Reed v Waikato District Council - [2025] NZHC 2586

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-000317

[2025] NZHC 2586

UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review of decisions under the Resource Management Act 1991

BETWEEN

ANTHONY PRIVETT REED and REED

TRUSTEE 2018 LTD (as Trustees of the Eagle Trust)
Applicants

AND

WAIKATO DISTRICT COUNCIL

First Respondent

RUBY & RATA LTD

Second Respondent

Hearing: 14 August 2025

Counsel:

D R Bigio KC and T M McGoldrick for Applicants K J Ridling for First Respondent

S J Ryan and S Thompson for Second Respondent

Judgment:

5 September 2025

JUDGMENT OF BREWER J

This judgment was delivered by me on 5 September 2025 at 4.15 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

REED v WAIKATO DISTRICT COUNCIL [2025] NZHC 2586 [5 September 2025]

Introduction

[1] This case is scheduled for hearing on 15 and 16 September 2025. On 30 July 2025, the second respondent filed an interlocutory application for leave to file an amended statement of defence and counterclaim. On 8 August 2025, the applicants filed a notice of opposition.1

[2] The parties persuaded me to hear oral argument on the application on 14 August 2025 on an urgent basis because of the proximity of the hearing. Unfortunately, the vicissitudes of judicial scheduling have resulted in me sitting on 31 cases post 14 August 2025. I am very conscious that the parties need the application resolved. So, I will write short and address only the points that underpin my decision.

The case

[3]This is an application for judicial review.

[4] The applicants own land which has the benefit and burden of a registered encumbrance affecting their land and neighbouring land:2

An encumbrance in the form of a mortgage registered on 4 November 2011 on the titles of both 87 and 87A Ruebe Road prohibits further subdivision undertaken as conservation lot or environmental lot subdivision (Subdivision Encumbrance):

No further subdivision of the Land is allowed under Rule 22.9 (Conservation Lot) of the Operative Franklin District Plan, Rule 22.11 (Environmental Lot) of Plan Change 14 to the Operative Franklin District Plan; Rural Plan Change, or any similar provision(s) of any District Plan or Plan Change document.

[5] The second respondent owns the neighbouring land and applied to the first respondent for resource consent to subdivide it. Resource consent was given. The applicants seek judicial review of the decision-making process.

[6]There are seven grounds of review. The third is:

48.In making the Consent Decision, the first respondent erred in law because it failed to consider or failed to consider correctly the Subdivision Encumbrance, which prevents further subdivision of 87A Ruebe Road.

1 The first respondent also opposes aspects of the amended pleading.
2 Amended statement of claim, dated 8 May 2025, at para 4.

[7] The proposed amended statement of defence and counterclaim has the following new pleadings:

60. That if the…

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: [2025] NZHC 2586
Decision Date: 5 September 2025

CaseChat Overview and Summary

The applicants, Anthony Privett Reed and Reed Trustee 2018 Ltd (as Trustees of the Eagle Trust), have filed an application for judicial review of decisions made under the Resource Management Act 1991 by the Waikato District Council. The applicants own land which has a registered encumbrance prohibiting further subdivision. The second respondent, Ruby & Rata Ltd, owns neighbouring land and applied for resource consent to subdivide it, which was granted. The applicants challenge the decision-making process. The second respondent has applied for leave to file an amended statement of defence and counterclaim.

The court had to determine whether the second respondent's application to file an amended statement of defence and counterclaim after the close of pleadings should be granted. The legal issues involved interpreting Rule 7.7(1) of the High Court Rules 2016, which generally prohibits filing amended pleadings post-pleadings without leave. The court considered whether the amendment would be in the interests of justice, cause significant delay or prejudice, and if it had substantial merit. The court also examined the circumstances leading to the need for the amendment, including the second respondent's late filing of evidence and the applicants' readiness to respond to the new pleadings.

The court, Brewer J, granted the second respondent's application for leave to file an amended statement of defence and counterclaim. The decision was based on the court's recognition that the real controversy between the parties involved the standing of the encumbrance and its basis, which warranted a comprehensive determination. The court found no significant prejudice to the applicants or the first respondent, and the amendment's merit could not be dismissed outright. The court reserved the proposed timetable and costs for further agreement between the parties.

Orders