Lau v Auckland Council - [2016] NZHC 2397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002063 [2016] NZHC 2397

BETWEEN
AUGUSTINE LAU

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 4 October 2016

Appearances:

Appellant in person
B Watts for Respondent

Judgment:

7 October 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty
On 7 October 2016 at 4.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Meredith Connell, Auckland
Copy to Appellant

LAU v AUCKLAND COUNCIL [2016] NZHC 2397 [7 October 2016]

[1] This is an appeal seeking to overturn the decision of the Environment Court delivered on 28 July.1 The decision rejected three appeals lodged under s 325 of the Resource Management Act 1991 (RMA). All appeals are limited to questions of law, by s 299(1) of the RMA.

[2] The appeals to the Environment Court had challenged abatement notices that the Council had issued in respect of three properties with which the appellant is concerned. Two of these are properties on which re-locatable homes have been lodged without consent. The third has been subjected to earthworks beyond the permitted maximum.

[3] The activities – the subject of the abatement notices were generally summed up this way in paragraph [27] of the Judgment under appeal:

These breaches are not of the same severity, but indicate a pattern of activity which seeks to place re-locatable houses on land and occupy them with tenants in circumstances where there appears to have been no or very little consideration of either building consent requirements or the RMA. While we appreciate that there is an enormous pressure in Auckland for housing, but it cannot be the intention that people are placed in houses that are unsafe and unchecked. In the circumstances we are not satisfied that any of these properties have been operating in accordance with the Resource Management Act and I have deep suspicions as to whether they comply with the Building Act.

[4] That led to the appeals being dismissed by the Environment Court, with costs being deferred for a later hearing.

[5] The appellant has now appealed to the High Court. He has not instructed counsel. He does not understand that the appeals must be limited to questions of law.

[6] He argues that the sitting Judge was prejudiced as a result of a previous decision which did not favour Mr Lau and that further grounds would be lodged after he obtains the return of documents seized from his office on 9 and 16 August.

The subject properties

676 Mt Albert Road, Royal Oak

[7] This property contains two buildings – a single level weatherboard dwelling house and a shed. The house was constructed pre-1940, although extensions have been subsequently made. A subdivision of the property into two cross-leases was approved back in June 2012 by the Council, but it has not been given effect to. There are two dwelling units on the property. The Council takes the view that it breaches the District Plan’s density limit for residential units.…

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 2397
Decision Date: 7 October 2016

CaseChat Overview and Summary

Augustine Lau appeals against the Environment Court's dismissal of three appeals against abatement notices issued by the Auckland Council. The abatement notices were issued in respect of three properties owned or managed by Mr Lau. The first property, located at 676 Mt Albert Road, Royal Oak, involved two buildings - a single-level weatherboard dwelling house and a shed. The house was constructed before 1940, and extensions were subsequently made. A subdivision of the property into two cross-leases was approved by the Council in June 2012 but had not been implemented. The Council took the view that the property breached the District Plan's density limit for residential units. Abatement notices were issued to cease using the property as more than two residential units and to provide a site plan demonstrating how the property would be reinstated as no more than two residential units. The second property, located at 436 Paremoremo Road, involved a large house that had been relocated onto the site. Neighbours made complaints regarding earthworks and the removal of pine trees. Abatement notices were issued, and they had not been complied with. Mr Lau disputed that he brought the house onto the land. The third property, located at 423 Ormiston Road, was an area of more than two and a half hectares in the semi-rural area of Flatbush. The zoning was a mixture of proposed road zoning, stormwater management, and public open space. Abatement notices were issued to cease all earthworks. Mr Lau admitted he managed the property and that more than 200 cubic metres of fill had been moved onto the property. He contended that he had to do more work on the fill to level it. The legal issues before the High Court were whether there were any errors of law in the Environment Court's decision to dismiss the appeals and to strike them out as an abuse of process. The Court found that Mr Lau had not identified any errors of law or questions of law to be resolved. The Court concluded that the Environment Court's findings regarding Mr Lau's credibility and the merits of the appeals were correct. The Court dismissed the appeals and ordered Mr Lau to pay costs.

Orders