Martinez v Auckland City Council

[2005] NZCA 251

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/05

BETWEENCARLOS MIGUEL MARTINEZ

Applicant

ANDAUCKLAND CITY COUNCIL

First Respondent

ANDSHELLY BEACH DEVELOPMENTS LIMITED

Second Respondent

Hearing:17 October 2005

Court:Hammond, William Young and Panckhurst JJ

Counsel:N D Wright for Applicant

W S Loutit for First Respondent
R B Brabant and M R T Colthart for Second Respondent

Judgment:25 October 2005 

JUDGMENT OF THE COURT

A        The application for special leave is declined.

BThe respondents will each have costs of $1,500, and their usual disbursements.

REASONS

(Given by Hammond J)

[1]       This is an application for special leave to appeal from part of a judgment of Salmon J delivered on 9 February 2005 in HC AK CIV2004-404-5019.

[2]       That proceeding is part of a protracted course of litigation which has reached the High Court and this Court on several occasions since 1999. 

[3]       The background to all the litigation is that the applicant has objected to a proposed apartment block development in a desirable residential suburb in Auckland, because of what he sees to be the potential impact on the amenity values and quality of life on his occupation of his nearby residential property; in particular, he is concerned there would be interference with expansive views from his property.

[4]       There were two proceedings before Salmon J which he determined in the one judgment to which we have already referred.

[5]       One proceeding is an application for review on a notification issue.  That was determined against the applicant by Salmon J.  Mr Martinez appealed as of right to this Court on that issue, but we were told that appeal was “determined” by a deemed discontinuance under r 10 of the Court of Appeal (Civil) Rules 1997.

[6]       The second proceeding before Salmon J was an appeal against a decision of the Environment Court relating to the resource consent.  The issues raised on that appeal were also resolved against Mr Martinez by Salmon J.

[7]       Mr Martinez then applied for leave under s 308 of the Resource Management Act 1991 to appeal to this Court.  That application was declined by Salmon J.  That lead to the present application for special leave.

[8]       It is common ground – as it was before the High Court Judge – that whether such an application can properly be granted turns on the standard test under s 144 of the Summary Proceedings Act 1957 viz, whether there are questions of law arising which, by reason of their general or public importance, ought to be submitted to this Court for determination.

[9]       The two suggested questions are:

(a)The Environment Court committed an error of law in treating the unimplemented February 2004 resource consent as part of the permitted baseline.  The plaintiff submits that the Court abandoned its discretion by regarding the implemented baseline consideration as determinative;

(b)The Environment Court failed to assess the proposal under Part 2 of the Act.  The plaintiff says that if the Court had appreciated that it retained a discretion, it may have come to a contrary conclusion in the exercise of its discretion under Part 2.

[10]     In his written submissions Mr Wright accepted that the two questions are related.  He submits that, in essence, “both the Environment Court and the High Court erred by failing to take into account what he argues is the absence of a lawful right on the part of the developer to build the ‘hypothetical permitted baseline proposal’”.

[11]     We decline the application for special leave.

[12]     As to the first question, the controlling principle has already been determined by this Court in earlier litigation relating to this development.  In Smith Chilcott [2001] 3 NZLR 473 this Court said:

… Any permissible use qualifies under the permitted base line test unless in all the circumstances it is a fanciful use (at [26]). (Italics added.)

[13]     One member of the panel agrees with Mr Brabant that the issue of what is “fanciful” was for the Environment Court to determine, in the particular circumstance of this case, and considers that it is inappropriate to endeavour to refine that test further in this Court, or add a gloss to it.  And further, that if there was an error in this case it is an error of application, not of principle.  An error of application of that kind is inappropriate subject-matter for a second appeal, particularly in the unfortunate context of this now long running litigation.

[14]     In any event, the panel is unanimous that the applicant has blown hot and cold on the issue sought to be raised in this Court.  The history of the proceeding reveals that the point sought to be advanced was abandoned; in substance it is now sought, inappropriately, to resurrect it on a second appeal.

[15]     As to the second question, in our view the question does not raise issues of general importance, and it is at least arguable that the applicant failed to exercise his appeal rights with respect to the judgment of Judge Thompson .

[16]     The respondents will each have costs of $1,500 and their usual disbursements.

Solicitors:
Brookfields, Auckland for Applicant
Simpson Grierson, Auckland for First Respondent
Knight Coldicutt, Auckland for Second Respondent