Prescott v Police - [2019] NZHC 175

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Belgiorno-Nettis v Auckland Unitary Plan Independent
Hearings Panel
Court of Appeal CA645/2017; CA184/2018; [2019] NZHC 175
11, 12 February; 22 May 2019 Asher, Brown and Williams JJ
Administrative law – Duty to give reasons – Recommendations made in respect

15 of proposed Unitary Plan – Statutory requirement to give reasons for recommendations leading to Council decisions – Relationship to common law expectation to give reasons – General policy principles provided – Whether reasons given for some recommendations and not others – Whether failure to give reasons in respect of some issues was breach of statute – Local
20 Government (Auckland Transitional Provisions) Act 2010, ss 144, 164 and 166 – Resource Management Act 1991.
Local government – Decision making – Recommendations made in respect of proposed Unitary Plan – Statutory requirement to give reasons for recommendations leading to Council decisions – Relationship to common law
25 obligation to give reasons – General policy principles provided – Whether reasons given for some recommendations and not others – Whether failure to give reasons in respect of some issues was breach of statute – Local Government (Auckland Transitional Provisions) Act 2010, ss 144, 164 and 166 – Resource Management Act 1991.
30 Judicial review – Duty to give reasons – Remedy – Appropriate reason not given to individual submitter – No allegation of breach of natural justice beyond failure to provide reasons – Panel to be required to provide reasons – Judicial membership panel negating risk of reasons being composed to ﬁt conclusions.

35 The Auckland Council (the Council) was established in 2010 by the Local Government (Auckland Council) Act 2009. The Local Government (Auckland Transitional Provisions) Act 2010 (the Act) that followed set out the process for the preparation, consideration and ﬁnalisation of the “ﬁrst combined plan for Auckland Council” under the Resource Management Act 1991. That planning
40 document became known as “the Unitary Plan”, it being a consolidation of the existing District plans of the pre-amalgamation cities and districts. The Auckland Unitary Plan Independent Hearings Panel (the Panel) was obliged to receive submissions, provide hearings and make recommendations to the Council. The Council was the ultimate decision-maker but the Panel would not
45 be disbanded until it had “completed the performance or exercise of its functions and powers” and that included completion of “any appeals in relation to the Hearing that were ﬁled in court”. Terrace Housing and Apartment Buildings (THAB) zoning was proposed for the Promenade Block in Takapuna,

along with additional height control. In respect of the Lake Road Block, also in Takapuna, the plan proposed Mixed Use business zoning for properties fronting Lake Road with properties on the western side behind the Mixed Use zone, zoned THAB.

Franco Belgiorno-Nettis was one of thousands of people and parties who 5 made submissions to the Panel during the Unitary Plan process. He applied for judicial review of the Panel’s recommendations and the Council’s decision, speciﬁcally in respect of…

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: [2019] NZHC 175
Decision Date: 15 February 2019

CaseChat Overview and Summary

Franco Belgiorno-Nettis applied for judicial review of the Auckland Unitary Plan Independent Hearings Panel's (Panel) recommendations to the Auckland Council (Council), and the Council's decision based on those recommendations, for two specific sites in Takapuna. The Panel's recommendations were adopted by the Council. The High Court dismissed the application. Belgiorno-Nettis appealed the dismissal and sought leave to appeal a point of law. The Court of Appeal allowed the appeal and granted the application for judicial review. The appeal against the refusal to grant leave to appeal was dismissed. The Panel was ordered to give reasons for its recommendations to the Council for the two sites. The Court found that the Panel's recommendations did not include reasons for accepting or rejecting Belgiorno-Nettis' submissions and the submissions of others in relation to the two sites. The Panel's reasons were required by s 144(8) of the Local Government (Auckland Transitional Provisions) Act 2010. The Panel's failure to give reasons was a breach of statute and an error of law. The Court concluded that the appropriate remedy was to require the Panel to give reasons. The Panel remained in existence, and the fact that it was chaired by an Environment Court judge, and had adopted a quasi-judicial process meant there was no danger that reasons would not be composed to fit the decision.

Orders