their appeal.

The court considered the legal principles governing the admission of fresh evidence in appeals. Under the Resource Management Act 1991, the High Court may grant leave to adduce fresh evidence only if there are special reasons to do so. The court would consider whether the evidence could have been obtained with reasonable diligence, whether it was material, and whether admitting it would require further evidence from other parties and cross-examination. The court also noted that Parliament intended the Environment Court to be the final adjudicator on matters of fact, and appeals were to be limited to questions of law.

The court examined whether Mr Marshall’s affidavit was relevant to the three questions of law raised by the Banoras. The first question concerned whether the Environment Court hearing was conducted fairly and in accordance with natural justice. The affidavit did not provide any material information relevant to this issue. The second question was whether the Environment Court had erroneously confined the issues before it, excluding relevant evidence. Again, Mr Marshall’s affidavit did not assist in determining this question. The third question was whether the Environment Court had considered irrelevant evidence or placed weight on evidence that was plainly wrong. Mr Marshall’s affidavit did not address this question either.

The court concluded that Mr Marshall’s affidavit was not relevant to any of the three questions of law on appeal. There were no special reasons to admit the fresh evidence. The application to introduce Mr Marshall’s affidavit was dismissed, and the Auckland Council was awarded costs on a 2B basis as the successful party.

Orders