IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-2306 [2015] NZHC 1412
UNDER the Declaratory Judgments Act 1908 BETWEEN
ZYXCBA DEVELOPMENTS LIMITED Plaintiff
AND
AUCKLAND COUNCIL Defendant
Hearing: 18-20 May 2015 Appearances:
M E Casey QC and A Davidson for the Plaintiff
D J Neutze and M C Allan for the DefendantJudgment:
23 June 2015
JUDGMENT (No 3) OF MUIR J
This judgment was delivered by me on Tuesday 23 June 2015 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
M E Casey QC, Barrister, Auckland
P Castle, Castle Brown, AucklandD J Neutze, Brookfields, Auckland
M C Allan, Brookfields, Auckland
ZYXCBA DEVELOPMENTS LIMITED v AUCKLAND COUNCIL [2015] NZHC 1412 [23 June 2015]
Introduction
[1] In this proceeding the plaintiff (ZYXCBA) seeks declarations relating to the approach which should be followed by valuers in assessing the value of reserve land which vested in the defendant following lodgement of a plan of subdivision by the plaintiff. The defendant says that the proposed declarations do not accord with the valuation approach mandated in the relevant District Plan provision. It also says that they should be declined in the Court’s discretion as premature, an inefficient use of judicial resource and as involving mixed questions of fact and law.
[2] I decline the declarations sought. My reasons are as follows.
Background
[3] The ZYXCBA land had been part of a larger block which was subdivided in
1998 by its former owner. That larger block comprised 12.1413 hectares all of which was zoned rural under the Manukau Operative District Plan and the Manukau Proposal District Plan.
[4] Condition 4 of the 1998 subdivision consent provided that the native bush on Lots 1 and 2 of the subdivided land was to be protected and preserved by way of a consent notice and native bush management plan. Lot 1 on that plan subsequently came to be known as Lot 205 DP 362358 and was acquired by Mr Des Cowie (sole director of the plaintiff), his former wife Susan Cowie and Thorsen Gempton Consulting Limited in 1999. The consent notice was registered on the title prior to transfer to the Cowie interests. Mr Cowie acknowledged that if he was not aware of
the consent notice then he “probably ought to have been”.1 It is a fair assumption
that the consent notice and features of the land’s topography and bush cover were
reflected in the price paid which was $525,000.
[5] Subsequently, and pursuant to relationship property arrangements, Lot 205 was transferred to the plaintiff.
1 At NOE, p 5.
[6] The land is in an area of the former Manukau City Council known as Flat Bush. Subsequent to purchase by the Cowie interests the planning framework for the Flat Bush area underwent a number of significant changes. These started with a change to the Regional Policy Statements (“RPS”) and Metropolitan Urban Limit (“MUL”) which bought the Flat Bush area, including the ZYXCBA land, within the MUL. Subsequently, a…
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- [2015] NZHC 1412
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