Maehl v Auckland Council
[2017] NZHC 1902
•14 August 2017
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 RespondentJudgment:
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. The identified trees are also included in an attached list of affected trees.
[7] Matthew Wright, a Council officer, produced a recommendation report on notification of the application on 15 May 2014. Attached to that report, alongside numerous other documents, was an assessment of environmental effects, the scheme plans (including the site plan), and the list of affected trees.
[8] On 16 May 2014 Duty Commissioner Leigh McGregor was assigned to determine whether the application should be notified (either on a public or a limited basis) or not at all. She resolved to proceed on a non-notified basis on 19 May 2014. In summary, the Commissioner decided the adverse effects on the environment would be no more than minor, having specific regard to effects on ecology (including vegetation clearance), avifauna, site stability, landscape and land form, the area’s vista and the intrinsic values associated with the heritage landscape.
[9] Following the non-notification decision, the Council was advised by Mr Douglas Allan, acting for the Waitakere Ranges Protection Society Inc, that the Commissioner had erred. Mr Allan referred to a specialist report by Mr Griffin which was attached to the recommendation. This report noted “adverse effects that are more than minor on the existing natural environment and on visual amenity”.
[10] The Council responded by having Mr Griffin produce a revised report. That report, dated 30 May 2014, did not include the reference to “more than minor” adverse effects. An updated recommendation report, including a copy of Mr Griffin’s revised report, was then resubmitted to the Commissioner. On 10 June
2014, Commissioner McGregor issued an addendum to the notification decision and confirmed that the application should proceed on a non-notified basis.
[11] Following this decision, Mr Wright produced a recommendation report on the substantive decision, which was sent to Commissioner McGregor on 13 June 2014.
This report identified the information supplied with the application, including the list of trees affected and the site plan. It noted this information was reviewed and assessed by a number of Council specialists, including an ecologist, earthworks and geotechnical engineer, landscape planner and arborist. The report also provided a summary of the proposed development and reviewed relevant planning instruments, concluding the proposal was not contrary to relevant objectives and policies of the Resource Management Act 1991 (RMA), and should be approved for a number of reasons.
[12] Commissioner McGregor granted consent to the application on 17 June 2014. The decision notes, having read the application, supporting documents, specialist comments and Mr Wright’s recommendation report, the Commissioner was satisfied consent should be granted. Relevantly, extensive conditions were imposed directed to the protection of trees, including a requirement for survey and prohibition against
vegetation clearance.1
40 Paturoa Road
[13] An application for consent to construct a dwelling at 40 Paturoa Road was submitted to the Council on 9 September 2014. The construction would require, among other things, removal of 24 native trees including five kauri. As with the first application, it contained an assessment of environmental effects, together with a number of specialist reports. Ms Lee Boyt was assigned the task of processing the application and providing a recommendation report on notification and the substantive decision. For the purpose of assisting her review the application, she enlisted the assistance of a number of specialists, including Natalie Marsden, Martin Sharp (ecologist), Ravanish Shand (earthworks and drainage), Bruce Bonita (geotechnical), John Carol (traffic engineering) and Gordon Griffin (landscape
architect).
1 In summary, the works had to be constructed in accordance with approved plans and expert reports, and based on the guidance of a licensed cadastral surveyor. The Council was also to maintain oversight. The applicants were also to employ an appropriately qualified arborist to monitor, direct and supervise any works within the dripline of any protected vegetation. Other conditions prohibited any damage to other indigenous vegetation, removal of the kauri or soil, and a continuing obligation to avoid more than minor adverse effects to the wellbeing of protected vegetation.
[14] Following receipt of their specialist reports, correspondence and communications with the applicants and third parties, together with a site visit to the property, Ms Boyt completed a recommendation report on notification on 31 October
2014. As with the notification report on 42 Paturoa Road, it identified the information provided and attached the various reports included with the application, together with the specialists’ analysis. Correspondence received from Mr Maehl and his concerns about the impact on trees was also noted.
[15] The report concluded the effects on the environment would be no more than minor, and as such public notification was not recommended. It also considered the application was not out of the ordinary or gave rise to special circumstances. In terms of limited notification, Ms Boyt noted the owners at 38 Paturoa Road (the applicants) considered themselves to be adversely affected. But having identified and addressed stability and cumulative effects issues, the report concluded there would be no adverse effects on the stability of 38 Paturoa Road.
[16] The report also noted the large kauri trees located on the road reserve opposite the site would be protected and maintained as part of the development. Reference was also made to the Waitakere Ranges Protection Society Inc, with Ms Boyt noting it cannot be considered an affected person. The report therefore recommended that the application proceed without notification. This was adopted by Duty Commissioner Justine Bray’s decision on 7 November 2014.
[17] Ms Boyt released a substantive recommendation report at the same time. It assessed the application by reference to relevant planning documents, relevant assessment criterion and the purposes and principles of the RMA. No reference was made to kaitiakitanga but there was a reference to s 8 of the RMA, and that iwi had been consulted and raised no objection. The report assessed the actual and potential effects of the proposal as no more than minor and concluded that the proposal was generally consistent with the objectives and policies of the District Plan.
[18] The decision on resource consent for 40 Paturoa Rd was then made on 7
November 2014 by Duty Commissioner Bray, who concluded overall that the adverse effects would be acceptable and mitigated or avoided by appropriate
conditions. She also concluded the proposed development was at a scale consistent with the District Plan and PAUP. She also concluded the proposal was consistent with or not contrary to the Waitakere Ranges Heritage Area Act 2008 (the Heritage Act), New Zealand Coastal Policy Statement (NZCPS), and the purpose and relevant provisions of Part 2 of the RMA.
[19] A number of conditions were imposed on the grant. The works had to be in accordance with the reports and plans submitted. In addition, there was a condition requiring a pre-start meeting, specific conditions relating to ecology, and a requirement to produce a licensed cadastral surveyor’s certificate. There were also conditions relating to earthworks and geotechnical matters and, in particular, that further site stability and mitigation testing would be undertaken to ensure a specified level of safety had been achieved. Detailed provisions for the protection of trees were also included.
Tree felling, protests and proceedings
[20] The second respondents attempted tree felling in March 2015 as they were permitted to do by the consents. This attracted protest (including unlawful occupation of a large kauri tree) and considerable publicity. Attempts were made to facilitate resolution between the second respondents and objectors to the proposed vegetation clearance. Tension however reignited in December 2015, with reoccupation of the kauri and more publicity. These proceedings were issued on 22
December 2015 and the respondents consented to interim orders for the protection of the trees.
Alleged ring barking
[21] The applicants claim that the following day, in the early hours of 23
December 2015, security guards and contractors again attended the properties, cut the trees with a chainsaw and ring barked them. Security guards allegedly prevented protestors from entering.
[22] Orders for interrogatories on the alleged ring barking incident were obtained by the applicants. Included in the answers to those interrogatories, the second
respondents said they did not instruct any person to act on their behalf to attend 40 and 42 Paturoa Road on 23 December 2015. In response to these answers the applicants sought to produce an email through Mr Maehl from Sergeant Conder in which he records having met with Mr Lenihan on 23 December and that “[Mr Lenihan] stated that the tree contractors had no intention to do anything this morning apart from ring bark the two trees which would ultimately cause them to die.” The admissibility of this evidence was challenged by the second respondents. By consent, the admissibility issue was reserved to the hearing (and remains unresolved).
Grounds for review
[23] The main grounds of review at the hearing were:
40 and 42 Paturoa Road
(a) Mistake of fact and failure to have regard to relevant considerations due to misrepresentation of the tree driplines submitted in support of the application. In particular the applicants alleged:
(i)despite being in possession of a proper survey of the sites, the second respondents produced plans that materially reduced the driplines to wrongly represent that there was enough space between the two large kauri trees;
(ii)the reporting officer and the Duty Commissioners relied on these plans; and therefore
(iii)the grants’ conditions required that the consent be executed in accordance with the reports, including the misleading information.
(b) Inadequate information about stability.
42 Paturoa Road
(c) Failure to have regard to expert advice as to the scale of the effects of the proposed development on landscape and amenity.
(d) Failure to have regard to the significance of Kauri dieback disease.
(e) Failure to have regard to key planning and other instruments, including the NZCPS and the Heritage Act.
(f) Failure to have regard to cumulative effects.
40 Paturoa Road
(g)Mistake of fact and failure to have regard to relevant considerations in terms of requirement for a retaining wall.
(h)Failure to have regard to relevant considerations, namely, the full effects of the removal of the kauri, including in terms of its cultural and heritage value.
(i)Failure to have regard to all considerations for the purpose of assessment of special circumstances.
(j) Failure to have regard to or correctly apply requirements of the
NZCPS and the Heritage Act.
(k) Failure to have regard to alternative sites.
Subsequent developments
[24] The application was heard between 31 October and 2 November 2016. The abovementioned grounds of review were explored in detail. At the conclusion of the hearing, I addressed counsel in chambers about the allegations made in argument amounting to fraudulent misrepresentation of the driplines. While the allegation of misrepresentation of the driplines had been pleaded, it did not include an allegation
of deliberate misrepresentation. This also brought back into focus the evidence about the ring barking. Given the seriousness of the allegations, I adjourned the matter to give the applicants an opportunity to consider whether they wished to pursue this aspect.
Second Amended Statement of Claim
[25] The applicants decided to pursue allegations of deliberate misrepresentation and ring barking. A second amended statement of claim was filed on 9 December
2016 alleging (relevantly):
(a) “the purpose of [shrinking the driplines] was to deliberately misrepresent to the First Respondent that there is sufficient space between the Road Reserve Kauris for the proposed dwellings and garages envisaged by the applications to be built without harming the Road reserve” (the deliberate misrepresentation); and
(b)“Mr Lenihan instructed security personnel and tree contractors to attend the properties and cut around the circumferences of all the trees that were marked with an X, including the Kauri and Rimu” (ring barking).
Further evidence
[26] In March 2017, the applicants filed affidavits by Adam Wild, Peter Millar and Sergeant Julian Conder. Mr Wild addressed the significance of the driplines. Sergeant Conder referred to a conversation he purportedly had with Mr Lenihan about the alleged ring barking. Mr Millar addressed stability issues.
[27] A further affidavit by Sean Morris was also filed on 17 April 2017. Mr Morris’ evidence related to the applicants’ claim the second respondents gave instructions to ring bark the trees, contrary to evidence given by Mr Lenihan and Ms Greensmith that they did not.
Surrender of consents
[28] I set the matter down for hearing of the amended claim on 1 May 2017 and deferred the issues of admissibility of the new evidence and cross-examination to the hearing.
[29] However prior to the hearing, the second respondents advised on 28 April
2017 that the consents had been surrendered. This rendered the proceedings futile.
The claim for costs
[30] The applicants claim they were effectively successful in the litigation and are presumptively entitled to costs, including indemnity or increased costs. They contend (in short):
(a) The surrender is an admission of likely defeat, citing F v Minister of
Internal Affairs.2
(b)The second respondents engaged in underhand ring barking of the trees.
(c) The second respondents were evasive about the ring barking.
(d)The second respondents have consistently perjured themselves by denying the ring barking allegations, referring to the evidence of Sergeant Condor and Mr Morris.
(e) The perjury supports a finding that the driplines were drawn to mislead the Council.
[31] The second respondents seek costs on the basis that the applicants’ claims
were and remain unmeritorious, that the Court indulged the applicants by affording an opportunity to plead unsubstantiated allegations tantamount to fraud after the
2 F v Minister of Internal Affairs [2013] NZHC 2117.
hearing, and, in the end, the toll wrought by the proceedings led to the surrender of the consents.
[32] The applicants reply that paragraph [17] of the first amended statement of claim pleaded the driplines in the resource consent applications inaccurately represented the driplines of trees on the properties and the road reserve, and that the second respondents had reduced the driplines of trees in the area thereby misrepresenting the location of tree roots and the environmental impact of the proposed works on those trees.
The Council
[33] No party seeks costs against the Council and the Council is content to let costs lie where they fall. For completeness, the Council submits the misrepresentation issue was never material to the legality of the grants given the extensive information relating to the location of and the effects on the trees.
Assessment framework
[34] As stated at r 14.1 of the High Court Rules 2016, all matters of costs are at the discretion of the court. Rule 14.2 identifies principles applying to that determination. Costs, applying an appropriate daily rate, will usually follow the event.3 In addition, unless the defendant agrees or the court otherwise orders, a plaintiff that discontinues a proceeding must pay the defendants costs up to the discontinuance.4
[35] Costs may however be increased or decreased depending on a range of factors relating to the conduct of the proceedings.5 For example, failing, without reasonable justification, to admit facts may lead to an increased award.6 Conversely,
although a party claiming costs has succeeded overall, if that party has failed in
3 High Court Rules 2016, r 14.2.
4 Rule 15.23.
5 Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400.
6 Rule 14.7(f)(iii).
relation to a cause of action or issue which significantly increased the costs of the party opposing, the costs award may be reduced.7
[36] There may also be circumstances where the conduct of a party, for example misleading the Court, is such that an order of increased or indemnity costs is warranted to mark the Court’s disapproval of such conduct.8 But the conduct of the parties prior to the commencement of proceedings will not usually be relevant to the award of costs.9
[37] Given the unusual circumstances of this case and the claims made by the applicants and the second respondents, I consider two questions must be answered:
(a) Did the applicants succeed?
(b)Is there a proper basis for an award of costs against the second respondents for (alleged) deliberately misleading conduct, the ring barking and perjury?
[38] For reasons I will outline, I consider the answer to both of these questions is no.
Did the applicants succeed?
[39] Ordinarily it will not be necessary or appropriate for the Court to make a determination of success when a matter is discontinued or the proceedings are otherwise rendered futile.10 I do not intend to depart from this norm. Given however that the applicants have claimed de facto success, it is helpful to make some tentative observations about the respective merits.
[40] This was a judicial review application concerned with the legality of the
Council’s decision to grant resource consents to the second respondents. I have set
7 Rule 14.7(d).
8 Rule 14.6.
9 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169 at [41].
But see also Bradbury v Westpac Banking Corporation, above n 5, at [85].
10 N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [99].
out the background in unusual detail for a costs decision to illustrate, among other things, the level of information tabled before the Council, and the care taken by it in evaluating the second respondents’ applications. A challenge to the grants, against this background, was always going to be difficult. This case is nothing like the flawed decision set aside in the seminal notification case, Discount Brands.11 With respect to the care taken by the applicants’ legal team, it was not evident to me at the conclusion of the hearing that the Council had erred in any material way. Indeed, without making a final determination, the Council’s closing submissions appeared to
be persuasive on each of the key grounds.
[41] In short, as the Council (and the second respondents) submitted there was very extensive information before the Council which appears to provide a proper basis for the conclusions reached about the effects of the proposed activities, notwithstanding (for example) the inaccurate driplines. In combination with strict conditions, particularly around the management of effects on trees, the decision to grant consent on a non-notified basis appears to be both lawful and reasonable. To that extent, the applicants have not shown that they are deserving of costs in the ordinary sense.
[42] I turn to consider whether I should nevertheless award costs to the applicants because they achieved their litigation objective. In Carmel College Auckland Ltd v North Shore City Council, the Court awarded costs to the applicant in discontinued proceedings because they had succeeded in what they set out to achieve, namely a change of development contribution policy by the Council.12 With respect to the
approach taken by the Judge, I am not minded to follow it in this case.13
[43] First, the predictability afforded by the costs rules is premised on success in the proceedings, not a subjective evaluation of success or failure in terms of a party’s objectives. Second, unlike Carmel College Auckland Ltd, the Council in this case
does not accept that it erred and has not changed its position. Third, there are many
11 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
12 Carmel College Auckland Ltd v North Shore City Council HC Auckland CIV-2007-404-5894, 20
January 2009 at [19], [21].
13 I note that the Court in F v Minister of Internal Affairs, above n 2, let costs lie where they fall in circumstances where the Minister revoked the decision under challenge.
reasons why litigants yield in the face of litigation pressure and forgo their strict legal rights notwithstanding the merits. In my view, this strongly militates against this Court being too ready to award costs when the merits have not been determined by the Court.
[44] In the result, I am not satisfied that applicants were successful for the purpose of r 14.2.
Is there a proper basis for an award of costs against the second respondents for
(alleged) deliberately misleading conduct, the ring barking and perjury?
[45] The applicants’ allegations are not without foundation. They have tabled information in support of their claims that the second respondents misled the Council, ring barked the trees and engaged in perjury:
(a) Plans supplied with the applications locating the driplines were incorrectly drawn. There is evidence suggesting Mr Lenihan and Ms Greensmith should have known this.
(b)Sergeant Condor states “it was clear to me from Mr Lenihan’s words and manner that he had organised for the trees to be ring barked”.
(c) Mr Morris states he heard the second respondents giving instructions to ring bark the trees and was present when this was done.
(d)Mr Lenihan and Ms Greensmith had previously provided affidavit evidence denying they gave instructions to ring bark the trees.
[46] But, as both the Council and the second respondents submit, I cannot possibly resolve such serious allegations including perjury on the limited (including as yet to be admitted) evidence presented by the applicants. The standard required for pleading and then proof of such allegations is high.14 Indeed, given the
seriousness of the claims and potential sanction, including a maximum sentence of
14 While dealing with fraud, the observations in Schmidt v Pepper New Zealand (Custodians) Ltd
[2012] NZCA 565 at [15] resonate in this context.
imprisonment of seven years,15 the allegations must be clearly identified and the standard of proof to be applied is analogous to the criminal standard, at least in respect of the perjury claims.16
[47] In Medtonic v Finch the Court, in a judgment by default, ordered indemnity costs against an orthopaedic surgeon for filing a forged document to defeat summary judgment for a claimed debt. The document purported to show the debt was incurred by a company, not Mr Finch personally. The forgery came to light after full discovery and forensic inspection of Mr Finch’s computers. The evidence of forgery included unchallenged expert forensic evidence of the forgery, corroborated by documentary material and witnesses of fact. The forgery was directly relevant in two key respects. It showed that Mr Finch was untruthful, and corroborated the creditor’s case that the debt was personal to Mr Finch.
[48] The present case, and in particular the evidence before me, is not comparable. First, the applicants have not identified, other than in broad brush terms, the utterances said to be perjurious. In any event, the (proposed) evidence of Mr Morris and Sergeant Condor, said to implicate the second respondents in ring barking and perjury, is contestable. First, Mr Lenihan and Ms Greensmith, in answer to interrogatories, deny instructing any person to attend the site on 23 December 2015. Mr Lenihan also denied involvement in the ring barking in subsequent affidavits. That is hardly proof of perjury per se. Rather, it is evidence that the accounts given by Mr Morris and Sergeant Condor are disputed.
[49] Second, Sergeant Condor has drawn inferences from what he purports to have heard but has not presented a contemporaneous verbatim record of what was said.17
Bearing in mind also that an open admission by Mr Lenihan to ring barking is highly counterintuitive, given his agreement the previous day to an injunction against harming the trees, the accuracy of Sergeant Condor’s account is amenable to
challenge.
15 Perjury is a criminal offence pursuant to the Crimes Act 1961, ss 108 and 109.
16 See Medtronic New Zealand Ltd v Finch [2014] NZHC 266 at [25].
17 As noted at [22], Sergeant Condor sent an email to a colleague at 11.30 am on 23 December
2015 recording his account of what was said. This is not a verbatim record of Mr Lenihan’s
interview.
[50] Third, Mr Morris (feeling bad, he says, about his involvement) purports, 16 months after the alleged events and following considerable publicity, to identify the second respondents from a photograph and attribute the ring barking instructions to them. Given the elapse of time and intervening events, the accuracy, credibility and reliability of Mr Morris’ belated account is also open to challenge.
[51] Fourth, it may be tempting for laypersons to infer from the late surrender of the consents, after the appearance of Mr Morris’ affidavit, that the second respondents must be guilty of perjury. Thankfully, in a mature system of justice, the presumption of innocence is the starting point and culpability may only be established after proper particularised pleadings, and after the evidence is heard and tested.
[52] Finally, the alleged ring barking episode and related (allegedly) perjurious evidence is only indirectly relevant to the merits of the proceedings, namely the credibility of the second respondents and whether they intentionally misrepresented the location of the driplines on site plans. Notably, the dripline and ring barking issues were only fully pleaded after the November 2016 hearing. Significantly also, the evidence clearly showed that the Council was aware of the limitations of the relevant site plan (one of several) and relied on expert advice, together with the imposition of conditions directed to the protection of the trees, for the purpose of the grant of consent. If anything, therefore, disproportionate attention has been given to the alleged ring barking and the dripline plan.
[53] For completeness, however, I reject the second respondents’ claim for costs. As I have said, no party succeeded on the merits and the applicants’ claims, while not compelling, were not meritless.
Overall
[54] With the surrender of consents, the proceedings became futile. No party succeeded on the merits. The Council does not seek costs. In these circumstances, I am satisfied costs should lie where they fall.
Result
[55] Costs should lie where they fall.
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