Keir v Auckland Council - [2023] NZHC 1658

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-446

[2023] NZHC 1658

UNDER the Judicial Review Procedure Act 2016

BETWEEN

JOHN RICHARD KEIR and RACHAEL

KEIR for themselves and as trustees of the JOHN RICHARD KEIR TRUST AND RACHAEL SIMMS TRUST

Applicants

AND

AUCKLAND COUNCIL

First Respondent

ROBERT SIMMS AND LYNETTE JEAN SIMMS

Second Respondents

Hearing: 3 April 2023

Appearances:

M Casey KC and A J Davidson for the Applicants No appearance by or for the First Respondent

DTD Horton for the Second Respondents (excused during the hearing)

Judgment:

30 June 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 30 June 2023 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr M Casey KC and Ms A J Davidson, Barristers, Auckland
Mr N Woods (applicants’ instructing solicitor), Rice Craig, Papakura Ms L E Bielby and Ms K Fraser, Rice Speir, Auckland
Ms DTD Horton, Barristers, Auckland
Mr T Gibbons (second respondents’ instructing solicitor), Thomas Gibbons Law, Hamilton

KEIR v AUCKLAND COUNCIL [2023] NZHC 1658 [30 June 2023]

[1] In this judicial review proceeding, the Keirs challenge Auckland Council’s decisions of 19 May 2021 not to notify the Simms’ application for, and to grant, subdivision consent (the 2021 consent) to the Simms to allow for the division of a family farm through rearrangement of titles owned by the Simms, their son Bruce Simms and the Keirs.

[2] As Mr Casey KC, for the Keirs, submitted, this case has two unusual features. First, the Keirs own two of the subject sites but were not considered to be affected persons for the purposes of notification.

[3] Secondly, while Auckland Council and the Simms filed statements of defence and a two day hearing was allocated, they subsequently advised that they did not intend to file evidence or submissions and would abide the decision of the Court.1

[4] Despite the nature of judicial review, there was no appearance by or for Auckland Council at the hearing. Ms Horton appeared for the Simms but during the hearing sought and was granted leave to be excused. As a result, the hearing continued in effect as a formal proof hearing and the two days allocated was not required.

Factual background

[5] The Keirs own two lots on the western side of Glenbrook Road (formerly Glenbrook Beach Road). They also own and live in a house on the neighbouring farm lot, on the eastern side of the road, owned by Ms Keir’s parents, the Simms. The Simms live in another house on the farm lot. The farm lot is operated as a dairy farm. The Keir and Simms houses are accessed by a severely degraded access way which also serves as the main cow race for relocating stock across the farm. The Simms own a further lot neighbouring the Keir lots on the western side of the road and their son, Bruce Simms, Ms…

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: [2023] NZHC 1658
Decision Date: 30 June 2023

CaseChat Overview and Summary

In the case of Keir v Auckland Council, the applicants, John Richard Keir and Rachael Keir, challenged the Auckland Council's decisions made on 19 May 2021 not to notify them of an application for subdivision consent and to grant that consent. The applicants own two lots on the western side of Glenbrook Road and live in a house on a neighbouring farm lot owned by the Simms, the second respondents. The first respondent, Auckland Council, processed an application for subdivision consent from the Simms, who sought to divide the family farm through a rearrangement of titles owned by themselves, their son Bruce Simms, and the Keirs. The Keirs argued that the Council's decisions contained errors of law, failed to consider relevant effects on them, and were manifestly unreasonable. The court agreed with the Keirs and quashed both the Council's notification and consent decisions, finding that the Council had not applied the correct test in determining whether the 2016 consent was likely to be implemented and had failed to consider relevant adverse effects on the Keirs. The court also quashed the Council's decision to approve the survey plan for the 2021 consent, as it was reliant on the now-quashed consent.

The court found that the Council's assessment of the receiving environment was flawed, as it did not properly consider whether the 2016 consent was likely to be implemented. The Council had relied on the submission of a survey plan for approval under s 223 of the Resource Management Act 1991 as being sufficient to implement the 2016 consent, but the court found this to be incorrect. The court held that the Council should have considered whether it was likely that the subdivision would be completed before the lapse date, taking into account the family disagreement and the Simms' stated intention not to construct the new right-of-way. The court also found that even if the 2016 consent had formed part of the receiving environment, the Council still failed to properly consider the relevant effects on the Keirs due to the differences between the 2016 and 2021 consents. These differences included the removal of the requirement to construct a new right-of-way, the identification of specified building areas on the Keir lots, and the change in the boundaries of the Keir house lot. The court concluded that the Council's notification and consent decisions contained errors of law and were quashed, requiring the Council to reconsider the Simms' application for consent if pursued. The court also quashed the Council's decision to approve the survey plan for the 2021 consent, as it was reliant on the now-quashed consent.

Orders