Hunter v Auckland Council
[2020] NZHC 2245
•31 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000097
[2020] NZHC 2245
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review of a decision under the Resource Management Act 1991, granting of resource consent
BETWEEN
KEITH MERVYN GEORGE HUNTER
Applicant
AND
AUCKLAND COUNCIL
First Respondent
PHILIP BURLEY
Second Respondent
ACL TRUSTEES LIMITED
Third Respondent
Hearing: On the papers Appearances:
Applicant in person
A Cumming for the First Respondent
S Stienstra for the Second and Third RespondentsJudgment:
31 August 2020
JUDGMENT OF WOOLFORD J
[As to application for stay]
This judgment was delivered by me on Monday, 31 August 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
HUNTER v AUCKLAND COUNCIL & ORS [2020] NZHC 2245 [31 August 2020]
[1] On 16 July 2020, I issued a judgment dismissing Mr Hunter’s claim by way of judicial review that the decision of a panel of Independent Hearing Commissioners granting resource consent to the development of his neighbour’s house was a product of error, bias and predetermination.
[2] Mr Hunter has appealed to the Court of Appeal. He now applies for a stay of execution of my judgment, in particular, an order that the neighbour be prohibited from commencing or continuing any construction or development activities on his house until the Court of Appeal has heard and determined his appeal. The application for a stay is opposed by the neighbour.
Grounds of appeal
[3] In his notice of appeal dated 13 August 2020, Mr Hunter states briefly that the grounds of appeal are that the judgment:
(a)displays errors of fact and omissions that indicate predetermination and bias; and
(b)fails to address significant issues, indicating predetermination and bias.
[4] Mr Hunter’s first and primary contention on appeal is that both the panel and the Court ignored the fact that the neighbour’s application for resource consent was “tarnished” because he, Mr Hunter, had only agreed to discontinue an earlier application for judicial review of a non-notified grant of resource consent for redevelopment of the neighbour’s house when the neighbour agreed to submit a fresh application for resource consent with new plans. I dealt with the contention briefly as I was of the view that the process that led to the discontinuance of Mr Hunter’s earlier application for judicial review was immaterial to the panel’s decision in the present proceedings.
[5]Other issues raised in the notice of appeal include contentions that:
(a)The panel took into account an irrelevant issue, being increased sunlight to Mr Hunter’s study window, which indicated bias;
(b)The panel accepted incorrect advice in addressing the shadowing in his tenant’s flat which, again, indicated bias or predetermination;
(c)The panel made no attempt to consider the amenity values of Mr Hunter’s backyard; and
(d)The judgment did not address the heritage value of the neighbour’s house.
Application for stay
[6] Rule 12 of the Court of Appeal (Civil) Rules 2005 provides the jurisdiction for a stay of proceeding and execution. It states:
12 Stay of proceedings and execution
(1)None of the matters referred to in subclause (2) operate as—
(a)a stay of a proceeding in which a decision was given; or
(b)a stay of execution of that decision.
(2)The matters are—
(a)an application for leave to appeal; or
(b)the giving of that leave; or
(c)an appeal.
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.
(4)An order or a grant under subclause (3) may—
(a)relate to execution of the whole or part of the decision or to a particular form of execution:
(b)be subject to any conditions that the court appealed from or the Court thinks fit, including conditions relating to security for costs.
(5)If the court appealed from refuses to make an order under subclause (3), the Court may, on an interlocutory application, make an order under that subclause.
(6)If the court appealed from makes an order under subclause (3), the Court may, on an interlocutory application, vary or rescind that order.
(7)The Court may, at any time, vary or rescind an order made by it under this rule.
(footnotes omitted)
[7] In Keung v GBR Investment Ltd, the Court of Appeal set out the principles to be applied on a stay application as follows:1
[11] The stay application is brought under r 12(3) of the Court of Appeal (Civil) Rules 2005. In determining whether or not to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”. Factors to be taken into account in this balancing exercise include:
(a)Whether the appeal may be rendered nugatory by the lack of a stay;
(b)The bona fides of the applicant as to the prosecution of the appeal;
(c)Whether the successful party will be injuriously affected by the stay;
(d)The effect on third parties;
(e)The novelty and importance of questions involved;
(f)The public interest in the proceeding; and
(g)The overall balance of convenience.
That list does not include the apparent strength of the appeal but that has been treated as an additional factor.
(footnotes omitted)
[8] Looking at each of the factors in turn, I accept that if a stay is not granted, the right of appeal may well be rendered nugatory. Whether it is or not depends upon the extent of the work carried out (after a stay is refused) when compared with conditions which might otherwise be imposed. The resource consent granted by the panel allows the neighbour to lift his single-level house by 30 centimetres, shift it back on the section by 1.5 metres and extend it to the rear. The existing distance between the houses will be maintained and the rear extension will follow the existing line of the house. It will be single level as well.
1 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17.
[9] While I accept Mr Hunter’s bona fides as to prosecution of the appeal, he is self-represented and would benefit from planning and/or legal advice regarding the issues involved in the case, in order to reach a realistic appraisal of their merit.
[10] The neighbour’s plans to redevelop his property were first formulated four years ago. He says his health is seriously compromised as a result of ongoing cancer treatment during the proceedings initiated by Mr Hunter. The process has put an enormous toll on his young family, who have had to move four times in four years as each year the redevelopment has been obstructed by Mr Hunter. The neighbour’s only aspiration, he says, has been to leave his family a beautiful home, but much of his resources, physical and emotional, have been taken up by trying to deal with Mr Hunter’s objections. He also says that the building consent will expire this year if he is not able to start work. He would then need to reapply for a building consent, potentially adding another 12 months delay to the project.
[11] There is no effect on third parties. The questions involved are not novel or important. There is no public interest in the proceeding, notwithstanding Mr Hunter attaching two newspaper articles relating to planning issues to his affidavit. Mr Hunter objects to redevelopment of his neighbour’s house, which would affect only his property. It has no precedent value or significance beyond that.
[12] As to the balance of convenience, I must balance the emotional and financial burden on the neighbour through continuing delays against the effect of the redevelopment on Mr Hunter’s property if it was to go ahead. In the present case, the balance of convenience favours the neighbour. He has a judgment in his favour and will incur substantial costs if the project is further delayed. Mr Hunter has not offered to give an undertaking as to damages in the event he is unsuccessful in the Court of Appeal. I doubt he is in a position to do so. He has just applied for legal aid.
[13] Mr Hunter says that if the redevelopment went ahead, his tenant’s flat would be deprived of all sunlight in the winter, his home would be seriously affected in terms of shading to it and the amenity values of its backyard and his property would be seriously devalued. The panel assessed these effects except for Mr Hunter’s claim that his property would be devalued, on which there was an absence of evidence.
[14] The most telling factor against a stay is, however, the lack of any real prospect of success in the Court of Appeal. Mr Hunter has not, in my view, advanced any credible ground of appeal. The appeal is simply a repeat of his unsuccessful application for review in this Court, except that the Court is now accused of bias and predetermination, as were members of the panel. Mr Hunter also now accuses the Court of colluding with the neighbour who, he says, must have known that a favourable decision from this Court was imminent when he gave his own tenant’s notice to quit on 14 July 2020.
Result
[15] For the reasons given, the application for a stay of execution pending appeal is dismissed. The fact that no relief may ultimately be available as a result of a decision by a court to refuse a stay pending appeal is not a compelling reason for granting a stay. Other factors in this case all point to a refusal of a stay as being the more appropriate course of action.
Woolford J
Solicitors:Legal Services Group, Auckland Council (A Cumming) for the First Respondent Clark and Co Lawyers, Auckland (J Clark) for the Second and Third Respondents
Counsel: S Stienstra, Auckland, for the Second and Third Respondents Copy to: Applicant