Clode v Auckland Council

[2012] NZHC 2561

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5381 [2012] NZHC 2561

IN THE MATTER OF     the Judicature Amendment Act 1972 and the Resource Management Act 1991

BETWEEN  BRENT DOUGLAS CLODE Applicant

ANDAUCKLAND COUNCIL First Defendant

ANDSTUDIO INVESTMENTS (NZ) LIMITED Second Defendant

Hearing:         2 October 2012

Appearances: B D Clode Applicant in Person

P H Mulligan and L A Walker for First Respondent
J P Nolen for Second Respondent

Judgment:      3 October 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on  at 3:30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:
Buddle Findlay:  [email protected] / [email protected]

Lowndes Associates:  [email protected]

Copy for:

B D Clode:  [email protected]

CLODE V AUCKLAND COUNCIL HC AK CIV-2012-404-5381 [3 October 2012]

[1]      The Applicant (“Mr Clode”) has made an application to the Court for review of a decision by the First Respondent (“Council”) in October 2011 to grant resource consent (“consent”) to the Second Respondent (“Studio”).  The consent allows the subdivision of land situated in Birkenhead, Auckland (“site”).  The application for review is to be heard on 11 February 2013.

[2]      Pending determination of the application, Mr Clode seeks interim relief:

(a)      restraining the Council from issuing a certificate in respect of the consent, pursuant to s 224(c) Resource Management Act 1991 (“RMA”); and

(b)restraining Studio from utilising any such certificate to obtain new titles or from presenting the certificate to the Registrar-General of Land.

[3]      The Council has already issued the said certificate.   However, Studio has given an undertaking to refrain from using or lodging the certificate as referred to in [2](b) above, pending further order.

Background

[4]      Studio is the registered proprietor of the site.   It acquired the site in 2011, from a company acting as trustee of a trust associated with Mr Clode or his interests.

[5]      The evidence of Andrew Grant Bennison, a director of Studio, is that from the outset Studio intended to make an application for resource consent to subdivide the  site.    Mr  Bennison’s  evidence  is  that,  during  the  course  of  negotiations  to purchase the site, Mr Clode advised Mr Bennison that there were three residential dwellings on the site and that, because of this, an application for resource consent to subdivide the site into three lots had prospects of success.  The prospect of such a subdivision was attractive to Studio.

[6]      Studio entered into discussions with representatives of the Council regarding an application for resource consent to subdivide.   It is common ground that the Council expressed reservations about whether an application to subdivide into three lots would succeed.  Given that, in September 2011 Studio made an application for resource consent to subdivide the site into two lots, that is proposed lot 1 and lot 2.

[7]      The application was non-complying because the proposed lot 2 did not meet the Council’s minimum street frontage requirements of 24 m.   The total street frontage of the undivided site is 36 m.   The proposed lot 1 would meet that requirement but the proposed lot 2 would not, as its street frontage was to be 12 m.

[8]      The Council did, however, grant consent to the application on 26 October

2011.   In an affidavit sworn on 24 September 2012, Jonathan David Benefield, a senior subdivisions officer with the Council, states that the Council was satisfied that the  creation  of  separate  titles  would  not  create  any  adverse  effects  on  the environment that were more than minor and that no other party would be adversely affected by the grant of consent.  In reaching that conclusion, the Council proceeded on the basis that a dwelling had already been established lawfully on the proposed lot 2, so that granting consent would not inevitably lead to new development on that part of the site.

Serious question to be tried

[9]      Mr Clode submits that there is a serious question to be tried.  His case is that the Council erred in several respects in granting the consent.

[10]     At the hearing before me, Mr Clode sought leave to file and rely upon an amended application for interim relief dated 1 October 2012 and to rely on evidence contained in a third affidavit he swore on 27 September 2012.   The Respondents objected  to  the  introduction  of  these  documents  on  the  basis  that  they  had insufficient notice of the new grounds alleged in the amended application and the new evidence.

[11]     Accordingly, I declined Mr Clode leave to rely on the amended application and the new evidence.  That said, I record that the Respondents have no objection to Mr Clode relying on the evidence at trial.

[12]     In his (first) application for interim relief, Mr Clode relied upon one error he contended that the Council had made, namely the Council’s decision to proceed on the basis that a dwelling had already been established lawfully on the proposed lot 2 part of the site.  Mr Clode submits that the Council had insufficient evidence before it as to the said dwelling and that it erred in proceeding as it did.

[13]     The Council denies that there was any error in its processes and, in any event, denies that such an error would be susceptible to review.   For the reasons given below,  I take  the  view  that  the  balance  of  convenience  is  clearly in  favour  of declining this application.  Accordingly, for the sake of argument, I am willing to proceed on the basis that there is a serious question to be tried on the issue raised by Mr Clode.

Balance of convenience

[14]   Several matters are relevant to an assessment of where the balance of convenience lies.

[15]     I start first with Mr Clode.  In substance Mr Clode was the vendor of the site. As I have said, it is common ground that there were discussions between Studio and Mr Clode as to an application for consent to subdivide into three lots, with Mr Clode expressing interest in acquiring from Studio what would have been the proposed lot

3 of any such subdivision.  That lot 3 would have had a 12 m street frontage and have been situated on the eastern boundary of the site.  Accordingly, it is similar if not identical to the proposed lot 2.  Mr Clode’s contention appears to be that Studio was obliged to make the application for subdivision into 3 lots.  Studio denies any such obligation.   I propose to proceed on the basis that Mr Clode has no ongoing financial or other interest in this site.

[16]     In any event, I accept Studio’s submission that Mr Clode’s complaint that the Council should not have granted consent for two lots cannot be reconciled with his contention that Studio was bound to seek a subdivision into three lots.  None of the proposed  three  lots  would  have  complied  with  the  relevant  planning  controls. Consent to such an application would have been more difficult than one for two lots.

[17]     The Council would not suffer any particular inconvenience if I were to grant interim relief.  However Studio would be greatly inconvenienced.

[18]     Studio’s case is that Mr Clode has made this application not because he has a financial or personal interest in the site or because he is a concerned member of the public.  Studio submits that Mr Clode has brought the application to bring pressure to bear on Studio.

[19]     I said above that, on the face of it, the proposed lot 2 is the same in all material respects to the lot that Mr Clode and Studio considered would be lot 3 in a subdivision into three lots.

[20]     Mr Bennison’s evidence is that Studio has made it clear to Mr Clode since

24 December 2011 that it wishes to sell the proposed lot 2 and that Studio has offered to sell it to Mr Clode.    Mr Bennison’s evidence is that the only response there has been from Mr Clode is an offer to purchase at a price well below the price that Studio seeks.

[21]     In addition, Mr Bennison’s evidence is that, since the sale, Mr Clode and his family have  been  living  in  one  of  the  buildings  on  the  site  and  that  he  asked Mr Clode  to  vacate  when  it  became  apparent  that  Mr Clode  was  not  going  to purchase the land that  is now proposed  lot 2.    Mr Bennison’s  evidence is that Mr Clode and his family have refused to vacate and there are ongoing Tenancy Tribunal proceedings to have them evicted.

[22]     The Respondents also submit that Mr Clode has delayed unduly in making this application.   Mr Clode acknowledges that he was informed on 24 December

2011 that consent had been granted but he did not commence his proceedings until

September 2012.  Mr Clode’s explanation to me for his delay in commencing this proceeding was that he and Mr Bennison “were getting on quite well” at the time, that is December 2011, so he saw no need to make the application.  That response lends weight to Studio’s allegation that Mr Clode has brought this proceeding to bring pressure to bear on Studio.

[23]     Fourthly,  Studio  has  had  consent  to  subdivide  for  almost  a  year.    I  am satisfied from Mr Bennison’s evidence that Studio must complete the subdivision forthwith, so that it may sell either or both lots.

[24]     There  is  also  the  issue  of  Mr  Clode’s  undertaking  in  damages.    The Respondents express doubts as to Mr Clode’s ability to meet any award against him. Mr Clode was discharged from bankruptcy earlier this year and there is no evidence concerning his ability to meet any award of damages that the Court might make against him.

[25]     Taking all of those matters into account, the balance of convenience lies in declining this application.  I decline this application for interim relief accordingly.

[26]     I make no order for costs in favour of the Council, as it is possible there is possibly a serious issue to be tried.   I do, however, award costs to Studio against Mr Clode on a 2B basis.

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M Peters J