MacPherson v Napier City Council - [2013] NZHC 2518

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2012-441-000851 [2013] NZHC 2518

UNDER the Judicature Amendment Act 1972 ("the Act")

IN THE MATTER OF

the Resource Management Act 1991 ("the RMA")

BETWEEN

J E MACPHERSON and N J MATHESON

Applicants

AND

NAPIER CITY COUNCIL

First Respondent

AND

WHATEVER IT TAKES TRUST INCORPORATED

Second Respondent

Hearing:

29-30 July 2013

Counsel:

M J E Williams for the Plaintiffs

M B Lawson for the First Respondent M J Wenley for the Second Respondent

Judgment:

26 September 2013

_________________________________________________________________________________________________________

JUDGMENT OF DUFFY J

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________---______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

This judgment was delivered by Justice Duffy on 26 September 2013 at 4.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:

Counsel: M J E Williams, Napier

Solicitors: Carlile Dowling (A J Pidd), Napier Lawson Robinson Limited, Napier Willis Toomey Robinson, Napier

MACPHERSON and MATHESON v NAPIER CITY COUNCIL and ANOR [2013] NZHC 2518 [26 September 2013]

[1] The applicants, J E Macpherson and N J Matheson, have applied for judicial review of the first respondent’s (the Council) decisions:

(a)not to notify them of the second respondent’s (the Trust) application to develop a multi-unit development on land opposite their property; and

(b)to grant resource consent to the second respondent’s application.

[2] The key issues that the Court will need to resolve are: (a) should the Council have proceeded to process the Trust’s application as one for a “controlled activity” when the application that it lodged was not made fully compliant for such activity until after a change to the District Plan that excluded proposed developments like the Trust’s from being controlled activities; (b) as the property was subject to the requirements of the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (NES Regulations), could these be addressed later in accordance with a condition attached to the consent, or did they need to be addressed as part of the process of granting consent; and (c) should the application have been publicly notified. If the answers to these questions reveal errors of law in the Council’s decision-making, then, as relief in judicial review is discretionary, the next question will be whether or not the resource consent should be set aside and the application referred back to the Council for reconsideration.

Background

[3] The applicants live in the house they own on Paradise Road, Napier. Their home is on land falling within the Napier Hill Character Zone, set under the Council’s District Plan. This zone is described in the Council planner’s report as comprising a diverse mix of housing styles, including art deco, bungalows, villas and modern architectural design. The zone has narrow roads, which, in many cases, lack footpaths. The applicants describe Paradise Road as a steep, narrow, historic road with no exit, and buildings that hark back to early settlement days. It has no footpaths and in some places old stone retaining walls line the kerb. It is a steep

road with a…

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: [2013] NZHC 2518
Decision Date: 26 September 2013

CaseChat Overview and Summary

In this judicial review case, the applicants sought to have the decision of the Napier City Council set aside for erroneously granting resource consent for the second respondent's multi-unit residential development proposal. The applicants argued that the Council's decision-making process contained errors of law and that the application should have been classified as a discretionary activity, rather than a controlled activity. The applicants also argued that the application should have been notified to the public. The court found that the Council's decision contained errors of law that warranted the grant of relief. The Council's failure to classify the proposal as a discretionary activity and its failure to impose the correct conditions on the resource consent were serious errors. The court set aside the Council's decision and directed it to be reconsidered in accordance with the court's findings. The Trust's reliance on the Council's erroneous decision did not preclude the grant of relief, as the Trust should have ensured its application was fully compliant with the requirements for a controlled activity. The court found that the interests of justice required the grant of relief in this case.

Orders