KĀINGA ORA – HOMES AND COMMUNITIES AND AUCKLAND COUNCIL

[2024] NZHC 3684

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2513

[2024] NZHC 3684

BETWEEN

KĀINGA ORA – HOMES AND COMMUNITIES
Applicant

AND

AUCKLAND COUNCIL

Respondent

Hearing:

On the papers

Counsel:

NMH Whittington for applicant

LEJ Bielby and F M Wach for respondent

Date of judgment:

5 December 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 5 December 2024 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

NMH Whittington, Barrister, Wellington Rice Spier, Auckland

KĀINGA ORA – HOMES AND COMMUNITIES v AUCKLAND COUNCIL [2024] NZHC 3684 [5 December 2024]

[1]                 This proceeding, allocated to me for determination as judicial review list judge, relates to two procedural decisions of Auckland Council:

(a)on 15 May 2024, declining to determine Kāinga Ora’s application to extend the lapse date for a resource consent under s 125(1A)(b) of the Resource Management Act 1991 on grounds the Council was functus officio; and

(b)on 25 July 2024, returning Kāinga Ora’s objection under s 357(1)(a)(ii) in relation to the first decision on grounds the Council had no jurisdiction to hear the objection.

Kāinga Ora alleges both decisions erred in law, and the Council also failed to give adequate reasons for the first decision.

[2]                 The Council admits it was wrong in law to conclude it was functus officio in relation to Kāinga Ora’s extension application. On that basis, the parties propose both decisions be set aside and the Council be directed to reconsider the application, with costs to lie where they fall.

[3]                 I am satisfied the Council’s decision in relation to the extension application is an exercise of statutory power, appears to have been founded in errant legal advice, therefore errs in law and the proposed terms accordingly are appropriate relief to which Kāinga Ora is entitled under ss 16 and 17 of the Judicial Review Procedure Act 2016.

[4]I therefore:

(a)set aside the Council’s 15 May and 25 July 2024 decisions;

(b)direct the Council to reconsider Kāinga Ora’s extension application; and

(c)order costs lie where they fell or fall.

—Jagose J