Daisley v Whangarei District Council - [2022] NZHC 1372

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2015-488-109

[2022] NZHC 1372

BETWEEN
MALCOLM JAMES DAISLEY

Plaintiff

AND

WHANGAREI DISTRICT COUNCIL

Defendant

Hearing:
2-6 August, 9-13 August, 16-17 August, 1 December and

15 December 2021

Counsel:

J A Farmer QC and E L Smith for plaintiff

P A Robertson and S M Mautner for defendant

Judgment:

10 June 2022

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 10 June 2022 at 3.30pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Tailored Legal Solutions Ltd, Dargaville for plaintiff Heaney & Partners, Auckland for defendant

DAISLEY v WHANGĀREI DISTRICT COUNCIL [2022] NZHC 1372 [10 June 2022]

INTRODUCTION
Mr Daisley buys a quarry  [1]
The Council acts to stop the quarrying  [4]
The Council insists the quarrying activity is unconsented  [6]
Ms Currie inspects the Council’s files – a 1988 land use consent is found  [9] Mr Daisley sells the quarry – the Council grants Ark a variation to the 1988 LUC  [12] Mr Daisley sues the Council  [13]
The Council denies Mr Daisley’s claims  [17]
The claim against Mr Daisley’s former lawyer  [18] SUMMARY OF FINDINGS  [21]
THE FACTS  [30]
Mr Daisley’s contracting experience and plans  [31]
Vertical integration of quarrying with the contracting business  [34]
Buying the Knight Road property  [37]
The Council issues a LIM saying no resource consent had been found  [42]
Mr Daisley starts removing the stockpile – the Council says, “Stop!”  [44]
The Council issues further abatement and infringement notices  [51]
The March 2006 resource consent application  [61]
The mineral rating issue  [64]
The Council requires Mr Daisley to notify the application  [70]
The evidence in support of the application  [72]
The Council opposes the resource consent application  [76]
The resource consent application is refused  [79] The significance of the Council’s repeated denials that a consent existed  [83] The terms of the 1988 land use consent  [86]
The Ark existing use and resource consent applications in 2011  [90] The Council grants Ark’s application for a varied 1988 LUC  [96] The counterfactual  [98]

The 1988 LUC was not unconstrained [98]

But the Council would probably have granted Mr Daisley an amended consent                [101] The Council continues its attempts to prevent quarrying by Mr Daisley  [102] The Council applies for an enforcement order under the RMA  [107]
The enforcement proceedings in the Environment Court  [110] THE PLEADINGS  [114]
Three causes of action are pleaded  [115]
The alleged statutory duties  [117]
First cause of action – breach of statutory duty by carelessness  [120]
Second cause of action – common law negligence  [123] The Council’s pleaded response to the first and second causes of action  [126]
THE CLAIMS IN NEGLIGENCE

The elements of a negligence claim [133]

Enforcement of a statutory duty by a private law claim for damages [134]

The general principles [136]

Breach of statutory duty by carelessness [137]

A common law duty of care informed by the statutory duties [142]

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: [2022] NZHC 1372
Decision Date: 10 June 2022

CaseChat Overview and Summary

The case of Daisley v Whangarei District Council involved a protracted legal dispute between Mr Daisley, who purchased a quarry, and the Council, which sought to stop his quarrying activities. The Council argued that Mr Daisley's operations were unconsented, while Mr Daisley claimed that the Council was negligent and acted in bad faith by denying the existence of a valid land use consent (LUC) granted in 1988. The court found the Council liable in negligence for breaching its common law duties of care to Mr Daisley, awarding him damages for loss of profits, loss of value of the quarry property, and direct costs incurred due to the Council's negligence. The court also held that the Council was guilty of misfeasance in public office and ordered the payment of exemplary damages of $50,000. The court dismissed the Council's defence that the proceeding was commenced out of time, finding that the cause of action accrued continuously from September 2006 until September 2009.

In summary, the court found in favour of Mr Daisley, awarding him damages for losses resulting from the Council's negligence and misfeasance in public office. The court also dismissed the Council's defence of limitation, finding that the proceeding was not barred by the Limitation Act 1950. The court reserved the issue of costs for further consideration.

Orders