Maehl v Auckland Council - [2016] NZHC 1655

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-3096 [2016] NZHC 1655

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of an application for judicial review of a statutory decision under the Resource Management Act 1991

BETWEEN

ANDREW ALEXANDER MAEHL AND WINIFRED MARY CHARLESWORTH Applicants

AND

AUCKLAND COUNCIL First Respondent

JOHN ROBERT LENIHAN, JANE HELEN GREENSMITH AND ANTHONY GORE

Second Respondents

Hearing: 7 July 2016

Appearances:

D M Salmon and Z A Matheson for Applicants
J W Baigent and J C Dickson for First Respondent
S Masoud-Ansari for Second Respondents

Judgment:

20 July 2016

JUDGMENT OF PETERS J

This judgment was delivered by Justice M Peters on 20 July 2016 at 3.15 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Lee Salmon Long, Auckland
Simpson Grierson, Auckland

Counsel: Z A Matheson, Auckland
S Masoud-Ansari, Auckland

MAEHL v AUCKLAND COUNCIL [2016] NZHC 1655 [20 July 2016]

[1] The Applicants have applied for judicial review of decisions by the First Respondent (“Council”) under the Resource Management Act 1991, being decisions not to require the Second Respondents (“owners”) to notify applications for consent to undertake various works on 40 and 42 Paturoa Road, Titirangi (“40” and “42”) and to grant the consents sought.

[2] As their case is presently pleaded, the Applicants seek review on the grounds that each decision was invalid and unlawful, and they seek orders setting aside the decisions and injuncting any further work on the sites carried out in reliance on the consents granted.

[3] By letter dated 31 March 2016, the Applicants’ solicitors notified the Council’s that they did not consider the Council had complied with its discovery obligations. This led to protracted correspondence between the parties. The Council’s position was that it had provided everything relevant to the Applicants’ pleaded case; that the documents the Applicants sought were not relevant; that the Applicants were on a fishing expedition; and that in any event what the Applicants sought was oppressive and unnecessary.

[4] Ultimately, on 31 May 2016 the Applicants’ solicitors advised that they might amend their statement of claim. By letter dated 30 June 2016 they advised the nature of the proposed amendments but said they would not file an amended statement of claim until they had received discovery.

[5] Not surprisingly, the Council has taken, and takes, issue with the manner in which the Applicants’ legal advisors have pursued this matter. First, any interlocutory application in the proceeding was to be filed and served by 30 March
2016. The Applicants ignored an order to that effect that was made by consent in February 2016. Secondly, as the Council submits, the Applicants’ solicitors should have filed and served an amended statement of claim well before now. The maximum ambit of discovery is determined by the pleadings, and not the other way around.

[6] That said, this matter has a fixture in a matter of weeks, all relevant information should be before the Court and the parties that would…

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 1655
Decision Date: 20 July 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Maehl v Auckland Council was heard and decided on 20 July 2016. The applicants, Andrew Alexander Maehl and Winifred Mary Charlesworth, sought judicial review of decisions made by the Auckland Council under the Resource Management Act 1991. The applicants argued that the Council's decisions not to require notification of applications for consent to undertake works on properties at 40 and 42 Paturoa Road, Titirangi, and to grant the consents sought, were invalid and unlawful. They sought orders to set aside the decisions and to prevent further work on the sites in reliance on the consents granted.

The primary legal issue before the court was whether the applicants were entitled to further discovery from the Council to support their proposed amendments to the statement of claim. The Council objected to the discovery sought, arguing that it was not available as of right in judicial review proceedings and that the documents sought were not relevant or necessary. The court considered the authorities cited by the Council and determined that, while discovery is not available as of right, it must be considered on a case-by-case basis, and the court must be able to fairly and effectively adjudicate the issues without the additional material sought.

The court held that the Council should provide further discovery on certain issues raised by the applicants' proposed amendments to the statement of claim. Specifically, the Council should provide any advice, whether from Dr Bellingham or anyone else, that the drip lines of trees on or adjacent to the properties were incorrectly depicted on plans submitted in support of the applications. The court also held that the Council should provide further discovery regarding the Council officer's intention not to require notification before receiving or reviewing specialist landscape and ecological reports. However, the court found that further discovery was not required as to the Council's alleged failure to consider the impact of the destruction and removal of a mature Kauri tree on one of the properties, as this was essentially an allegation of an omission. The court reserved leave to apply if any issue arose regarding the time by which the documents could be provided to the applicants and the format in which they were provided.

In summary, the court determined that certain further discovery was required in support of the applicants' proposed amendments to the statement of claim, but it did not order the Council to provide all of the documents listed in the applicants' schedule. The court emphasised that this decision should not be taken as setting a precedent for the circumstances in which discovery would be ordered by an applicant seeking review, as it was a decision made promptly and in circumstances where any delay would prejudice the owners. The court made no order as to costs.

Orders