Hughes v Auckland Council - [2021] NZHC 3296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000889

[2021] NZHC 3296

UNDER Judicial Review Procedure Act 2016 High Court Rules Part 30
Declaratory Judgments Act 1908

IN THE MATTER OF

application for judicial review and/or declaratory judgment

BETWEEN

DAVID CHARLES HUGHES

Applicant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 29 November 2021

Appearances:

N King for Applicant

S Quinn for Respondent

Judgment:

3 December 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 3 December 2021 at 11.00 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Sinisa Law/N King, Auckland DLA Piper, Auckland

HUGHES v AUCKLAND COUNCIL [2021] NZHC 3296 [3 December 2021]

Introduction

[1] The applicant, David Hughes, challenges a decision made by the respondent, Auckland Council (“the Council”), to process a resource consent application on a non- notified basis. The decision was made on 24 October 2012. On the same day, the Council granted the consent. It is asserted that the Council erred in law, that it took into account irrelevant considerations, that it failed to take into account relevant considerations and that it ignored the observations/advice of its compliance officer. Mr Hughes seeks to set aside the decision not to notify the application. He also seeks “monetary relief” for the loss of enjoyment and a decrease in value of his property.

[2] The proceedings have been brought by way of an application for review under the Judicial Review Procedure Act 2016. In the alternative, a declaration is sought under the Declaratory Judgments Act 1908.

[3]The applications are opposed by the Council.

Background

[4] Mr Hughes owns a property at 26 Woburn Street, Mangere East. He has owned the property since 1978. His immediately adjoining neighbour to the north east is Kedgley Intermediate School. It has road frontage to Portage Road.

[5] Prior to 1 November 2010, both Mr Hughes’ property and the school property were within the Manukau City Council’s territorial area and the governing planning document was the Manukau City Council’s District Plan. As from 1 October 2010, the Manukau City Council ceased to exist and all of its assets and liabilities were taken over by the respondent.1

[6] The Council’s decision was made in respect of a retrospective application for resource consent for a new technology building at the school.

[7] The school property was at all relevant times designated for school purposes in the Manukau City Council’s District Plan. The Minister of Education was the

1 Local Government (Tamaki Makaurau Reorganisation) Amendment Act 2010, s 35.

requiring authority. There were no site specific conditions in the designation. However, there were general conditions on school designations listed in Schedule 5A1.1 of the District Plan. Relevant conditions included the following:

Condition 5 – No building shall be located closer than 6 metres from any boundary, without the consent of the affected adjacent neighbour.

Condition 6 – All buildings shall comply with the height in relation to boundary…

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: [2021] NZHC 3296
Decision Date: 3 December 2021

CaseChat Overview and Summary

In Hughes v Auckland Council, David Hughes, the owner of a property at 26 Woburn Street, Mangere East, challenged the decision of the Auckland Council to process a resource consent application on a non-notified basis. The Council had granted the consent on 24 October 2012, for a new technology building at Kedgley Intermediate School, which was immediately adjacent to Mr Hughes' property to the north-east. The Council's decision not to notify the application was made in respect of a retrospective application for resource consent for the new technology building at the school. Mr Hughes sought to set aside the Council's decision not to notify the application and also sought monetary relief for the loss of enjoyment and a decrease in value of his property.

The court noted that contrary to submissions on behalf of Mr Hughes, there were not two forms of judicial review. The court's powers of judicial review formed part of the inherent common law jurisdiction. Judicial review was not founded in the Judicial Review Procedure Act, which was a machinery statute setting out various procedural provisions for the judicial review of the exercise, failure to exercise, or proposed or purported exercise of a statutory power. The court held that the Board of Trustees was a party to the decisions made by the Council and should have been joined as a party and served. The failure to do so was a fundamental structural flaw in the proceedings, such that relief could not be granted. Furthermore, Mr Hughes sought a declaratory judgment under the Declaratory Judgments Act, but he did not file an application for directions as to service and representation as required. The court declined to take the issues raised in these proceedings any further at that stage and directed that the matter be placed in the judicial review list for call on the first available date in February 2022. The court also directed that the Council was entitled to its reasonable costs and disbursements.

Orders