Hunter v Auckland Council
[2022] NZCA 205
•24 May 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA451/2020 [2022] NZCA 205 |
| BETWEEN | KEITH MERVYN GEORGE HUNTER |
| AND | AUCKLAND COUNCIL |
| AND | PHILIP MARTIN BURLEY |
| AND | ACL TRUSTEES LIMITED |
| Hearing: | 5 April 2022 |
Court: | Kós P, Courtney and Collins JJ |
Counsel: | Appellant in person |
Judgment: | 24 May 2022 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe respondents are entitled to costs for a standard appeal on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
This appeal concerns the decision of an Auckland Council Hearing Panel to grant resource consent for the development of a villa in Herne Bay, Auckland. The owners of the villa are the second and third respondents, Philip Burley and ACL Trustees Ltd (together Burley). The property is located in a historic heritage area under the Auckland Unitary Plan (AUP).
The appellant, Mr Hunter, owns a villa immediately to the south of Burley’s property. It is very similar, though it lies at a lower elevation. It is divided into two flats, with Mr Hunter occupying the upstairs area and an elderly widow occupying the downstairs flat on the north/north-east sides.
When Burley purchased its property in 2016 it was divided into three flats. Mr Burley advised Mr Hunter of his plans to restore the villa to a single dwelling, lift and move it back on the site to create basement parking and extend the rear to increase the living space. Mr Hunter made it clear that he would object to the development. His main concern was the further shading of the north side of his property, which would particularly affect his tenant.
Mr Hunter asked the Auckland Council, which is the first respondent, to treat him as an affected person and notify him of any application for the development of the Burley property. However, the Council did not do that. Burley obtained resource consent for the work on a non-notified basis. Mr Hunter was aggrieved. He brought judicial review proceedings seeking a declaration that the grant of resource consent was invalid and an order setting it aside.
Mr Hunter also sought interim relief to stop the work pending the determination of the application. Shortly before the application was to be heard, Burley’s counsel conveyed an offer to apply for a new consent on a limited notified basis with new plans if Mr Hunter withdrew his proceeding. Mr Hunter believed that the new application would be materially different from the original application. Although he was not provided with a copy of the new plans, he discontinued his judicial review proceedings and was awarded costs.
Burley made a fresh application for resource consent on a limited notified basis. The parties disagree as to the extent to which it differed from the original application. Mr Hunter maintains that it was the same, or not materially different. Burley says that there were material differences. Following a hearing before the panel in September 2019 the application was approved.
Mr Hunter commenced fresh judicial review proceedings in the High Court. Woolford J declined the application.[1] Mr Hunter appeals.
The scope of the appeal and the issues arising
[1]Hunter v Auckland Council [2020] NZHC 1720 [Judgment on appeal].
The parties agreed on issues to be determined. At the hearing, Mr Hunter confirmed that he did not wish to pursue two of the issues.[2] The remaining issues were:
(a)Did Woolford J remove the appellant’s first ground of review from proceedings by way of his minute issued 12 June 2020? If so, does this indicate bias or predetermination on the part of the Woolford J?
(b)Did the High Court err in finding the appellant’s discontinuation of earlier judicial review proceedings could not be a ground of review of the panel’s decision?
(c)Was the High Court wrong in finding that heritage matters had been properly addressed by the panel and that the panel carried out a proper balancing of amenity and heritage issues? Do the Judge’s findings on these issues indicate bias on his part?
(d)Was the panel decision so unreasonable that no reasonable panel could have granted consent?
[2]These were issues 5 and 6 of Annexure A of the Parties’ Memorandum of Issues dated 25 March 2022.
Mr Hunter identified a number of other issues for determination. However, they either fall within the scope of the agreed issues or cannot be advanced in the context of this appeal.
Issues (a) and (c): the relevance of the first judicial review proceeding[3]
[3]These issues encompass issues 5, 6, 7, 8, 11, 12 and 17 of Annexure B of the Parties’ Memorandum of Issues dated 25 March 2022.
Mr Hunter had pleaded that the circumstances in which the first judicial review proceeding was withdrawn were relevant to the second judicial review proceeding. He asserted that Burley’s narrative was “incorrect and seriously misleading” and said that the “conflict is significant for reasons detailed in … the forthcoming affidavit”.
By mid-June 2020, with the hearing a month away, Burley’s counsel filed a memorandum with the High Court pointing out that the affidavit had not yet been filed but expressing the view that events prior to the notified hearing were superseded by that hearing. Woolford J issued a minute in which he said:[4]
[3] As for the first cause for review, I note Council’s submission to be advanced at the hearing that once the decision was taken to withdraw the previously issued resource consent and hear it as a notified hearing, all issues to that point were superseded. That being the case, the Council may choose not to focus on Mr Hunter’s first cause for review.
[4]Hunter v Auckland Council HC Auckland CIV-2020-404-97, 12 June 2020 (Minute (No. 3) of Woolford J).
On appeal Mr Hunter argues that, by this minute, the Judge effectively prevented him from relying on his affidavit and wrongly removed this ground of review from his case. He also relies on the minute as showing bias on the part of the Judge. None of these arguments are tenable.
Mr Hunter put the affidavit before this Court. It traversed, in detail, the events leading up to the non-notified consent being granted, the circumstances in which Mr Hunter withdrew his judicial review application and his complaint that he was tricked into agreeing to do so. It is not clear to us that the affidavit was actually filed in the High Court.[5] But in any event, it could not have altered the outcome.
[5]Mr Hunter says that it was filed but the copy provided in the case on appeal is not date-stamped by the High Court.
It is clear from the judgment under appeal that Mr Hunter did advance his argument that he would not have agreed to discontinue the first judicial review proceedings if he had known that Burley’s new plans would be identical to the old plans; the Judge specifically recorded that submission but rejected it:[6]
[14] This, however, cannot be a ground for review of the panel’s decision. Even if true, it has nothing to do with it. Mr Hunter’s motivation for discontinuing the earlier proceedings does not impact in any way on the lawfulness of the panel’s decision.
[15] Mr Hunter seeks to withdraw his notice of discontinuance filed in the earlier proceedings. However, even if he had continued the earlier proceedings, the best outcome that he could have hoped for would have been an order by the Court quashing the earlier resource consent decision because the process was in some way flawed and directing the Council to reconsider Mr Burley’s application for resource consent. The Council have now reconsidered Mr Burley’s application, so Mr Hunter is in exactly the same position as if he had been successful in the earlier proceeding.
[6]Judgment on appeal, above n 1.
Mr Hunter submitted that the Judge was wrong to reject this ground of review. He was, however, unable to identify any way in which he was worse off as a result of discontinuing the first judicial review proceedings and as such, the Judge did not see any relevance in that enquiry. Mr Hunter’s main complaint was not that his position had altered for the worse as a result of discontinuing the judicial review proceeding but, rather, a general concern that Burley had somehow profited from dishonesty. This approach is misconceived.
In the earlier proceedings, Mr Hunter sought to have the original resource consent set aside. He effectively achieved that when Burley agreed to make a fresh resource consent application on a limited notified basis. This put Mr Hunter in a position at least as good as if he had proceeded to a hearing of the judicial review application. In fact, his position was arguably better because the agreement had the same effect as if the consent order had been set aside but also eliminated the risk of the application failing.
Even if Mr Hunter had proceeded with his application, and succeeded, he could not have limited the nature of the application Burley made. Whether Burley’s second application was the same, similar or entirely different was a matter for Burley to decide. As a result, the basis on which Mr Hunter agreed to withdraw the first judicial review application could not have affected the process that led to the decision now under review.
It follows that whether Mr Hunter’s affidavit was before the Judge or not could not have affected the outcome. The Judge correctly concluded that the withdrawal of the first judicial review proceeding was not relevant to the review of the second consent. Therefore, the affidavit was not relevant either.
Nor can Mr Hunter’s complaints of dishonest conduct by Burley, counsel and Council staff be determined in the context of the present appeal. Judicial review is concerned with whether the decision under review was made in accordance with the relevant law and in a way that was procedurally fair. Judicial review proceedings are typically undertaken on the basis of the record of the decision-making process. The Court can only consider allegations of unlawful or dishonest conduct if they are said to have affected the decision-making process under review and only then with the benefit of seeing the response of those accused under cross-examination. As there was no cross‑examination in this case, no evidential basis exists on which to determine allegations of wrongdoing. Since the circumstances relating to the first judicial review proceedings could not have affected the review of the second decision, Mr Hunter’s allegations do not raise issues that either the High Court or this Court could properly consider.
Finally, Mr Hunter relies on the Judge “taking over the case” and his rejection of Mr Hunter’s argument as indicating bias against him. In order to show bias on the part of the Judge, Mr Hunter had to show that a fair-minded lay observer might reasonably apprehend that there was a real and not remote possibility that the Judge might not bring an impartial mind to the issue the Judge was deciding.[7] It is evident from our conclusion about Mr Hunter’s ground of review that the Judge acted entirely appropriately. There is simply no basis on which Mr Hunter could, or should, have made this assertion.
[7]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3]– [4] per Blanchard J, at [37] per Tipping J, at [89] per McGrath J and at [127] per Anderson J.
These grounds of appeal fail.
Issues (b) and (d): the panel’s decision
Burley’s property is located within the Single House Zone (SHZ) and is subject to a Special Character Areas Overlay and Historic Heritage Overlay. As a result, the AUP imposed constraints on development including in relation to building coverage and height to boundary ratios. Burley’s application was advanced on the basis that it would promote the sustainable management of the resource, thereby satisfying s 5(1) of the Resource Management Act 1991 (RMA) and that it would protect the historic heritage of the villa from inappropriate subdivision, use, and development, which was a matter that had to be recognised and provided for by s 6(f) of the RMA.
It was common ground that the development would increase the shading to Mr Hunter’s property and thereby affect the amenity value of the property. There was evidence on this issue from an independent planner, Mr Magee, a planner on behalf of Burley, Ms Findlay, and Mr Greg Jones, who had overseen the design work on the renovation. Despite Mr Hunter’s criticisms, it is evident that the actual effect of the shading was not seriously in dispute. The development would mainly affect the living room window of the downstairs flat on the northern side of his property. It previously received full sun from daybreak to about 11 am every day and this would be reduced during the winter months. In particular, from May to July the proposed development would entirely shade the window which previously enjoyed full sun until 10 am. Likewise, the small outdoor area adjacent to that part of the house which previously received partial sun until 10 am would be largely shaded as a result of the proposed work.
The panel considered that the main issues in contention were: whether the proposal would have an unacceptable effect on the residential amenity of Mr Hunter’s property; whether the proposal was consistent with or contrary to the SHZ objectives and policies; and whether the proposal failed to achieve the sustainable management purpose under Part 2 of the RMA.
The independent planner, Mr Magee, had concluded that the proposal would have an unacceptable effect on the residential amenity at Mr Hunter’s property. He considered that the proposal was contrary to the objectives and policies of the SHZ and that it was contrary to the purpose of the RMA because it did not represent the sustainable management of the land resource in a manner that enabled the owners and occupiers of the property to provide for their wellbeing to an acceptable degree.[8]
[8]Resource Management Act 1991, s 5.
However, the panel did not accept Mr Magee’s view. It preferred Ms Findlay’s assessment. It considered that the adverse shading effect was at a moderate rather than unacceptable level, the proposal was in keeping with the neighbourhood’s existing and planned suburban built character and the amenity levels for Mr Hunter’s property were already low and it was not a requirement that those amenity levels be improved by the development.
The panel concluded:
The RMA clearly gives priority to s 6 over s 7 through use of the words ‘shall recognise and provide for’ as against ‘shall have particular regard to.’ … Our understanding is that this is not an absolute, in the sense that s 6 must always be given priority over s 7, regardless of the circumstances. This was the view expressed by Mr Magee at the hearing. It is also consistent with the Unitary Plan Historic Heritage Overlay objectives and policies which, as analysed in Ms Findlay’s evidence, adopt a nuanced approach. This is reflected in policies D17.3(3) and (5). These policies emphasise enabling and supporting the use, development and adaptation of scheduled heritage places except where significant adverse effects are created and, with reference to policy 3, where these effects are on the surrounding area.
…
We concur with Ms Findlay’s interpretation of the Historic Heritage Area Overlay [that allowable effects may be more than minor but less than significant in order to achieve the objectives of the overlay] and, as we have set out earlier in this decision, we agree that adverse effects on surrounding areas (including [Mr Hunter’s property]) are not significant.
…
It is apparent that, in terms of the overall weighing up of the effects of the proposal in regard to the purpose of the RMA for the sustainable management of natural and physical resources, Mr Magee has reached a viewpoint that the adverse amenity effects on [Mr Hunter’s property] are of such a degree that they outweigh any benefits of the proposal, including s 6(f) benefits in regard to the protection of historic heritage.
We have reached a different conclusion. While we consider that there are adverse amenity effects on [Mr Hunter’s property], we do not find these to be significant or unacceptable. Contrary to Mr Magee, we find that the proposal represents a sustainable use of land resource within a residential area due to the retention of an Historic Heritage Place and the low level of adverse effect on [Mr Hunter’s property]. Overall, we therefore consider the proposal is consistent with Part 2 of the [RMA].
(Footnotes omitted.)
In the High Court Mr Hunter argued that the villa was already in outstanding condition in appearance and that Burley’s proposal was not made to maintain or enhance heritage values but instead to preserve vehicles by installing a steep driveway and a visually destructive garage door under the house. The Judge had recorded Mr Hunter’s submission as being that the panel’s decision did not explain how the proposed development would maintain or enhance heritage values.[9] He reviewed the evidence before the panel on this aspect, including that of the independent planner, Mr Magee, and concluded that:
[60] Because all three experts were of a similar view, it was unnecessary in the circumstances for the panel to go into any detail on heritage values. The panel did, however, make specific reference to Mr Magee’s opinion that the proposal satisfied the relevant objectives and policies of the AUP with regard to both special character and historic heritage. There was, furthermore, considerable discussion by the panel as to what weight should be given to the protection of historic heritage as opposed to other matters set out in s 7 of the Resource Management Act 1991.
[9]Judgment on appeal, above n 1, at [55].
On appeal Mr Hunter’s submissions were directed very much to the merits of Burley’s application and the substantive outcome of the panel’s hearing. He argued that the panel had taken the wrong approach because first, the rear of the property was not subject to heritage rules and secondly, the development did not maintain the heritage value of the property but rather destroyed it so that Mr Burley could park his vehicles. He submitted that the loss of amenity value caused by the development to the rear of the site should therefore have been given much more weight.
The panel’s task was to consider all the evidence before it and reach a decision in accordance with the relevant provisions in the RMA. On judicial review the High Court was limited to considering whether the panel undertook that task. The panel clearly, and correctly, articulated the issues for consideration, took into account all the evidence and assessed the evidence by reference to the relevant provisions of the RMA. There is no apparent procedural error. Nor is there any apparent error of law. The panel reached a conclusion that was open to it. Mr Hunter’s complaint is essentially that he disagrees with the panel’s assessment of how serious the adverse effect on his amenity value would be. That is not a complaint that is amenable to judicial review. The Judge therefore made no error in his determination of this issue.
Mr Hunter also alleged bias against the Judge in relation to his treatment of this issue. It will be obvious from our earlier comments regarding bias that there is no merit in this complaint.
These grounds of appeal also fail.
Result
The appeal is dismissed.
The respondents are entitled to costs for a standard appeal on a band A basis with usual disbursements.
Solicitors:
Auckland Council, Auckland for First Respondent
Clark & Co Lawyers, Auckland for Second and Third Respondents
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