Hunter v Auckland Council - [2020] NZHC 2245

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 Respondents

Judgment:

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…

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: [2020] NZHC 2245
Decision Date: 31 August 2020

CaseChat Overview and Summary

Keith Mervyn George Hunter has applied to the High Court for a stay of execution of the Court's earlier judgment dismissing his claim for judicial review of a decision of a panel of Independent Hearing Commissioners under the Resource Management Act 1991. The decision granted resource consent to his neighbour for the redevelopment of the neighbour’s house. The application for a stay is opposed by the neighbour, Philip Burley, and ACL Trustees Limited. The Court of Appeal has not yet ruled on Mr Hunter’s appeal against the earlier judgment. Mr Hunter argues that the Court’s earlier judgment displayed errors of fact and omissions that indicate predetermination and bias, and failed to address significant issues. 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”. In this case, the Court found that the right of appeal may be rendered nugatory by the lack of a stay. The Court also found that the appeal was unlikely to succeed as the grounds for the appeal were not credible. The Court dismissed the application for a stay.

Orders