North Eastern Investments Limited v Auckland Transport

[2017] NZHC 1557

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2324 [2017] NZHC 1557

BETWEEN

NORTH EASTERN INVESTMENTS

LIMITED AND HERITAGE LAND LIMITED

Appellants

AND

AUCKLAND COUNCIL First Respondent

AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL Second Respondent

HOUSING NEW ZEALAND CORPORATION

Section 301 party

CIV-2016-4-42325

BETWEEN  NORTH EASTERN INVESTMENTS LIMITED AND HERITAGE LAND LIMITED

Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:	On the papers
Counsel:	J W Maassen for Appellants H Ash for Respondents C E Kirman for Housing New Zealand
Judgment:	31 July 2017

JUDGMENT OF WHATA J

NORTH EASTERN INVESTMENTS LIMITED AND HERITAGE LAND LIMITED v AUCKLAND COUNCIL [2017] NZHC 1557 [31 July 2017]

This judgment was delivered by me on 31 July 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Cooper Rapley Lawyers, Palmerston North

Simpson Grierson, Auckland
Ellis Gould Lawyers, Auckland

[1]      I have before me an application to intervene by Housing New Zealand Corporation (Housing New Zealand).  The immediate background to this application is that North Eastern Investments Limited and Heritage Land Limited (NEIL) seek, by way of judicial review, to challenge a recommendation of the Independent Hearings  Panel  (IHP)  in  respect  of the Auckland  Unitary Plan.   One  aspect  in particular is in focus for the purposes of the present application, namely the lawfulness of a summons issued by the IHP prior to its recommendation to provide zoning for residential intensification.

[2]      Housing New Zealand claims that it should be entitled to be heard on the matter pursuant to r 7.43A(1)(d) and (e) of the High Court Rules 2016 and the Court’s inherent jurisdiction because:

(a)      The rights of Housing New Zealand in its capacity as a submitter on the Auckland Unitary Plan are directly affected and that the proceedings challenge the validity of the summons, which were prepared by Housing New Zealand.  Further, Housing New Zealand’s evidence at hearing before the IHP relied in part on the evidence reintroduced by the summons.

(b)It would be unjust to adjudicate on the matter of the summons without Housing  New  Zealand  being  heard,  given  it  was  Housing  New Zealand who sought and prepared the summons.

(c)      Housing New Zealand can provide evidence to the Court which is relevant to the summons issue.  Although it is possible such evidence could be adduced through the second respondent, Auckland Council, as its interests are not necessarily aligned with Housing New Zealand (given it was the Council’s witnesses being summonsed by Housing New Zealand), the evidence in its entirety might not be provided.  As such, Housing New Zealand cannot properly rely on the Council to protect its rights or obligations in these proceedings.

[3]      NEIL responds to the application not so much by way of opposition but by way of submission that the proper process is pursuant to the Judicature Amendment Act 1972 and that the relevant discretion, in relation to the application, is provided by s 10, namely subs (2)(b) which enables the addition of a respondent.  It notes that by  becoming  a  respondent,  Housing  New  Zealand  becomes  a  party  to  the proceeding.  Unless it is willing to become a respondent, it should not be seeking to be involved in the judicial review application.

[4]      I am satisfied that Housing New Zealand should be joined as a party, that is, a respondent to the proceeding.   This is, as Mr Maassen notes, a judicial review proceeding.   Housing New Zealand is a person with a genuine interest in that proceeding in the sense that, as it claims, its rights and interests will be affected by the outcome of the proceedings. As such, it is appropriate that it participates as a party in a formal sense.

[5]      I note that NEIL has sought additional orders:

(a)      An order that Housing New Zealand is to file a sworn list disclosing documents in its possession or control (as for discovery) touching or concerning the application for the granting of and the issuing of the summons of Ms Conner pursuant to s 10(2)(i) of the Judicature Amendment Act.

(b)An order that Housing New Zealand is required to file particulars setting out the circumstances surrounding the issue of a summons by Ms Conner, even though her presence was not required, including any communications or conferencing with the IHP in relation to that issue, pursuant to s 10(2)(h) of the Judicature Amendment Act.

[6]      I am  not  yet  satisfied  that  those  orders are appropriate.   This  is,  as Mr Maassen has noted, an application for judicial review.  While Housing New Zealand is an affected party, the relevance of the material sought to be adduced has not been established.  There is no pleaded allegation of impropriety directed towards Housing New Zealand or bad faith on the part of IHP that would warrant discovery.  As to

particulars, Housing New Zealand has undertaken to provide relevant particulars in terms of the pleadings when it produces its affidavit evidence.  It also indicates that relevant documents in that regard will be provided.

Orders

[7]      Given the foregoing, I make the following orders:

(a)      Housing  New  Zealand  shall  be  named  as  a  respondent  to  the proceedings;

(b)      the request for discovery and particulars is declined; and

(c)      leave is reserved for NEIL to renew its application for discovery and particulars following the production of evidence by Housing New Zealand.

Costs

[8]      The costs on the application to intervene should lie where they fall.   The application was properly made, and the issues raised by NEIL assisted in the determination.  I reserve my position, however, in relation to costs associated for the request for particulars and discovery.

Other matters

[9]      I will allocate a case management conference for this matter in August.  In the interim I expect the parties will have resolved between themselves any relevant timetabling for the production of evidence by Housing New Zealand.