Hunter v Auckland Council - [2022] NZCA 205

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA451/2020
[2022] NZCA 205

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

Hearing:	5 April 2022
Court:	Kós P, Courtney and Collins JJ
Counsel:	Appellant in person A J Cumming and L Allison for First Respondent S Stienstra for Second and Third Respondents
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…

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] NZCA 205
Decision Date: 24 May 2022 at 10.30 am

CaseChat Overview and Summary

In Hunter v Auckland Council, Keith Mervy George Hunter, the appellant, challenged the decision of the Auckland Council Hearing Panel to grant resource consent for the development of a villa in Herne Bay, Auckland, which belongs to the second and third respondents, Philip Burley and ACL Trustees Ltd. The villa is located in a historic heritage area under the Auckland Unitary Plan (AUP). Mr Hunter's primary concern was the increased shading of the north side of his property due to the proposed development. Despite his objections, the Council did not notify him of the application for resource consent. Burley obtained the consent on a non-notified basis. Mr Hunter brought judicial review proceedings seeking a declaration that the grant of resource consent was invalid and an order setting it aside. However, Woolford J declined the application. Mr Hunter appealed, but his appeal was dismissed by the Court of Appeal.

The legal issues that the Court had to decide were: (a) whether Woolford J's minute issued 12 June 2020 indicated bias or predetermination on his part by removing the appellant's first ground of review from proceedings; (b) whether the High Court erred in finding the appellant's discontinuation of earlier judicial review proceedings could not be a ground of review of the panel's decision; (c) whether the High Court was 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, and whether the Judge's findings on these issues indicated bias on his part; and (d) whether the panel decision was so unreasonable that no reasonable panel could have granted consent.

The Court found that the Judge did not indicate bias or predetermination by issuing the minute. The withdrawal of the first judicial review proceeding was not relevant to the review of the second consent, and therefore, the affidavit was not relevant either. The Court also found that the Judge did not err 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. The panel's decision was open to it and the Court could not interfere with it.

The appeal is dismissed. The respondents are entitled to costs for a standard appeal on a band A basis with usual disbursements.

Orders