Hunter v Auckland Council
[2020] NZHC 1720
•16 July 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 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 RespondentsJudgment:
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 of defence, Mr Burley filed a notice of application to strike out the proceedings on 19 February 2020 on the basis that Mr Hunter’s claim could not succeed as it disclosed no tenable or reasonable cause of action.
[8] The following day, on 20 February 2020, Mr Hunter filed an interlocutory application for interim relief seeking an order prohibiting Mr Burley from proceeding with any building work until this Court had made a final determination on his application for judicial review. He also filed a notice of opposition to the strike out application.
[9] Following some delays, which included the national state of emergency due to the COVID-19 pandemic, both Mr Burley’s application to strike out the proceedings and Mr Hunter’s application for interim relief were set down for hearing at 10.00 am on Friday, 12 June 2020.
[10] In a telephone conference on Monday, 8 June 2020, I proposed to Mr Hunter and counsel for Mr Burley that rather than hearing the two interlocutory applications on Friday, 12 June 2020, it would be more efficient and in the interests of justice to hear Mr Hunter’s substantive application for judicial review at the earliest opportunity. The parties agreed. I accordingly set Mr Hunter’s application for judicial review down for hearing on Friday, 3 July 2020, and made timetable orders to ready the matter for argument.
Analysis
[11] The principles of judicial review of administrative actions are well understood. There is no appeal on the merits available. Mr Hunter must demonstrate that the panel failed to take into account mandatory relevant factors or took into account irrelevant matters or that its processes were in some way improper or unfair or that it had committed an error of law. The merits of the decision cannot be considered unless it
was so unreasonable such that no reasonable panel of Independent Hearing Commissioners could have granted consent. The statement of claim sets out eight “causes for review”. There were a number of other issues raised by Mr Hunter in the course of his oral submissions, but his claim must be confined as a matter of fairness to the pleaded issues.
(a)Tarnished process
[12] Mr Hunter says that he would not have agreed to discontinue the earlier proceedings if he had known that Mr Burley’s new development plans would be identical to the old plans.
[13]Mr Burley says there were changes made to the plans. In particular, these were:
(a)Removing the hedge and outdoor shower along the southern boundary;
(b)Setting the rear extension back from the southern boundary to align with the façade of the existing dwelling, and reducing the length of the extension to be constructed of concrete (now painted) and retaining a greater portion of the weatherboard house. The new extension now complies with the height in relation to boundary controls to the southern boundary; and
(c)Reducing the size of two high level windows located in the southern façade of the basement.
[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 proceedings.
(b)No opportunity to respond to new material
[16] Mr Hunter complains about additional shading diagrams supplied by Mr Burley’s counsel in her closing submissions to the panel. Mr Hunter says he was not given the opportunity or permission to respond to the new material.
[17]In its decision, the panel has recorded:
At the hearing, we requested additional shading diagrams be supplied showing whether new shadows are caused by the lifting up and shifting back of the villa or by the proposed extension at the rear of the villa.
[18] These additional shading diagrams were attached to the submissions of Mr Burley’s counsel and considered by the panel. This was noted by the panel as follows:
Furthermore, we have taken in to account the additional shading diagrams attached to Ms Stienstra’s closing submissions.
[19] First, the panel was entitled to request further information at the hearing. Such requests are specifically provided for in s 41C of the Resource Management Act 1991, which provides:
41C Directions and requests before or at hearings
…
(2)Before or at the hearing, the authority may request a person who has made a submission to provide further information.
(3)At the hearing, the authority may request the applicant to provide further information.
(4)At the hearing, the authority may commission a consultant or any other person employed for the purpose to prepare a report on any matter on which the authority requires further information, if all the following apply:
(a)the activity that is the subject of the hearing may, in the authority’s opinion, have a significant adverse environmental effect; and
(b)the applicant is notified before the authority commissions the report; and
(c)the applicant does not refuse to agree to the commissioning of the report.
(5)The authority must provide a copy of any further information requested under subsection (2), and received before the hearing, to the applicant and every person who made a submission.
(5A) Subsection (5B) applies to—
(a)any further information that—
(i)is requested under subsection (2) or (3); and
(ii)is received in writing or electronically after the start of the hearing; but
(iii)is not given as evidence at the hearing; and
(b) any report that is commissioned under subsection (4). (5B) The authority must—
(a)provide a copy of the further information or report to the applicant and every person who made a submission and stated a wish to be heard; and
(b)make the further information or report available at its office to any person who made a submission and did not state a wish to be heard.
(5C)However, the authority does not need to provide further information to the applicant or submitter who provided the information.
Mr Hunter was provided with the additional shading diagrams in accordance with s 41C(5B)(a).
[20] Secondly, the additional shading diagrams were merely a modification of existing shading diagrams, which Mr Hunter accepted and used in his own presentation to the panel. In that sense, they were not new. The additional shading diagrams separated the two major shading elements, being the existing house after it is shifted and the proposed extension. This enabled the panel to identify which aspects of Mr Burley’s application caused what amount of shading.
[21] Thirdly, Mr Hunter has not shown that the additional shading diagrams are in some way incorrect or flawed nor has he indicated how he might have responded to what he says is new material.
[22] He has criticised the original shading diagrams on the basis that they did not include a diagram showing shading as at 21 July, as a consequence of which the panel
under-estimated the effect of the shading when it stated that “From 21 May to 4 July the shading effects are more pronounced.”
[23] Mr Hunter submits that the panel has made a mistake that a child would not make. Because a child could not have made such a mistake, the panel must therefore be biased, according to Mr Hunter. He makes the point that the shading effect on 21 July (a month after winter solstice) would be the same as 21 May (a month before winter solstice). The simple answer is that the author of the shading diagrams, Mr Burley’s architect, Mr Greg Jones, did not provide the panel with a shading diagram for 21 July. He provided shading diagrams for the following dates – 22 March (equinox), 21 April, 21 May, 7 June, 21 June (winter solstice), 4 July, 21 August and 28 September. The fact that the panel referred to the shading diagrams dated 21 May and 4 July does not mean that they deliberately mischaracterised the effect of the shading. They did not say or suggest in any way that the shading between 4 July and 21 July (17 days) was less than or in any way different to that between 21 May and 7 June (also 17 days).
[24] Mr Hunter also suggests that the original shading diagrams may be wrong by reference to three photographs of the shading, which he says that he took at noon on 14 May, 20 May and 31 May. To my untrained eye, at noon on 20 May, Mr Hunter’s photograph shows shading almost covering the entire window in Ms Taha’s flat. At noon on 21 May, the shading diagram also shows shading almost covering the entire window in Ms Taha’s flat. If he disagreed with the shading diagrams, Mr Hunter had the opportunity at the hearing to present his own evidence from an expert. He did not do so, however. The provision of the additional shading diagrams has not caused an injustice to Mr Hunter.
(c)Views of three relevant witnesses not heard
[25] Mr Hunter says that the panel was misled by submissions made by counsel for Mr Burley that it was not able to have reference to evidence provided in the earlier proceedings. In particular, Mr Hunter points to affidavit evidence from his tenant, Ms Taha, and a heritage consultant, Mr Shannon Cocker, and notes from a Council heritage specialist, Mr Stephen Curham.
[26]As regards Ms Taha, the panel stated:
By way of addressing all matters raised in regard to residential amenity, we note that in her closing submissions, Ms Stienstra states that no weight can be placed on the affidavit from Ms Taha, which was included as part of Mr Hunter’s submission. This is because the affidavit relates to the 2017 resource consent and subsequent judicial review, not the current application. We clarify that we have not placed weight on this affidavit. We consider that we have been able to fully understand the effects on Ms Taha from our visit to her flat, our discussion with her at that time, and from our review of the application plans.
[27] Ms Taha had been notified of Mr Burley’s application for resource consent and was entitled to make submissions to the panel on the proposal. She chose not to do so. The affidavit in question had been filed in the earlier proceedings. Without determining whether or not Mr Hunter could rely on Ms Taha’s affidavit in the hearing of Mr Burley’s application by the panel, it is clear, in any event, that the panel fully understood the effect on Ms Taha from its visit to her flat, their discussion with her at the time and from their review of Mr Burley’s application itself. Mr Hunter was accordingly not disadvantaged by the panel choosing not to place any weight on her affidavit. It had been superseded by the panel’s own review, site investigation and discussion with her.
[28] Mr Cocker had filed an affidavit dated 23 April 2018 in the earlier proceedings. He is a heritage consultant. His affidavit addressed:
(a)The potential bulk, mass and shadowing effects of the proposed development;
(b)Issues relating to matters of historic heritage and building conservation; and
(c)Issues relating to matters of special character and streetscape as contained in the Auckland Unitary Plan (AUP).
[29] Mr Cocker did produce some shading diagrams, but Mr Hunter did not rely on them. In his submission to the panel he stated:
Mr Burley quotes an affidavit by my Heritage Adviser Shannon Cocker in support. I regret advising Mr Cocker with insufficient clarity about my requirements beyond his heritage speciality. Mr Cocker provided two shading plans, for summer and winter. They are of no value, since the information required relates to the gradual change throughout the year in the elevation of the sun.
[30] Unlike Ms Taha’s affidavit, Mr Hunter did not seek to present Mr Cocker’s affidavit as part of his evidence to the panel. The panel therefore did not ignore Mr Cocker’s evidence. It was not provided to them by Mr Hunter. The panel made no ruling whether it was admissible or not in the hearing of Mr Burley’s application.
[31] Mr Curham is a heritage specialist employed by the Council. He attended a pre-application meeting prior to Mr Burley’s first application for resource consent. The purpose of a pre-application meeting is to enable an applicant to amend his or her proposal to accommodate any views expressed by Council staff. The pre-application meeting records:
Mr Curham advised that the best heritage outcome is to remove the existing garage and provide a double car parking pad at the front with a wider vehicle crossing. However, if the garage underneath the dwelling is proposed, the less the dwelling is moved back is preferable. A 300 mm lift of the dwelling can be supported to provide enough clearance for the garage underneath the dwelling. The removal of the portion of the bay window cannot be supported.
[32] Following the pre-application meeting, Mr Burley filed his first application with plans to lift the house 30 centimetres and move it back 1.5 metres, rather than the
2.5 metres originally proposed. The bay windows were also to be retained in their entirety.
[33] The panel was not required to take into account the pre-application advice of Mr Curham on the first application. It was properly informed in the second application on issues of heritage by a comprehensive report from another heritage specialist employed by the Council, Mr Dan Windwood. Mr Windwood concluded that the application was appropriate from a built heritage perspective and could be supported. Mr Curham’s pre-application advice on the first application did not have any weight in terms of the assessment of the second application by the panel. In any event, Mr Curham did envisage that Mr Burley could proceed with a proposal for a garage
underneath the house, in which case he said a proposal to lift the house 30 centimetres could be supported.
(d)Panel took into account evidence not divulged
[34] Mr Hunter complains that the panel has not provided to him the contents of a conversation they had with Ms Taha in her flat when, at Mr Hunter’s request, the panel visited his house on 13 September 2019. He maintains that instead of considering the sworn affidavit in which Ms Taha described her actual responses to the planned development next door, the panel has relied on an alleged conversation with her, the content of which it has not divulged.
[35] Mr Hunter has not, however, analysed the panel’s decision in such a way as to give some support to his assertion that it relied on evidence not divulged. In her affidavit submitted in the earlier proceedings, Ms Taha said that her home is warmed by the sun in the mornings until about 11.00 am. After that, in winter it is in shadow caused by the house next door. She said that she understood that there was to be an extension of the house next door, which would cut off the sun from her home altogether in the winter. The panel found that, after giving extensive consideration to shading issues, the level of adverse shading effect on Mr Hunter’s house to be of a moderate level. The panel stated:
We observe that, overall, Ms Taha’s flat is already subject to extensive shading from the existing villa on the application site, losing sun to all its north facing windows and front door from around mid-morning during winter. Therefore, the extent of existing sun exposure during this time of the year is relatively short.
On the matter of the importance (or otherwise) of sunlight during the winter months, we consider that sunlight during winter is a valuable amenity. In terms of Ms Taha’s flat, we consider that the total loss of sunlight to its north- facing windows, particularly to the living room window, albeit where the existing length of access to sun from these windows is brief, is likely to be highly discernible. On this point we differ from the view of Ms Findlay.1 We agree, however, with the observation of Mr Hunter, made at the hearing, that of the habitable rooms in a house, people tend to spend the greatest amount of daylight hours in their living room and that therefore, the loss of sunlight to this room is likely to be more keenly felt.
1 Planner employed by Mr Burley.
[36] Mr Hunter is unable to explain how this assessment of Ms Taha’s position differs in any appreciable way from the views she expressed in her affidavit nor has he provided an affidavit from Ms Taha in the present proceedings stating just what she told the panel, if their assessment is not an accurate reflection of her position.
(e)Panel took into account an irrelevant issue
[37] Mr Hunter complains that the panel wrongly took into account the additional sunlight received by him in his study at the front of the house in the north-western corner.
[38]The Panel stated:
In forming our view as to the extent of adverse shading effects on 8 Ardmore Road, we note we have also considered the positive effects of the additional sunlight received to the window of Mr Hunter’s study on winter afternoons.
[39] Mr Hunter says once again that the panel was biased in assessing the effect of the proposal on his property as a whole. He says it should have confined its attention to the effect on the north-facing window of Ms Taha’s flat. He considered sunlight in the winter a “pest” in his study as glare reflected off white or shining material on his study desk as he faced his computer screen. The fact that he received additional sunlight if Mr Burley’s house was lifted 30 centimetres and shifted back 1.5 metres was therefore thought by Mr Hunter to be unwelcome and irrelevant.
[40] The panel was, however, not wrong to give consideration to the effect on Mr Hunter’s property as a whole. The additional sunlight in Mr Hunter’s study was not determinative of the application, but was clearly a relevant factor the panel was lawfully able to consider. In such an application a wide range of factors are considered and weighed.
(f)Bias and predetermination
[41] The sixth cause for review is a general pleading of bias and predetermination on the part of the panel. Four incidences are specified.
[42]Firstly, a panel member commented:
I agree with you that the amenity of 8b is on the low side (laughs), definitely
… agree with you that the amount of sunlight that the flat receives at the moment is on the low side.
[43] Mr Hunter says that the member’s laugh had a derogatory tone. He further says that the panel had not at that time visited Ms Taha’s flat and had no knowledge of its amenity issues beyond the claims made by Mr Burley.
[44] The comment made by the panel member needs to be seen in the context of the issue being discussed, which was the AUP policy which provides that the height, bulk and location of a development should maintain a reasonable level of sunlight, access and privacy and minimise visual dominance effects to adjoining sites. The comment was not indicative of bias or predetermination. That he had a preliminary view as to the current amenity of Ms Taha’s flat based on the information he had before him at the time does not constitute predetermination. His comment was part of a wider discussion as to sunlight and shading effects and the way it affects existing levels of amenity.
[45]Secondly, the panel noted:
… Ms Taha was at home at the time of our visit to 8 Ardmore Road. From that visit and our conversation with her we confirm that she uses the side yard, which is approximately 1.5 metres in width, as a small amenity and utility area.
[46] Mr Hunter says that this description devalues the patio area. The side yard features a small table at which Ms Taha entertains single visitors in summer and is used as a place to dry her washing at all times of the year. The location at which the table is sited measures 2.5 metres long and 2.3 metres wide. A path extends to the front of the house and to the back garden from opposite sides of the patio.
[47] This description of Ms Taha’s patio area appears to accurately describe it as a “small amenity and utility area”, although it may have been mis-described as
1.5 metres in width, rather than 2.3 metres.
[48] This misdescription appears to have been adopted from Mr Magee’s report, which stated:
The northern side yard at 8 Ardmore Road (also adjoining this boundary) is approximately 1.5 m wide. This is used as Ms Taha’s amenity and utility yard/patio (including for the drying of washing) as it is directly alongside her dwelling.
Mr Hunter cannot say that Mr Magee was biased as he had recommended that the application for resource consent be refused. This demonstrates it is a simple mistake of little or no relevance.
[49] Thirdly, Mr Hunter claims that the panel twice mis-interpreted the shading diagrams. One mis-interpretation permitted the panel to limit the shading of Ms Taha’s flat to six weeks on winter mornings, when in fact it would be close to three months.
[50] As to the second mis-interpretation, Mr Hunter maintains that the panel treated the shading diagrams that showed full sunlight until 10.00am as if the sun disappeared altogether on the dot of 10.00am. The error again is to Mr Burley’s advantage in that it minimises the shading effect of the planned development by claiming that after 10.00am there was no sunlight anyway.
[51] The panel did not, however, mis-interpret the shading diagrams or the shading effects. Shading was comprehensively discussed at the hearing and fully addressed in the decision of the panel. Although the panel did refer to the shading effects between 21 April and 4 July, it did not suggest that the shading effects on Ms Taha’s flat was limited to these six weeks. The panel described the varying effects of shading between 22 March and 23 September. The reference to error around the level of sunlight at 10.00am is unclear. The panel made reference to 10.00am in paragraph 56 of its decision. Such references, however, do not suggest any rapid change in the sun’s presence or position after 10.00 am. The examples are used to show the difference between the existing house and what would happen if the proposed development went ahead. I am unable to discern any error by the panel and there is no indication of any bias or predetermination.
[52] Fourthly, during their visit on 13 September 2019 to Mr Hunter’s house, the panel made no attempt, according to Mr Hunter, to examine the backyard environment and took no steps to consider amenity issues pertaining to it.
[53] Mr Hunter says that the three panel members stood at the far north eastern corner of his section, beside a trampoline. Their position was some three metres beyond the end of the planned extension by Mr Burley and offered, he says, little to nil value as a position from which to assess its effect on his house and section. He says that of all possible positions at the backyard from which to gain an assessment of the effect of the extension on his backyard, this would, in his view, be by far the least useful. However, no inference of bias or predetermination is available from where panel members stood during the course of their site visit.
[54] When these matters are looked at either singly or cumulatively, there is no evident bias or predetermination.
(h) Heritage values not described and not apparent
[55] Mr Hunter complains that the panel’s decision does not explain how the proposed development will maintain or enhance heritage values. He says the property is in outstanding condition in appearance, having been renovated nine or 10 years ago. The proposal is not to maintain or enhance heritage, he says, but to preserve cars by installing a steep driveway and visually destructive garage door under the house.
[56] The panel had before it a report dated 30 April 2019 made by Mr Winwood, a Senior Built Heritage Specialist for the Council and addressed to Mr Magee. Mr Winwood found that lifting the house 30 centimetres and shifting it back
1.5 metres were within the bounds of a height and building line found in that part of the street. The removal of the existing freestanding garage in the front yard also significantly improved the setting of the house and enhanced the streetscape character of the Special Character Areas Overlay (SCA) and the heritage values of the Historic Heritage Area (HHA). Mr Winwood further found that the front elevation of the basement and the garage door used timber weatherboarding and a clean design to minimise the visual intrusion of this element. He said that the design of the fence and gates proposed allowed separate pedestrian access and the level changes on the site allowed for the fence and vehicle gate to screen the garage doors further. Overall, he thought this particular section of the proposal would benefit the heritage streetscape character and the significance of the HHA.
[57] Mr Winwood also looked at the proposed alterations to the exterior of the house, including windows and replacement of the chimney. As to the design of the rear extension, he found that it appeared to be based on the principle of a contrasting subservient addition that clearly appeared as a contemporary alteration. He found its design aligned with the sidewalls of the original house in accordance with the traditional layout of lean-to extensions to villas. The degree of coverage was somewhat higher than expected for a site of this size in the SCA, while the addition of the swimming pool had reduced the landscaped minimum to below the level of compliance, but the traditional layout of the rear extension kept the overall pattern of development reasonably in accordance with the historic pattern of development in the HHA.
[58] The choice of materials differed from the identified palette in the SCA, but the use of a paint finish on the concrete walls would ensure that the change between traditional and modern materials did not excessively jar with the identified character of the area. As amended, Mr Winwood found that the design of the rear extension now successfully avoided significant harm to the character of the SCA and heritage values of the HHA. Overall, Mr Winwood considered that the application was appropriate from a built heritage perspective and could be supported.
[59]The reporting planner, Mr Magee, had a similar view. He stated:
Overall, and taking into account the specialist assessments, the proposal is considered to appropriately minimise and manage adverse effects on heritage values, the inter-relationship between contributing places within the surrounds. The proposal does not detract from the overall significance of the place and is considered to maintain the heritage values of the Heritage Area.
The heritage expert retained by Mr Burley, Mr John Brown, was also of the view that the proposal maintained or enhanced heritage values.
[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.
(g) Mr Burley’s final submissions improper
[61] Mr Hunter acknowledges that Mr Burley had a right of reply to matters raised by him objecting to the proposal, but complains that the final submissions in reply by Mr Burley’s counsel did not address matters raised by him. Instead, they were wide- ranging and covered all matters that should have been, and were, addressed at the hearing. As such, Mr Hunter says that Mr Burley’s final submissions should have been put to one side by the panel.
[62] However, Mr Hunter has not provided particulars of any new matters raised, to which he could have responded, or demonstrated that the panel inappropriately placed particular weight on any matters covered in the submissions. The Chair of the Panel, Ms Karyn Kurzeja, in an affidavit affirmed on 22 June 2020, says there was nothing improper about the final submissions and no reason to reject them. The panel was very clear as to what Mr Hunter had said at the hearing and his position in relation to the key points in contention.
[63] Mr Hunter also complains that counsel requested, and was granted, 10 working days following the hearing to provide final submissions. However, she provided her reply 29 working days after the hearing “apparently without explanation, objection or critique by the panel”. This is further evidence of bias by the panel, according to Mr Hunter.
[64] Ms Kurzeja has, however, annexed documentation to her affidavit disclosing communications with counsel for Mr Burley on or about 16 September 2019, 28 September 2019 and 18 October 2019 about progress on filing of the final submissions. At one stage, the Chair approved an extension of a week and half to file the final submissions. The panel was not biased.
[65] Alternatively, Mr Hunter complains that he requested the opportunity to respond to “several instances of incorrect fact, false arguments and distortions of the truth which have not previously been put forward”, but was denied.
[66] Mr Hunter objects, in particular, to a description in the final submissions of Ms Taha’s flat as being in poor condition with insufficient light and likely non- compliant with the Building Act, the Building Code and the AUP. On this particular issue at least, the panel heard from Mr Magee that the flat had been lawfully established and could be established today without a consent. Although not making a specific finding on the issue, the panel did not proceed to discount the effect of the proposal on the flat because it was in some way non-compliant. It accepted the flat for what it was – the home of an elderly widow for whom light and heat were important amenities.
[67] I am not satisfied that the Chair of the Panel was wrong to refuse leave for Mr Hunter to file further submissions. Mr Burley’s final submissions do not appear to have been influential to the panel’s decision as they were based upon earlier responses made at the hearing and merely restated Mr Burley’s position.
Conclusion
[68] None of Mr Hunter’s eight “causes for review” have been established. His application for judicial review is dismissed. The respondents are entitled to costs. If they cannot be agreed, memoranda are to be filed within 28 days of the date of this decision.
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
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