JOLLY v CENTRAL OTAGO DISTRICT COUNCIL [2020] NZHC 2808

JOLLY v CENTRAL OTAGO DISTRICT COUNCIL [2020] NZHC 2808

Because the Commissioner’s process was complete, the late introduction of a compromise on Jolly Road sealing deprived the Trust of an opportunity to be heard and the evidence demonstrated that there was effectively no other lawful decision the Commissioner could have made consistent with proper procedural fairness...

Source-derived case information.

Citation
[2020] NZHC 2808
Parties
Applicants: Peter William Jolly and Deborah Jill Jolly and Polson Higgs Nominees Limited as trustees of The Jolly Family Trust; First Respondent: Central Otago District Council; Second Respondent: Greenlight Land Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 October 2020
Procedural Posture
Judicial Review Under Judicial Review Procedure Act 2016 (challenge to Resource Management Act 1991 Consent) / Consent Order and Judgment of the High Court (determined on the Papers)
Outcome
By consent the Court amends and substitutes conditions 4A and 4B of Resource Consent 190042 and dismisses the judicial review in respect of other relief sought; no order as to costs.
Legal Topics
Resource Consent, Conditions of Consent, Natural Justice / Procedural Fairness, Judicial Substitution of Decision, Remedies and Consent Orders
Resource Management Act 1991 Administrative Law Planning and Environmental Law Civil Procedure (judicial Review) Resource Consent Conditions of Consent Natural Justice / Procedural Fairness Judicial Substitution of Decision +1 more

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Summary, issues, holding and outcome

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Parties

Peter William Jolly and Deborah Jill Jolly and Polson Higgs Nominees Limited as trustees of The Jolly Family Trust

Applicants

Central Otago District Council

First Respondent

Greenlight Land Limited

Second Respondent

Procedural Posture

Judicial Review Under Judicial Review Procedure Act 2016 (challenge to Resource Management Act 1991 Consent) / Consent Order and Judgment of the High Court (determined on the Papers)

Legal Issues

  1. 1 Whether the High Court may substitute its own decision for the decision‑maker in judicial review proceedings in respect of resource consent conditions
  2. 2 Whether conditions 4A and 4B involved a breach of natural justice by introducing a late compromise solution without affording affected parties a hearing
  3. 3 Whether it is appropriate to make a consent order amending conditions rather than quashing and remitting to the Commissioner or Council

Ratio Decidendi

Because the Commissioner’s process was complete, the late introduction of a compromise on Jolly Road sealing deprived the Trust of an opportunity to be heard and the evidence demonstrated that there was effectively no other lawful decision the Commissioner could have made consistent with proper procedural fairness and mitigation of dust, and because remitting would be impractical and the parties consented, the High Court may and should substitute its decision by consent to amend conditions 4A and 4B to extend sealing to the specified point.

Court Disposition

By consent the Court amends and substitutes conditions 4A and 4B of Resource Consent 190042 and dismisses the judicial review in respect of other relief sought; no order as to costs.

Orders

  • Amendment of conditions 4A and 4B of Resource Consent 190042 as follows: 4A Prior to section 224(c) certification the carriageway on Jolly Road shall be upgraded "from the State Highway 8 intersection to the northern side of the intersection with Church Lane" for a distance of 1.07km from the State Highway 8...
  • No order as to costs and disbursements.