Wallace v Auckland Council - [2021] NZHC 3095

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-000539

[2021] NZHC 3095

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of sections 95A, 95B, 95D, 95E, 104 and 104C of the Resource Management Act 1991 in relation to an application to review statutory decisions to grant consents on a non-notified basis under the Resource Management Act 1991

BETWEEN

GARY WALLACE and VICKI WALLACE

First Applicants

AND

RICHARD BRABANT and ELEANOR BRABANT

Second Applicants

AND

JASON ORR and LESLEY ORR

Third Applicants

Continued overleaf…

Hearing: 27-28 September 2021 (via VMR)

Appearances:

M J Williams for the Applicants

D K Hartley and A F Buchanan for the First Respondent W S Loutit and R S Abraham for the Second Respondent

Judgment:

17 November 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 November 2021 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

WALLACE v AUCKLAND COUNCIL [2021] NZHC 3095 [17 November 2021]

Continued from previous page…

AND

AMANDA WILKINSON, MATTHEW WASHINGTON and DAVID NICOL

Fourth Applicants

AND

DAVID PEDERSEN and TRACY PEDESEN

Fifth Applicants

AND

AUCKLAND COUNCIL

First Respondent

AND

44 VENTNOR LIMITED

Second Respondent

Solicitors/Counsel: Shakespeare Chambers, Napier
Grove Darlow & Partners, Auckland DLA Piper, Auckland
Simpson Grierson, Auckland

TABLE OF CONTENTS

Introduction 1

Relevant history 8

Initial Council review of application  16
Engagements between residents of Ventnor Road, the Council and 44VL             18
Council consideration of application  24
Decisions on notification and on application  27
Residents advised of the Decisions and commence proceeding  31

The Reports 36

The Notification Report 37
The Substantive Report 57

The Decisions 62

Notification Decision 63
The Substantive Decision 71

The alleged errors of law 75

Statutory and planning context 77

Submissions by counsel for the applicants 91

First and second errors of law  91
Third error of law  96
Fifth error of law  98

Submissions by counsel for the Council 99

First error of law  100
Second error of law  101
Third error of law  104
Fifth error of law  105

Submissions by counsel for 44VL 106

First and second errors of law 107

Third error of law 113

Fifth error of law 114

Analysis 115

Approach to applications for judicial review  115
Questions for determination  120
What was the Council required to take into account for the purposes of ss 104 and 104C and what is the “environment” for the purposes of those sections? 123
What assessment did the Council make of the environment?  135
What was the Council required to consider for the purposes of H4.8.1(2)(a) and H4.8.2 of the AUP?  146
Is it necessary to identify the neighbourhood, the neighbourhood character and residential amenity of the area of the proposed development?  147
Did the Council have adequate information to assess effects on neighbourhood character and residential amenity?  150
What is building intensity?  155
Do the assessment criteria in H4.8.2 provide an adequate basis for assessing the effects…

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: [2021] NZHC 3095
Decision Date: 17 November 2021

CaseChat Overview and Summary

The applicants, residents in the vicinity of a proposed development in the Residential – Mixed Housing Suburban Zone, sought to review the Auckland Council's decisions not to notify the development application and to grant resource consents for the development. The applicants argued that the Council failed to comply with the Resource Management Act 1991 (RMA) and the Auckland Unitary Plan – Operative in Part (AUP) when making the decisions. The Council and the developer, 44 Ventnor Limited, defended the decisions and argued that any errors made were not material. The Court found that the Council made several errors of law, including failing to consider the effects of building intensity on neighbourhood character and residential amenity, and not having adequate information to assess the traffic effects of the development. The Court set aside the Council's decisions and the resource consents and ordered the Council to reconsider the application and who may be affected persons for the purposes of s 95E of the RMA. The Court granted the applicants' costs on a 2B basis.

Orders