Colley v Auckland Council - [2021] NZHC 2366

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002525

[2021] NZHC 2366

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review of

decisions of Auckland Council pursuant to the Resource Management Act 1991

BETWEEN

GABRIELLE LOUISE COLLEY and PHILIP MARK BENDALL

Applicants

AND

AUCKLAND COUNCIL

First Respondent

WST COMPANY (2016) LIMITED

Second Respondent

Hearing: 15 July 2021

Appearances:

M E Casey QC and B J Tree for Applicants M Allan and M S Jones for First Respondent

B S Carruthers and K R M Littlejohn for Second Respondent

Judgment:

10 September 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 10 September 2021 at 1.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/council:
MinterEllisonRuddWatts/M E Casey QC, Auckland Brookfields, Auckland
B S Carruthers, Auckland
K R M Littlejohn, Auckland

COLLEY v AUCKLAND COUNCIL [2021] NZHC 2366 [10 September 2021]

Introduction

[1] The applicants, Gabrielle Colley and Philip Bendall, seek judicial review in respect of six decisions made by the first respondent, Auckland Council (“the Council”) relating to the Woodhill Sands Equestrian Centre situated in James Mackie Road, Wharepapa (the “equestrian centre”).

[2] The equestrian centre was established in 2005 after a resource consent was granted by the Rodney District Council. The activities undertaken at the equestrian centre have expanded considerably over the years. This expansion is the underlying reason why the present proceedings have been filed.

[3] Each of the impugned decisions was made by the Council (or its predecessor, the Rodney District Council1) under the Resource Management Act 1991 (“the Act”). The details are as follows:

(a)a notification decision (the “2008 notification decision”) and a substantive resource consent decision (the “2008 consent”) issued in 2008 pursuant to an application made by the then-owner of the equestrian centre, the JEM Family Trust. The 2008 consent permitted the further development of the equestrian centre;

(b)a notification decision (the “2016 notification decision”) and a substantive resource consent decision (the “2016 consent”) issued in 2016, again following application by the JEM Family Trust, and again permitting an increase in the activities carried out at the equestrian centre;

(c)a notification decision (the “2020 notification decision”) issued in 2020 in respect of an application to consolidate and further increase the activities at the equestrian centre by the second respondent, WST

1 The Rodney District Council was dissolved as from 1 November 2010 pursuant to the Local Government (Tamaki Makaurau Reorganisation) Amendment Act 2010, s 35. It became part of Auckland Council and anything that it had done or omitted to do falls to be treated as if it had been done or omitted to be done by Auckland Council.

Company (2016) Ltd and the Woodhill Sands Trust Inc (jointly “WST”); and

(d)a decision (the “referral decision”) issued in 2020 at WST’s request referring WST’s application to the Environment Court for determination.

Factual background

[4] James Mackie Road is…

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: [2021] NZHC 2366
Decision Date: 10 September 2021

CaseChat Overview and Summary

The applicants, Gabrielle Colley and Philip Bendall, sought judicial review of decisions made by Auckland Council relating to the Woodhill Sands Equestrian Centre situated in Wharepapa. The applicants asserted that the Council had failed to properly consider the written approvals provided by neighbouring properties and that as a result the Council had made a number of decisions which were unlawful and/or irrational. The applicants sought to set aside six decisions made by the Council. They were the 2008 notification decision and the 2008 consent, the 2016 notification decision and the 2016 consent, the 2020 notification decision and the referral decision. The Council and WST, the current owner of the equestrian centre, opposed the claims. The court found that the Council had erred in its approach to the 2008 notification decision and the 2008 consent. The court found that the Council had failed to properly consider the written approvals provided by the neighbours. The court found that the Council had not erred in its approach to the 2016 notification decision and the 2016 consent, or the 2020 notification decision. The court found that the referral decision was reasonable and that there was no substantive unfairness in it. The court declined to grant relief to the applicants on the basis that the delay in bringing the claim, the alteration of position by WST and the efforts by WST to regularise the position outweighed the gravity of the error. The court awarded costs to the respondents.

Orders