Marche Limited v Auckland Council - [2016] NZHC 145

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001899 [2016] NZHC 145

UNDER
the Judicature Amendment Acts 1972 and

1977 or in the alternative Part 7 of the
High Court Rules

IN THE MATTER

of the Resource Management Act 1991

BETWEEN

MARCHE LIMITED First Plaintiff

JOCELYN ARMSTRONG Second Plaintiff

AND

AUCKLAND COUNCIL First Defendant

GARY DEENEY Second Respondent

Hearing: 7 December 2015

Appearances:

R Brabant and D J Sadlier for Plaintiffs
N Whittington for First Respondent
R E Bartlett QC and A Webb for Second Respondent

Judgment:

12 February 2016

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 12 February 2016 at 4:00 p.m., pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Ellis Gould, Auckland for the Plaintiffs
Meredith Connell, Auckland for the First Respondent
Pidgeon Law, Auckland for the Second Respondent

Counsel: R Brabant, Auckland
R Bartlett, Auckland

MARCHE LIMITED & ANOR v AUCKLAND COUNCIL & ANOR [2016] NZHC 145 [12 February 2016]

Introduction

[1] The owner of a 1926 two-storey bungalow at 48 Seaview Road, Remuera, Auckland, wants to remove it and build a new two-storey house in its place. He applied for resource consent on 2 April 2015.

[2] On 28 May 2015, two independent commissioners appointed by Auckland Council decided that the application should proceed on a non-notified basis (notification decision). Following a hearing of the application on 15 July 2015, two other independent commissioners granted consent in a decision dated 7 August 2015 (substantive decision).

[3] The neighbours of the property at 48 Seaview Road now seek judicial review of both decisions. They ask for the decisions to be set aside and an order that the Council reconsider the application for resource consent.

Approach to application for review

[4] The principles of an application for judicial review are well known. It is not an appeal on the merits. Judicial review is concerned about the process of decision- making. The merits are only relevant if the decision is one that no reasonable Commissioner could have made. That is not the case here, as both decisions were clearly open to the Commissioners, so the focus is on the process. I do not express any view on the merits of either decision.

[5] The plaintiffs allege that the Commissioners appointed by the Council made a number of errors of law, failed to take relevant considerations into account, had regard to irrelevant considerations, and failed to have regard to natural justice considerations and the right of members of the public to be heard.

[6] I do not intend to traverse all matters raised in the amended statement of claim and in the submissions of counsel for the plaintiffs, but I am of the view that a number relate to the merits of the decisions and are not amenable to judicial review. For example, the amended statement of claim alleges that the stark difference in the conclusions reached in the reports of the Council’s conservation architect and the

applicant’s consultant heritage…

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 145
Decision Date: 12 February 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Marche Limited and Jocelyn Armstrong sought judicial review of decisions made by the Auckland Council concerning the removal and replacement of a house at 48 Seaview Road, Remuera. The plaintiffs contended that the Commissioners, appointed by the Council, erred in their decision to proceed with the application for resource consent on a non-notified basis, and that the substantive consent granted was similarly flawed. The primary legal issue was whether the Commissioners had provided adequate reasons for their decisions, as required by statute and relevant case law. The court considered whether the Commissioners had adhered to the correct legal framework and whether they had provided sufficient reasons for their decisions to withstand judicial scrutiny.

The court held that the reasons provided by the Commissioners were inadequate. The notification decision, which found there were no relevant reasons to warrant public notification, did not sufficiently explain the factors considered or the weight given to them. The court noted that the Commissioners' potential misunderstanding of the relevant law, combined with the brevity of the reasons provided, raised concerns that the decision may have been made in error. The court also found that the reference to the general discretion to notify under s 95A(1) was misplaced, as the application should have been considered under s 95A(4). Additionally, the use of a template decision without appropriate modifications for the specific case at hand further undermined the adequacy of the reasons provided.

As a result, the court quashed both the notification and substantive decisions and ordered the Council to reconsider the application for resource consent. The court emphasised that any fresh decision must reference the evidence considered, the key factors taken into account, and explain why the particular decision is made. The plaintiffs were awarded costs, with provisions for memoranda to be filed if costs could not be agreed within 28 days of the judgment.

Orders