Collins v Whangarei District Council

[2013] NZHC 1595

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2012-488-834 [2013] NZHC 1595

BETWEEN  MICHAEL COLLINS and ROBERTA COLLINS

First Applicants

PETER WILLIAM RICHARDS Second Applicant

NEVILLE COLIN THORNE Third Applicant

MARK CAMERON GURR and HEATHER ANGELA GURR Fourth Applicants

ANDNORTHLAND REGIONAL COUNCIL First Respondent

ANDWHANGAREI DISTRICT COUNCIL Second Respondent

Hearing:                   (on the papers)

Counsel:                  S M O'Sullivan for Applicants

M Casey QC for First Respondent
G Mathias for Second Respondent

Judgment:                28 June 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 28 June 2013 at 11.00am pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

COLLINS v NORTHLAND REGIONAL COUNCIL [2013] NZHC 1595 [28 June 2013]

[1]      In this proceeding, a number of farmers challenge, by way of judicial review, decisions  made  by  the  Northland  Regional  Council  and  the Whangarei  District Council under the Resource Management Act 1991.  The challenge is to decisions made by each Council not to notify publicly applications for resource consents in respect of the Hikurangi Swamp Flood Control Scheme.

[2]      The  grounds  on  which  judicial  review  is  sought  involve  the  lack  of information  to  make  an  informed  decision  on  whether  to  notify,  and  failure  to comply with ss 95A–95E of the Act.  The decision is also challenged on the ground that it went beyond the scope of the original application for consent.

[3]      Those grounds are relatively narrow.   Determination of the application for judicial review will require an understanding of the context in which the relevant applications for resource consent came to be made and the approach that should have been taken by the Councils to comply with the statutory requirements.

[4]      Through the case management processes, I have made a number of directions in relation to discovery and the exchange of evidence.   The most recent, 11 June

2013, required the applicants to file and serve reply evidence on or before 8 July

2013.  That evidence was to be strictly in reply, on issues relevant to the application for judicial review, and in response to evidence filed and served by the Councils on or before 10 June 2013.

[5]      Mr O’Sullivan, for the Applicants, seeks an extension of time to file and serve reply evidence.  An extension is sought until 29 July 2013.   Mr O’Sullivan submits that there are aspects of the Councils’ evidence that requires briefing of other witnesses, the majority of whom are farmers.  Nothing has been put forward to suggest precisely what evidence could be given by those proposed witnesses that would both be strictly in reply and relevant to the grounds on which judicial review is sought.

[6]      I agree with concerns expressed by Mr Casey QC, for Northland Regional Council, that the Applicants appear to be approaching the proceeding on the basis of a merits review of the Councils’ decisions, rather than a more narrow challenge to

the decision not to notify.  As is often said, this is a judicial review proceeding, not a substantive appeal.

[7]      I am far from persuaded that an extension of time is required to file and serve affidavits in reply.  The timetable previously established allowed almost one month for that to be done. The application to extend time is refused.

[8]      In the event that the Applicants consider they have not been able to provide all relevant evidence within that time, a formal application should be filed on or before 8 July 2013 for an extension of time to file and serve additional evidence. Such  an  application  would  need  to  be  supported  by  evidence  from  a  solicitor engaged in the proceeding who could identify, on a “will say” basis the type of evidence that the Applicants have not been able to adduce and the reasons why it is relevant and could not be gathered within the time available.

[9]      The next event remains a case management conference on 8 July 2013.  That will be held by telephone.  Memoranda for that conference shall address any formal application made to extend time further.

[10]     Costs reserved.

Delivered at 11.00am on 28 June 2013

Solicitors:

DLA Phillips Fox, Wellington

Hornabrook MacDonald Lawyers, Auckland

Thomson Wilson, Whangarei
Counsel:

M Casey QC, Auckland

P R Heath J