Graham v Auckland Council

[2013] NZHC 833

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: [email protected]

Brookfields, P O Box 240, Auckland 1140

Fax: [phone] – M Dickey / D Riley – Email: [email protected]

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

Fax: [phone] – Email: [email protected]

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 rather on the basis that notification of the application was not necessary for other reasons.1     That determination was made on 11 May 2005 and the Shortts’ application for resource consent was granted on the same day.

[6]      On 4 October 2005 the Shortts’ engineers sent a letter to all the Shortts’ neighbours (including the Grahams) advising that resource consent had been granted, describing the proposed works in detail and confirming the relevant timeframes. The letter had attached to it the engineer’s site plan which showed the cut and fill that was proposed in the patio area on the northern boundary of Lot 1, (that being the Grahams’ southern boundary).

[7]      In January 2006 building consent documentation relating to the house that is now on Lot 1 (Lot 1 being the upper site, closest to the Grahams’ house) was lodged with the Council and the consent was granted on 20 March 2006.  The Grahams and other neighbours were formally advised of this by letter dated 4 April 2006 and were invited to contact the builders if they had any concerns. They did not do so.

[8]      The original house at 79 The Parade was demolished in April 2006.  Work began on the new house the following month.  In September 2006 construction of a new fence on the boundary between the Shortts’ and the Grahams’ properties began and there was a meeting between Mr Shortt and the Grahams about that.   The evidence supports the conclusion that the Grahams would have been made aware of the proposed positioning of the patio and the size and height of the retaining wall upon  which  the  patio  was  to  be  located.    During  2007  there  were  ongoing discussions about the height of the boundary fence that was adjacent to the patio

area.

1 Which included an assessment of site coverage based on the information provided.

[9]      The house that is now on Lot 1 was completed in about June 2007.   Code compliance inspections took place on 16 August 2007 and 12 February 2008. A code compliance certificate was issued by the Council on 26 February 2008.

[10]     Meanwhile, in January 2008, the Grahams had planted five tall (over two metre) olive trees in front of the five north facing windows of the Shortts’ house on Lot 1.  The effect was to obstruct the Shortts’ view of the harbour.  Correspondence between the neighbours ensued but the matter could not be resolved.  In September

2008 the Shortts applied to the District Court for orders under the Property Law Act

2007 that the trees be removed.

[11]     In October 2008 those proceedings were resolved by consent and formal orders were made by the District Court on that basis.

[12]     In May 2009 the Grahams approached the Council’s Resource Compliance Officer, Nicola Taylor, and raised a number of possible planning issues concerning the Shortts’ development.  She met with the Grahams to discuss these issues and, in the month that followed, a detailed review of the development’s compliance with the resource  consent  and  with  the  District  Plan  was  undertaken  by  the  Council. Although  they  had  some  initial  concerns,  by  October  2009  the  Council  had concluded that all issues had been satisfactorily addressed.

[13]     The Grahams did not comply with the District Court consent orders relating to the trees and in September 2009 the Shortts applied to the Court to enforce them. In December 2009 the Grahams filed a counterclaim in that proceeding which included (inter alia) claims that:

(a)       the Shortts’ new dwelling breached the “1 metre rule” contained in the

relevant District Plan; and

(b)      the patio was in breach of the District Plan’s “Yard Rule”.

[14]     The counterclaim was defended by the Shortts and extensive expert evidence was briefed.  The dispute was later settled (except as to costs) and in June 2011 the Grahams filed a discontinuance of their counterclaim. The olive trees were removed.

[15]     The present proceedings against the Council were filed in December 2011.  It can be noted in passing that during the time in question the Grahams subdivided their own property and eventually, in mid-2012, sold the vacant lower Lot.

The claim

[16]     The  amended  statement  of  claim  dated  22  February  2012  is  some  92 paragraphs long.2     It contains seven causes of action and 21 separate prayers for relief.  Because of the approach that I have ultimately taken in this judgment it is necessary to set out the pleading in some detail.

First cause of action: “illegality – breach of the District Plan and resource consent”

[17]     The first cause of action appears to relate, firstly, to the Council’s consent to the subdivision of the Shortts’ property.   It alleges that, in granting a subdivision consent, the Council was in breach of provisions in the relevant District Plan3 and, in particular:

(a)       The private open space requirements applicable to sites under 500 square metres

(b)The density requirement of a minimum of 800 square metres (net) for two dwellings; and

(c)       The landscaping rules, because no landscaping plans were submitted at the time the application for the consent was made.

2 Its predecessor was 112 paragraphs long.

3 The Manukau Operative District Plan 2002.

[18]     The second part of the first cause of action relates to subsequent action or inaction by the Council, namely its alleged failures to:

(a)      “enforce” the Private Open Space Rule when it accepted the Shortts’ contention that the existence of a public beach/reserve across the road could be taken into account when assessing compliance;

(b)“address”  breaches  of  the  Yard  Rule  (building  too  close  to  the boundary and unconsented raised patio attached to the boundary); and

(c)       “address” a breach of the consent relating to earthworks through the

excavation of 690, rather than 400, cubic metres of earth.

[19]     The relief sought in relation to the first cause of action are declarations that: (a)       The development is in breach of the private open space requirement,

density requirement, landscaping requirement, the Yard Rule, and the conditions of consent as to earthworks;

(b)      The code of compliance for the property is revoked;

(c)      The Shortts should reapply for resource consent, which should be notified;

(d)The  Council  should  enforce  the  private  open  space  requirement, density requirement, landscaping requirement, the Yard Rule, and the conditions of consent as to earthworks; an

(e)       The subdivision is ultra vires and is revoked.

Second cause of action – “breach of natural justice”

[20]     The second cause of action is an unusual pleading that is incapabable of summary and I therefore simply quote it in full. The claim avers:

The Council failed to address issue in any sufficient manner when notified by its compliance officer and when clarification was sought by the plaintiffs.

The ‘breaches’ recorded in the record of the council site visit report were altered to ‘complies’ without due process being followed.   There was therefore a failure to ensure that the requirements of the District Plan, the resource consent and neighbour consents, were met, especially given the extent of the alleged breaches.

The Council had a duty to consult/provide reasons, because:

Council’s failure to enforce the landscaping condition it had imposed for consent of the Development facilitated the Developers occupying the dwelling contrary to the conditions of consent;

The council breached its obligation to act in accordance with the principles of natural justice and to consult with and/or notify the plaintiffs where the breaches were more than minor.

[21]     The relief sought is a declaration that the Council breached its “duty to consult”.

Third cause of action – “breach of legitimate expectation”

[22]     The third cause of action pleads that the Council breached the Grahams’

legitimate expectation that the Council would:

(a)      consult them “regarding the nature and extent of the non-compliance

before making any decisions”;

(b)make decisions about the non-compliance that were “transparent and communicated to” the Grahams;

(c)      give “reasons for its decisions”;

(d)ensure that “... a feasibility site plan is prepared for Lot 1 as the proposed dwelling would have a negative effect on the neighbour ’s property given the oversize building coverage of about 27% at that stage, but later increasing to 32.77%).  The resource consent process required that plans be drawn to identified scale, preferably on A3 or

A4 paper.  Comprising site plan, building plan, car park layout, and

landscaping plan”; and

(e)      in circumstances “where property rights may be affected in more than a minor way”, treat the parties “fairly and equitably” and provide “full disclosure”.

[23]     These legitimate expectations are said to arise from;

(a)      The duty of the Council to uphold the provisions of the District Plan, the Resource Management Act 1991 (the RMA) and regulations; and

(b)“The  expectation  that   all  parties  would   be  treated  fairly  and equitably”.

[24]     The relief sought is declarations that:

(a)       The Council breached its duty to consult with the plaintiffs; and

(b)The  Council  failed  to  comply  with  its  obligation  “to  ensure  a feasibility site plan be provided by the Developers”.

Fourth cause of action – “mistakes of fact”

[25]     The fourth cause of action alleges factual errors made by the Council in

assessing the Shortts’ alleged non-compliance with:

(a)       the minimum density requirements in the District Plan;

(b)the landscaping requirements of the District Plan and the 30 per cent landscaping condition in the resource consent;

(c)       the private open space requirements in the District Plan;

(e)      the drawings upon which the Council’s consent to the patio was based and (consequently) the “Yard Rule” contained in the District Plan; and

(f)      the “Development drawings” which detailed the proposed engineering works and retaining walls.

[26]     The relief sought is declarations that: (a)         The subdivision is invalid;

(b)That the landscaping does not comply with the requirements of the District Plan and/or the conditions of consent and that “impermeable surfaces should be removed and landscaped to ensure compliance”;

(c)       The private open space does not comply with the requirements of the

District Plan;

(d)The second garage and third drive to Lot 1 do not comply with the conditions of the resource consent and should be removed, with a curb and channel provided for in front of the same;

(e)      The patio does not comply with the requirements of the District Plan and is to be removed;

(f)      The dwelling on Lot 1 “does not reflect the approved Geotech and Engineering design ... because of an excess excavation, variations to retaining wall heights and an additional block wall, third level to roof”;

(g)The Council should undertake “a full review of the development, with drawings and engineering calculations for the as-built structures to be signed off by a certified engineer as required by the conditions of consent”;

Fifth cause of action – “misrepresentation”

[27]     The fifth cause of action relates to file notes provided by the Shortts to the Council in support of the resource consent application and which indicated that the Grahams had consented to (or did not oppose) the proposed development.  It seems to be alleged that these file notes may have (mis)led the Council into disregarding any adverse effects on the Grahams.

[28]     No specific relief is sought.

Sixth cause of action – “failing to take account of relevant considerations”

[29]     The  sixth  cause  of  action  focuses  on  the  issue  of  the  code  compliance certificate.  It is said that in doing so the Council failed to take account of certain relevant considerations, namely:

(a)       The effect of the development on the Grahams’ privacy and their use

and enjoyment of their property;

(b)The effects of all the other alleged errors by the Council and/or a failure by the Shortts to comply with the certificate;

(c)      Potential or possible “structural integrity” issues arising from non- compliance with the original plans which detailed the proposed engineering works and retaining walls; and

(d)The effect “should every property along the Parade be accorded the ability to develop their property to a similar standard”.

[30]     Relief sought are declarations that:

Seventh cause of action – “improper purpose”

[31]     The single allegation made in relation to the seventh cause of action is that:

The Council’s processes allowed the developers to undertake and complete the  Development  with  significant  breaches  of  the  District  Plan  and conditions of consent.  The Council advised that conditions of consent had been met, when the same do not appear to have been met, and that any other breaches are in accordance with the District Plan.

[32]     Relief sought are declarations that:

(a)      The Council had “a duty of consultation with all material facts being made known to the plaintiffs particularly given the scale of the breaches”; and

(b)      The development should be on a notified basis.

The parties’ issue

[33]     Before turning to analyse the claim in more detail, a word must be said about the position of the Shortts, who remain the owners of Lot 1, 79 the Parade.   On

14 February  2012  and  2  May  2012  Gilbert  and  Courtney  JJ  recorded  in  their respective pre-trial minutes that the plaintiffs accepted that it was appropriate for the Shortts to be served with and to be made a party to the proceeding.  Directions were made accordingly.

[34]     The Shortts were duly served.   This resulted in Mr Black, for the Shortts, filing a lengthy memorandum on their behalf in which he advised the history of the matter and, in particular, the earlier District Court proceedings involving the Shortts

and the Grahams to which I have referred above.4

4 The information contained in the memorandum was subsequently confirmed by way of affidavit from Mr Shortt.

[35]     Mr Black said that, in these circumstances, questions necessarily arose about issue estoppel, acquiescence and the finality principle.5   He expressed concern on the Shortts’ behalf about the cost of becoming formally involved in another proceeding.

[36]     There was then a telephone conference on 12 June 2012 at which the Shortts were represented by Mr Black.  It seems that Mr Black’s memorandum had caused something of a retreat on the part of the plaintiffs because Courtney J’s minute of that conference states that:

In this proceeding the plaintiffs do not seek any direct relief against Mr and Mrs Shortt.  Their ultimate objective, however, is to have the patio on Mrs Shortt’s property removed but Mr Graham, for the plaintiffs, is clear that the present proceeding is restricted to the Council’s conduct in relation to the resource consent, building consent and code of compliance certificate issued by the Council.  Mr and Mrs Shortt are not, therefore, intended to be added as a party to this current proceeding.

(emphasis added)

[37]     As a result of this change of position the Shortts’ status remained somewhat

unclear.  No formal appearance was ever filed on their behalf, but in September 2012

Mr  Shortt  filed  an  affidavit  to  which  no  objection  was  taken  by the  plaintiffs. Mr Black also appeared for the Shortts at the hearing before me.  While Mr Graham initially objected to this, I permitted Mr Black to remain and to make brief submissions.  In my view, and notwithstanding the plaintiffs’ position recorded in the

12 June minute, the Shortts would plainly be  prejudiced by much of the relief claimed, at  least  to  the extent  that the declarations  sought  by the Grahams  are intended to serve any useful purpose.6

The claim analysed

[38]     I turn now to consider the merits of the claim itself.

5 It might be thought that those questions would become more acute in the event that the Shortts had formally been joined as a party.

6 It is trite that the Courts are generally reluctant to make declarations that are futile or empty. And in any event it was made clear at the hearing that the Grahams’ “end game” is the removal of the Shortts’ patio.

Jurisdictional issues

[39]     First,  it  may be observed  that  the only relief  sought  by the  plaintiffs  is declaratory  in  nature,  albeit  that  certain  of  the  declarations  sought  are  clearly intended to have substantive effect.  By way of example only, one of the prayers for relief in relation to the first cause of action seeks:

A declaration that the subdivision is ultra vires, is revoked and the Registrar of Land Transfer should return the parcel of land back into the state it was in prior to subdivision.

[40]     Not only are declarations with such a purpose at odds with the non-coercive thrust of declaratory relief, they necessarily give rise to the “parties’ issue” to which I have already alluded above.  Not only would a declaration about the revocation of the subdivision directly and adversely affect the Shortts but also the owners and occupiers of Lot 2, who have not been served and who took no part in the proceedings.

[41]     No doubt  for these reasons,  the plaintiffs’ counsel  advised  the Council’s lawyers prior to the hearing that he no longer sought rescission of subdivision. When it appeared during submissions that he might be resiling from this position, he said that while he still sought a declaration of invalidity he did not seek to have the subdivision itself quashed.  But such a stance necessarily begs the question of futility which, at the very least, would militate against the exercise of the Court’s ultimate

discretion to grant relief in favour of the Grahams.7   It might well be thought that the

claim may become mired between the “rocks” of natural justice and parties and the

“hard place” of the substantive remedies that the Grahams, in reality, seek.

[42]     Proceeding, however, on the basis that it is “only” declaratory relief that is sought (and that the “parties” problem arguably therefore does not arise) there remains a further issue about what the jurisdictional basis for such relief, as pleaded,

would be.

7 As to which see further at [61] – [65] below.

[43]     For example, although the entituling of the claim refers to the Judicature Amendment Act 1972 (the JAA) and the Court’s power to grant declaratory relief is referred to in s 4 of that Act, that power is nonetheless expressly limited to circumstances:

(a)       involving the exercise, refusal to exercise, or proposed or purported exercise of statutory power; and

(b)where the Court previously (but for the Act) had the power to grant such relief.

[44]     As far as the first of these limitations is concerned, it is notable that the application for review does not clearly identify the particular statutory powers or decisions by the Council that the plaintiffs wish to impugn.  I note in particular that there is no pleading that directly attacks the Council’s decision not to notify the Shortts’ application for resource consent. A decision not to notify is the typical focus of judicial review in the RMA context because the opportunity for third parties such

as the Grahams to participate in the consent process is contingent upon it.8

[45]     Moreover, although it became plain in the course of the hearing that (as recorded by Courtney J on 12 June), the real and principal focus of the Grahams’ complaint was the location of the Shortts’ patio, many of the alleged actions or omissions that are the subject of the claim had little, if any, direct bearing on that issue.

[46]     In terms of the second limitation contained in s 4 of the JAA, I note that declarations about (for example) the grant or enforcement of a resource consent or the interpretation of a District Plan do not appear to fall within the ambit of s 3 of the Declaratory Judgments Act 1908.9     Nor do the declarations sought fall obviously

under the umbrella of the Court’s inherent declaratory jurisdiction which, as noted in

8 The closest the claim present comes to such an attack can be seen in the pleadings summarised at

19(c) and 32(b) above. The former pleading constitutes a prayer for relief in the context of the Grahams’ attack on the grant of the subdivision consent and the latter is a prayer for relief made (for the reasons given at [60] below) in a claim that does not disclose a tenable cause of action. There was no pleading of any specific adverse effect of the development on the Grahams and, as Ms Dickie submitted, no cogent evidence about the existence of such an effect in fact.

9 See also Red Hill Properties Ltd v Papakura District Council (2000) 6 ELRNZ 157 (HC).

Johnston v Johnston, “must relate to some legal right, or to a legal interest of which the law will take cognisance … and it must confer some tangible benefit on the plaintiff.”10    Moreover, the nature of the relief sought necessarily raises a question about the overlap with the specific declaratory jurisdiction conferred on the Environment Court by ss 310 – 313 of the RMA itself.

[47]     Section 310 sets out the potential scope and effect of such declarations.   It relevantly stipulates that:

A declaration may declare –

...

(c)        Whether or not an act or omission, or a proposed act or omission, contravenes or is likely to contravene this Act, regulations made under this Act, or a rule in a plan or proposed plan, a requirement for a designation or for a heritage order, or a resource consent; ...

[48]     Section 311(1) provides that:

(1)       Subject to subsections (2) and (3), any person may at any time apply to the Environment Court in the prescribed form for a declaration.11

(emphasis added)

[49]     Accordingly it seems quite clear that those aspects of the claim that focus on:

(a)      the grant by the Council of the resource consent (allegedly in breach of the District Plan); and

(b)the subsequent actions or inactions of the Council in 2009, when the Grahams brought the Shortts’ alleged non-compliance with the resource consent and/or the District Plan to the Council’s attention;12

could have been the subject of an application to the Environment Court for determination and declaratory relief under s 311.   The Shortts, the proprietors of

10   Johnston v Johnston (1990) 2 PRNZ 323 (HC) at 325.

11 Subsections (2) and (3) would have no application in the present case.

12 As I have said, there was then an investigation by the Council and, although there were initial concerns expressed by the investigating officer (particularly about the patio) these were subsequently resolved to the Council’s satisfaction. The Grahams do not, however, accept that the view reached by the Council was correct, for a multitude of technical reasons.

Lot 2 and the Council would have had a statutory right to be heard on such an application.  In the event that declarations were granted in that forum enforcement orders under ss 314 - 321 would also then become an available remedy.13

[50]     The ability to apply for a declaration under ss 310 – 314 does not appear to constitute “a right to refer” a matter to the Environment Court which would directly engage the privative operation of s 296 of the RMA.14     But in the very similar circumstances that arose in Red Hill Properties Ltd v Papakura District Council, Rodney Hansen J said:15

[29]      Although  I have  found  that  the  failure  of the  plaintiff  to  utilise remedies arguably available to it does not preclude declaratory relief in this Court, I observe that it will be a rare case in which it is appropriate for the High Court to be the tribunal of first resort when disputes arise under the Act [Resource Management Act].  The range of remedies available which I have referred to makes clear that the overall scheme of the Act anticipates that differences invariably will be resolved by the tribunal possessed of special expertise which has been established under the Act.  The general principle in such cases is clear and was well put in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 427:

"In my opinion when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of  rights  and  privileges  which  are  dependent  entirely upon  the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute."

[30       Mr Neutze suggested that the plaintiff has intentionally avoided using the remedies available under the Act. I am unable to make a finding on that one way or the other. However, it will always be open to this Court to deny declaratory relief in the exercise of its discretion under s 10 of the

13 The Shortts, the proprietors of Lot 2 and the Council would again have a right to be heard.

14 Had s 296 been directly engaged the application for review would have been expressly prohibited. Section 296 provides:

296 No review of decisions unless right of appeal or reference to inquiry exercised -

If there is a right to refer any matter for inquiry to the Environment Court or to appeal to the

Court against a decision of a local authority, consent authority or any person under this Act or under any other Act or regulation –

(a)        No application for review under Part I of the Judicature Amendment Act 1972 may be made; and

(b)         No proceedings seeking a writ of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction in relation to that decision, may be heard by

the High Court -

unless the right has been exercised by the applicant in the proceedings and the Tribunal has made a decision.

The word “inquiry” is used in a quite specific sense elsewhere in the Act (see for example s 210).

15 Red Hill Properties Ltd v Papakura District Council , above n 8.

Declaratory Judgments Act where it concludes that the proper course would have been to utilise the procedure under the Act.

[51]     I will return to the matters referred to by Rodney Hansen J later in this judgment.16   Before doing so, however, I turn to those aspects of the claim which (at least arguably) could not be the subject of an application for declaratory relief under ss 310 and 311 and which do not therefore necessarily engage the types of policy considerations militating against relief discussed in Red Hill.  These are the specific claims of:

(a)       breach of natural justice; (b)     failure to consult

(c)       misrepresentation; and

(d)      improper purpose.

[52]     Each will be addressed in turn.

Breach of natural justice/failure to consult

[53]     The allegations of either breach of natural justice or a failure to consult form part of the second, third, fourth and sixth causes of action.  Again, the real focus of those allegations, however, is the Council’s alleged failure to take steps to ensure compliance with the resource consent, the building consent or the District Plan.17   In my view none of them constitute a claim that is tenable as a matter of law.

[54]     First, the Council’s compliance and enforcement action (or inaction) arguably does  not  constitute  a  reviewable  exercise  of  statutory  power:  see  for  example Wislang v Rodney District Council and the other cases referred to at [12] of that

decision.18

16 See below at [61] to [65].

17 For that reason it might be argued that even these allegations should more properly take the form of a s 311 application.

18 Wislang v Rodney District Council HC Auckland CP485/96, 14 August 1997.

[55] But secondly, and in any event, no adequate factual basis was pleaded, or disclosed in the evidence, to support the extension of the principles of natural justice to include the Grahams or an obligation to consult them. Although the “natural justice” pleading I have quoted at [20] above is perhaps the starkest example of this deficiency, the point is equally applicable across the other causes of action that seek to invoke similar principles.

[56]     And  thirdly,  the  extent  of  the  Council’s  natural  justice  or  consultation obligations in relation to the resource consent process must largely (and possibly wholly) be dictated by the provisions of the RMA itself.  If, for example, the Council properly and lawfully decides not to notify an application for consent,19  then it is difficult to see how there could be some separate and additional obligation imposed upon it to “hear from” or “consult” third parties such as the plaintiffs in relation to that application. That is in fact expressly confirmed by s 36A of the RMA.20

[57]     Lastly, even if the Council had been required to hear from or consult the Grahams (which I do not accept), it is unlikely that any such duty would extend to taking account of the Grahams’ views about the technical niceties of the Council’s interpretation  of  the  District  Plan, upon  which  much of  their  claim  was  based. Rather, the subject matter of any hearing or consultation would be limited to the adverse effects of the development on them. As I have said, any such alleged effects were not properly pleaded or addressed in evidence.

[58] The points made in the preceding paragraphs apply with even greater force in the context of the issue of the code compliance certificate (sixth cause of action) under the Building Act 2004. I merely note that, unlike the resource consent regime

under the RMA, the building consent regime under that Act is not participatory.21

19 A matter which, as I have noted, is not put directly in issue by the statement of claim.

20 Section 36A relevantly provides:

(1)  The following apply to an applicant for a resource consent and the local authority: (a) neither has a duty under this Act to consult any person about the application ...

21 See Wislang, above n 17.

Misrepresentation

[59]     In terms of the misrepresentation claim (the fifth cause of action) the reality is that no misrepresentation by the Council is pleaded.  The wording of the claim seems to suggest that there may have been a misrepresentation by the Shortts but, as I have noted, they were not parties to the proceeding.  In any event, no specific relief is sought against either the Council (or the Shortts) in this regard and I do not propose to consider it further.

Improper purpose

[60]     Finally (and similarly), the improper purpose pleading (the seventh cause of action) does not contain either an allegation of purpose or of impropriety.  Rather, that cause of action appears simply to involve a reiteration of certain of the other claims and allegations that are made elsewhere.  It does not form a basis upon which the Court could grant relief.

Discretion

[61]     It will be evident from the foregoing discussion I am of the view that there are fundamental difficulties with all of the causes of action pleaded in the claim and that none of them can succeed.  But to the extent I am wrong about the existence or extent of those deficiencies, and even assuming that some or all of the Grahams’ substantive criticisms could be made out (about which I make no finding), there are factors that would militate overwhelmingly against the grant of relief.

[62]     First, there are the policy matters referred to by Rodney Hansen J in the Red Hill decision that I have quoted above.  Those matters are underscored in the present case by the fact that the plaintiffs ran much of their claim as an attack on the substantive and technical merits of the Council’s interpretation of the District Plan. The  Environment  Court  is  a  forum  that  is  far  better  suited  to  ventilating  and

determining such issues than this Court on review; as French J said in Aorangi

School Board of Trustees v Minister of Education:22

... contrary to popular belief, judicial review is not an appeal. It is not about the Court considering the information afresh and coming to its own views. Judicial review is primarily limited to an examination of the process, and if successful  usually  results  in  the  decision  maker  being  required  to  start afresh, as opposed to quashing the decision for all time. ...

[63]     Secondly, there are the matters of delay and acquiescence.  The Shortts knew that resource consent had been granted and had copies of the plans in October 2005. The Shortts’ house was completed in June 2007.  A code compliance certificate was issued in February 2008.  Even the review by the Council that was initiated by the Grahams was complete by the end of 2009.  The District Court proceedings brought by the Grahams against the Shortts in that year, which raised many of the same issues, were later discontinued by them.

[64] Thirdly, there is the question about the utility of any of the declarations sought and, conversely, the “parties” issue that I have discussed at [33] – [37] above.

[65]     And lastly, it seems to me that the vast majority of the matters about which the Grahams now complain have caused them no direct prejudice or harm.  While I am prepared to accept that the positioning of the Shortts’ patio is not ideal in terms of their privacy, it is also clear that they have long since taken steps to ameliorate its effects. And as I have said, the bulk of the claim and the relief claimed, has no direct bearing on the patio (and would not lead to its removal) in any event.  By contrast, much of the relief claimed would almost certainly cause real and material harm to the Shortts and to the occupants of the house on Lot 2.  The issue of their status in the proceeding again arises.

Conclusions

[66]     In summary I have found that the plaintiffs’ claims must fail because:

22 Aorangi School Board of Trustees v Minister of Education [2010] NZAR 132 (HC) at [8].

(a)      there is doubt as to the existence of jurisdiction to grant the kind of declaratory relief sought;

(b)to the extent that jurisdiction nonetheless exists and the declaratory relief sought was intended to have any kind of substantive effect the Shortts, and the occupiers of Lot 2, 79 The Parade, should have been formally joined as parties to the proceeding;

(c)      to the extent that jurisdiction nonetheless exists and the declaratory relief sought was not intended to have any kind of substantive effect then the utility of granting such relief is far from clear;

(d)much of the impugned action or inaction by the Council is not readily amenable to review;

(e)      as pleaded, the claims for breach of natural justice, failure to consult, misrepresentation and improper purpose do not disclose any tenable cause of action, nor did the evidence support such claims;

(f)      even if some or all of the claims had been made out, matters relevant to the exercise of the Court’s discretion to grant relief would militate overwhelmingly against the relief claimed here.  More particularly:

(i)It was open to the Grahams to seek declaratory relief in the Environment  Court  in  relation  to  many of the  matters  that formed the basis of their claim.   The specialist Environment Court is the more appropriate first instance forum;

(ii)The impugned actions or inactions go back over some 7 years, and the development was completed 5 years ago.  It is unclear why the Grahams did not apply for review either at the time the resource consent was granted (in 2005) or following their complaint (in 2009);

(iii)The prospect of granting any relief that might suggest that the Council’s historic consents or approvals should be undone would be highly prejudicial to parties who were not parties to the proceeding; and

(iv)There is little or no evidence that the Grahams have suffered any significant prejudice from the impugned acts or omissions.

[67]     I appreciate the Grahams may perceive the approach I have taken in this judgment to be unduly legalistic and technical.  I do not underestimate the amount of time that they appear to have spent unpicking the bases for the Council’s decisions and actions in relation to 79 The Parade and I acknowledge that they will be disappointed that  I have declined to engage with them on the merits.   But  the difficulties with their claim that I have identified and which form the basis of my conclusions are far from merely academic.  Matters of pleading, the rights of third parties and questions going to this Court’s jurisdiction are fundamentally important and, in combination here, are fatal to the Grahams’ position.  That conclusion is, as I have said, underscored by the availability of other more appropriate remedies, their delay in filing the application for review and the absence of significant prejudice to them.

[68]     Lastly,  I record that although counsel for the Grahams filed submissions some time after the hearing urging me to await the release by the Auckland Council of the new District Plan before issuing this judgment it will be evident from my reasoning above that that could make no difference to the outcome.

[69]     The Council is entitled to 2B costs in the usual way.   Memoranda may be filed if agreement cannot be reached.  Mr Black may also file a memorandum if he wishes, although the Shortts’ indeterminate status in the proceeding may prove to be

an impediment to any claim by them for costs.

Rebecca Ellis J