Thompson v Invercargill City Council

[2020] NZHC 21

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-425-000144

[2020] NZHC 21

BETWEEN

LEWIS GAIRE HERDMAN THOMPSON

Plaintiff

AND

INVERCARGILL CITY COUNCIL

First Respondent

HWCP MANAGEMENT LTD

Second Respondent

Hearing:

21 January 2020

Appearances:

S R Gepp and F McDonald for the Plaintiff R W Donnelly for the First Respondent

J V Ormsby and T J Brown for the Second Respondent

Judgment:

21 January 2020

JUDGMENT OF GENDALL J

[1]                 This is a results judgment with respect to matter CIV-2019-425-000144. It is between Lewis Gaire Herdman Thompson, applicant, Invercargill City Council first respondent, HWCP Management Limited second respondent.

[2]                 A hearing before me in this matter commenced today 21 January 2020 at 10.00 am. It is now 5.30 pm today. The hearing I have just concluded involved an application for an interim order, a matter of some urgency in this proceeding. As a result I will now give a results judgment on the application. My detailed reasons for this decision will follow.

THOMPSON v INVERCARGILL CITY COUNCIL [2020] NZHC 21 [21 January 2020]

[3]                 By way of brief background in this matter the second respondent, HWCP Management Limited was granted a resource consent by the first respondent, Invercargill City Council on 4 June 2019 (the consent). The consent was to demolish, alter and redevelop a major block in the Invercargill CBD. (That is referred to as “the development”).

[4]                 The application for the consent was heard before Hearing Commissioners on a notified basis. The applicant, Mr Thompson made submissions opposing the consent as part of the hearing process. A decision was given and Mr Thompson did not appeal that decision which was to grant the consent.

[5]                 The conditions of the consent were subsequently varied. In particular condition 19 of the consent was amended by way of being replaced by two new conditions 19A and 19B, although other conditions were also amended. The variation occurred on a non-notified basis.

[6]                 Mr Thompson has applied to this Court to have the decision in relation to the variation reviewed on the basis that he says the Council erred in granting the variation on a non-notified basis and that the varied condition is invalid because it is uncertain and reserves a discretion to the Council. This review application is solely in relation to the decision to vary condition 19 in the variation decision. Mr Thompson does not challenge the Council’s decision to grant the resource consent nor any conditions relating to the extent of the activity permitted therein.

[7]                 HWCP, the second respondent had intended to commence demolition of certain buildings at the development on 6 January 2020. Mr Thompson sought an interim order on a without notice Pickwick basis under s15 Judicial Review Procedure Act 2016 to prevent this demolition from occurring until the substantive judicial review application has been determined or in the alternative until the unamended condition 19, as originally imposed in the notified resource consent decision is satisfied.

[8]                 An order was granted prohibiting any demolition works in reliance on the consent in this Court by His Honour Mander J on an urgent basis following a telephone conference on 30 December 2019. The order was made pending this Court’s full

consideration of the interim order application which has occurred today, 21 January 2020.

[9]                 Counsel who appeared before today me were Ms Gepp and Mr McDonald for the applicant, Mr Donnelly for the first respondent and Mr Ormsby and Mr Brown for the second respondent.

[10]              The Invercargill City Council and the second respondent, HWCP both oppose this application and have filed notices of opposition to Mr Thompson’s application in which he seeks the interim order.

[11]              At the outset of the hearing of this matter before me  today Ms  Gepp,  for  Mr Thompson made an oral application for that hearing to proceed as the substantive determination of Mr Thompson’s application for judicial review rather than simply a determination of his application for an interim order. This was opposed by Mr Ormsby for HWCP and Mr Donnelly for the Council amongst other things on the basis of the very short timeframes that have been involved and the need which was signalled for some further possible evidence to be filed. Given these matters,  and the fact  that  His Honour Mander J in his 31 December 2019 decision specifically set down for urgent hearing before me today only Mr Thompson’s interim order application, I rejected Ms Gepp’s oral application to hear all of the judicial review matters today and the interim order application proceeded accordingly.

[12]              Pending the hearing of the substantive review application I have referred to above Mr Thompson in his present application has now sought interim orders under s 15 Judicial Review Procedure Act 2016 as I have noted. These orders are to prohibit the carrying out of any demolition works in relation to the development in question in reliance on the resource consent. Section 15 Judicial Review Procedure Act 2016 provides in part as follows:

15. Interim Orders

(1)  At any time before the final determination of an application, the Court may, on the application of a party, make an interim order of the kind specified in ss 2 if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)  the interim orders referred to in ss 1 are interim orders –

(a) prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power.

4.   An order under ss(2) or (3) may –

(a)   be made subject to such terms and conditions as the Court thinks fit; and

(b)    be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the Court may specify.

[13]              This Court can make an order under s 15 where it is reasonably necessary to do so to preserve the position of the applicant. If that statutory threshold is met, the Court has a wide discretion, taking into account all relevant circumstances, including the strength or weakness of the claim, the statutory framework, the public interest and the private and public repercussions of granting relief. The status quo, the balance of convenience and the overall justice of the position are all matters to be taken into account.

[14]              In the hearing of this matter before me, I have carefully considered the considerable material that has been filed, relating to the interim order application, and the detailed and thorough submissions advanced before me, both in writing and orally by counsel for all parties. Having done this I find that the applicant Mr Thompson has been unable to satisfy me that his present application for interim orders has been made out.

[15]              Accordingly, Mr Thompson’s application for interim orders is dismissed. The interim orders made earlier by His Honour Mander J in this Court in his 31 December 2019 decision come to an end.

[16]Costs on these matters are reserved.

[17]My detailed reasons for this decision will follow.

Gendall J