Hunter v Auckland Council - [2020] NZHC 1720

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000097

[2020] NZHC 1720

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: 3 July 2020

Appearances:

Applicant in person

A Cumming for the First Respondent
S Stienstra for the Second and Third Respondents

Judgment:

16 July 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 16 July 2020 at 11:45 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

HUNTER v AUCKLAND COUNCIL & ORS [2020] NZHC 1720 [16 July 2020]

[1] The plaintiff, Mr Keith Hunter, lives in Herne Bay, Auckland. He objects to his neighbour’s plan to lift his house 30 centimetres, shift it back 1.5 metres, and extend it to the rear.

[2] The plaintiff’s neighbour and second defendant, Mr Philip Burley, applied for resource consent on 5 September 2018. After a hearing on 11 September 2019 by a panel of Independent Hearing Commissioners (the panel) appointed by Auckland Council and, after a visit on 13 September 2019 by the panel to Mr Hunter’s house, the panel gave consent to the application.

[3] Mr Hunter now claims by way of judicial review that the panel’s decision was the product of error, bias and predetermination.

Earlier proceedings

[4] Mr Burley had previously applied for resource consent for the alterations to his house. This application was processed on a non-notified basis, with no persons deemed to be adversely affected. Following the grant of consent, Mr Hunter applied to the High Court at Auckland for judicial review of the decision to grant consent on a non-notified basis.

[5] Mr Hunter discontinued his application for judicial review after Mr Burley filed a new application for resource consent in which he requested that Mr Hunter and his tenant be formally notified to give them the opportunity to take part in the decision- making process.

Present proceedings

[6] The new application was lodged on 5 September 2018. Mr Hunter and his tenant were notified on 21 January 2019. Submissions closed on 22 February 2019. One submission was received in opposition from Mr Hunter. The submission included an affidavit by Mr Hunter’s tenant in a rear flat, Ms Raewyn Taha. Auckland Council appointed an independent planner, Mr Craig Magee, to report on the application. In a report dated 10 May 2019, he recommended that the application be declined. After the hearing and site visit by the panel in September 2019, the panel chose not to follow

Mr Magee’s recommendation and gave consent to the application in a decision dated 15 November 2019.

[7] On 24 January 2020, Mr Hunter filed a statement of claim by way of judicial review challenging the panel’s decision. Instead of filing a statement…

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 1720
Decision Date: 16 July 2020

CaseChat Overview and Summary

Keith Hunter objected to his neighbour, Philip Burley, lifting his house 30 centimetres, shifting it back 1.5 metres, and extending it to the rear. The Auckland Council granted Mr Burley resource consent to do so. Mr Hunter sought judicial review of the consent on the basis that the panel's decision was the product of error, bias, and predetermination. The court found that none of the grounds of review were established and dismissed the application. The respondents were entitled to costs. The panel was entitled to request further information, such as the additional shading diagrams, at the hearing. The panel's consideration of the additional sunlight received by Mr Hunter's study in the north-western corner of the house was a relevant factor and not determinative of the application. The panel had not mis-interpreted the shading diagrams, nor had it been biased or predetermined in its decision-making. The panel's decision did not need to go into detail about heritage values as there was expert evidence to support the view that the proposed development would maintain or enhance heritage values. Mr Burley's final submissions were not improper and had not influenced the panel's decision.

Orders