Graham v Auckland Council

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-007908 [2013] NZHC 833

BETWEEN  BRUCE PETER GRAHAM AND LEANNE GRAHAM

Plaintiffs

ANDAUCKLAND COUNCIL Defendant

Hearing:         23 and 25 October 2012

Appearances: J Graham for Plaintiffs

M J L Dickey and D A Riley for Defendant
M C Black for Derek and Elaine Shortt

Judgment:      19 April 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 19 April 2013 at 4:30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

Solicitors:           Ferguson Tuilotolava, Friendship Chambers, P O Box 76616, Manukau2241

Fax: [phone] – J Graham – Email: [e-mail]

Brookfields, P O Box 240, Auckland 1140

Fax: [phone] – M Dickey / D Riley – Email: [e-mail]

Counsel:             M C Black, PO Box 1984, Auckland 1140

Fax: [phone] – Email: [e-mail]

GRAHAM V AUCKLAND COUNCIL HC AK CIV-2011-404-007908 [19 April 2013]

[1]      The plaintiffs (the Grahams) are the owners of a property located at 78 The Parade, Bucklands Beach, Auckland. They seek judicial review of various decisions, actions  or  omissions  by  the Auckland  Council  (the  Council)  in  relation  to  the development of the next door property (79 The Parade).  Essentially the development involved  demolition  of the existing dwelling,  building two  new houses  and  the subsequent subdivision of the property into two Lots.

Background

[2]      In December 2003, 79 The Parade was sold at auction to Derek and Elaine

Shortt.  Settlement occurred on 26 February 2004.

[3]      In February 2005 the Shortts lodged an application for “integrated” resource consent with what was then the Manukau City Council.  The consent sought related to both the proposed development and subdivision of 79 The Parade.   More specifically, the nature of the proposed development meant that consent was required for:

(a)       The construction of two dwellings on the site; (b)       A two Lot fee simple subdivision;

(c)       Earthworks of more than 200 cubic metres;

(d)      Exceeding the site coverage rules in the District Plan; and

(e)       Building a retaining wall (with surcharge) on the boundary.

[4]      A number of plans, drawings and photos were included with the application, as was a file note made by Mr Shortt of a discussion he had had with his neighbours, the Grahams, in February 2005.  The file note records the matter of site coverage infringement was discussed and, on the basis of Mr Shortt’s advice that the site coverage on Lot 1 would exceed the maximum specified in the District Plan by approximately 1.78% (or 0.96% if calculated by reference to the site overall), that

Mr Graham had advised that he could not see any reason why consent should not be granted.

[5]      The Grahams dispute the correctness of the advice that was given to them at this time by Mr Shortt and say that other relevant matters were also omitted by him. It can be noted, however, that the Council did not process the application on the basis that the Grahams had consented to the proposal, but…