Maehl v Auckland Council - [2017] NZHC 1902

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-3096 [2017] NZHC 1902

BETWEEN
ANDREW ALEXANDER MAEHL AND

WINIFRED MARY CHARLESWORTH Applicants

AND

AUCKLAND COUNCIL First Respondent

JOHN ROBERT LENIHAN, JANE HELEN GREENSMITH AND ANTHONY GORE AS TRUSTEES OF LENIHAN AND GREENSMITH FAMILY TRUST

Second Respondents

Hearing: On the papers

Counsel:

D Salmon and Z Matheson for Applicants
W Loutit and T Fischer for First Respondent
S Masoud-Ansari for Second Respondent

Judgment:

14 August 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 14 August 2017 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Christopher Taylor Lawyers, Auckland
Simpson Grierson, Auckland
AG Law Lawyers, Devonport

MAEHL AND CHARLESWORTH v AUCKLAND COUNCIL [2017] NZHC 1902 [14 August 2017]

[1] This is an application for costs by the applicants in a judicial review proceeding, in circumstances where the resource consents under review were surrendered. While the review was not successful, the applicants, it appears, achieved their objective.

[2] For reasons I will now explain, I am not prepared to award costs. In short, no party succeeded on the merits of their case. The Auckland Council (the Council) never conceded, and does not concede, it erred in granting the consents. Rather, the consent holders, the second respondents, no longer wished to carry the burden of the litigation, which has involved repeated attacks on their integrity. In those circumstances, costs should lie where they fall.

[3] Regrettably, it is necessary to explain the background at length in order to understand the outcome I have reached.

Background

[4] John Lenihan and Jane Greensmith obtained resource consents to construct houses at 40 and 42 Paturoa Road, Titirangi. The construction of the houses involved the removal of a large rimu tree and a large kauri tree. Andrew Maehl and Winifred Charlesworth reside at 38 Paturoa Road. They challenged the grant of the resource consents on a non-notified basis and the decision to grant consent. They identified a number of problems with the information supplied, the process leading up to the grants and the decisions to grant consent.

42 Paturoa Road

[5] An application for resource consent to construct a house at 42 Paturoa Road was made in June 2013. At the time, the site was subject to the Auckland District Plan (Waitakere Section). It was also subject to the Proposed Auckland Unitary Plan (PAUP). The application involved a number of activities which triggered a requirement in the rules of those plans to obtain consent for controlled, restricted discretionary and discretionary activities. Because the proposed activities were linked, the resource consent applications were bundled and were assessed overall as a discretionary activity.

[6] The assessment of environmental effects attached to the application included scheme plans and a number of reports on a variety of effects considerations. One of those plans included a site plan. The site plan identifies the location of trees affected by the application and appears to indicate the dripline of the affected trees.…

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.

Keep reading for free

Create a free CaseChat account to read Maehl v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 1902
Decision Date: 14 August 2017

CaseChat Overview and Summary

The applicants, Andrew Maehl and Winifred Charlesworth, applied for costs in a judicial review proceeding concerning the surrender of resource consents. The applicants argued they achieved their objective and were therefore entitled to indemnity costs. The first respondent, Auckland Council, did not seek costs and was content to let them lie where they fell. The second respondents, the consent holders, opposed the application for costs.

The High Court considered whether the applicants succeeded on the merits of their case, and whether there was a proper basis for an award of costs against the second respondents for their alleged conduct. The Court found that no party succeeded on the merits, as the Council did not concede it erred in granting the consents. The applicants' claims, while not compelling, were not meritless. The Court also found that there was no proper basis for an award of costs against the second respondents for their alleged conduct, as the evidence presented by the applicants was contestable and did not meet the required standard of proof.

The Court held that, in these circumstances, costs should lie where they fall. No party was successful on the merits, and the applicants' claims, while not compelling, were not meritless. The surrender of the consents rendered the proceedings futile, and the Council did not seek costs. Therefore, the Court concluded that costs should lie where they fall.

Final orders: Costs lie where they fall.

Orders