Franco Belgiorno-Nettis v Auckland Council

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeAsher,Brown,Williams JJ
Judgment Date22 May 2019
Neutral Citation[2019] NZCA 175
Docket NumberCA645/2017
Date22 May 2019

[2019] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Asher, Brown and Williams JJ

CA645/2017

CA184/2018

Between
Franco Belgiorno-Nettis
Appellant
and
Auckland Unitary Plan Independent Hearings Panel
First Respondent
Auckland Council
Second Respondent
Counsel:

S J Ryan and R H Ashton for Appellant

No appearance for First Respondent

M C Allan for Second Respondent

C E Kirman and A K Devine for Housing New Zealand Corporation as Intervener

R E Bartlett QC for Emerald Group Limited as Intervener

Judicial Review, Local Government, Resource Management — Auckland Unitary Plan — duty to provide reasons — Local Government (Auckland Transitional Provisions) Act 2010

Where a body was acting in a judicial or quasi-judicial role the provision of reasons could be seen as an aspect of the principle of open justice. The duty to give reasons was expressly placed on the Panel by 1s44(1)–(3) LGATPA (hearings Panel must make recommendations to Council on proposed plan) which required the Panel to make recommendations to the Council on the Proposed Plan. Under s144(8)(c) LGATPA submissions may be grouped according to the provisions of the proposed plan to which they related and the matters to which they related, the reasons for accepting or rejecting submissions or grouped submissions “must” be included. The Panel's function could be fairly described as quasi-judicial. The Panel was not a decision-making body as its task was limited to making recommendations.

The very limited rights of appeal weighed in favour of the giving of discernible reasons, rather than against it. An unsuccessful submitter should be able to understand why the submission has failed. A submitter who could not understand why a submission had been rejected, and who had no right of appeal against the decision was more likely to be left nursing a sense of uncertainty and unfairness.

If a task required by Parliament is extremely difficult, an unambiguous legislative direction could not be ignored by a purposive interpretation. Under s144(8)LGATPA reasons “must” be given for accepting or rejecting submissions.

There had been a reviewable error by the Panel. The appeal was allowed. There had been a failure to give reasons, given the express statutory provisions requiring reasons to be given, must be seen as an error of law. It could also be seen as procedural unfairness.

There was no allegation made of a breach of natural justice by the Panel, beyond the failure to give reasons. The interests of justice could be met by the Panel being required to provide its reasons

The appeal against the refusal to grant judicial review was allowed. The application for judicial review was granted. The application for leave to appeal was declined.

  • A The appeal against the refusal to grant judicial review is allowed.

  • B The application for judicial review is granted.

  • C The application for leave to appeal is declined.

  • D The Auckland Unitary Plan Independent Hearings Panel is ordered to give reasons for its recommendations to the Auckland Council relating to the zoning and height requirements for the Promenade and Lake Road Blocks in Takapuna.

  • E The respondents are to pay one set of costs for a standard application on a band A basis with usual disbursements. We certify for two counsel.

  • F The High Court costs orders in favour of the respondents and the Housing New Zealand Corporation are quashed.

  • G The High Court is to make the appropriate order for costs in the High Court in the light of this judgment.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No

Introduction

[1]

The Combined Unitary Plan

[5]

The Panel

[1l]

Background to this appeal

[15]

The Proposed Plan

[15]

Creation of the Panel

[17]

Submissions

[20]

Hearings

[27]

The Panel recommendations

[31]

(i) General

[31]

(ii) The Promenade Block

[35]

(iii) The Lake Road Block

[38]

The High Court judgment

[40]

The issue

[44]

The obligation to give reasons

[46]

What reasons were given?

[66]

The impracticality argument

[91]

Relief

[102]

Jurisdiction to grant leave to appeal to this Court?

[111]

Result

[114]

Costs

[118]

Introduction
1

This appeal concerns the Auckland Unitary Plan. The appellant, Franco Belgiorno-Nettis, challenges recommendations by the first respondent, the Auckland Unitary Plan Independent Hearings Panel (the Panel) to the second respondent, the Auckland Council (the Council), and the Council's decision based on those recommendations. He submits that neither body gave reasons or adequate reasons for the recommendations and the decision. His submissions and those of other parties focused on the Panel's recommendations, which in relation to the issue relevant to this appeal were adopted by the Council. The lawfulness of the Council's decision therefore rests on the Panel's recommendations.

2

Mr Belgiorno-Nettis seeks relief by way of an order quashing or setting aside the Panel's zoning and building height recommendations as they relate to certain parts of the Takapuna area, and an order remitting those matters back to the Council for a rehearing and reconsideration of submissions.

3

This appeal comes to us through two routes. First it comes as an appeal against a refusal by Davison J to grant judicial review of the recommendation and decisions in question. 1 Second it comes as an application for leave to appeal the determination of a point of law of the High Court, and if leave is granted the determination of that point of law in the appellant's favour. Davison J determined this point in a separate judgment, dismissing the application for leave to appeal. 2 An issue arises whether there is jurisdiction to hear the appeal on the point of law, which we refer to at the end of this judgment.

4

There was a statement of agreed facts filed in the High Court which agreed various background matters, some of which we include in this judgment. The Panel took no steps in the proceeding and abided the decision of the Court, and the Council with the interveners took the burden of responding to the appeal.

The Combined (Unitary) Plan
5

The Auckland Council was established on 1 November 2010 by the Local Government (Auckland Council) Act 2009. 3 Part 4 of the Local Government (Auckland Transitional Provisions) Act 2010 (the Transitional Provisions Act) was added in 2013, 4 and set out the process for the preparation, consideration and finalisation of a “first combined plan for Auckland Council”. Section 3(2)(d) provided that the Act's purpose was to provide “a process for the development of the first combined planning document for Auckland Council under the Resource Management Act 1991”. This document has become known as “the Unitary Plan” and we will adopt that name.

6

The Unitary Plan was not simply a consolidation of the existing District Plans of the old pre-amalgamation cities and districts. It also brought together the land use planning functions under the Resource Management Act 1991 (the RMA) controlled by District and City Councils and the coastal, river and lake beds, water use and contaminant discharge powers vested in Regional Councils. 5 This made Auckland City a Unitary Authority. 6

7

The Unitary Plan process involved five steps. The first stage of the process involved the preparation and notification of the Proposed Unitary Plan. 7 The second stage involved a process of receiving and processing submissions. Then the Panel was to be established to carry out the third stage. 8 At the third stage, the Panel was to consider the submissions on the content of the Proposed Unitary Plan as notified. 9 The Panel was required to make recommendations no later than “50 working days before the expiry of 3 years from the date on which the Council has notified the proposed plan”. 10 In the fourth stage the Council was to make decisions

considering those recommendations within a further 20 working days. 11 The fifth stage was the appeal phase
8

Clearly prompt decision-making was important. The Hon Amy Adams MP, stated in the first reading: 12

I am concerned that under existing law Auckland Council estimates that its first Unitary Plan could take up to 10 years to become operative. No one benefits from long, drawn-out, and expensive processes, during which time Auckland's development stagnates in a cloud of uncertainty. Auckland's economy is too important to New Zealand for us to wait up to a decade for the plan to be implemented. Auckland represents some of our most pressing housing affordability issues, and the council needs to be able to make changes to address this issue without long delays.

9

The Council was responsible for stages 1, 2 and 4. The expectation was that under the new process the Unitary Plan would become operative within three years from notification, instead of the six to 10 years likely under the first schedule process of the RMA. This was reflected in the provisions of the Act. There is provision in s 147 of the Transitional Provisions Act for an extension.

10

Apart from the timeframes and the more limited appeal rights, the structure of the Unitary Plan process was not greatly different from the process set out in the first schedule of the RMA. The process was for the preparation of a draft, the giving of notice, the receiving of submissions, provision for hearings, and a decision. However, the decision of the Panel was a recommendatory decision, and the ultimate decision was for the Council.

The Panel
11

Section 115(1)(g) of the Transitional Provisions Act describes the Panel as “specialist”. Under s 161 the Minister for the Environment and Minister of Conservation were to appoint a chairperson and three to 10 other members. The Panel members were required...

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3 cases
  • Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board
    • New Zealand
    • Supreme Court
    • 30 September 2021
    ...(8th ed, Thomson Reuters, London, 2018) at [7–105]–[7–106]. See also Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, [2019] 3 NZLR 252 Accordingly, reasons of the detail and scope of legal reasoning normally expected in High Court judgments are not requ......
  • Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board
    • New Zealand
    • Supreme Court
    • 30 September 2021
    ...(8th ed, Thomson Reuters, London, 2018) at [7–105]–[7–106]. See also Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, [2019] 3 NZLR 252 Accordingly, reasons of the detail and scope of legal reasoning normally expected in High Court judgments are not requ......
  • ACE Structural Ltd v John Green and Firma Construction Ltd
    • New Zealand
    • High Court
    • 4 July 2019
    ...v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75] as cited in Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175 at 27 R v Awatere [1982] 1 NZLR 644 (CA) at 648 as cited in at Belgiorno-Nettis, above n 26, at [47]. 28 Belgiorno-Nettis, above n 26, at......

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