Green v Auckland Council - [2013] NZHC 2364

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3468 [2013] NZHC 2364

UNDER the Judicature Amendment Acts 1972 and
1977 or in the alternative Part 7 of the
High Court Rules

IN THE MATTER of the Resource Management Act 1991

BETWEEN JONATHAN GREEN AND MEGAN BILES
Plaintiffs

ANDAUCKLAND COUNCIL First Defendant

ROBERT JAMES ANDREW TAYLOR AND DORETTA PALMOLLINGO Second Defendants

Hearing: 6, 7 and 9 August 2013

Appearances: AGW Webb for the Plaintiffs
W S Loutit and K M Stubbing for the First Defendant
G R Milner-White and N J Amos for the Second Defendants

Judgment: 11 September 2013

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 11 September 2013 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors: AGW Webb
Simpson Grierson, Auckland W S Loutit, K M Stubbing
Kensington Swan, Auckland G R Milner-White, N J Amos

GREEN v AUCKLAND COUNCIL [2013] NZHC 2364 [11 September 2013]

Contents

Paragraph

Introduction 001

The issue 011

The second defendants’ application and Auckland
Council’s decision 012

Additional evidence 039

Mr Griffin 040

Ms Redward 050

Mr Brown 052

Mr Putt 059

Mr Lala 063

Mr Buxton 071

The law 074

Notification 074

Decision making power 075

Power relating to consent notices 077

Site visit 078

Discussion 082

Analysis 120

Discretion 133

Result 154

Costs 155

Introduction

[1] The plaintiffs and second defendants are, in reality, neighbours. Both own property on the western side of that section of Piha Road which descends to the settlement and beach. The two properties are separated by a narrow plantation reserve.

[2] As one would expect, the two properties each have superb views down the line of a wide gulley to the Tasman Sea. The views include the well known landmark Lion Rock, the broad ironsand beach being constantly pounded by white surf and, in the distance, the sweep of North Piha.

[3] The plaintiffs’ property occupies slightly higher ground than the second defendants’. The latter property was, until recently, bare land. The plaintiffs live, with their children, in a two storey building. The top storey has commanding views. The house is set back slightly from the Plantation Reserve and was extended and renovated in recent years. Formerly it was a holiday bach owned by one of the plaintiff’s grandfather.

[4] The second defendants took title to their property on 18 June 2012. During the preceding two months they had visited the site on a number of occasions, met and talked briefly to the plaintiffs, and held a meeting with the first defendant’s (Auckland Council) officials.

[5] When the second defendants purchased their property it was subject to a consent notice. That notice stipulated a single building platform on the land. The origins of the consent notice (registered on the title in June 2007) stemmed from the granting of subdivisional consents in November 1999 by the Waitakere City Council and consent orders made subsequently in the Environment Court on 26 June 2001.

[6] The…

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: [2013] NZHC 2364
Decision Date: 11 September 2013

CaseChat Overview and Summary

The plaintiffs, Jonathan Green and Megan Biles, sought judicial review of consents granted to the second defendants, Robert Taylor and Doretta Palmolungo, by Auckland Council under the Resource Management Act 1991. The consents allowed the second defendants to move the building platform for their proposed home on their property, which was adjacent to the plaintiffs' property. The plaintiffs contended that the consents were unlawful because Auckland Council failed to notify them of the second defendants' applications to vary the consent notice and obtain land use consent. The central issue was whether Auckland Council's decision not to notify the plaintiffs was lawful. Priestley J found that the decision was unreasonable as the information considered by Auckland Council was inadequate to make a proper notification decision. The Court held that the plaintiffs were entitled to notification because the adverse effects on their property were minor or more than minor. The Court also found that the failure to notify the plaintiffs was a significant breach of the policy underlying the notification provisions. Although the second defendants had incurred significant costs, the Court exercised its discretion to grant the plaintiffs the relief they sought, ordering Auckland Council to reconsider its decisions with proper notification to the plaintiffs. Costs were reserved pending any agreement between the parties.

Orders