Kent v Upper Hutt City Council

[2014] NZCA 622

IN THE COURT OF APPEAL OF NEW ZEALAND

CA527/2014
[2014] NZCA 622

BETWEEN	HARRY DALE KENT Applicant
AND	UPPER HUTT CITY COUNCIL Respondent

Court:

Randerson, Harrison and Cooper JJ

Counsel:

Applicant in Person
N Levy for Respondent

Judgment:

(On the papers)

17 December 2014 at 2:30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

B    The applicant must pay costs to the respondent for a standard application on a Band A basis with usual disbursements. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1. The applicant Mr Kent seeks leave to appeal to this Court under s 18A of the Land Valuation Proceedings Act 1948 against a judgment of the High Court issued on 20 August 2014.[1]  The judgment relates to the valuation of land owned by Mr Kent within the territory administered by the Upper Hutt City Council (the Council).

   [1]Kent v Upper Hutt City Council [2014] NZHC 1958.

2. The application relates to three of six titles to land upon which Mr Kent’s family has operated a nursery business for many years.  The land is zoned Business Commercial under the Council’s District Plan.  The three titles at issue were valued by the Valuer-General as at 1 September 2010.  Mr Kent objected to the valuations submitting they were substantially too high.  Mr Kent’s objections were considered by the Land Valuation Tribunal.[2]  The Tribunal dismissed Mr Kent’s objections in a judgment dated 28 March 2014.  His subsequent appeal to the High Court was heard by Collins J sitting with a valuer, Mr G Horsley.  The appeal was dismissed. 

   [2]Kent v Valuer-General LVT Wellington LVT-3/11, 28 March 2014

3. Mr Kent’s application for leave to appeal from the High Court judgment was filed out of time but the delay was minor.  On 17 November 2014 Wild J granted Mr Kent’s application for an extension of time and ruled that the application for an extension of time was to be treated as Mr Kent’s application for leave to appeal.  Wild J also recorded that the parties consented to the application for leave to appeal being dealt with on the papers. 

The High Court judgment

1. The High Court reviewed all the evidence presented to it and concluded that the Tribunal’s decision was correct.  The High Court reviewed in some detail the Tribunal’s judgment noting that it had considered and rejected all of Mr Kent’s concerns.  The Tribunal had concluded that the valuer who conducted the valuations approached her task in a way that fully complied with the Rating Valuations Act 1998 and valuation principles.

2. The High Court identified the essential issues on appeal.  They were whether the Council’s valuer had erred in:

   (a)Failing to take into account the negative impacts on value of the Council carparking requirements under its District Plan.

   (b)Treating the titles separately rather than valuing the necessary land as a whole.

   (c)Assessing the number of units that could be developed on each of the lots.

   (d)Assessing the value of the property by reference to comparable sites.

3. The High Court treated the appeal as a rehearing and adopted the approach mandated by the Supreme Court in Austin, Nicolls & Co Inc v Stiching Lodestar.[3]  The High Court considered and rejected Mr Kent’s submissions in relation to all of the points he had raised and set out the reasons for its conclusions.

Mr Kent’s submissions

[3]Austin, Nichols & Co Incv Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

1. Mr Kent’s submissions in support of his application for leave appear to raise the following points:

   (a)The Council’s valuation was allegedly conducted in a corrupt manner.

   (b)The approach of the Council’s valuer was wrong by reference to the value of Mr Kent’s own comparable adjoining sites.

   (c)The approach to the valuation was wrong by reference to other sites with similar zoning.

   (d)Regard should be had to a recent sale of a property previously occupied by Twigland Gardeners World.

   (e)Regard should be had to the general revaluation conducted in 2014.

   (f)Regard should have been had to the effects of surface water and the costs of stormwater and flood protection.

Analysis

1. Section 18A of the Act sets out certain mandatory considerations in relation to determining applications for leave to appeal to this Court:

18A     Appeal to Court of Appeal in certain cases 

…

(2)In determining whether to grant leave to appeal under this section, the Court to which the application for leave is made shall have regard to the following matters:

(a)whether any question of law or general principle is involved:

(b)the importance of the issues to the parties:

(c)the amount of money in issue:

(d)such other matters as in the particular circumstances the court thinks fit.

1. We agree with Ms Levy’s submission on behalf of the Council that the general principles applicable to second appeals are also relevant.  The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.[4]

   [4]Rutherfurd v Waite [1923] GLR 34 (SC); Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 at 346–347 and Waller v Hider [1998] 1 NZLR 412 at 413.

2. Mr Kent’s submissions do not address any of the relevant statutory considerations nor the general principles for second appeals.  He has not identified any question of law or general principle that he seeks to raise on appeal.  Rather, the issues he seeks to raise are essentially a rerun of the issues fully canvassed by the Tribunal and the High Court.  We discern no error in the decisions of the Tribunal and the High Court.

3. No doubt Mr Kent regards the valuation issue as important but we do not view any of the issues raised as being of general importance.  The amounts of money at issue are also relatively small. 

4. As to whether there are any other particular circumstances the Court should consider, we note that Mr Kent seeks to place before us factual material we understand was not presented to the Tribunal or the High Court.  We are satisfied this is not appropriate in relation to a second appeal and that, for example, the 2014 revaluations are not material to the 2010 valuations at issue.

Result

1. For the reasons given the application for leave to appeal is dismissed.

2. The applicant must pay costs to the respondent for a standard application on a Band A basis with usual disbursements.

Solicitors:
Andrea Hilton, Upper Hutt City Council for Respondent