Wmg Yovich v Whangarei District Council

• Jurisdiction: New Zealand
• Judge: JA Smith,Environment Judge
• Judgment Date: 22 July 2015
• Neutral Citation: [2015] NZEnvC 121
• Court: Environment Court
• Date: 22 July 2015

[2015] NZEnvC121

BEFORE THE ENVIRONMENT COURT

Environment Judge JA Smith, at Auckland, sitting alone under s279 of the Act, on the papers

In the matter of an appeal clause 14 of the first schedule of the resource management act 1991 (the act)

In the matter of an application for discovery under section 278 of the act and the district court rules 2014

Between

WMG Yovich

(ENV-2015-AKL-000042)

Appellant

and

Whangarei District Council

Respondent

Submissions:

Mr W McKean for WMG Yovich, (the Appellant)

Mr GJ Matthias and Ms ST Shaw for Whangarei District Council (the District Council)

Application for discovery of an agreement between the respondent Council and an unnamed purchaser in respect of land which was the subject of a Plan Change — the appellant was arguing that the decision to rezone the land was made on an inappropriate basis — the appellant did not file an affidavit in support of the application for discovery but instead relied on the s32 Resource Management Act 1991 evaluation report filed in support of the decision on the plan change and the evidence circulated in the hearing to date — whether an affidavit was required to support the application for discovery — whether it was relevant to the discovery application that the Council would obtain a collateral advantage from the sale — whether the terms and conditions of the agreement should be made publicly available.

The issues were: whether an affidavit was required to support the application for discovery; whether it was relevant to the discovery application that the Council would obtain a collateral advantage from the sale; and whether the terms and conditions of the agreement should be produced publicly or only for the purposes of the hearing.

Held: In contentious matters the Court preferred affidavit evidence. However, where the matter was a matter of record, or information was clearly available from the decisions of the Council or its official records, then reference to those documents could be sufficient. Supporting evidence could be matters of record directly relevant to the appeal. In this case on the basis of the Council's evidence filed to date, and the s32 report, aspects of the agreement were relevant, in particular:

• (a) its existence; and

• (b) whether the agreement was conditional upon the plan change

These matters might go towards the Council's motivation in seeking the plan change, although such evidence might be marginal at best to the core decisions of the Court.

Where a Council was seeking a Plan Change that derived a collateral benefit to the Council itself, the Court would be reluctant to withhold documents that were allegedly relevant. The question of determining its relevance was a matter that could be fully canvassed before this Court. On the other hand, the withholding of such evidence in the case of a Council undertaking local government and public duties could give rise to the impression that the information was being withheld for a reason.

The Court's general preference was that there was full disclosure by Councils of the information held by them. Given Y considered that there was a relevance to such information, and there was at least an arguable case that this was so, the onus fell on the Council to show proper grounds on which its disclosure would not be appropriate. In that regard the purchaser of the property was irrelevant. It was also irrelevant as to any mortgage terms that might relate to the purchase of that property. Furthermore, the actual purchase price to be derived from the sale was again a matter that was not relevant to any planning considerations before the Court.

On the other hand, it might be relevant if there were conditions contained within any such agreement relating to the progress of PC130 or other plan changes necessary to re-zone the land.

Furthermore the terms and conditions of the agreement should only be produced for the purpose of the hearing, and not for general public consumption, even if it was a matter of public interest. In that regard there was a process set out under the Local Government Official Information and Meetings Act 1987 for obtaining such information, and the discovery process of the Court was not a surrogate method of putting information into the public realm.

Order that the agreement was produced only for the purpose of this hearing and was not for wider publication without leave of the Court.

The general principle of transparency, particularly where a Council was seeking a change from which it might benefit, would militate towards the Court's exercise of that discretion in favour of publication. The limited basis of publication (being for the purpose of this hearing, and with certain information redacted) adequately protected the other aspects of the matter, at least until the hearing been commenced.

Order for discovery.

DECISION OF THE ENVIRONMENT COURT

• A. Discovery of the sale and purchase agreement between the District Council and Okara Park is ordered subject to the document being redacted by:

  • (a) removal of the name or references to the purchaser;

  • (b)...