Hunter v Auckland Council - [2022] NZSC 104

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 59/2022
[2022] NZSC 104

BETWEEN	KEITH MERVYN GEORGE HUNTER Applicant
AND	AUCKLAND COUNCIL First Respondent PHILIP MARTIN BURLEY Second Respondent ACL TRUSTEES LIMITED Third Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	Applicant in person A J Cumming for First Respondent J H Clark for Second and Third Respondents
Judgment:	2 September 2022

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicant must pay one set of costs of $2,500 to the respondents.

____________________________________________________________________

REASONS

Introduction

The present application relates to a challenge by way of judicial review brought by the applicant, Keith Hunter. The proceedings challenged a resource consent obtained by the second and third respondents, Philip Burley and ACL Trustees Ltd (together Burley) from an Auckland Council Hearing Panel. The application for judicial review was dismissed by the High Court.[1] The applicant appealed unsuccessfully from that decision to the Court of Appeal.[2] He now seeks leave to appeal to this Court.

Background

[1]Hunter v Auckland Council [2020] NZHC 1720 (Woolford J) [HC judgment].

[2]Hunter v Auckland Council [2022] NZCA 205 (Kós P, Courtney and Collins JJ).

The resource consent enabled the development by Burley of a villa in Auckland. The villa is within the Single House Zone under the Auckland Unitary Plan (AUP) and is subject to both a Special Character Areas Overlay and an Historic Heritage Overlay. The applicant owns a villa immediately to the south of Burley’s property. He opposes the development primarily because of the resultant shading of the northern side of his property and the effect on his tenant who occupies a flat on the property.
Burley initially obtained a resource consent for the development on a non‑notified basis. The applicant had asked the Council to notify him about any application for development of the Burley property but the Council did not do so. The applicant brought judicial review proceedings seeking a declaration that the grant of the resource consent was invalid and setting aside that order. The applicant subsequently discontinued those proceedings. He did so on the basis he understood that Burley would file a new application materially different from the original one. A fresh application was made. The parties do not agree on the extent to which the new application differed from the original. Following a hearing before the Panel in September 2019, a further resource consent was granted.
The applicant then issued the current proceedings but was unsuccessful in the High Court and Court of Appeal. In dismissing the appeal, the Court of Appeal upheld the approach taken by Woolford J. Further, the Court considered there was no apparent procedural error in the approach of the Panel and nor any apparent error of law. The Court said it saw the applicant’s complaint as “essentially that he disagrees with the panel’s assessment of how serious the adverse effect on his amenity value would be.”[3]

The proposed appeal

[3]At [30].

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: [2022] NZSC 104
Decision Date: 2 September 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal by Keith Mervyn George Hunter against Auckland Council, Philip Martin Burley, and ACL Trustees Limited. Hunter sought to challenge a resource consent granted to Burley for the development of a villa in Auckland, which Hunter claimed would adversely affect his property's amenity. The application arose from Hunter's unsuccessful judicial review of the resource consent granted by an Auckland Council Hearing Panel, which was subsequently upheld by the Court of Appeal. Hunter's appeal to the Supreme Court was dismissed, and Hunter was ordered to pay costs of $2,500 to the respondents.

The primary legal issue was whether Hunter's proposed appeal raised questions of general or public importance or if there appeared to be a miscarriage of justice. Hunter argued that the development would destroy the amenity values of his property, contrary to the requirements of its zone, and that the process followed by the Council was flawed. Hunter also raised allegations of criminal fraud, equitable principles, and judicial bias. The Court of Appeal had already dismissed Hunter's appeal, finding that the Panel's decision was lawful and that Hunter's motivation for discontinuing the original judicial review proceedings had no effect on the lawfulness of the Panel's decision.

The Supreme Court found that Hunter's proposed appeal did not raise questions of general or public importance, as the issues were specific to the case and a challenge to the assessment of the evidence and the merits of the Panel's decision. The Court also found that there was no appearance of a miscarriage of justice. The Court noted that the Council's process for the resource consent was standard practice, and the allegations of criminal fraud and judicial bias were not substantiated. The Court held that the appeal did not meet the criteria for leave to appeal, and Hunter's application was dismissed. Hunter was ordered to pay one set of costs of $2,500 to the respondents.

Orders