Wallace v Auckland Council - [2022] NZHC 1299

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-439

[2022] NZHC 1299

UNDER The Judicial Review Procedure Act 2016

IN THE MATTER

of sections of the Resource Management Act 1991 in relation to statutory decisions to grant a resource consent on a non-notified basis under the RMA.

BETWEEN

GARY WALLACE AND VICKI WALLACE

First Applicants

RICHARD BRABANT AND ELEANOR BRABANT
Second Applicants

JASON ORR AND LESLEY ORR
Third Applicants

DAVID PEDERSEN AND TRACY PEDERSEN

Fourth Applicants

AND

THE AUCKLAND COUNCIL

First Respondent

44 VENTNOR LIMITED

Second Respondent

Hearing: 26 May 2022

Appearances:

M Williams for the Applicants

No appearance by or on behalf of First Respondent
A R Galbraith QC and C F Timbs for the Second Respondents

Judgment:

3 June 2022

JUDGMENT OF POWELL J

WALLACE & Ors v THE AUCKLAND COUNCIL & Anor [2022] NZHC 1299 [3 June 2022]

This judgment was delivered by me on 3 June 2022 at 10.30 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1] The applicants, Gary and Vicki Wallace, Richard and Eleanor Brabant, Jason and Lesley Orr and David and Tracy Pedersen, seek interim orders to prevent the completion of a development at 44 Ventnor Road, Remuera, Auckland (“the development”). Specifically, they seek an order which prevents the developer, the second respondent 44 Ventnor Limited from:

(a)requesting the issue of record of title under s 12 of the Land Transfer Act 2017 for each of the 13 units approved under the development; and

(b)settlement of the sale of any of the 13 units in the development at 44 Ventnor Road, Remuera, Auckland.

pending final determination of the applicants’ judicial review proceedings.

[2] The applicants’ opposition to the development is long-standing. After 44 Ventnor Ltd obtained a non-notified resource consent to develop 13 dwellings on the site at 44 Ventnor Road in March 2021, the applicants commenced judicial review proceedings in respect of both the notification decision and the substantive decision granting consent. No interim orders were sought however, and 44 Ventnor Ltd continued construction up until the release of the High Court judgment on 17 November 2021. In that decision, van Bohemen J identified that two errors of law had been made by the Auckland Council when determining whether the application should have been notified and in granting the consent for the development. Specifically:1
… the Council did not properly consider the adverse effects of the building intensity of the development on the neighbourhood character, residential amenity, safety and the surrounding residential area because, in assessing those effects on the environment and on who may be affected persons:

(i)the Council considered matters which are not part of the existing environment and which are not permitted as of right under the AUP;² and

(ii)the Council did not turn its mind to the effects of building intensity neighbourhood character and residential amenity in

1 Wallace v Auckland Council [2021] NZHC 3095 at [193(b)].
2 Auckland Unitary Plan.

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.

Keep reading for free

Create a free CaseChat account to read Wallace v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 1299
Decision Date: 3 June 2022

CaseChat Overview and Summary

The applicants, including Gary and Vicki Wallace, Richard and Eleanor Brabant, Jason and Lesley Orr, and David and Tracy Pedersen, sought interim orders to halt the completion and settlement of a residential development at 44 Ventnor Road, Remuera, Auckland. They aimed to prevent 44 Ventnor Ltd, the developer, from requesting the issue of records of title under the Land Transfer Act 2017 and settling the sale of any of the 13 units until the final determination of their judicial review proceedings against the Auckland Council and 44 Ventnor Ltd. The applicants contested the validity of the resource consent granted by the Auckland Council, which had allowed the development to proceed on a non-notified basis. They argued that the Council had erred in its consideration of the adverse effects of the development's building intensity on the neighbourhood character and residential amenity.

The legal issues revolved around the necessity and appropriateness of granting interim orders under section 15 of the Judicial Review Procedure Act 2016. The Court had to determine whether the applicants met the threshold requirement that interim orders were necessary to preserve their position, and whether the wider circumstances of the case favoured the making of such orders. The applicants argued that the development's completion would render their substantive relief essentially irreversible, while 44 Ventnor Ltd contended that interim orders were unnecessary and inappropriate due to the advanced stage of construction and the applicants' failure to seek interim relief earlier.

The Court found that the applicants had not met the threshold requirement for interim orders, as the development was already substantially complete. Additionally, the Court noted that the applicants' substantive claims appeared weak, focusing on issues that were not supported by the earlier High Court decision or their submissions. Furthermore, the Court highlighted the significant prejudice to 44 Ventnor Ltd and the purchasers if the interim orders were granted, including substantial holding costs and potential financial burdens on the purchasers. Given these factors and the applicants' refusal to provide an undertaking as to damages, the Court dismissed the application for interim orders.

In conclusion, the Court dismissed the applicants' application for interim orders and granted 44 Ventnor Ltd costs on the application, with an opportunity for the parties to agree on the costs within one month. If an agreement could not be reached, the Court would determine the issue following the filing of memoranda.

Orders