Zyxcba Developments Limited v Auckland Council

[2015] NZHC 1123

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2306 [2015] NZHC 1123

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:	25 May 2015

JUDGMENT (No 2) OF MUIR J (Amendments to Pleading)

This judgment was delivered by me on 25 May 2015 at 4.00 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 1123 [25 May 2015]

[1]      In my oral judgment of 19 May 2015 I declined to allow amendments to paragraphs 1(a) and (b) of the plaintiff’s prayer for relief for the reasons there set out.

[2]      In the course of that judgment I identified one aspect of the new proposed relief 1(a), namely whether the relevant  District  Plan Rule required  a  pro-rated approach to valuation of the vested land, as potentially amenable to amended relief. I also identified that differences between the parties on this issue had already been the subject of submissions in the materials exchanged before trial.

[3]      Although inclusion of this issue within a larger amendment which I found objectionable meant that it too was rejected, my judgment gave some indication of how I may be prepared to approach the issue were it advanced on a standalone basis.

[4]      That was regarded as sufficient encouragement for Mr Casey to seek a second amendment to the prayer for relief by way of a new paragraph 1(a) (to precede the existing paragraphs (1)(a), (b) and (c) which would be renumbered as (b), (c) and (d) respectively) in terms:

(1)       When valuing the land for the purposes of determining the price to be paid by the defendant Council to the Plaintiff Consent Holder in terms of conditions 52 and 53 of the subdivision consent, the valuers are to:

(a)       Value the overall ZYXCBA block (Lot 205 DP362358) on a block or raw land value basis and apply that value pro-rata to the land.

[5]      I heard argument in that respect at the commencement of the third day at trial. At the conclusion of that argument I indicated that I would allow the amendment.  I now set out my brief reasons.

[6]      Whether cl 15.15.2.2.3 provides for a pro-rated approach is, self-evidently, a question of construction of the District Plan.

[7]      In Powell v Dunedin City Council1 the Court of Appeal said that in relation to such interpretation:

(1)it is appropriate to seek the plain meaning of the rule from the words themselves;

(2)regard  must  be  had  in  the  immediate  context  which  in  that  case included the objectives, policies and methods recognised in the Plan and where any obscurity or ambiguity arises it may be necessary to refer to other sections of it.

(3)      the Interpretation Act 1999 applies to District Plans.

[8]      In Queenstown River Surfing Limited v Central Otago District Council2  the

Environment Court identified the relevant factors to consider as:

(1)      The text of the relevant provision [in its immediate context]; (2)       The purpose of the provision;

(3)      The context and scheme of the plan and any indications in it; (4)       The history of the plan;

(5)      The purpose and scheme of the Act; and

(6)      Any other permissible guides to meaning.

[9]      Mr Neutze submitted that I should be reluctant to entertain the amendment because  the  interpretation  issue  on  which  I may  be  required  to  embark  is  one necessarily informed by the history of the plan and the Council could not be certain that all matters appropriately bearing on that exercise had been brought before the

Court.

1      Powell v Dunedin City Council [2004] 3 NZLR 721 at [35].

2      Queenstown River Surfing Limited v Central Otago District Council [2006] NZRMA 1 at [7].

[10]     Those  issues  are,  however,  dealt  with  in  some  detail  in  the  affidavit  of Council’s witness Mr Harland, a senior planner and urban designer in the employ of the defendant and who was the Council officer who led planning for the Flatbush area under the previous Manukau City Council.

[11]     He deposes at length on the history and development of Variation 13 and in particular the interrelationship between the reserve contribution initially sought by the Council (7.5 per cent), the level ultimately agreed (the 6 per cent) and corresponding amendments to Rule 15.15.2.2.3 which he says gave the Council some comfort that it would not be faced with a multitude of theoretical and fanciful subdivisions leading to unreasonably inflated land values.  He says that the Council was ultimately content at the 6 per cent level because of additional protections built into the Rule during the negotiations which in turn resulted in consent orders before the Environment Court, the objective being that there would be a correlation between the reduced reserve contributions the Council received and Council’s compensation commitments.

[12]     Insofar as the Council draws on context and history, relevant evidence has therefore been called.

[13]     In  the  course  of  argument  Mr  Neutze  supplemented  that  evidence  by production of documents now identified as the defendant’s exhibits D and E being the notice of reference to the Environment Court containing the relevant Hearings Committee Decision Reports 8.1 – 8.5 and the memorandum of counsel in support of draft consent orders.  These provide further documentary background and support to the matters addressed in Mr Harland’s affidavit.

[14]     I  am  reasonably  satisfied  that  the  Council  has  before  the  Court  all  the evidence that it might expect to advance by way of context and history in support of the interpretation argument.  Mr Harland was fully conversant with that history and makes a strong claim for the interrelationship of the reserve contribution reduction and what he saw as constraints in the compensation mechanism.  That proposition is firmly before the Court to the extent relevant in the interpretation exercise and the plaintiff did not seek to cross-examine him on it.  I think it unlikely that, beyond the

committee reports and consent order, there is material sufficiently cogent to usefully assist that exercise.

[15]     I therefore allow the amendment, emphasising in so doing that no inference is intended in terms of the appropriateness of the relief sought either substantively or procedurally.

[16]     However,  I  also  grant  leave  to  the  Council  to  file  by 2  June  2015  any additional evidence relating to the context and history of the relevant plan provision which assists interpretation of the pro rata point.   In the event there is any such additional evidence the Court will convene a short notice telephone conference to settle any consequent directions.

[17]     I make no order as to costs.  My decision in that regard is based on the late nature  of  the  amendment  and  the  considerations  identified  in  [24]  of  my  oral

judgment of 19 May 2015.

Muir J