my recent cases 

 

I have appeared in many Courts in New Zealand and that has resulted in well over 100 reported and unreported decisions. Here is a list of cases where I have appeared as lead counsel recently and that may be of interest. The decisions have hyperlinks to Judicial Decisions On-Line applied to the case name.

 

North Eastern Investments Ltd v. Auckland Council [2018] NZCA 629. The case concerned a judicial review application challenging the process followed by the independent hearings panel (IHP) considering submissions on the proposed Auckland Unitary Plan. The claim was the hearing session for the appellant did not meet standards of fairness because evidence was relied on from an Auckland Council planning witnesses who did not attend the hearing session despite the Panel granting the Appellant the right to cross-examine that witness. It was the first case since decision were released on the PAUP where a successful challenge was made to the procedure of the IHP by a submitter.

Davidson Family Trust v Marlborough District Council  [2018] NZCA 316. The case was argued in November 2017. It was an appeal from the High Court in R J Davidson v. Marlborough District Council [2017] NZHC 52. I acted for the Marlborough District Council. It is an important case in resource management, and the Court of Appeal decision was eagerly awaited by the resource management community. It addresses the question of the significance of King Salmon (a Supreme Court decision made in the policy context) on the assessment of applications for resource consent under RMAs 104. In particular, what do the words "subject to" in s 104(1) mean? I see it as an important case in the context of protecting environmental bottom lines in plans so that these goals are not undermined by an "overall judgment" approach in s 104. In summary the case decided:    

Recourse to Part 2 is not prohibited, “genuine consideration and application of relevant plan considerations may leave little room for pt 2 to influence the outcome”.[1]More specifically:

a.     here the NZCPS is engaged by a resource consent application it is “…inevitable that King Salmonwould be applied…”, and that “Separate recourse [to Part 2] would not be required, because it is already reflected in the NZCPS”[2]. “..resort to Part 2 for the purposes of subverting a clearly relevant restriction in the NZCPS adverse to the applicant would be contrary to King Salmonand expose the consent authority to being overturned on appeal.”[3]If non-directive policies apply and it “was unclear from the NZCPS itself as to whether consent should be granted or refused, the consent authority would be in a position to exercise a judgement” and recourse to Part 2 would then be appropriate.[4]

b.    In considering regional and district plans a “similar approach” should be taken.[5]All relevant plan provisions should be considered; a provision is “not properly had regard to…if it is simply considered for the purpose of putting it on one side.”[6]  If on that analysis it is “clear that a plan has been prepared having regard to Part 2 and with a coherent set of policies designed to achieve clear environmental outcomes” then proper application of s104 would be to implement those policies. Reference to Part 2 would “likely not add anything. It could not justify an outcome contrary to the thrust of the policies.”[7]General recourse to Part 2 to render regional or district plans ineffective would be inconsistent with the scheme of the RMA.[8]  This is important as recourse to Part 2 has been used, for example, to undermine freshwater limits under the Environment Court approved One Plan in the Manawatu-Whanganui regionConversely, if the plan appears it has not been prepared in a manner that appropriately reflects Part 2 the consent authority will be required to address the provisions of Part 2.[9]

[1]Davidson (CA)at [82]. 

[2]Davidson (CA) at [71]. 

[3]Ibid.

[4]Davidson (CA) at [72]. 

[5]Davidson (CA) at [73]. 

[6]Ibid.

[7]Davidson (CA) at [74], [75].

[8]Davidson (CA)at [77]

[9]Ibid.  

Baker v. Hodder [2018] NZSC 171. This matter was heard by the Supreme Court on 20 March 2018 and concerned a decision on appeal from the Court of Appeal as to whether or not that appeal was moot and also whether or not the High Court correctly exercised its power under the Companies Act s 174 to override s 129 concerning shareholder approval of major transactions. The argument was important because it addressed for the first time in New Zealand’s highest court the scope of powers under s 174 and their relationship to other provisions including s 209 and s 175. The SC decision re-inforces shareholders rights to act in their self-interest. It also reinforced orders under s 174 are not to be made lightly and only after due process.

Attorney-General v. the Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 (under appeal by the A-G)The importance of this case relates to the carve-out between the Fisheries Act and regional council functions under the Resource Management Act by RMA s 30(2). The matter has national importance concerning the division of functions between regional councils and MPI. In particular the role of regional coastal plans in addressing the relationship of Maori to coastal marine resources and the maintenance of indigenous biodiversity. Whata J largely adopted my argument and said so expressly in the judgment. Leave has been granted for the matter to go to the Court of Appeal and I will appear for Marlborough District Council. See [2018] NZCA 67 for issues framed by the Court.

Brian Green Properties (1971) Limited v. Bindon Holdings Limited [2017] NZCA 284 This was a case regarding the interpretation of s 223 of the Property Law Act 2007. The question related to a repair covenant and the effect that s 223 PLA had on a ground lease in Dunedin. The issue was the meaning of s 223 which is a reforming provision intended to clarify the common law with regard to the obligations to "keep" in good repair leased premises.