Jayashree Limited v Auckland Council - [2015] NZHC 2085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000910 [2015] NZHC 2085

IN THE MATTER
of an appeal under s 299 of the Resource

Management Act 1991

BETWEEN

JAYASHREE LIMITED, MADHAVA LIMITED AND MADHAVA CORPORATION LIMITED

AND

MADHAV HARA KARMARKAR Appellants

AND

AUCKLAND COUNCIL Respondent

Hearing: 19 August 2015

Appearances:

S Brownhill for the Appellants
C Brown for the Respondent

Judgment:

31 August 2015

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 31 August 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

JAYASHREE LIMITED & ORS v AUCKLAND COUNCIL [2015] NZHC 2085 [31 August 2015]

Introduction

[1] This appeal from a decision of the Environment Court concerns the way in which the Auckland Council determines the number of residential units permitted on a site.1 That turns on the meaning of “residential unit” contained in the Council’s operative District Plan,2 and in particular the words “designed to be used exclusively” contained in that definition.

[2] The appellants say that the Environment Court erred in law in its assessment of design use by taking into account whether, with very minor changes, a proposed building could be converted into additional household units so as to constitute multiple residential units. This approach is said to be inconsistent with the accepted legal test for determining designed use of the building, and infringes the principle that a person and their successors are entitled to a presumption that they will act lawfully.

Background

[3] The Environment Court’s decision concerns a number of properties located in the Mt Roskill and Mt Albert suburbs of Auckland.

[4] All of the properties are residential dwellings within the Residential 6a zone under the District Plan. Residential activities which comply with relevant development controls are permitted within this zone.3 Rule 7.7.2.1 of the District Plan prescribes a density limit of one residential unit per 375m2 per site area for the Residential 6a zone.

34 White Swan Rd

[5] The first named appellant, Jayashree Ltd, owns the land and dwelling at

34 White Swan Road. A building consent was granted by the Council to allow the single residential unit on the property to be developed into two residential units
which was a permitted activity within the density limits specified in the District Plan.

1      Jayashree Ltd v Auckland Council [2015] NZEnvC 59.
2      City of Auckland Operative District Plan 1999 (Isthmus Section) (District Plan).
3      District Plan, r 7.7.1.

[6] The building consent was issued subject to a notice under s 37 of the Building Act 2004 which prevents building work commencing where a territorial authority considers that resource consent is required. Resource consent was required because the Council took the view that the building was designed to be used as four residential units rather than the two permitted units.

[7] The evidence regarding the proposed units was summarised by the

Environment Court as follows:

[19] Mr Macpherson, for Jayashree, described the two units, including the facilities and services to be…

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.

Keep reading for free

Create a free CaseChat account to read Jayashree Limited v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 2085
Decision Date: 31 August 2015

CaseChat Overview and Summary

Jayashree Limited, Madhava Limited, and Madhava Corporation Limited appealed against the Environment Court's decision regarding the interpretation of the term "residential unit" in the Auckland Council's District Plan. The appellants contested the Environment Court's assessment of the design use of their properties, specifically whether the properties could be converted into additional residential units with minor changes. The central issue was whether the Environment Court had correctly applied the legal test for determining the designed use of buildings and if its approach violated the principle that individuals are presumed to act lawfully.

The court examined the applicable legal test, which was established by the Court of Appeal in Landeman v Cavanagh. This test requires an objective assessment of the building's plan, nature, size, layout, and relationship to other buildings on the property to determine if it is designed to be used exclusively by one or more persons as a separate household unit. The court noted that while the Environment Court's interpretation of the "designed to be used exclusively" phrase in the Shaw case might not have been perfectly articulated, it did not materially affect the overall approach and decision. The court found that the Environment Court's consideration of features such as internal doors and kitchen arrangements, which suggested the buildings could be used as separate residential units, was consistent with the objective test and did not infringe on the principle of presuming lawful conduct.

Consequently, the court dismissed the appeal, holding that the Environment Court had not erred in law and correctly applied the legal test. The Auckland Council was awarded costs, with directions for the parties to address any cost-related matters within ten working days of the judgment.

Orders