Colley v Auckland Council - [2021] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002525

[2021] NZHC 2365

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 2365 [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 2365
Decision Date: 10 September 2021

CaseChat Overview and Summary

The applicants, Gabrielle Colley and Philip Bendall, sought judicial review of six decisions made by the Auckland Council in respect of the Woodhill Sands Equestrian Centre. The Council had issued a notification decision and a substantive resource consent decision in 2008 and again in 2016, as well as a notification decision in 2020. It had also decided to refer an application by the current owner of the equestrian centre to the Environment Court. The applicants argued that the 2008 notification decision and the 2008 consent were unlawful because the Council had failed to properly consider the written approvals given by the neighbours. They argued that the 2016 notification decision and the 2016 consent were similarly flawed. They further argued that the 2020 notification decision was tainted because the Council relied on the earlier consents. They also argued that the referral decision was unreasonable and substantively unfair. The Council admitted that it had made errors but argued that it was not appropriate to set aside the decisions given the delay in bringing proceedings and the position of the current owner of the equestrian centre. The current owner argued that it was an innocent party that had relied on the Council’s advice and that quashing the consents would be disproportionate. The Court found that the 2008 notification decision and the 2008 consent were flawed because the Council had not properly considered the written approvals. It found however that the 2016 notification decision and the 2016 consent were not flawed because the Council had been entitled to treat the 2008 consent as valid and as part of the receiving environment. It found that the 2020 notification decision was not flawed because the Council had been entitled to treat the 2008 and 2016 consents as valid and as part of the receiving environment. It found that the referral decision was reasonable. The Court declined to grant relief to the applicants because of the considerable delay in bringing proceedings, the alteration of position by the current owner of the equestrian centre, and the fact that the current owner was now seeking to regularise the position. The Court ordered that the Council and the current owner of the equestrian centre were entitled to their reasonable costs and disbursements.

Orders