Lau v Auckland Council - [2016] NZHC 2556

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001538 [2016] NZHC 2556

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

Management Act 1991 against a decision of the Environment Court

BETWEEN

EE KUOH LAU (AKA AUGUSTINE LAU)

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 25 October 2016

Appearances:

Appellant in Person
B Watts for Respondent

Judgment:

26 October 2016

JUDGMENT OF VENNING J APPLICATION FOR LEAVE TO APPEAL

This judgment was delivered by me on 26 October 2016 at 1.00 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland
Copy to: Appellant

LAU v AUCKLAND COUNCIL [2016] NZHC 2556 [26 October 2016]

Introduction

[1] Mr Lau seeks special leave to extend the time to appeal from a decision of the Environment Court delivered on 23 May 2016.1

[2] The Environment Court granted the Auckland Council’s (the Council) application for enforcement orders in relation to a property at Waiwera. The Court made a number of interim orders as follows:

a. Pursuant to s 278 of the Act and District Court Rule 9.25:

i. the Council is to obtain expert reports addressing geotechnical, site stability, slippage, and erosion, and remediation methodology for earthworks and re-vegetation, by 20 June
2016;

ii. the Council is to advise Mr Lau of its selection of experts as soon as practicable;

iii. the Court orders that all relevant experts and assistants are entitled to attend the site (but not enter any home) Monday to Saturday between the hours of 8am – 5pm without prior notice to the owner or occupier/s. They should be accompanied by a warranted Council officer pursuant to s 314(1)(d) of the Act, who is to give a copy of this order to any occupier of the site.

b.Pursuant to s 314(1)(d) of the Act, the entire costs of these reports are to be borne by Lucky Wu Limited and Mr EK Lau jointly and severally, and if paid by the Council can be recovered in the District Court, North Shore.

c. That the reports are to be provided to the Court and the parties by 24
June 2016, and by 8 July 2016 the Council is to file applications for further orders.

d.That the Court will set the matter down on or after 27 July 2016 to consider what further orders should be made, if necessary conducting a disputed facts hearing relating to matters arising from those reports. Evidence in support of further orders is to be filed by
8 July 2016; evidence in reply by 22 July 2016.

e.That where an application for interim orders is made (relating to emergency or other works) the Court may convene an urgent hearing with three days notice (or more) to the parties.

f. A copy of this decision and orders, and any further applications and reports, are to be provided to Alice Nic, Barrister & Solicitor, as substituted service for Qiufen Lu, the landowner.

[3] I note that although Mr Lau is…

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: [2016] NZHC 2556
Decision Date: 26 October 2016

CaseChat Overview and Summary

Lau v Auckland Council [2016] NZHC 2556 was an appeal against a decision of the Environment Court concerning enforcement orders issued by the Auckland Council against Mr Lau for unconsented earthworks and vegetation clearance on a property at Waiwera. Mr Lau sought special leave to extend the time to appeal the decision, which was four working days late. The legal issues the Court had to decide included whether to grant special leave to appeal considering the short delay, reasons for the delay, the parties' conduct, the potential prejudice caused by delay, the prospective merits of the appeal, and whether the appeal raised any issue of public importance.

The Court found that the appeal was short delayed and the reasons for the delay were due to a misunderstanding by Mr Lau regarding the time limit for appealing. The Court noted there was nothing about the parties' conduct during the course of the proceeding that was of relevance. The proposed appeal did not raise any issues of public importance. The Court considered the potential prejudice caused by delay and the merits of the appeal, finding that granting an extension of time for the appeal would delay the necessary investigation and remedial work required at the site. The Court concluded that the proposed appeal was hopeless and entirely without merit, and dismissed the application for special leave to appeal. The Court ordered Mr Lau to pay the Council costs on a 2B basis together with disbursements as fixed by the Registrar.

Orders