Albany North Landowners v Auckland Council

• Jurisdiction: New Zealand
• Judge: Whata J
• Judgment Date: 13 February 2017
• Neutral Citation: [2016] NZHC 138
• Docket Number: CIV-2016-404-2336 CIV-2016-404-2333 CIV-2016-404-2323 CIV-2016-404-2335 CIV-2016-404-2351 CIV-2016-404-2326 CIV-2016-404-2327 CIV-2016-404-2322 CIV-2016-404-2321 CIV-2016-404-2320 CIV-2016-404-2324 CIV-2016-404-2325 CIV-2016-404-2349 CIV-2016-404-2350 CIV-2016-404-2344 CIV-2016-404-2305 CIV-2016-404-2341 CIV-2016-404-2316 CIV-2016-404-2331 CIV-2016-404-2302
• Court: High Court
• Date: 13 February 2017

Between

Albany North Landowners

Plaintiff

and

Auckland Council

Defendant

Between

Auckland Memorial Park Limited

Plaintiff

and

Auckland Council

Defendant

Between

Auckland University of Technology

Plaintiff

and

Auckland Council

Defendant

Between

Franco Belgiorno-Nettis

Plaintiff

and

Auckland Council

Defendant

Between

Bunnings Limited

Plaintiff

and

Auckland Council

Defendant

Between

Character Coalition Inc Ltd & Anor

Plaintiff

and

Auckland Council

Defendant

Between

Stephen Hollander

Plaintiff

and

Auckland Council

Defendant

Between

Howick Ratepayers and Residents Association Incorporated & Anor

Plaintiff

and

Auckland Council

Defendant

Between

JPR Enterprises & Ors

Plaintiff

and

Auckland Council

Defendant

Between

North Eastern Investments Limited & Anor

Plaintiff

and

Auckland Council

Defendant

Between

The Straits Protection Society Incorporated

Plaintiff

and

Auckland Council

Defendant

Between

Strand Holdings Limited

Plaintiff

and

Auckland Council

Defendant

Between

Summerset Group Holdings Limited

Plaintiff

and

Auckland Council

Defendant

Between

Valerie Close Residents Group

Plaintiff

and

Auckland Council

Defendant

Between

Village New Zealand Limited

Plaintiff

and

Auckland Council

Defendant

Between

Wallace Group Limited

Plaintiff

and

Auckland Council

Defendant

Between

Man O'War Farm Limited

Plaintiff

and

Auckland Council

Defendant

Between

South Epsom Planning Group Incorporated & Anor

Plaintiff

and

Auckland Council

Defendant

[2016] NZHC 138

CIV-2016-404-2336

CIV-2016-404-2298

CIV-2016-404-2333

CIV-2016-404-2323

CIV-2016-404-2335

CIV-2016-404-2351

CIV-2016-404-2326

CIV-2016-404-2327

CIV-2016-404-2322

CIV-2016-404-2321

CIV-2016-404-2320

CIV-2016-404-2324

CIV-2016-404-2325

CIV-2016-404-2349

CIV-2016-404-2350

CIV-2016-404-2344

CIV-2016-404-2305

CIV-2016-404-2341

CIV-2016-404-2316

CIV-2016-404-2331

CIV-2016-404-2302

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for an order under r8.20 High Court Rules (“HCR”) (order for particular discovery before proceeding commenced) — the intended defendants were a solicitor and the defendant law firm of which he was a partner — they had acted for the plaintiff on the conveyance of a property he had purchased off the plans in an apartment block known as Scene 3 in Auckland — the plaintiff claimed the defendants had a conflict of interest because the law firm had an arrangement with the developer relating to the referral of purchasers of apartments to the law firm as their solicitor for the purchase of those apartments — the plaintiff sought pre-commencement discovery in relation to material evidencing any arrangement between the defendants and the developer relating to the referral of purchasers to the defendants and material evidencing when the defendants first became aware that the head lease for the apartment complex might be available for purchase and first expressed interest in purchasing the head lease for those developments — whether the application for pre-commencement discovery should be granted.

Counsel:

M Baker-Galloway for Albany North Landowers

T Mullins for Auckland Memorial Park Ltd

S Ryan for Franco Belgiorno-Nettis

R Brabant and R Enright for Character Coalition Inc & Anor

M Savage for Howick Ratepayers and Residents Assoc Inc & Anor

R Enright for The Straits Protection Society Inc and South Epsom Planning Group Inc & Anor

A A Arthur-Young and S H Pilkington for Strand Holdings Ltd

R E Bartlett QC for Summerset Group Holdings Ltd

A A Arthur-Young and D J Minhinnick for Valerie Close Residents Group

H Atkins for Village New Zealand Ltd

R Brabant for Wallace Group Ltd

M Casey QC and M Williams for Man O'War Farm Ltd

R J Somerville QC, K Anderson and W G Wakefield for Auckland Council

C Kirman and A Devine for Housing Corporation New Zealand and Minister for the Enironment

S F Quinn and A F Buchanan for Ting Holdings Ltd

S J Simons and R M Steller for Property Council of New Zealand

R M Devine for Ngati Whatua Orakei Whai Rawa Ltd

JUDGMENT OF Whata J

TABLE OF CONTENTS

Introduction	[1]
A guide	[3]
PART A: THE PARTIES	[5]
Acknowledgment	[9]
PART B: BACKGROUND AND FRAME
Establishment of Auckland Council, adoption of Auckland Plan	[10]
New legislation for development of the AUP	[13]
Notification of the draft PAUP	[15]
Section 32 Report	[16]
Notification of the PAUP	[28]
The IHP: Role, Function	[31]
The issue of scope emerges	[34]
The hearings on zoning and precincts	[47]
IHP Recommendations	[52]
Topic 013 – Urban Growth	[59]
Topic 016, 017 Rural Urban Boundary, 080 Rezoning and Precincts (General) and 081 Rezoning and Precincts (Geographic Areas)	[65]
Topic 059–063 – Residential Zones	[73]
Appeal and review rights	[84]
Thresholds for appeal and review	[90]
PART C: THE PRELIMINARY QUESTIONS
Did the IHP interpret its statutory duties contained in Part 4 of the Local Government (Auckland Transitional Provisions) Act 2010 (the Act) Lawfully, when deciding whether its recommendations to the Council Were within the scope of submissions made in respect of the first Auckland Combined Plan?	[92]
The legislative frame	[93]
The IHP approach to scope	[96]
Argument (in brief)	[99]
Assessment	[101]
The statutory criteria	[104]
Policy of public participation	[110]
The scheme of Part 4 and the RMA	[113]
Orthodoxy	[115]
The Clearwater two step test	[119]
Summary	[135]
Did the IHP have a duty to:	[137]
(a) Identify specific submissions seeking relief on an area by area basis with specific reference to suburbs, neighbourhoods or streets
(b) Identify when it was exercising its powers to make consequential alterations arising from submissions?
Assessment	[139]
Was it lawful for the IHP to:	[145]
(a) Determine the scope of submissions by reference to another submission?
(b) Determine the proper scope of a submission by reference to the recommended Regional Policy Statement?
Assessment	[148]
To what extent are principles (regarding the question of scope) established Under the Resource Management Act 1991 case law relevant, when addressing scope under the Act	[154]
Did the IHP correctly apply the legal framework in the test cases?
The test cases	[155]
Identification of relevant submissions	[159]
The Maps	[161]
Overview of test cases on residential zoning	[162]
The submissions on residential intensification	[164]
A helicopter view	[165]
Accessibility of Council website	[171]
The Council's change of position	[177]
Mt Albert	[180]
Argument	[187]
Assessment	[189]
Glendowie	[191]
Argument	[201]
Assessment	[203]
Blockhouse Bay	[210]
Assessment	[214]
Judges Bay	[217]
Assessment	[221]
Wallingford St, Grey Lynn	[224]
Assessment	[228]
Howick	[231]
Assessment	[233]
The Viewshaft on the Strand	[241]
SHL's claim	[246]
Argument	[250]
Assessment	[252]
55 Takanini School Rd	[257]
Submissions identified by IHP	[264]
Preliminary issue	[265]
Assessment	[268]
The Albany North Landowners' Group site	[270]
Argument	[274]
Assessment	[276]
Man O'War Farm	[279]
Argument	[286]
Assessment	[288]
Are the appellants/applicants' allegations against the Council concerning the IHP's determination on issues of scope appealable pursuant to the Act and/or reviewable?	[291]
Assessment	[294]
What relief can the High Court grant the appellants/applicants if the IHP and/or the Council acted unlawfully in respect of the IHP's determination on an issue of scope under the Act?	[300]
Outcome	[302]
Effect of Judgment/Relief	[303]
Costs	[305]
APPENDIX A
APPENDIX B
APPENDIX C

Introduction

1 The Auckland Unitary Plan (AUP) is a combined 30 year plan, incorporating for the first time a regional policy statement, a regional plan and a district plan for Auckland in one document. It represents the culmination of a mammoth undertaking by the Auckland Council (the Council) and an Independent Hearings Panel (IHP) over the span of several years. The scale of this task reflects the significance of the AUP to the people and communities of Auckland and beyond.

2 This Court's relatively discrete involvement has been triggered by 51 appeals and judicial review applications. A central issue for 20 of those proceedings is whether the recommendations made by the IHP on the proposed Auckland Unitary Plan (the PAUP) were within scope of the submissions. If they were not in scope, then affected persons have the right to appeal on the merits of the decisions of the Council based on those recommendations to the Environment Court.

A guide

3 This judgment answers the following preliminary questions agreed by the parties:

( The Preliminary Questions)

• (a) Did the IHP interpret its statutory duties contained in Part 4 of the Local Government (Auckland Transitional Provisions) Act 2010 (the Act) lawfully, when deciding whether its recommendations to the Council were within the scope of submissions made in respect of the first Auckland Combined Plan?

• (b) Did the IHP have a duty to:

  • (i) Identify specific submissions seeking relief on an area by area basis with specific reference to suburbs, neighbourhoods or streets?

  • (ii) Identify when it was exercising its powers to make consequential...