Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel

• Jurisdiction: New Zealand
• Judge: Davison J
• Judgment Date: 19 March 2018
• Neutral Citation: [2018] NZHC 459
• Court: High Court
• Docket Number: CIV-2016-404-002333
• Date: 19 March 2018

Under the Judicature Amendment Act 1972 and the local Government (Auckland Transitional Provisions) Act 2010 and the Resource Management Act 1991

In the Matter of Section 159 Local Government (Auckland Transitional Provisions) Act 2010

Between

Franco Belgiorno-Nettis

Plaintiff/Applicant

and

Auckland Unitary Plan Independent Hearings Panel

First Defendant/Respondent

and

Auckland Council

Second Defendant/Respondent

[2018] NZHC 459

CIV-2016-404-002333

CIV-2016-404-002335

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Local Government — Application pursuant to s67 Judicature Act 1908 (appeals against decisions of High Court on appeal) for leave to appeal a HC decision which dismissed his appeal from the recommendation decisions of the Independent Hearings Panel (“the Panel”) — the respondent grouped submissions and responded to them rather than responding to individual submissions — whether there a right of appeal from the HC's determination of an appeal under s158 LGATPA — whether the HC had erred in its interpretation and application of s144(8)(c) LGATPA (Hearings Panel must make recommendations to Council on proposed plan — reasons for accepting or rejecting submissions).

Appearances:

S J Ryan and R H Ashton for Appellant/Plaintiff

M J L Dickey and R S Ward for Respondent/Second Defendant

Dr C E Kirman and A K Devine for Housing New Zealand Corporation (Intervenor)

R E Bartlett QC for McConnell Clearmont (Intervenor)

D A Allan for Northcote RD1 Holdings Ltd, W Smale Ltd, Fred

Thomas Drive Investments Ltd (Intervenors)

JUDGMENT OF PAUL Davison J

Re: Leave to Appeal

Introduction

1 Mr Belgiorno-Nettis (the applicant) applies pursuant to s 67 of the Judicature Act 1908 1 for leave to appeal my judgment delivered on 29 September 2017 (the judgment), 2 in which I dismissed his appeal from the recommendation decisions of the Independent Hearings Panel (the Panel) and from the decisions of the Auckland City Council (the Council) in relation to the submissions he had made to the Panel regarding the Proposed Auckland Unitary Plan (the PAUP).

2 As detailed in the judgment, the Panel was established under the provisions of the Local Government (Auckland Transitional Provisions) Act 2010 (the Act), to hear submissions from the public regarding the contents of the PAUP, and thereafter provide its recommendations to the Council as to the provisions of the PAUP. The applicant had made submissions to the Panel regarding the zoning and appropriate planning controls to be included in the PAUP in connection with certain land and buildings located in the Takapuna area. Following its receipt of the Panel's recommendations, the Council determined whether to accept or reject the recommendations and then publicly notified and released the Auckland Unitary Plan.

3 The applicant appealed to the High Court pursuant to s 158 of the Act, his primary ground being that the Panel and Council had failed to discharge their statutory and common law duties to provide reasons for rejecting the submissions made to the Panel by the applicant on the provisions of the PAUP. I found that although the Panel had not specifically addressed the applicant's submissions in its reports, it was not necessary for it to do so, and that in accordance with the relevant provisions of the Act, the Panel was entitled to group submissions made to it and express its reasons for either accepting or rejecting submissions by reference to the matters to which they related. 3 I further held that the Panel and the Council had provided clear and sufficient reasons for rejecting the applicant's submissions to the Panel, such reasons being

apparent from the contents and statements made by the Panel in its recommendation reports to the Council, which were accepted and adopted by the Council. 4 And I further found that the Council had made no error of law by its decision to accept the Panel's recommendations as regards the land, area and matters which were the subject of the applicant's submissions to the Panel. 5

4 The primary ground upon which the applicant proposes to appeal to the Court of Appeal challenges those findings and alleges that the Court erred in finding that the Panel had not made any error of law in relation to its obligation to provide reasons for accepting or rejecting submissions on zoning and additional height controls in connection with the specific sites addressed by the applicant's submissions to the Panel. The applicant says that the Court erred in its interpretation and application of s 144(8)(c) of the Act, which conferred a power on the Panel to address submissions in its reports to the Council by grouping them according to the provisions of the PAUP to which they related, or according to the matters to which they related.

5 The applicant says that the questions of law posed by the proposed appeal are matters of general or public importance, and that they raise important issues relevant to the Auckland area and more generally concerning the Resource Management Act 1991 (RMA).

6 In my Minute dated 1 November 2017, I directed that the applicant's application for leave be served on the other parties, and that any party wishing to make submissions was to file and serve their submissions in relation to the application by 10 November 2017, and thereafter I would determine whether the matter should be set down for a hearing or alternatively whether it could be dealt with on the papers. Following advice from counsel for Housing New Zealand that it had not received a copy of that Minute, I extended the time for the filing of submissions to 20 November 2017. Having regard to the submissions filed by the parties I consider it appropriate to determine the application for leave to appeal on the papers.

Housing New Zealand – Application for leave to intervene

7 Housing New Zealand Corporation (HNZ) applies pursuant to r 7.43A(1)(d) of the High Court Rules and the inherent jurisdiction of the Court for an order that it be granted leave to intervene in this proceeding and make submissions in relation to the applicant's application for leave to appeal. HNZ, which participated as an intervenor party to the applicant's s 158 appeal, is a major landowner in the Auckland region, and currently manages a portfolio comprising approximately 27,400 dwellings in Auckland which include properties located in and around Takapuna. It was extensively involved in making submissions to the Panel in relation to the PAUP.

8 HNZ seeks to participate in this proceeding on the grounds that its legal rights and liabilities in relation to the subject matter of this proceeding may be directly or indirectly affected by the outcome. It submits that its involvement will improve the quality of information before the Court and assist the resolution of the proceedings.

9 I am satisfied that it is appropriate to grant HNZ leave to intervene. It has demonstrated in the course of its participation in the applicant's s 158 appeal that it has a legitimate and substantive interest in the issues arising in the proceedings, and I consider that the Court has been and will be assisted by its participation as an intervenor. Having been a party to the s 158 appeal, I consider that it is in the interests of justice that HNZ also be granted leave to intervene and be a party to the present proceeding because of its particular interest in the issues and the potential for it to be affected by the outcome of this proceeding. Its involvement will not expand the issues or delay the resolution of the proceedings, and I do not consider that any other party will be materially prejudiced by its involvement.

10 Accordingly, I grant HNZ's application and order pursuant to r 7.43A(d) and (e) that it be joined to participate as intervenor in this proceeding.

The grounds of opposition to leave being granted

11 The Council and HNZ both oppose Mr Belgiorno-Nettis's application for leave to appeal being granted. The Council opposes on the grounds that the applicant has failed to establish that the proposed appeal raises a question of law or fact capable of bona fide serious argument, or that it involves a matter of private or public interest of sufficient importance to outweigh the cost and the delay involved in a further appeal.

12 HNZ adopts the submissions made by the Council, and further submits that the applicant has no right of appeal beyond the High Court in respect of appeals lodged in relation to s 158 of the Act. I deal with this matter first.

Is there a right of appeal from the High Court's determination of an appeal under s 158?

The applicant's submissions

13 Mr Ryan for the applicant submits that subject to leave being obtained, there is a right of appeal from this Court's determination of an appeal brought pursuant to s 158. He acknowledges that in contrast to ss 156 and 157, s 158 makes no reference to s 308 of the RMA which imports Subpart 8 of Part 6 of the Criminal Procedure Act 2011 and its provisions dealing with second appeals with leave to the Court of Appeal. However, he submits that the absence of any reference to s 308 of the RMA in s 158 does not remove the jurisdiction of the Court of Appeal to hear appeals pursuant to s 66 of the Judicature Act 1908, from judgments of the High Court, subject to leave first being obtained pursuant to s 67 of the Judicature Act. Mr Ryan submits that the Panel is an “inferior court” for the purposes of s 67 of the Judicature Act.

14 Mr Ryan distinguishes the case of Osborne v Auckland City Council, 6 where the Court of Appeal found that the specific provisions of the Weathertight Homes Resolution Services Act 2006 relating to determinations under that Act being “final” prevailed over and excluded...