ZYXCBA Developments Limited v Auckland Council - [2015] NZHC 1412

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 Defendant

Judgment:

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, Auckland
D 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…

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 ZYXCBA Developments Limited 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: [2015] NZHC 1412
Decision Date: 23 June 2015

CaseChat Overview and Summary

This case involved a claim by ZYXCBA Developments Limited against the Auckland Council for declarations regarding the approach to be followed by valuers in assessing the value of reserve land which had vested in the Council following the lodgement of a plan of subdivision by ZYXCBA. The Council argued that the declarations did not align with the valuation approach mandated in the relevant District Plan provision and that they should be declined as premature, an inefficient use of judicial resources, and involving mixed questions of fact and law. The Court declined the declarations sought, finding that the plaintiff's proposed construction of the District Plan Rule created internal tensions, gave rise to a double-dipping criticism, was unsupported by any logical rationale, and would lead to an inefficient valuation methodology. The Court also found that the plaintiff's proposed construction was inconsistent with the context and history of the District Plan provisions and that the desired alignment between market value-based reserve contributions and compensation commitments reinforced this conclusion. The Court further declined the declarations due to the lack of an evidential basis for the plaintiff's claims, the contentions involving mixed questions of fact and law, and the premature nature of the claims. The Court awarded the defendant costs on a 2B basis.

Orders