Hughes v Auckland Council [2021] NZHC 3296 (3 December 2021)

Last Updated: 17 December 2021

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

CIV-2021-404-000889 [2021] NZHC 3296

UNDER	Judicial Review Procedure Act 2016 High Court Rules Part 30 Declaratory Judgments Act 1908
IN THE MATTER OF	application for judicial review and/or declaratory judgment
BETWEEN	DAVID CHARLES HUGHES Applicant
AND	AUCKLAND COUNCIL Respondent

Hearing:	29 November 2021
Appearances:	N King for Applicant S Quinn for Respondent
Judgment:	3 December 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 3 December 2021 at 11.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:..............................

Solicitors/counsel:

Sinisa Law/N King, Auckland DLA Piper, Auckland

HUGHES v AUCKLAND COUNCIL [2021] NZHC 3296 [3 December 2021]

Introduction

• [1] The applicant, David Hughes, challenges a decision made by the respondent, Auckland Council (“the Council”), to process a resource consent application on a non- notified basis. The decision was made on 24 October 2012. On the same day, the Council granted the consent. It is asserted that the Council erred in law, that it took into account irrelevant considerations, that it failed to take into account relevant considerations and that it ignored the observations/advice of its compliance officer. Mr Hughes seeks to set aside the decision not to notify the application. He also seeks “monetary relief” for the loss of enjoyment and a decrease in value of his property.

• [2] The proceedings have been brought by way of an application for review under the Judicial Review Procedure Act 2016. In the alternative, a declaration is sought under the Declaratory Judgments Act 1908.

• [3] The applications are opposed by the Council.

Background

• [4] Mr Hughes owns a property at 26 Woburn Street, Mangere East. He has owned the property since 1978. His immediately adjoining neighbour to the north east is Kedgley Intermediate School. It has road frontage to Portage Road.

• [5] Prior to 1 November 2010, both Mr Hughes’ property and the school property were within the Manukau City Council’s territorial area and the governing planning document was the Manukau City Council’s District Plan. As from 1 October 2010, the Manukau City Council ceased to exist and all of its assets and liabilities were taken over by the respondent.¹

• [6] The Council’s decision was made in respect of a retrospective application for resource consent for a new technology building at the school.

• [7] The school property was at all relevant times designated for school purposes in the Manukau City Council’s District Plan. The Minister of Education was the

¹ Local Government (Tamaki Makaurau Reorganisation) Amendment Act 2010, s 35.

requiring authority. There were no site specific conditions in the designation. However, there were general conditions on school designations listed in Schedule 5A1.1 of the District Plan. Relevant conditions included the following:

Condition 5 – No building shall be located closer than 6 metres from any boundary, without the consent of the affected adjacent neighbour.

Condition 6 – All buildings shall comply with the height in relation to boundary controls for the underlying zone of the school.

The school’s underlying zoning was “main residential”. Rule 5.18.1.2 in the District Plan applied to all zones. Amongst other things, it put in place a height in relation to boundary (“HIRB”) recession plane rule. The rule imposed a recession plane of 35 degrees at a height of 2.5 metres above ground level along the southern boundary of any property. Rules 5.19.1 and 13.13.6 outlined the discretionary matters that the Council was required to consider when assessing a resource consent application that sought consent to breach the HIRB rule.

• [8] Pursuant to s 176A of the Resource Management Act 1991 (“the RMA”), an outline plan of any work proposed to be constructed on designated land had to be submitted to the Council so that it could request changes before any work was commenced. In this case, an outline plan of work for the erection of a new technology building to replace an existing building on the school site was sent to the Manukau City Council on 25 November 2008 by Waitakere Architects on behalf of the school’s Board of Trustees.

• [9] After reviewing the plan, the Council requested changes. The plan proposed a building less than six metres from the boundary of an immediately adjoining property at 28 Woburn Street. It was therefore in breach of Condition 5 noted above. The Council returned the application to Waitakere Architects on 28 November 2008, requesting changes to the plan to deal with this issue.

• [10] A building consent application was lodged by Waitakere Architects on behalf of the Board of Trustees on 9 December 2008.

• [11] A new outline plan of work was forwarded to the Council by Waitakere Architects on 11 February 2009. The proposed new building was approximately 5.5

metres in height. It was to be located some three metres from the south eastern boundary of the school site. The consent of the immediately adjacent neighbour at 28 Woburn Street had been obtained and it was forwarded to the Council. Mr Hughes’ property was not immediately adjacent to the proposed building. It lies to the west of the proposed building and Mr Hughes’ consent was neither sought nor obtained.

• [12] A building consent was granted by the Council on 19 February 2008, with several conditions, including the issuance of a certificate under s 37 of the Building Act 2004 which prohibited any building work from commencing until appropriate resource consents had been obtained under the RMA.

• [13] The Council accepted the new outline plan of work. It considered that the information required under s 176A(3) of the RMA had been provided. Its planning officer assessed the new outline plan of work by reference to the applicable requirements set out in Schedule 5A1.1. The officer reported on 3 March 2009, recommending that the new outline plan of work be accepted with no changes. This recommendation was accepted by the Council and it determined that the outline plan of work should be accepted without amendment.

• [14] The certificate issued under s 37 of the Building Act was then revoked and site works commenced in April 2009.

• [15] Shortly thereafter, Mr Hughes started to complain to the Council about the building. Amongst other things, Mr Hughes complained about the height of the building.

• [16] On 5 June 2009, the Council issued a stop work instruction to the builder. It was concerned that the HIRB rule might be infringed. As a result, part of the roof overhang was removed. The stop work instruction was lifted on 16 June 2009. Building work then recommenced.

• [17] The building works were completed and a code compliance certificate was issued on 21 October 2009 notwithstanding ongoing queries being raised by

Mr Hughes about the height of the building and whether the building complied with the HIRB rule.

• [18] In May 2011, Mr Hughes lodged a further complaint with the Council in relation to the height of the building. He alleged that there was a breach of the HIRB rule. The Council appointed one of its officers – Romel Layco – to investigate the complaint. Mr Layco visited Mr Hughes’ property on 22 June 2011. He undertook various measurements and concluded that the HIRB rule was being infringed. He sent a letter to Waitakere Architects on 24 June 2011. The letter required the architects to provide a report from a qualified surveyor regarding the building’s height in relation to the southern boundary of the school site. He advised the architects that if there was a breach, the issue would need to be addressed either through the resource consent process or by removing the infringing part of the roof. He asked for the report within a 14 day timeframe.

• [19] The Council did not receive a report from the qualified surveyor within the timeframe set out by Mr Layco in his letter. As a result, the Council engaged its own consultants – CLC Consulting Group Ltd – to undertake a height in relation to boundary measurement of the building along the southern school boundary. CLC Consulting Group Ltd undertook the required measurements and confirmed to the Council by letter dated 11 November 2011 that the building exceeded the HIRB rule on the southern boundary. The letter recorded as follows:

The two roof lines on the south western end of the new building infringe the height in relation to boundary recession plane. The infringement is only pertinent to 28 Woburn Street although 26 Woburn Street is still affected in relation to the morning sun. The corner of the lower roof infringes by 1.13m and diminishes to zero over the length of the southern roof line. The infringement extends 1.89m along the western boundary of the roof before reducing to zero.

The corner of the upper roof infringes by 2.41m and diminishes to zero over a length of 7.20m along the southern roof line.

The infringement extends 3.04m along the western side of the roof before reducing to zero.

• [20] A copy of the plan proposed by CLC Consulting Group Ltd marked RL-1 is attached to this judgment.
• [21] On 14 February 2012, the Council wrote to the Board of Trustees passing on the information it had received from CLC Consultants Ltd. It recorded that the outline plan of work had not included the HIRB rule breaches and said that the school had two options – remove the infringing part of the roof or apply for a retrospective resource consent in relation to the infringement.

• [22] No action was taken by the Board of Trustees. As a result, the Council issued an abatement notice to the school and to the Board of Trustees on 11 June 2012. The abatement notice required the Board of Trustees and the school to remove that part of the building that contravened the HIRB rule and to then provide a report to the Council from a registered surveyor certifying that the building complied with the relevant rule. Correspondence sent with the abatement notice again provided the Board of Trustees and the school with the option of seeking a resource consent for the infringement.

• [23] A retrospective resource consent application seeking consent for the boundary infringement was filed with the Council on 5 October 2012. It was made by Waitakere Architects on behalf of the Board of Trustees. The application included the written consent of the immediately adjoining neighbour at 28 Woburn Street. It did not seek public notification; nor did it request that the application be notified to any other persons considered to be affected.

• [24] The application was assessed under the Council’s District Plan (Manukau section), which was the relevant planning document at that time, by a resource consents planner at the Council – Adelle Henderson. She considered that it fell to be assessed as an application seeking consent for a restricted discretionary activity. Ms Henderson prepared a report, which inter alia addressed the notification issue. She referred to the then applicable provisions – ss 95A and D of the RMA – and concluded that the application did not need to be publicly notified. She went on to consider ss 95B and E and whether there were other affected persons, noting that a person was an affected person if the adverse effects of the activity on the person were minor or more than minor (but were not less than minor). She concluded as follows:

• 3.3.1 Adversely Affected Persons Assessment

Due to the scale of the proposed HIRB infringement and its location on the subject site (located on the southern boundary), the only

property ... deemed as potentially affected is the immediately adjoining neighbour located in closest proximity to the area of HIRB infringement (28 Woburn Street, Mangere East). Written approval has been obtained from the owners of this property, so in accordance with section 95E(3)(a) of the RMA, any adverse effects on this property are to be disregarded. Notwithstanding the above, it is considered that the scale of the HIRB infringement will not compromise the dwellings privacy, outdoor amenity or access to daylight and sunlight. This is because the dwelling on this property is sited closer to the opposite boundary, with only a garage being located in close proximity to the common boundary. In addition, a large 1.8 metre close boarded fence is located along this boundary. As such, the development at Kedgely Intermediate will ensure on-site amenity, privacy and access to daylight and sunlight be provided for ... any future occupiers of 28 Woburn Street.

One other property is located in relatively close proximity to the area of infringement; however I do not consider this property to be subject to adverse effects that are minor or more than minor, for the following reasons:

• The corner of the boundary with No. 26 Woburn Street is approximately 1.5 metres from the lower affected area and 4.5 metres from the upper affected area. The existing house onsite is well set back from the school, approximately 8.5 metres from the corner boundary and 9.5 metres from the Technology Building, at its closest point.

• Site photos taken by the applicant (See Appendix 1) at approximately 10.00am in the morning on 20 June 2012 (mid winter) clearly illustrate the location of the shadow line caused by the HIRB infringement. It can be seen that only a small portion of the common fence line is affected. It is my opinion that even if it were slightly earlier in the day, the adverse shading effects on this property would remain less than minor. Additional site photos to illustrate this point are also included in Appendix 1.

• Numerous well established trees are located on this property along its northern boundary. These trees act as an effective visual barrier, but moreover, would cause substantial shading onto this property, making it very difficult to differentiate between their shading effects and any perceived to be resultant from the HIRB infringement.

• In addition, a large 1.8 metre close-boarded fence is located along the common boundary providing a good visual barrier.

Due to the location and scale of the HIRB infringement, I do not consider any of the other persons identified in Table 1 of section 3.2.1 of this report to be adversely affected.

Conclusion

It is recommended that Limited Notification under s95B is not required for this resource consent application.

4. SECTIONS 95A AND 95B RECOMMENDATION

Pursuant to section 95A and 95B of the RMA, this application may be processed without public notification or limited notification because the activity will have adverse effects on the wider environment that are less than minor ... Furthermore, as discussed in section 3.3.1 of this report, adverse effects on adjacent properties are considered to be less than minor. Additionally, special circumstances requiring notification do not exist.

• 4.1 Accordingly, it is recommended that the application proceed on a non- notified basis.

• [25] On 24 October 2012, the Council accepted this recommendation and John Kennedy – a Team Leader, Resource Consents – acting under delegated authority, determined that the application should be processed on a non-notified basis. On the same day, the Council granted the application.

• [26] Mr Hughes continued to raise his concerns, including through the Ombudsman. Eventually, he filed his review proceedings in mid-2021.

Submissions

• [27] Mr King, appearing for Mr Hughes, confirmed that his client was only seeking to challenge the Council’s decision in regard to notification, and not its decision accepting the outline plan of work without requesting any amendments. He did however say that if the notification decision was set aside, this must have consequences for the Council’s decision granting the retrospective resource consent application. He asserted that two “forms of” judicial review were available – first, under the Judicial Review Procedure Act and secondly, under the High Court Rules 2016, Part 30. He noted that in the alternative, his client was seeking a declaratory judgment as to the construction and validity of the Council’s internal practices applied in this case.

• [28] Mr King asserted that Mr Hughes should have been considered as a person affected by the new building. He accepted that the judicial review application was

limited to the Council’s decision-making processes and that the merits of the decision itself could not be challenged. He argued that the Council erred in law, that it took into account irrelevant considerations, failed to take into account relevant considerations and ignored the observations of its compliance officer who visited his property approximately a month before construction commenced in 2009. It was said that the relevant considerations ignored were Conditions 5 and 6 noted above. It was further submitted that the Council’s decision not to require notification of the application was so unreasonable that no reasonable authority could have made the same and that the Council failed to obtain sufficient information into the matter before making its decision not to notify Mr Hughes.

• [29] Mr Quinn, for the Council, argued that there was a lack of clarity and focus in both Mr Hughes’ pleadings and in the submissions advanced on his behalf. He asserted that the application is unfounded. He accepted that the Council’s decision not to notify the application, as well as its decision to grant the retrospective resource consent, were reviewable, but put it to me that there was a fundamental difficulty for Mr Hughes because he has not served the Board of Trustees. He further submitted that there was no error in the way in which the Council approached the matter. He argued that in any event an award of compensatory as damages sought by Mr Hughes was inappropriate, that damages are not available in judicial review proceedings, and that Mr Hughes had provided no evidence of the alleged damage. He pointed to the delay in initiating the proceedings and argued that this weighed heavily against the Court exercising its discretion to grant relief even if a reviewable error was found.

Analysis

• [30] Contrary to Mr King’s submissions, there are not two forms of judicial review.

• [31] The Court’s powers of judicial review form part of the inherent common law jurisdiction developed in the United Kingdom and inherited by the Courts in this country. While the Courts asserted their powers, albeit cautiously, from an early date, a definitive pronouncement on the nature of the Courts’ review jurisdiction was delayed until the case of Groenvelt v Burwell in 1700.² There, the Commissioners of

² Groenvelt v Burwell [1792] EngR 717; (1700) 1 Ld. Raym. 454.

Sewers had declined to answer a certiorari issued against them because they considered that they were exempted from doing so by their empowering statute. This argument was rejected. Holt CJ committed the Commissioners for their failure to answer the writ. He asserted that where any Court is created by statute, certiorari can lie to it, and that it was the consequence of all jurisdictions to have their proceedings returned to the King’s Court by way of certiorari – “it is by the common law that this Court will examine if other Courts exceed their jurisdiction”.³

• [32] Applications for judicial review are not founded in the Judicial Review Procedure Act. It is a machinery statute setting out various procedural provisions for the judicial review of the exercise, failure to exercise, or proposed or purported exercise of a statutory power.⁴ Nor does Part 30 of the High Court Rules 2016 create any independent right to review. Rather, it puts in place procedural rules governing how the extraordinary remedies available by way of judicial review must be sought.

• [33] Relevantly, s 9 of the Judicial Review Procedure Act requires that not only the person whose act or omission is the subject of the application be named as a respondent, but also, where the application relates to any decision made in proceedings, that every party to those proceedings also be a party to the application.

• [34] In this case, the Board of Trustees was a party to the decisions made by the Council. They were the named applicants in the application for resource consent. The Council’s decisions, both in regards to notification and granting consent, related to the building on the school site. The Board of Trustees and the school are directly affected by the relief sought by Mr Hughes.

• [35] While the word “proceedings” used in s 9 is not defined, it has not been construed narrowly. Not infrequently judicial review is sought of decisions made by quasi-judicial bodies, such as Councils. Decisions made by such bodies are decisions made in “proceedings”. In this case, the Board of Trustees was a party to the

³ At 469.

⁴ Judicial Review Procedure Act 2016, s 3(1). See also Daemar v Gilliand [1979] 2 NZLR 7 (CA) at [21].

“proceedings” commenced by the filing of the retrospective resource consent application. The Board should have been joined as a party and served.

• [36] The predecessor statute to the Judicial Review Procedure Act was the Judicature Amendment Act 1972 (now repealed). Section 9 of that Act, amended from 1977, was in similar terms to s 9 of the present Act. The consequences of failing to join and serve affected parties in judicial review proceedings were discussed by the Court of Appeal in Minister of Education v De Luxe Motor Services (1972) Ltd.⁵ In that case, the Wellington Education Board, represented by the Minister of Education, entered into school bus contracts with the respondent and a number of others. The Board sought to terminate the contracts and put them out to tender. De Luxe Motor Services and others brought proceedings in the High Court, arguing that because their contracts were not in writing and had no express termination clause, they were either not terminable at all or alternatively were terminable only after 10 years (which was the period necessary for them to recoup interest on borrowed moneys committed to the purchase of capital assets used to fulfil the contracts). Some respondents who had already had their contracts tendered sought review to quash the decisions of the Board to contract with successful tenderers on the basis that there had been procedural and substantive unfairness in the tendering procedures. The High Court held that the contracts were terminable on the Board giving not less than six months’ notice of termination but that the respondents were entitled to compensation for interest incurred on the purchase of the capital assets notwithstanding termination. The Board appealed. The successful tenderers had not been made parties to the proceedings and had been given no opportunity to be heard. When the matter came before the Court of Appeal, it summarised the relevant issues, and then commented as follows:⁶

It is better not to say anything more about these issues, because unfortunately the case has miscarried. The successful tenderers have not been made parties to the proceedings and have been given no opportunity to be heard. They should have been cited by the applicants in the High Court as respondents to the application, ... Alternatively a Judge should have directed them to be served under ... Their interests are directly affected by the judicial review application. Natural justice requires that persons whose granted rights are in jeopardy be given an opportunity of being heard. ...

⁵ Minister of Education v De Luxe Motor Services (1972) Ltd [1989] NZCA 248; [1990] 1 NZLR 27 (CA).

⁶ At 17-19.

... it is obvious that the rights of the tenderers are at stake in a way which would make it unjust to decide the case without giving them the opportunity of being heard. It is not difficult to imagine some of the contentions that they might put forward. Whether or not they wish to take advantage of the opportunity is a matter for them; at least they must be given one. The Court could not properly proceed to judgment in the case when that has not occurred.

...

The position is regrettable, but nothing is to be gained by allocating blame. In our opinion the only course rightly open to us is to vacate the High Court judgment insofar as it sets aside the allocation of new contracts and to remit the proceedings in that regard to the High Court, ... to enable the applicants to apply for the joinder of the successful tenderers as parties and the service of all the papers on them. There will have to be a further hearing. ...

• [37] In a similar vein, this Court has held that if all persons affected by any remedy sought in judicial review proceedings are not joined, it is likely that the Court will not proceed to judgment without them being joined and served.⁷ Failure to do so has been described as a “fundamental structural flaw” in the proceedings, such that relief cannot be granted.⁸

• [38] I am conscious of the time that will have been taken and of the costs and emotional toll that will have been incurred in getting this matter to this stage. It is tempting to go on and make some observations as to whether there was a reviewable error made by the Council and, if so, whether relief is available as sought by Mr Hughes. Nevertheless, I have decided not to do so. Were I to do so, the rules of natural justice would be infringed because the school and the Board of Trustees would be denied the opportunity of being heard in relation to an issue which directly affects them. To go further at this stage would be in breach of their rights under s 27 of the New Zealand Bill of Rights Act 1990.

• [39] Mr Hughes also sought a declaratory judgment under the Declaratory Judgments Act. His statement of claim read as follows:

A Third remedy sought is a declaratory judgment under the Declaratory Judgment [sic] Act 1908 – determining the construction or validity of the Respondent’s internal practices as applied to the Applicant.

⁷ Dunedin Taxis 1965 Ltd v Dunedin Airport Ltd (1990) 3 PRNZ 391 (HC); Talley’s Fisheries Ltd v Minister of Immigration (1994) 7 PRNZ 469 (HC).

⁸ New Zealand Greyhound Racing Association v New Zealand Racing Board [2017] NZHC 1771 at [144].

A little later in his statement of claim, it was asserted as follows:

That if Judicial Review is not available, then a declaratory judgment under the Declaratory Act 1908 is available – determining whether the actions in approving the construction of the Kedgley Intermediate School Technology block, on its present location, were in accordance with the Resource Management Act and Manukau Operative District Plan.

• [40] Part 18 of the High Court Rules applies to applications for declaration under the Declaratory Judgments Act.⁹ The Rules require that proceedings seeking a declaration be commenced by filing a statement of claim and an application for directions as to service and representation under r 18.7.¹⁰

• [41] Here, Mr Hughes filed a statement of claim but he did not file an application for directions as to service and representation as required. The question he wants the Court to declare is not defined with any specificity; nevertheless, it is clear that the declaration sought potentially affects the school and the Board of Trustees. Had directions been sought, it is very likely that the Court would have directed that they be served. Because this has not occurred, once again, to proceed to determine the application for a declaration would infringe their rights under the New Zealand Bill of Rights Act.

• [42] Accordingly, I decline to take the issues raised in these proceedings any further at this stage. I direct that the matter is to be placed in the judicial review list for call on the first available date in February 2022. This will give Mr Hughes time to consider whether he wishes to proceed with the matter and amend his proceedings to join the Board of Trustees. He may wish to seek directions as to whether he should join the Minister of Education as the requiring authority for the designation. If Mr Hughes wishes to proceed, further directions will be necessary and a fresh timetable will need to be put in place. If Mr Hughes decides not to proceed, he can file a notice of discontinuance, in which case the matter will likely be withdrawn from the judicial review list, subject to any costs issues which may arise.

⁹ High Court Rules 2016, r 18.1(b)(v).

¹⁰ High Court Rules 2016, r 18.4(1).

Costs

• [43] I was advised from the bar that the Council raised the issue of joinder of and service on the school and the Board of Trustees with Mr King’s legal advisers. Unfortunately, the suggestion that they be joined was not taken up.

• [44] In the circumstances, the Council is entitled to its reasonable costs and disbursements. I direct as follows:

(a) any application for costs is to be advanced by way of memorandum, such memorandum to be filed and served within 10 working days of release of this judgment;

(b) any memorandum in reply is to be filed and served within a further 10 working days; and

(c) memoranda are not to exceed five pages.

I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.








Wylie J

ANNEXURE 1