Clements v Auckland Council [2018] NZHC 2084 (15 August 2018)

Last Updated: 27 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002792 [2018] NZHC 2084

BETWEEN	MIRIAM CLEMENTS Applicant
AND	AUCKLAND COUNCIL First Respondent COUNCILLOR RICHARD HILLS Second Respondent COUNCILLOR CHRIS DARBY Third Respondent COUNCILLOR LINDA COOPER Fourth Respondent COUNCILLOR ROSS CLOW Fifth Respondent COUNCILLOR ALF FILIPAINA Sixth Respondent DEPUTY MAJOR BILL CASHMORE Seventh Respondent

Hearing:	13 August 2018
Appearances:	No appearance by or for Applicant J Wilson for Respondents
Judgment:	15 August 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 15 August 2018 at 2.00pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:..............................

CLEMENTS v AUCKLAND COUNCIL [2018] NZHC 2084 [15 August 2018]

Introduction

[1] Ms Clements seeks judicial review of a decision it is asserted Auckland Council (the Council) has made to dispose of various properties, including a car park at 40 Anzac Avenue, Takapuna, on the North Shore (the Takapuna car park land).

Procedural background

[2] I briefly (and only partially) summarise the course of the proceedings:

(a) The proceedings were commenced by the filing of a notice of appeal against directions made by Judge Cunningham in the District Court on the North Shore on 30 October 2017. Judge Cunningham had considered a statement of claim that Ms Clements was seeking to file in the District Court. A note sent out by the Registrar recorded that the Judge had noted that the relief which Ms Clements was seeking appeared to be best obtained from the Human Rights Review Tribunal (for alleged breaches of the Human Rights Act 1993), and by way of judicial review in this Court. She noted that the District Court had no jurisdiction to entertain either.

(b) At much the same time, Ms Clements filed an interlocutory application without notice. She sought a stay of any sale of the Takapuna car park land.

(c) On 31 January 2018, the appeal and the interlocutory application came before Toogood J. He took the view that the most efficient means for addressing Ms Clements’ substantive concerns – whether the alleged decision by the Council to sell the Takapuna car park land was lawful
– was to proceed by way of judicial review. He recorded that Ms Clements agreed to this so that matters could be resolved as expeditiously as possible. Toogood J accordingly ordered that the appeal proceedings should be treated as an application for judicial review.
(d) The Council gave a formal undertaking that the Takapuna car park land would not be sold before 22 February 2018, when the matter was set down for call in the judicial review list.

(e) The matter came before Fitzgerald J on 22 February 2018. Ms Clements had by this stage made a further interlocutory application seeking interim relief. She sought to prohibit the respondents from taking steps to sell the Takapuna car park land. This application was set down for a half-day hearing on 22 March 2018, and Fitzgerald J put in place a timetable order to facilitate that hearing. She was not prepared to grant any relief pending that hearing. She did, however, make an order that the Council should give Ms Clements prior notice if it was proposing to enter into an unconditional contract to sell the Takapuna car park land.

(f) Ms Clements applied to adjourn the 22 March 2018 fixture and instead sought discovery. The Council opposed the adjournment. It also applied for security for costs and to strike out the proceeding.

(g) On 14 March 2018, Fitzgerald J ordered that the 22 March 2018 fixture should be used for the hearing of Ms Clements’ application for discovery and the Council’s application for security for costs.

(h) On 22 March 2018, Fitzgerald J heard the discovery and security for costs applications. She also set the substantive judicial review proceeding down for hearing. She allocated a three-day fixture, commencing at 10 am on 13 August 2018. The Judge directed Ms Clements to file written submissions in support of her application for judicial review on or before 30 July 2018.

(i) In a judgment released on 28 March 2018, Fitzgerald J dismissed Ms Clements’ application for discovery and the Council’s application for security for costs.¹

¹ Clements v Auckland Council [2018] NZHC 553.

(j) The Council then filed an application to strike out the individually named councillors who were respondents to the proceeding.

(k) At a hearing before Fitzgerald J on 19 April 2018, Mr Wilson, appearing for the Council, indicated that the respondents were content for this application to be dealt with at the substantive judicial review hearing. Ms Clements agreed that this was the appropriate course. Ms Clements also indicated that she proposed to join the Mayor of Auckland – Mayor Goff – as an individually named respondent to the proceeding. The Judge made various directions, inter alia, requiring Ms Clements to file a formal application if she wished to pursue this course. She also recorded that any application was to be dealt with in the context of the broader hearing scheduled to commence on 13 August 2018. The Judge also recorded advice from Ms Clements that she wished to broaden the scope of the existing review proceedings. The Judge encouraged Ms Clements to file any amended statement of claim as soon as possible, and recorded Ms Clements’ indication that she could do so within a week. The Judge directed that any amended statement of claim was to be filed and served on or before 27 April 2018. The Judge also encouraged Ms Clements to present her amended pleading in as succinct a form as possible, to provide the Council with clarity as to the case it had to meet.

(l) There was apparently some confusion as to what was meant by the requirement for an amended pleading. In a further minute issued on 30 April 2018, Fitzgerald J granted Ms Clements an extension of time to file her amended statement of claim to 3 May 2018. Ms Clements did not comply. Rather, she filed an application seeking to amend the timetable. This application was successful. She was granted an extension until 11 am, Monday 7 May 2018. Ms Clements did comply with this direction. A 63-page amended statement of claim was filed at
10.53 am on that day.
(m) The matter was called before Fitzgerald J in the judicial review list on 17 May 2018. At that hearing, both Ms Clements and Mr Wilson for the Council expressed their firm preference that the 13 August 2018 fixture date should be maintained. Ms Clements had filed an interlocutory application to join the Mayor, and a further application seeking interim relief in relation to a number of other properties in and around Auckland. The Council agreed that the former application should be dealt with at the substantive hearing on 13 August 2018. The application to extend the interim orders in place (requiring five days’ notice of entering into any contract for sale) in relation to the Takapuna car park land to other properties in the area was opposed by the Council, and Fitzgerald J allocated a one-hour hearing on 21 June 2018 to address this issue.

(n) On 21 June 2018, Courtney J commenced hearing Ms Clements’ application for interim orders restraining the Council from disposing of the specified properties without providing written notice of its intention to do so. However, it seemed likely that the Council would agree to provide a similar undertaking to the one it had given in relation to the Takapuna car park land and the matter was adjourned to 4 pm on 22 June 2018.

(o) On 22 June 2018, the Council undertook not to enter into an unconditional agreement to sell any of the subject properties, expiring when this Court gave its decision on the substantive application (to be heard on 13 August 2018), or on the loss of that fixture.

(p) Ms Clements then sought to adjourn the 13 August 2018 fixture to a date in October 2018. That application was declined by Jagose J by way of a minute dated 2 August 2018. The Judge also noted that Ms Clements had failed to file written submissions in support of her application for judicial review by 30 July 2018 as directed by Fitzgerald
J. He commented as follows:

Ms Clements protests she cannot possibly meet that timetable on such short notice. However, she has known since late March her submissions were due at the end of July; any difficulty she now faces is entirely of her own making. The more critical issue is the Court’s oversight by judicial review of susceptible decision makers [- this] is not to be derailed by an applicant’s failures to meet timetable orders. Applications for judicial review are intended to “be determined in a convenient and expeditious manner”– to assess if the impugned action or decision was done in accordance with the law, or was fair and reasonable in an administrative law sense – in which the Council, as the decision maker subject to review, has an obligation to explain “how and why they acted or decided as they have”.

(Citations omitted)

The Judge ordered Ms Clements to file written submissions in support of her application by Monday 6 August 2018. Ms Clements failed to comply.

(q) On 7 August 2018, Ms Clements filed a further application to adjourn the 13 August 2018 hearing. That application was declined by me on the same day. I directed Ms Clements to file her submissions forthwith, and recorded that the hearing on 13 August 2018 would proceed as scheduled. Ms Clements did not file any submissions.

Hearing on 13 August 2018

[3] The matter was called before me in open Court on 13 August 2018. Mr Wilson appeared for the respondents. There was no appearance by or for Ms Clements. I stood the matter down and dictated a minute which recorded that the matter would proceed at 11.45 am, and that I expected her to attend. That minute was sent to Ms Clements by email. She responded by email advising that she could not physically be at the hearing. The email concluded as follows:

This hearing must be adjourned. It should not go ahead without me. As I HAVE SAID SINCE JUNE THAT THIS HEARING DATE IS PHYSICALLY IMPOSSIBLE AND YOU WILL NOT LISTEN.

[4] When the matter resumed at 11.45 am, there was no appearance by Ms Clements. Insofar as I can ascertain from the file, physical impossibility had not
previously been raised by Ms Clements and no reason was given to explain the alleged physical impossibility. In particular no medical report was provided. I proceeded to hear the matter. At the conclusion of the hearing I indicated that the proceeding would be struck out for want of prosecution but that I would make some brief comments on the merits of the application, given the apparent public interest in it.

Interlocutory applications – removal of named councillors/joinder of the Mayor

[5] In her original notice of appeal, Ms Clements applied for orders against 19 councillors and two members of the Independent Māori Statutory Board. On 24 January 2018, counsel for the respondents filed a memorandum seeking that the named councillors and board members be removed as respondents to the proceeding, and be substituted by the Council as the sole respondent. On 31 January 2018, Toogood J considered this issue and joined the Council as a party to the proceeding. He left the councillors and board members as parties, pending further consideration being given to the issue by Ms Clements. Ms Clements filed memoranda on 31 January and 1 February 2018 removing 15 of the named councillors and the members of the Independent Māori Statutory Board as named respondents. She advised, however, that she wished to pursue the application against the second to seventh respondents. On 2 March 2018, counsel for the respondents filed an application to remove the second to seventh respondents from the proceeding, and on 7 May 2018, Ms Clements filed an application to join Mayor Goff as a respondent in the proceeding.

[6] In my judgment, the second to seventh respondents should be removed from the proceeding and Mayor Goff should not be joined. I have reached that conclusion for the following reasons:

(a) The Council is a legal person under s 6 of the Local Government (Auckland Council) Act 2009. It has legal responsibility for decisions made in its name.

(b) There is no benefit to be gained by including the individual councillors as respondents. There is no claim against the individually named councillors that, on the materials before the Court, has any realistic prospect of success. The presence of individual councillors before the
Court is not necessary to enable it to decide all matters in the proceeding.

(c) The role played by individual councillors, if relevant, can still be scrutinised, even if the Council is the only named respondent.

[7] For the same reasons, I decline Ms Clements’ application to join Mayor Goff to the proceeding.

Factual background to the substantive proceeding

[8] The Council has filed a number of affidavits from its Development Manager, Ms Cumberpatch, in relation to the Takapuna car park land. I summarise those affidavits.

[9] On 25 June 1963, the former Takapuna City Council received approval from the Local Authorities Loans Board to raise a loan for the purchase of the property on which the Takapuna car park is now situated. The car park was purchased. Initial loan payments were made from a number of sources – the net revenue from the car park, 50 per cent of the proceeds taken from parking meters in the Takapuna central area, and a special rate levied on commercial properties in the vicinity. The loan was fully repaid in 1989, and thereafter the special rate was no longer levied.

[10] From 2010 onwards, first the former North Shore City Council and more recently Auckland Council, considered and consulted on proposals to redevelop the Takapuna car park land. The work was incorporated into a wider urban regeneration project, to be undertaken by a Council entity, Panuku Development Auckland Ltd (Panuku). It produced a document known as the Takapuna High Level Project Plan. The purpose of that plan is to review urban regeneration opportunities in the area, assess those opportunities against local community goals, and provide a basis for more detailed consultation on the project and framework planning.

[11] The Takapuna High Level Project Plan was presented to the Auckland Development Committee of the Council in March 2016, with a report recommending that the Committee endorse the plan and appoint Panuku as the lead development
agency. It also recommended that Panuku should be granted authority to dispose of the Takapuna car park land, as well as three other properties, one in Hurstmere Road, another in Huron Street and one in Northcroft Street. The recommendation to dispose of the properties was subject to the satisfactory conclusion of the required statutory processes, Auckland Transport being satisfied regarding transport arrangements, and disposal being for the purpose of urban renewal and housing. The Auckland Development Committee passed a resolution in accordance with these recommendations.

[12] The Council then began a formal consultation process on the proposed change of use of the Takapuna car park land. There was considerable public interest in the proposed change of use, and the Council considered that the special consultative procedure under s 83 of the Local Government Act 2002 was warranted. Inter alia, the Council considered that it had a legal obligation to consult with the ratepayers who had paid the special rate, as well as with those who had contributed to another fund – the Takapuna Off-Street Carpark Reserve Fund.

[13] The Hearings Panel tasked with public consultation reported back to the Planning Committee of the Council later in 2017, recommending that it approve the change of use of the Takapuna car park land, again subject to conditions. The Planning Committee decided that further consultation with the local board was needed, and it deferred its decision on the recommendation.

[14] The local board did not support the proposed change of use. Nevertheless, the Planning Committee of the Council passed a resolution in accordance with the recommendation which had earlier been made to it approving the proposed change of use, subject to conditions.

Ms Clements’ amended statement of claim/the affidavits she has filed

[15] It is difficult from Ms Clements’ amended statement of claim to ascertain the grounds of review which she advances. The document is discursive, conclusory and in parts, vituperative. Parts of the document ask the Court to impose a policy or legislative change. Some of the grounds relied on do not relate to any particular
decision of the Council. Reading between the lines, the basic alleged error appears to be that councillors have come to the wrong substantive decisions.

[16] The problem with the amended statement of claim is compounded because many of the affidavits filed by Ms Clements in support of the application for review are inadmissible – either because they contain hearsay, or because they deal with matters that are irrelevant to matters at issue in the proceeding.

[17] Fitzgerald J commented in relation to the statement of claim as follows:²

[2] The grounds upon which judicial review are sought are broad and many, but key amongst them are allegations that the Council’s decision to authorise Panuku to sell the Property:

(a) was unlawful, as it breached reasonable expectations of certain local residents that the Property would never be sold, and unlawfully removed the “Citizens of the City of Takapuna” from the Property’s certificate of title;

(b) was made on the basis of an error of fact, namely that the Property was “superfluous to use”;

(c) was irrational, as the Property’s disposal was disproportionate to the Council’s overriding objective of raising finance and developing public value;

(d) exceeded the decision-maker’s powers in two primary ways: in that the purpose of local government is to enable democratic local decision-making, but a majority of local residents and businesses opposed the decision to sell; and because relevant law was ignored, namely citizens’ freedom of expression under the New Zealand Bill of Rights Act 1990, including to drive a car rather than utilise public transport; and

(e) was tainted by procedural impropriety, including misleading marketing of the underlying “Unlock Takapuna” policy, pre- determination and lack of consultation.

(Citations omitted)

Judicial review

[18] Judicial review is a supervisory jurisdiction which enables the Courts to ensure that public powers are exercised lawfully.³

² Clements v Auckland Council, above n 1.

³ Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1] per Elias CJ.

[19] In broad terms, the grounds on which a judicial review proceeding may be brought may be divided into three classes – illegality, irrationality and procedural impropriety.⁴ It has recently been stated that the area covered by judicial review is so great that it is impossible to be exhaustive, but the normal principle is that an executive decision can only be overruled by a Court if:⁵

(a) it was made in excess of jurisdiction;

(b) it was effected for an improper purpose;

(c) it was an irrational decision, or, as it is sometimes put, a decision which no rational person in the position of the decision-maker could have taken; or

(d) the decision-maker took into account irrelevant matters or failed to take into account relevant matters.

[20] It is important to appreciate that judicial review is not an appeal. A Court considering an application for judicial review is not considering the base information afresh and coming to its own view. Judicial review is primarily limited to an examination of the process adopted, and if successful, usually results in the decision- maker being required to start afresh, as opposed to quashing the decision for all time.⁶

The review grounds relied upon by Ms Clements

[21] It is difficult to discern from Ms Clements’ amended statement of claim what decision or decisions she is seeking to review. She acknowledges “[t]hat various properties are impacted by a complexity of multiple layers of decisions that collectively provide authority for any one Council decision to dispose” – but she does not go on to say what decision or decisions affect each of the properties the subject of the application for judicial review.

⁴ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410-411.

5. Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [2016] AC 1355 at [127] per Lords Neuberger and Hughes.
6. Aorangi School Board of Trustees v Ministry of Education [2009] NZHC 2270; [2010] NZAR 132 (HC) at [8] per French J.

[22] The grounds of the judicial review alleged include illegality due to error in law, reasonable expectation (breach of trust), illegality based on error of fact, irrationality, ultra vires, failing to take into account relevant law – in particular, the New Zealand Bill of Rights Act 1990 and “human rights and human values” – procedural impropriety, unlawful taking by a person in a special relationship (under the Crimes Act 1961), imposing a political ideology on ratepayers, and something called “urban development authority”.

[23] It is unnecessary in this decision to go through each of those grounds, but it seems unlikely to me that there was any real prospect of success with any of them – particularly given the evidential lacuna for the challenge.

[24] Some of the alleged areas of law are plainly misconceived – for example, one of the errors of law alleges theft. Ms Clements says that the title to the Takapuna car park land was in the name of the “Citizens of the City of Takapuna”, and that this gave individual residents a separate freehold interest in the property. This submission ignores s 4 of the Municipal Corporation Act 1954, which was in force at the time. It recorded the inhabitants of every borough were, under the name of the Mayor, councillors and citizens of the borough, a body corporate, with perpetual succession and a common seal, capable of holding both real and personal property. In my view, the certificate of title merely recorded the full name of the City of Takapuna as a body corporate, and it did not record or create a freehold interest in the property for each individual resident in the city of Takapuna.

[25] It is alleged that the Takapuna car park land was purchased for car parking purposes and that the adjoining shop owners who paid the special rate have a legitimate expectation that the land will remain a car park in perpetuity. The transfer and certificate of title were produced – both refer to the land being used for car parking. This is perhaps Ms Clements’ best argument, but the evidence filed does not support the legitimate expectation argument. It consists largely of deponents saying what they think others would have thought and, as I have set out, it seems from Ms Cumberpatch’s affidavit that the Council has specifically consulted with those who paid the special rate or contributed to a related fund. There is no admissible evidence of what expectation those paying or contributing had – was it an expectation
that they would be consulted before the land was used for any other purpose? If so, that expectation has been met. It is drawing a long bow to assert that the expectation was that the land would be used in perpetuity for a carpark.

[26] It is also alleged that the Takapuna car park land is held by the Council in trust. It is said that a number of individuals recall Council officers saying that the land would never be sold. The difficulty from Ms Clements’ perspective is that the evidence she has filed does not support the assertion. For example, one deponent – a Mr Roberts – states that the original agreement with the Council stated that the Takapuna car park land would always remain for car parking. However, Mr Roberts does not provide any evidence of that alleged agreement. Another deponent – a Mr Sheehy – states that his father told him, that Council staff had told his father, that the car park would never be sold or used for any other purpose. Clearly, this is double hearsay and inadmissible. Further, even if such a statement had been made, it would not of itself give rise to a trust.

[27] It is alleged that unspecified decisions of the Council are based on an error of fact because the Takapuna car park land is not superfluous. This overlooks the limited nature of judicial review. It is not a mistake of fact, amenable to judicial review, for a decision-maker to adopt one of two or more different points of view on an issue. The evidence suggests that the Council undertook a detailed assessment of car parking demand in Takapuna. There is nothing to support any suggestion that it made inadequate factual enquiries, or that the view it has reached is unsupportable on the evidence.

[28] Many of the other grounds relied on do not raise any sensible ground of judicial review or any reviewable error.

[29] There is also a problem with Ms Clements’ delay in seeking relief. Some of the decisions she seeks to challenge were made some time ago. She has clearly been aware of them, but there is no explanation for her delay in bringing her proceedings.

[30] There is nothing that I can see in the amended statement of claim which stands any reasonable prospect of success.

Conclusion

[31] As I have noted above, Ms Clements failed to appear, without any adequate explanation for her failure. Her proceedings are struck out for want of prosecution. This Court cannot allow its processes to be highjacked by a recalcitrant litigant taking matters into her own hands. An unfortunate consequence of Ms Clements’ failure to appear is that three days of valuable Court hearing time has been wasted. Other litigants with deserving cases anxious to obtain hearing time have been unnecessarily delayed.

[32] The Council is released from the undertakings it has given earlier in these proceedings not to enter into agreements for sale and purchase of any of the properties the subject of the proceedings, without first giving notice to Ms Clements.

Costs

[33] The Council is awarded costs on a 2B basis, together with its usual disbursements. I record that the Council did not seek either indemnity costs or increased costs.








Wylie J

Solicitor/counsel:

Meredith Connell, Wellington

Copy to:

The Applicant