Flynn v South Wairarapa District Council

[2016] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV 2016-435-01 [2016] NZHC 1670

IN THE MATTER

of an application for judicial review

UNDER

the Judicature Amendment Act 1972

BETWEEN

S J A FLYNN Plaintiff

AND

SOUTH WAIRARAPA DISTRICT COUNCIL

First Defendant

AND

WHOLESALE DISTRIBUTORS LTD Second Defendant

Hearing:	20 July 2016
Counsel:	P A Morten for Plaintiff P J Milne for First Defendant B Carruthers for Second Defendant (attendance excused)
Judgment:	21 July 2016

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      These are judicial review proceedings challenging the issue of consents.  By the time of today’s hearing the consents had been surrendered.   The plaintiff nevertheless urges the Court to issue declarations affirming the soundness of its case.

History of proceedings

[2]      Wholesale Distributors Ltd sought consents to remove a building and erect a sign.  The consents were granted on a non-notified basis.  The plaintiff, Mr Flynn,

lives on the opposite side of the road from the land in question.  He brought these

FLYNN v SOUTH WAIRARAPA DISTRICT COUNCIL [2016] NZHC 1670 [21 July 2016]

proceedings challenging the Council’s decisions not to notify and to issue consent for signage.

[3]      The two defendants filed statements of defence and a timetable was agreed heading towards an August fixture.   The plaintiff’s evidence was filed, including opinion  evidence  from  a  planning  expert.    The  defendants’  evidence  was  due

3 June 2016.   On that date, the defendants filed a joint memorandum indicating evidence would not be filed.  The Court was advised that Wholesale Distributors had decided  not  to  proceed  with  its  plans  as  consented.    It  was  seeking  to  reach agreement  with  the  plaintiff.     Wholesale  Distributors  further  advised  that  if agreement was not reached by 15 July 2016, it would surrender its consents and reassess its position concerning the development and any renewed application.

[4]      The defendants therefore advised that they would not be defending the claim nor filing evidence. The Court was asked to vacate the August fixture, and did so.

[5]      On 4 July 2016 the plaintiff sought a two hour fixture to prove its case by way of formal proof. This was allocated for today.

[6]      On 15 July 2016 the defendants advised the Court settlement had not been reached and that the resource consents had been surrendered.   The memorandum detailed the history of negotiations by way of explanation for why the consents were only surrendered on 15 July 2016.  The defendants submitted that the formal proof hearing should not proceed.  The plaintiff responded claiming it was entitled to its hearing.

[7]      In the interim there were efforts made by the Council to see if agreed wording of declarations could be achieved in order to obviate the need for today’s hearing.  I will return to these proposals.

Plaintiff ’s submissions

[8]      The plaintiff submits that notwithstanding the cancellation of the consents, the Court should issue declarations about the process.  The position taken is that the plaintiff filed its evidence and the defendants have chosen not to challenge it, even

though maintaining their defence.  Mr Morten submits he should therefore have the opportunity  to  take  the  Court  through  the  unchallenged  evidence  and  thereby establish the correctness of the plaintiff’s position.

[9]      He accepts that the Court would then have a discretion whether to grant relief, but notes that the discretion to decline relief is “very narrow”1 and should only be  exercised  sparingly.    Here  there  would  be  utility  both  because  the  second defendant has kept open its options to apply again, and the community will benefit from a considered judgment on the correct process.

[10]     Mr Morten further submitted that the first defendants concern about the long term consequences of a judgment given after uncontested formal proof should not be accepted.    Otherwise  the  defendant  would  be  getting  an  unfair  advantage  by choosing not to defend but nevertheless preventing the plaintiff from obtaining the relief sought even though a factual basis is established.

Decision

[11]     In the circumstances of this case, declarations consequent upon formal proof would not be appropriate.  Accordingly, having heard from Mr Morten on this issue, I concluded the hearing without allowing any consideration of the evidence.

[12]     The starting point must be that the consents have been surrendered.   The development will not proceed and would need a fresh application and consent to do so in the future.  The impugned decisions (not to notify and to allow signage) are therefore spent.  The purpose of any declaration would be solely to say they were incorrectly made.  Whilst sometimes there may be utility in that, this is not such a case.

[13]     The challenged decisions are made against a specific factual context which is established by the particular terms of an application.  There is no certainty here that the second defendant will apply again, and if it does, what it will seek is not known.

So the correctness of the previous decision does not inform any new application, if

1      Air New Zealand v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60].

there is one, unless it is materially the same.  That situation is too hypothetical to merit declarations.

[14]     I also consider a formal proof procedure is not appropriate.  The Council has not withdrawn its defence, and maintains its decisions were correct and reflect a proper interpretation of its Plan.  A Court should be hesitant to reach decisions that may impact on the interpretation of the Plan without proper contested argument.  Of course that proposition immediately invites the observation that it is a situation of the Council’s own making since it has chosen not to advance its defence or file evidence. There is a legitimate argument to say the Court should not be concerned about the implications of its decision on the Plan if the Council isn’t.

[15]     The circumstances here, however, are somewhat unusual and I consider the Council is acting responsibly.  The consents are surrendered and its decisions spent. It is difficult to justify the expenditure of public money on arguing a matter which can have very little wider utility given the fact specific nature of these decisions.

[16]     The reality is that the formal proof procedure is inapt for these circumstances. It is an issue that does not normally arise because either the decision is defended, or the Council accepts it erred.  Here neither is the case because unusually the consent holder has surrendered  the consents, thereby rendering the matter moot.   If the consents were still operative the Council could not and would not act as it is.

[17]     Looking at the matter from a public interest and proper process viewpoint, it is not appropriate for the Court to be in a situation of issuing declarations of potentially wider impact in the absence of proper argument. The risks are obvious.

[18]     The  possibility  arose  prior  to  the  hearing  of  consent  declarations,  as suggested by the Council.  It is plain the Council was seeking to protect its future position and avoid potential impacts on the interpretation of its Plan by suggesting some very context specific declarations that would have no relevance beyond the specific facts. The plaintiff resisted the specific context.

[19]     For the reasons articulated above I also consider a court must be wary of consent declarations without hearing argument unless it is plain they can only affect the specific case.   Otherwise, the court is agreeing with the parties about matters such as interpretation without forming its own view.  Again the risks are obvious. The reality here is the Council does not agree its decisions were incorrect, and consent declarations would be misleading.

[20]     For these reasons given, the plaintiff’s applications for relief are dismissed.

Costs

[21]     Notwithstanding  this  outcome,  the  plaintiff  is  entitled  to  costs.    For  the benefit of the parties I indicated a starting point against which submissions for a different outcome can be filed.  The starting point is the plaintiff is entitled to one set of 2B costs up to 15 July (the surrender notification) but including a modest amount for receiving the 15 July memorandum and assessing its implications.   Thereafter costs would lie where they fall.

[22]     The plaintiff is entitled to his reasonable disbursements including the full (reasonable) costs of its planning expert.   The plaintiff will need to address submissions on the point if it seeks to recover, by way of disbursement, payment for Mr Flynn’s time.

[23]     The plaintiff has two weeks to file its costs memorandum, and the defendants have two weeks to reply.

Simon France J