Choong Huat Lai and Luan Joo Tan (ENV-2010-AKL-000160) v Auckland Council (formerly Waitakere City Council)

• Jurisdiction: New Zealand
• Judge: Environment Judge M Harland
• Judgment Date: 07 April 2011
• Neutral Citation: [2011] NZEnvC 82
• Date: 07 April 2011
• Court: Environment Court

IN THE MATTER OF the Public Works Act 1981 and in the matter of Objections to a Notice of Intention to take land pursuant to Sections 23(3) and 24 of the Act

BETWEEN

Choong Huat Lai and Luan Joo Tan (ENV-2010-AKL-000160)

Appellants

and

Auckland Council (formerly Waitakere City Council)

Respondent

Decision No. [2011] NZEnvC 82

Court:

Environment Judge M Harland

BEFORE THE ENVIRONMENT COURT

Application for leave to make further submissions — appellants objected to Council's notice of intention to take land they owned — the objection was heard and the decision reserved — appellants now wished to make further submissions before the Court issued its decision — whether the Court could accept further submissions having reserved its decision and, if so, whether it should.

• A. Leave is granted as per the details in paragraph [22] of this decision.

• B. Costs are reserved.

DECISION OF THE ENVIRONMENT COURT IN RELATION TO APPLICATION BY APPELLANTS FOR LEAVE TO MAKE FURTHER SUBMISSIONS FOLLOWING HEARING BUT BEFORE DECISION

Introduction

1 The appellants have objected to the respondent's notice of intention to take land they own at 30 Totara Avenue, New Lynn, Auckland. The'hearing of the objection took place in the Environment Court at Auckland on 20 and 21 December 2010. The Court's decision was reserved. On 9 February 2011 the appellant's counsel filed a Memorandum containing further submissions it wished the court to take into account before issuing its decision. The appellants have asked for leave for this to occur, but the respondent opposes. The application raises two issues, the first of which is whether the Court is able to accept further submissions, having reserved its decision, and secondly, if it is, whether it should do so. In determining this matter I have had regard to two Memoranda filed on behalf of the appellants, both dated 9 February 2011, and a Memorandum filed on behalf of the respondent dated 10 February 2011. Both counsel agree for the matter to be dealt with on the papers.

Background

2 The appellant's reason for seeking leave to make further submission arose from an exchange between the Court and Mr Wright for the appellants during reply submissions. 1 At this point in his submissions, Mr Wright had referred to Municipal Council of Sydney v Campbell 2 where the Privy Council upheld the Lower Court's conclusion of fact that the appellants were exercising their powers for a purpose differing from those specified by the statute and that they had rightly been restrained from acquiring respondent's land. In that case the appellants had statutory power to acquire compulsorily land required for the purpose of making or extending streets, also land required for carrying out improvements in or remodelling any portion of the city. In connection with the extension of a street, the Council had resolved to acquire the respondent's land for the latter purpose. They had previously been restrained from acquiring the land for the extension on the grounds that it was not really required for that purpose, but that its purchase was desired because of its probable increase in value. No plan for improving or remodelling the area was considered or proposed, and the evidence showed that the appellants were endeavouring to give a new form to the transaction previously decided upon, rather than considering whether the respondent's land was required for improving or remodelling. Mr Wright submitted: 3

And what I am saying in this case is that there is a similar flavour. There is a similar flavour to the Council saying well, yes you have done your own development on this land, but we think we can do a better one with Infratil, and we think we can make money from it, and so we are going to come in, we are going acquire your newly developed property for urban renewal purposes and for carparking. We're going to fiddle with the analysis, because I submit that is exactly what has been done here — we're going to fiddle with the analysis until it makes it clear that we have to have an option which takes this land, and we are going to go forward with it and make money. We are going to drive it:

Her Honour: So you're really saying that there is some bad faith here?

Mr Wright: Yes

Her Honour: Well that is a pretty strong submission to make and it probably comes pretty close (and I'm thinking aloud here, I want to hear from Mr Casey on this), it comes pretty close to some of those equitable fraud allegations where there has got to be an evidential foundation and a pretty high one, somewhat akin to a criminal burden of proof, if those allegations are going to be thrown in the pot….

There were then various exchanges and references relating to the evidence upon which this submission was made, and then at pi 81 of the transcript, line 20:

Her Honour: Well, I think it is a very strong submission to make and I'm not wanting to steer you in any way about how you want to run your case, however I think if you're serious about making these submissions and wanting us to record them in a decision, that you need to be quite precise about what you (sic) are saying and what you are referring to. Do you want to come back tomorrow morning with some reflection about this?

Mr Wright: No your Honour. I would prefer to proceed. At the end of the day it might be that the submission goes too far, because it is based on an inference and it is based on firstly — it is based on two inferences. It is based on the fact that firstly there is a commercial development that is proposed in this case as a joint venture. Quite clearly the purpose of the joint venture agreement is to make money and to bring profits back to the council and back to Infratil.

The second is that there is a very sudden about-turn in terms of this particular piece of land where we have a long period of iterative process towards final options and then all of a sudden, one week before 16 September we have a report come out that we have 576 options and now we've got two and they both need this land, when this land had never previously been identified. And then we find, in reference to the evidence, that the key points in disqualification disqualified all of the other options that involve, non-use of the Council and (which is the previous basis upon which parking had been advanced) actually lack any credibility whatsoever and were not analysed in any way whatsoever.

3 It is important to record that the Campbell case was not a case where bad faith was specifically considered. Rather it was a question of whether the land had been acquired for the purpose for which it was purported to be acqiiired.

The Court's jurisdiction to allow further submissions to be made after the close of hearing

4 In his submissions Mr Casey QC outlined that he was unaware of any rule contemplating a party being allowed to make further submissions after the close of a case, or any case where leave has been given to do so. I agree that this is the case.

5 By way of analogy however, Mr Casey QC referred to certain provisions relating to the calling of evidence after the close of a civil case. Specifically he referred to s98 of the Evidence Act 2006 the relevant part of which provides:

(1) In any proceeding, a party may not offer further evidence after close of that party's case except with the...