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Mills v Far North District Council

Mills v Far North District Council

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Case Copied 15 August 2018 75 min read

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2017-488-79

[2018] NZHC 2082

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of the Resource Management Act 1991

BETWEEN

GARY EDWARD MILLS

First Applicant

PAUL WAYNE FIELDMAN
Second Applicant

AND

FAR NORTH DISTRICT COUNCIL

First Respondent

BODGAN VITALEVICH GAN and OLESYA NIKOLAEVNA GAN

Second Respondents

Hearing: 12 March 2018; further submissions 15 March and 11 April 2018

Counsel:

MJE Williams for applicants JS Baguley for first respondent

CH Prendergast for second respondent

Judgment:

15 August 2018

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 15 August 2018 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Richard Mark, Kerikeri
Law North Ltd Kerikeri
Henderson Reeves Lawyers, Whangarei

Mills v Far North District Council [2018] NZHC 2082 [15 August 2018]

CONTENTS

Factual background [4]

The need for resource consent  [5]
Pre-lodgement activities and communications  [9]
Post-lodgement activities and communications  [16]
The decisions  [31]
Post-consent events  [43]

The claims

Overview  [56]
First cause of action  [59]
Second cause of action  [61]
Third cause of action  [62]
Fourth cause of action  [64]
Fifth cause of action  [66]
Sixth cause of action  [69]

Proper approach to judicial review [70]

First cause of action
The parties’ submissions [75]
Analysis [85]

Second cause of action

The parties’ submissions [91]
Analysis [96]

Third cause of action

The parties’ submissions  [117]
Analysis – the legal position  [123]
Analysis – application to the facts  [143]

Fourth cause of action [153]

Fifth cause of action
Introduction  [158]
What is the interpretation issue?  [160]
Did the Council fail to consider whether special circumstances existed?     [173]

Sixth cause of action

The parties’ submissions [184]
Analysis [188]

Relief

The parties’ submissions [195]

Analysis [202]

Costs [208]

[1] This application for judicial review concerns two large sheds which have been built within the Te Waimate Heritage Precinct (“Heritage Precinct”) near Waimate North. The Heritage Precinct is specifically recognised in the Far North District Plan, which describes it as a “pre-eminent historic landscape of national significance”.1

[2] The applicants challenge the Far North District Council’s decision to grant a resource consent permitting the sheds to be built and that the application for consent proceed on a non-notified basis. In short, the applicants say that sheds of such a size and scale ought not to have been allowed to be built in the Heritage Precinct. The applicants accordingly seek a declaration that each of the Council’s decisions is invalid, or alternatively an order setting aside each of the decisions, together with costs.

[3] The Council, supported by the second respondents (the Gans, who own the sheds), deny there were any deficiencies in the process by which the two decisions were reached, or in the content of the decisions themselves. The Council says it took into account all matters it was required to take into account, and it was appropriate for the application to have proceeded on a…

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: [2018] NZHC 2082
Decision Date: 15 August 2018

CaseChat Overview and Summary

This case involved an application for judicial review brought by Gary Edward Mills and Paul Wayne Fieldman against the Far North District Council (the Council) and Bogdan Vitalievich Gan and Olesya Nikolaevna Gan (the Gans), who own two large sheds constructed in the Te Waimate Heritage Precinct (Heritage Precinct) near Waimate North. The applicants sought a declaration that the Council's decision to grant resource consent for the sheds was invalid or, alternatively, an order setting aside the decisions, along with costs. The applicants argued that the sheds, due to their size and scale, should not have been permitted within the Heritage Precinct. The Council and the Gans denied any deficiencies in the process and content of the decisions, asserting that all relevant considerations were taken into account. The court considered six causes of action, including failures to consider relevant legislation and district plan provisions, insufficiency of information, irrationality of the decisions, failure to consider special circumstances, and unreasonableness of the decisions. The court found that the Council failed to consider certain district plan objectives and policies and did not have adequate information before it when making its decisions. However, the court declined to grant relief, finding that the Gans would suffer significant prejudice if the decisions were set aside, given the substantial investment they had made in the sheds. The court also awarded scale costs to the applicants, considering their partial success in the proceedings.

Orders