Ennor v Auckland Council - [2018] NZHC 2598

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-404 [2018] NZHC 2598

BETWEEN
BRENDA MARIE ENNOR

Applicant

AND

AUCKLAND COUNCIL First Respondent

JOHN FREDERICK PARKER and ERIN PATRICIA PARKER

Second Respondents

Hearing: 10 August 2018

Counsel:

A Webb for Applicant
S Quinn and B Ford for First Respondent
R E Bartlett QC for Second Respondents

Judgment:

8 October 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 8 October 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Ellis Gould, Auckland DLA Piper, Auckland Knight Coldicutt, Auckland

ENNOR v AUCKLAND COUNCIL [2018] NZHC 2598 [8 October 2018]

[1] Ms Ennor applies for judicial review of a Council decision to grant her neighbours’ resource consent to extend the rear of their house and install a pool.
Ms Ennor says, in short, that the Council has failed to have regard to effects on her, in breach of their duty to do so, and as required by the relevant planning instruments applicable at the time.

Background

[2] The background is largely agreed.

[3] Ms Ennor has lived at 12 Galatea Terrace for over 30 years. Mr and Mrs Parker purchased 14 Galatea Terrace in 2016. They are neighbours. On 14 October 2016, the Parkers applied to the Council for land use consent for house alterations and to construct a new pool in the front yard of their home (the Application). The Application was supported by a report prepared by a planning and resource management firm, which included a description of the activities, an assessment of environmental effects and a review of the relevant planning provisions. The alterations included an extension to the house to provide a new dining room (of 20.7 m2), installation of a timber deck, extension of the existing garage (of 5.85 m2), hard and soft landscaping, a new timber retaining wall surrounding the western yard (of less than one metre in height) and a swimming pool.

[4] At the time of the Application, both the Auckland District Plan (Isthmus Section 1999) (Legacy Plan) and the Proposed Auckland Unitary Plan (PAUP) had legal effect. Under the Legacy Plan the activities required resource consent as a discretionary activity. Under the PAUP the activities required a restricted discretionary activity consent. The Council bundled the activities as requiring a consent for a discretionary activity.

[5] In response to the Application, the Council prepared a report for a discretionary resource consent application under the Resource Management Act 1991 (the Act). The report recommended non-notification and determined that the Application should be granted, subject to conditions. More specifically, the non-notification assessment found that:

(a)The works will have less than minor adverse effects on the environment;

(b) There were no special circumstances warranting public notification;

(c)There were no persons affected by the applications in accordance with s 95E of the Act, so no limited notification was required; and

(d)There were no grounds for the Council…

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: [2018] NZHC 2598
Decision Date: 8 October 2018

CaseChat Overview and Summary

Brenda Marie Ennor applied for judicial review of a decision by the Auckland Council to grant her neighbours’ resource consent to extend the rear of their house and install a pool. Ennor claimed that the Council failed to have regard to effects on her, in breach of their duty to do so, and as required by the relevant planning instruments applicable at the time. The High Court found that the Council’s decisions to grant consent were not exemplary, but the Court was satisfied the Council properly considered the effects of the proposed development on Ennor having regard to the salient objectives and policies. The merits of the Council’s assessment were not otherwise amenable to review. The Court declined the application and invited submissions on costs.

Orders