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 be most inconvenienced by any adjournment are the owners.  In those circumstances the best course is to deal with the substance of the matter.

Proposed amendments

[7]      The three amendments proposed to the statement of claim are as follows. The Applicants’ solicitors  also  provided  a  lengthy  schedule  (“schedule”)  of  the various categories of documents they contended were relevant with their 30 June letter.

[8]      The first proposed amendment is an allegation that the decision maker made mistakes of fact and failed to have regard to relevant considerations because plans that the owners had submitted to the Council showed the drip lines of particular trees incorrectly, and that the Council knew this but failed to investigate.

[9]      Under  cover  of  their  30  June  letter,  the  Applicants’  solicitors  provided documents  which  they  said  showed  the  correct  drip  lines.    They  said  that  a Dr Bellingham had put the Council on notice of the errors at a site visit in August

2013 and in a report of November 2013, but that the Council had carried on regardless.

[10]     Secondly, the Applicants propose to allege that the Council officer acted unreasonably in respect of the decision not to require notification of the application in respect of 42.   In particular, it is alleged that the Council officer formed an intention  not  to  require  notification  before  receiving  or  reviewing  specialist landscape and ecological reports.

[11]     Thirdly, it is contended that the Council failed to have regard to relevant considerations, namely to consider sufficiently the environmental impact of the removal of a mature Kauri situated on 40, given the prevalence of “kauri dieback disease”  in  the  area;  and  that  the  Council  failed  to  undertake  a  bio-security assessment of 40 and 42, despite repeated advice from its Principal Adviser for bio- security that this was essential.

Discussion

[12]     The Council objects to giving any of the discovery sought.  Counsel submits that:

(a)      discovery is not available as of right in judicial review proceedings and what is required is to be determined on a case by case basis;

(b)      the discovery sought must be both relevant and necessary; and

(c)      if an issue as to discovery arises in an application for judicial review, the  Court  must  consider  whether  it  can  fairly  and  effectively adjudicate the issues without the additional material sought.

[13]     The authorities cited for these propositions are Keenan v Attorney-General, Northland Environmental Protection Society Inc v Chief Executive of the Ministry for Primary Industries and Commerce Commission v Cathay Pacific Airways Ltd.1

[14]     In the context of this case, counsel submits that the documents sought are not relevant  on  the  pleadings  as  they  stand  at  present.    I  accept  that  submission. However, counsel contends that the documents are irrelevant even if the proposed amendments to the statement of claim are made, or that the discovery is unnecessary, or both.

[15]     Counsel submits that the merits or otherwise of the allegations addressed by the first proposed amendment to the statement of claim will be proved, or not as the case may be, on the face of documents that are already in evidence.

[16]     I do not consider this is a complete answer to the Applicants’ request for discovery on this issue.  All relevant information would need to be before the Court and not just that the Council considers sufficient for the Applicants to prove their case.   For that reason, the Council should give discovery of any further advice,

whether  from  Dr Bellingham  or  anyone  else,  that  the  drip  lines  of  trees  on  or

1      Keenan v Attorney-General [2015] NZHC 181, Northland Environmental Protection Society Inc v Chief Executive of the Ministry for Primary Industries [2016] NZHC 406, and Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726.

adjacent to 40 and 42 were incorrectly depicted on plans submitted in support of the applications.

[17]     As regards the second proposed amendment, again I am satisfied that the Council should give further discovery of any relevant documentation.  It may be, of course, that there is no further information.   That, however, is a matter for the Council to ascertain.

[18]     I am not satisfied that further discovery is required as to the Council’s alleged failure to consider the impact of the destruction and removal of the Kauri.  This is essentially an allegation of an omission.   The Council should, however, give discovery of any advice from its bio-security advisor of the nature referred to, not already disclosed.

Applicants’ schedule

[19]     I do not propose to go beyond ordering the Council to give discovery of the documents to which I have referred.  The schedule is extensive and I am satisfied that it would onerous for the Council to be required to give discovery of all of those documents.  It is for the Council to provide what is relevant, no more and no less.

[20]     I reserve leave to apply if any issue arises, particularly as to the time by which the documents can be provided to the Applicants and the format in which they are provided.

[21]   This decision should not be taken as setting any precedent as to the circumstances in which discovery will be ordered by an applicant seeking review.  It is a decision that has had to be made promptly and in circumstances where any delay would prejudice the owners.   As I have said, the Applicants should have put this matter before the Court well before now by way of an interlocutory application, in accordance with the timetable that they sought.  Their delay in doing so has imposed a burden on the Council which is unfortunate but unavoidable.

[22]     I make no order as to costs.

..................................................................

Peters J