Graham v Auckland Council Hc Ak

• Jurisdiction: New Zealand
• Judge: Ellis J
• Judgment Date: 19 April 2013
• Neutral Citation: [2013] NZHC 833
• Docket Number: CIV-2011-404-007908
• Court: High Court
• Date: 19 April 2013

BETWEEN

Bruce Peter Graham and Leanne Graham

Plaintiffs

and

Auckland Council

Defendant

[2013] NZHC 833

CIV-2011-404-007908

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for judicial review of decisions, actions or omissions by the defendant in relation to the development of an adjoining property — development involved demolition of the existing dwelling, building two new houses and the subsequent subdivision of the property into two lots — plaintiff alleged illegality (breach of District Plan and resource consent), breach of natural justice (lack of consultation), breach of legitimate expectation (that respondent would consult, make decision in a transparent way and give reasons) and misrepresentation (applicant provided notes to defendant that plaintiff did not oppose the development which may have mislead the defendant) — plaintiff sought declaration that subdivision and code compliance certificate were invalid — whether jurisdiction existed to grant the relief sought.

Appearances:

J Graham for Plaintiffs

M J L Dickey and D A Riley for Defendant

M C Black for Derek and Elaine Shortt

Counsel:

M c Black, P O Box 1984, Auckland 1140

Fax: (09) 309-3787 – Email: mcblack@xtra.co.nz

JUDGMENT OF Ellis J

1 The plaintiffs (the Grahams) are the owners of a property located at 78 The Parade, Bucklands Beach, Auckland. They seek judicial review of various decisions, actions or omissions by the Auckland Council (the Council) in relation to the development of the next door property (79 The Parade). Essentially the development involved demolition of the existing dwelling, building two new houses and the subsequent subdivision of the property into two Lots.

Background

2 In December 2003, 79 The Parade was sold at auction to Derek and Elaine Shortt. Settlement occurred on 26 February 2004.

3 In February 2005 the Shortts lodged an application for “integrated” resource consent with what was then the Manukau City Council. The consent sought related to both the proposed development and subdivision of 79 The Parade. More specifically, the nature of the proposed development meant that consent was required for:

• (a) The construction of two dwellings on the site;

• (b) A two Lot fee simple subdivision;

• (c) Earthworks of more than 200 cubic metres;

• (d) Exceeding the site coverage rules in the District Plan; and

• (e) Building a retaining wall (with surcharge) on the boundary.

4 A number of plans, drawings and photos were included with the application, as was a file note made by Mr Shortt of a discussion he had had with his neighbours, the Grahams, in February 2005. The file note records the matter of site coverage infringement was discussed and, on the basis of Mr Shortt's advice that the site coverage on Lot 1 would exceed the maximum specified in the District Plan by approximately 1.78% (or 0.96% if calculated by reference to the site overall), that Mr Graham had advised that he could not see any reason why consent should not be granted.

5 The Grahams dispute the correctness of the advice that was given to them at this time by Mr Shortt and say that other relevant matters were also omitted by him. It can be noted, however, that the Council did not process the application on the basis that the Grahams had consented to the proposal, but rather on the basis that notification of the application was not necessary for other reasons. 1 That determination was made on 11 May 2005 and the Shortts' application for resource consent was granted on the same day.

6 On 4 October 2005 the Shortts' engineers sent a letter to all the Shortts' neighbours (including the Grahams) advising that resource consent had been granted, describing the proposed works in detail and confirming the relevant timeframes. The letter had attached to it the engineer's site plan which showed the cut and fill that was proposed in the patio area on the northern boundary of Lot 1, (that being the Grahams' southern boundary).

7 In January 2006 building consent documentation relating to the house that is now on Lot 1 (Lot 1 being the upper site, closest to the Grahams' house) was lodged with the Council and the consent was granted on 20 March 2006. The Grahams and other neighbours were formally advised of this by letter dated 4 April 2006 and were invited to contact the builders if they had any concerns. They did not do so.

8 The original house at 79 The Parade was demolished in April 2006. Work began on the new house the following month. In September 2006 construction of a new fence on the boundary between the Shortts' and the Grahams' properties began and there was a meeting between Mr Shortt and the Grahams about that. The evidence supports the conclusion that the Grahams would have been made aware of the proposed positioning of the patio and the size and height of the retaining wall upon which the patio was to be located. During 2007 there were ongoing discussions about the height of the boundary fence that was adjacent to the patio area.

9 The house that is now on Lot 1 was completed in about June 2007. Code compliance inspections took place on 16 August 2007 and 12 February 2008. A code compliance certificate was issued by the Council on 26 February 2008.

10 Meanwhile, in January 2008, the Grahams had planted five tall (over two metre) olive trees in front of the five north facing windows of the Shortts' house on Lot 1. The effect was to obstruct the Shortts' view of the harbour. Correspondence between the neighbours ensued but the matter could not be resolved. In September 2008 the Shortts applied to the District Court for orders under the Property Law Act 2007 that the trees be removed.

11 In October 2008 those proceedings were resolved by consent and formal orders were made by the District Court on that basis.

12 In May 2009 the Grahams approached the Council's Resource Compliance Officer, Nicola Taylor, and raised a number of possible planning issues concerning the Shortts' development. She met with the Grahams to discuss these issues and, in the month that followed, a detailed review of the development's compliance with the resource consent and with the District Plan was undertaken by the Council. Although they had some initial concerns, by October 2009 the Council had concluded that all issues had been satisfactorily addressed.

13 The Grahams did not comply with the District Court consent orders relating to the trees and in September 2009 the Shortts applied to the Court to enforce them. In December 2009 the Grahams filed a counterclaim in that proceeding which included (inter alia) claims that:

• (a) the Shortts' new dwelling breached the “1 metre rule” contained in the relevant District Plan; and

• (b) the patio was in breach of the District Plan's “Yard Rule”.

14 The counterclaim was defended by the Shortts and extensive expert evidence was briefed. The dispute was later settled (except as to costs) and in June 2011 the Grahams filed a discontinuance of their counterclaim. The olive trees were removed.

15 The present proceedings against the Council were filed in December 2011. It can be noted in passing that during the time in question the Grahams subdivided their own property and eventually, in mid-2012, sold the vacant lower Lot.

The claim

16 The amended statement of claim dated 22 February 2012 is some 92 paragraphs long. 2 It contains seven causes of action and 21 separate prayers for relief. Because of the approach that I have ultimately taken in this judgment it is necessary to set out the pleading in some detail.

First cause of action: “illegality – breach of the District Plan and resource consent”

17 The first cause of action appears to relate, firstly, to the Council's consent to the subdivision of the Shortts' property. It alleges that, in granting a subdivision consent, the Council was in breach of provisions in the relevant District Plan 3 and, in particular:

• (a) The private open space requirements applicable to sites under 500 square metres

• (b) The density requirement of a minimum of 800 square metres (net) for two dwellings; and

• (c) The landscaping rules, because no landscaping plans were submitted at the time the application for the consent was made.

18 The second part of the first cause of action relates to subsequent action or inaction by the Council, namely its alleged failures to:

• (a) “enforce” the Private Open Space Rule when it accepted the Shortts' contention that the existence of a public beach/reserve across the road could be taken into account when assessing compliance;

• (b) “address” breaches of the Yard Rule (building too close to the boundary and unconsented raised patio attached to the boundary); and

• (c) “address” a breach of the consent relating to earthworks through the excavation of 690, rather than 400, cubic metres of earth.

19 The relief sought in relation to the first cause of action are declarations that:

• (a) The development is in breach of the private open space requirement, density requirement, landscaping requirement, the Yard Rule, and the conditions of consent as to earthworks;

• (b) The code of compliance for the property is revoked;

• (c) The Shortts should reapply for resource consent, which should be notified;

• (d) The Council should enforce the private open space requirement, density requirement, landscaping requirement, the Yard Rule, and the conditions of consent as to earthworks; an

• (e) The subdivision is ultra vires and is revoked.

Second cause of action – “breach of natural justice”

20 The second cause of action is an unusual pleading that is incapabable of summary and I therefore simply quote it in full. The claim avers:

The Council failed to address issue in any sufficient manner when notified by...