Point Chevalier Social Enterprise Trust v Auckland Council
[2023] NZHC 1174
•17 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000274
[2023] NZHC 1174
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for Judicial Review
BETWEEN
POINT CHEVALIER SOCIAL ENTERPRISE TRUST
Applicant
AND
AUCKLAND COUNCIL
First Respondent
MARUTŪĀHU RŌPŪ and the WAIOHUA-TĀMAKI RŌPŪ
Second Respondents
Hearing: 8 May 2023 Appearances:
S J Ryan and S A Kilgour for Applicant R H Ashton for Ockham Group Ltd
S Woodhead for Expert Consenting Panel
Judgment:
17 May 2023
JUDGMENT OF EDWARDS J
This judgment was delivered by me on 17 May 2020 at 2.00 pm pursuant to r 11.5 of the High Court Rules.
Deputy Registrar
Counsel/Solicitors:
S J Ryan, Auckland
S A Kilgour, Auckland Brookfields, Auckland
Luke Cunningham and Clere, Wellington
POINT CHEVALIER SOCIAL ENTERPRISE TRUST v AUCKLAND COUNCIL [2023] NZHC 1174 [17 May 2023]
[1] The Point Chevalier Social Enterprise Trust (Trust) applies to join Ockham Group Ltd (Ockham), the Expert Consenting Panel (Panel) and the Attorney- General to this judicial review proceeding.
[2] Ockham opposes the application on the grounds that it is not directly or indirectly affected by the judicial review application, and its presence before the Court is not necessary.
[3] The Panel does not consider its presence is required either but nevertheless abides the decision of the Court. The Attorney-General also abides.
The dispute in a nutshell
[4] The Trust is a registered charitable trust. As described in an affidavit sworn by its Chairman, the Trust acts as a social activator for local projects and opportunities in and adjacent to the Point Chevalier community.
[5] The substantive judicial review application concerns a challenge to consents issued by the first respondent (Auckland Council) to the second respondents in relation to land which includes the site of the former Carrington Hospital.
[6] The consents are part of a much larger development which affects approximately 40 hectares in the Wairaka precinct. The wider development is provided for in the Auckland Unitary Plan.
[7] The challenged consents are referred to as the Carrington Backbone Consents. They permit construction of infrastructure on the subject land, including construction of an access road known as the Gate 1 Road. The construction of Gate 1 Road will require two wings of the former Carrington Hospital to be demolished (referred to in this judgment as the Buildings). These Buildings have heritage protection under the Auckland Unitary Plan.
[8] The application for the Carrington Backbone Consents was made by the second respondents. The second respondents are two of the three rōpū who have interests in
the subject land under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed 2012, and its associated legislation.
[9] On 9 June 2022, the Auckland Council determined that the application for the Carrington Backbone Consents did not need to be notified. The consents were subsequently granted on 29 June 2022. The Trust challenges both the non-notification decision and the subsequent substantive decision granting the consents.
[10] In October 2022, a partnership between Ockham and the first-named second respondent, Marutūāhu Rōpū, applied for consents (RC1 and RC2) to undertake development south of the land the subject of the Carrington Backbone Consents. The application for RC2 was for a mixed-use housing development comprising 266 residential apartments and six small retail premises on land immediately adjacent to the Gate 1 Road. Access to the development is from the Gate 1 Road.
[11] The application was made under the COVID-19 (Recovery) Fast Track Consenting Act 2020 and was referred to the Panel convened under that legislation for determination. On 29 March 2023, the Panel granted the application for RC1 and RC2.
[12] The Trust seeks to join Ockham and the Panel to these proceedings on the basis that if the Carrington Backbone Consents are set aside, and the Buildings are not demolished, the Gate 1 Road will need to be re-routed. The Trust says this will impact on RC2 and the development it authorises and may require amendment of RC2.
[13] Ockham says that it is unlikely to be affected by any realignment of the Gate 1 Road. It says any impact from the quashing and reconsideration of that part of the Carrington Backbone Consents which relates to the Buildings may be easily accommodated within RC2.
[14] The current position is that development under both the Carrington Backbone Consents and RC2 is proceeding. An undertaking has been given that the Buildings will not be demolished pending determination of this application and an initial application for interim relief is no longer pursued. There is no application before the
Court seeking to restrain Ockham from commencing the development works the subject of RC2.
The pleaded claim
[15] The Trust issued these proceedings on 8 February 2023. An amended claim was filed on 10 March 2023.
[16] Following the first case management conference, and in accordance with the directions made by Lang J, a draft amended statement of claim was filed on 22 March 2023. This sets out the proposed amendments to the claim if the joinder application is successful.
[17] As already noted, the Trust challenges the Carrington Backbone Consents. The Trust says that Auckland Council erred in deciding not to notify the consents by co- mingling the good and bad effects of the proposal. The Trust says this was contrary to the notification test in the Resource Management Act 1991, and the decision of the Court of Appeal in Bayley v Manukau City Council.1
[18] The pleaded relief includes declarations that the notification decisions are invalid, and orders quashing or severing that part of the Carrington Backbone Consents which relate to the demolition of the Buildings. An order directing a reconsideration of the Carrington Backbone Consents is also sought. Additionally, an injunction preventing or restraining the demolition of these buildings, and an order preventing the construction of the Gate 1 Road, including any underground infrastructure, is sought.
[19] The draft amended statement of claim includes a pleading relating to RC1 and RC2. The Trust pleads that the positioning of the Gate 1 Road is relied on by Ockham for RC1 and RC2. Further, the Trust pleads that if the relief it seeks in relation to the Carrington Backbone Consents is granted, and the Buildings are demolished, a relocation or realignment of the Gate 1 Road or part of it will be required. That relocation or realignment may adversely affect the site of the RC2 consent.
1 Bayley v Manukau City Council [1999] 1 NZLR 568.
[20] In addition, the Trust pleads that further applications for resource consent are intended or likely which may also rely further on partial demolition of the Buildings and the location of the Gate 1 Road as provided for in the Carrington Backbone consents.
[21] It is further pleaded that the Panel’s grant of RC2 is affected by prior legal error and decision-making for the Carrington Backbone Consents. Relief is sought in relation to the RC2 resource consent and any “downstream” application reliant on the Carrington Backbone Consents in the following terms:
An order quashing or setting aside in part any decision of the first respondent, or the fourth respondent granting resource consent to RC-2 or any ‘downstream’ application reliant on the Carrington Backbone Consents (unless such consent is unaffected by preservation of the former Carrington Hospital Buildings from demolition and matters consequential including in every alignment of the Gate 1 Road).
Legal framework
[22] Section 9 of the Judicial Review Procedure Act 2016 requires persons whose conduct is the subject matter of the application for judicial review to be named as a respondent. Further, if the application relates to any decision made in proceedings, every party to those proceedings must also be named.
[23] The Court retains a discretion in s 14 of the Judicial Review Procedure Act to allow for persons to be named as respondents.2
[24] The principles set out in r 4.56 of the High Court Rules 2016 also apply. That rule provides that a Judge may order a person to be joined to the proceeding because that person’s “presence before the Court may be necessary to adjudicate on and settle all questions involved in the proceeding”.3
[25] Mr Ryan, for the Trust, referred me to commentary and cases setting out the principles that apply to joinder applications. He placed particular emphasis on commentary in Sims Court Practice.4 That passage suggests that all those involved in
2 Judicial Review Procedure Act, 14(2)(b)(i).
3 High Court Rules 2016, r 4.56(1)(b)(ii).
4 Graham Taylor “Sim’s Court Practice – JRP9.5”, Other Respondents (November 2022).
a resource management application, including those who have been notified and made submissions, should be named as respondents in any application for judicial review.
[26] Despite the comprehensive coverage of relevant principles, the Trust and Ockham agree that the relevant touchstone for joinder to judicial review proceedings is set out in Wilson v Attorney General.5 A full bench of the High Court summarised the approach as follows:
[20] Emerging from the cases is that joinder is appropriate where the party’s interests are, or may be, directly or indirectly affected by the judicial review application. In such situations, it would be unjust to decide the issues in the absence of the party so affected, or potentially affected. As Hammond J pointed out in Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 at [14], “joinder is not an all or nothing thing”. Fairness to the plaintiff, who is having another party interposed in his proceeding, demands that the Court consider whether the joinder should be for all or only limited purposes. The level of participation should be only what is necessary to protect the interests of the party being added.
Should Ockham be joined to the proceeding?
[27] The issue to be determined is relatively narrow. It is whether Ockham is, or may be, directly or indirectly affected by the judicial review application.
[28] Counsel for the applicant, Mr Ryan, submits that Ockham is (or may be) so affected. That is because if the applicant is successful in their application, and the permission to demolish the Buildings is reversed, a realignment of the Gate 1 Road will be required. Mr Ryan submits that any realignment of the Gate 1 Road will necessarily influence the proposed development consented under RC2.
[29] While I accept that there is a possibility that Ockham and RC2 will be impacted by the outcome of the judicial review, I consider that impact to be so remote from the current proceeding, and so minor in nature, that it does not justify Ockham’s presence before the Court. I say that for the following reasons.
[30] First, the focus of this proceeding is squarely on that part of the Carrington Backbone Consents which relates to demolition of the Buildings. There is no separate
5 Wilson v Attorney General (2010) 19 PRNZ 943 (HC) at [20].
challenge to the validity of RC2, or the decision-making that underpins that consent. All relevant parties involved with the Carrington Backbone Consents have been joined to the proceedings. The Trust does not seek to join Ockham on the grounds that it was involved in the proceedings that resulted in the Carrington Backbone Consents. The principles set out in Sims Court Practice relied on by counsel for the Trust do not apply in this case.
[31] Second, while the Carrington Backbone Consents and RC2 are connected, the validity of the latter does not depend on the validity of the former. It is true that the development consented in RC2 is premised on the infrastructure of the Carrington Backbone Consents being available. But there is no suggestion that the grant of relief sought in this judicial review proceeding will jeopardise availability of that infrastructure. The only pleaded impact is the possible realignment of the Gate 1 Road. More importantly, the quashing of that part of the Carrington Backbone Consents relating to demolition of the Buildings will not automatically affect the legality of RC2. The validity of RC2 is not derived from the validity of the Carrington Backbone Consents.
[32] Third, while the reversal of the decision to permit demolition of the Buildings will necessitate a realignment of the Gate 1 Road, the question of that realignment is not before this Court. Indeed, there are several hoops to jump through before realignment becomes an issue. If the Trust is wholly successful in its application, then the best that it can hope for is an order setting aside the impugned decision and remitting it back to the Auckland Council for reconsideration. If remitted back, it will be for the Auckland Council to decide whether the application should be notified. A decision on the substantive application will then follow.
[33] If the Auckland Council decides that the Buildings should be demolished, then Ockham and RC2 will not be impacted at all. It is only if the Auckland Council decides that the Buildings should remain, that the Gate 1 Road will need to be realigned. Given the various steps taken to get to that point, with different outcomes hinging on each one, the prospect of road realignment is remote from the grant of relief in this proceeding.
[34] The same reasoning applies to the impact of any conditions which may be subsequently imposed on the (reconsidered) Carrington Backbone Consents which require earthquake strengthening to the remaining buildings comprising the former Carrington Hospital. In oral submissions made at the hearing, Mr Ryan submitted that Ockham (and any subsequent developer) received the benefit of the omission to impose such conditions in the first place as there was no requirement on Ockham to make any contribution to the upgrade of the Buildings. Mr Ryan says that Ockham will therefore be impacted if Auckland Council decides to impose conditions if the matter is remitted back for reconsideration. The Trust says this is a separate impact justifying joinder.
[35] The failure to impose earthquake strengthening conditions is not directly challenged in the draft amended statement claim before the Court. To that extent, the impact on Ockham from any relief granted to the Trust in this proceeding is even more remote than the impact of realignment of the road. While there may be potential for Auckland Council to impose earthquake strengthening conditions on a remitted consent, this is not an impact that arises out of the relief to be sought in this proceeding. I do not consider it justifies Ockham’s presence before the Court.
[36] Fourth, even if road realignment is required, the impact on Ockham and RC2 may be minimal. Planners for Ockham have prepared two alternative road routes which avoid the need to demolish the Buildings. Neither of these alternative routes impinges on RC2, and the Gate 1 Road may be realigned without any amendment to that consent.
[37] The Trust’s heritage architect has also prepared an indicative alternative route. Her route would impact on RC2 but only in a very minor way. The route would affect a small part of the development driveway, some lawn, and batter slope. It would not impact on the buildings consented under RC2.
[38] Ockham’s expert planners consider this alternative route could be accommodated within the existing scope of the RC2 without the need for formal amendment. In other words, the impact of any realignment of the Gate 1 Road in
accordance with the Trust’s alternative route would be very minor and would not impact on RC2 at all.
[39] Mr Ryan submits that the Council’s requirements in relation to an alternative route cannot be determined with any certainty at this stage. The Council could require a much wider road than has been provided for in any of the proposed alternative routes or they may require a different route to be taken altogether. In those circumstances the possibility that RC2 will be indirectly impacted by the grant of relief necessitates joinder of Ockham to the proceeding.
[40] I consider the inherent uncertainty in the Auckland Council’s requirements for an alternative route (should that become necessary) weigh against, not for, joinder in this case. Any impact on RC2 will only become apparent at the time Auckland Council reconsiders the Carrington Backbone Consents (assuming that this is what is ordered). Any impact on RC2 is at best uncertain, and there may not be any impact at all. Whether there is an impact (and if so, its extent), is a matter which flows out of any reconsideration by the Auckland Council, rather than the relief sought in this proceeding.
[41] There is another reason to decline joinder at this stage. The applicant for RC2 is a partnership between Ockham and Marutūāhu Rōpū, the first named second respondent. The presence of Marutūāhu Rōpū before the Court affords some comfort that any potential impact on RC2 arising out of this proceeding will be monitored. This is not a case where orders will be issued which may have an impact on RC2 without the applicant being afforded a right to be heard. If the judicial review proceeding takes an unanticipated turn, requiring Ockham to be before the Court, then an application to join Ockham (or to allow them to intervene) may be considered at that stage.
[42] To sum up, while Trust success in the current application may trigger a process which ultimately has some impact on RC2, that impact is so remote, uncertain, and/or minor, that Ockham’s presence is not required before the Court. The application to join Ockham is declined.
Should the Panel be joined to the proceeding?
[43] While the Panel abides the decision of the Court, it is clear from the memorandum of counsel filed on behalf of the Panel that it does not consider it to be an affected party necessitating its presence before the Court.
[44] I agree. The Panel has made its decision on RC2. There is no direct challenge to RC2, or the Panel’s decision-making in these judicial review proceedings. Any impact on RC2 arising out of the quashing of the Carrington Backbone Consents will be for Ockham to consider and assess. It is only if the impact requires an amendment to RC2 that the Panel will become involved. In other words, the impact of the judicial review proceedings on the Panel is even more remote than it is on Ockham. I do not consider the Panel’s interests are such that its presence in this proceeding is required.
[45]Accordingly, I decline the application to join the Panel.
Should the Attorney-General be joined to the proceeding?
[46] The Trust says that the Crown is the landowner of the underlying land to which the Carrington Backbone Consents relate. The Attorney-General abides the decision of the Court. I accept that the Attorney-General is a proper party to the proceeding and should be joined. I order accordingly.
Result
[47]The application to join Ockham and the Panel is declined.
[48] The application to join the Attorney-General is granted and I make orders accordingly.
[49] The Trust shall file an amended statement of claim with the Attorney-General named as a third respondent.
[50] Ockham has successfully opposed the application for joinder and is entitled to an award of costs. I encourage the parties to agree costs in accordance with the High Court Rules. In the event that agreement cannot be reached, a memorandum of
counsel in support of an application for costs may be filed 10 working days after delivery of this judgment; and a memorandum in response filed five working days thereafter. Memoranda shall be no longer than three pages in length. Costs shall be determined on the papers.
Edwards J
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