FRANCO BELGIORNO_x001e_NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL [2019] NZSC 112

FRANCO BELGIORNO-NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL[2019] NZSC 112 [10 October 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 53/2019[2019] NZSC 112BETWEEN FRANCO BELGIORNO-NETTISApplicantAND AUCKLAND UNITARY PLANINDEPENDENT HEARINGS PANELFirst RespondentAUCKLAND COUNCILSecond RespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: S J Ryan for ApplicantM C Allan and L M Wansbrough for Second RespondentC E Kirman and A K Devine for Housing New ZealandCorporation as IntervenerR E Bartlett QC for Emerald Group Limited as IntervenerJudgment: 10 October 2019JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay costs of $2,500 to the secondrespondent.____________________________________________________________________REASONS[1] The applicant seeks leave to appeal against a decision of the Court of Appeal.1In that decision, the Court of Appeal allowed the applicant's appeal against aHigh Court decision dealing with the applicant's application for judicial review of1 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175 (Asher,Brown and Williams JJ) [CA judgment].certain decisions of the Auckland Unitary Plan Independent Hearings Panel (the Panel)in relation to its recommendations to the Auckland Council (the Council) as to thedevelopment of the Auckland Unitary Plan and the Council's decision that was basedon those recommendations.2 The High Court judgment also dealt with the applicant'sappeal against aspects of the decision of the Panel.3[2] The background to the case is fully described in the Court of Appeal judgment,4but given the confined nature of the issues arising in relation to the present application,a brief and generalised summary will suffice for present purposes.[3] The applicant's appeal and judicial review proceeding in the High Courtfocused on the contention that neither the Panel nor the Council gave reasons (oradequate reasons) for the Panel's recommendations or the Council's decision inrelation to submissions made by the applicant. The High Court Judge found againstthe applicant on both the appeal and judicial review application.5 However, the Courtof Appeal accepted that the Panel's reasons had not met the requirement of s 144(8)of the Local Government (Auckland Transitional Provisions) Act 2010, whichrequired the Panel's report to include the reasons for accepting or rejectingsubmissions.6 The Court of Appeal therefore found the Panel had made a reviewableerror and allowed the applicant's appeal against the High Court decision to dismiss hisjudicial review application.7[4] The Court of Appeal made it clear that its conclusion related only to theapplicant's submissions on two specific areas that were the subject of consideration2 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2017] NZHC 2387,[2018] NZRMA 1 (Paul Davison J) [HC judgment].3 Leave for a second appeal of the Panel's decision was declined by Paul Davison J:Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 459, (2018)20 ELRNZ 335. The applicant sought leave to appeal the Panel's decision in the Court of Appealalso.4 CA judgment, above n 1, at [15]–[39].5 HC judgment, above n 2, at [125]–[126], [129]–[130] and [134].6 CA judgment, above n 1, at [98].7 At [101]. Having found for the applicant on the judicial review aspect of the appeal, the Court ofAppeal dismissed the application for leave to appeal against the High Court decision dismissingthe applicant's appeal against the Panel's decision: at [113]. This reflected the fact that there wassome issue as to whether there was jurisdiction for the Court of Appeal to hear and determine anappeal on that aspect of the High Court decision and also that the issues that would have arisen inrelation to the appeal aspect of the High Court decision duplicated the issues dealt with on judicialreview.by the Panel because those were the only relevant areas that had been the subject ofargument before the Court of Appeal.8[5] The remedy sought by the applicant in his judicial review proceedings was anorder quashing the Panel's recommendations and the Council's decisions in relationto the two relevant areas, with a requirement that both bodies reconsider and make afresh decision in relation to those areas. The Court of Appeal did not grant this remedy.Rather, it accepted a submission from the Council that the appropriate relief was toremit the matter to the Panel for further reasons to be provided, dealing with theapplicant's submissions in relation to the two relevant areas.9[6] The Court of Appeal considered the risk of reconstruction of reasons after thedecision, but did not consider that this risk arose because the Panel's process was aquasi-judicial process and the Panel was chaired by a Judge of the EnvironmentCourt.10[7] The applicant's proposed appeal to this Court relates only to the Court ofAppeal's decision on remedy. He was otherwise successful in the Court of Appeal andthere is no cross-appeal. The Court of Appeal's primary finding about the requirementto give reasons would not arise for consideration by this Court.11[8] The applicant argues that leave should be given because the issues relating toremedy involve matters of public importance and because a substantial miscarriage ofjustice will occur if leave is declined.12[9] We do not accept that either of these grounds is made out.[10] As to the former, we accept that the existence and extent of the discretion todecline relief to a successful plaintiff in a judicial review claim may be a matter of8 At [100].9 At [109]–[110].10 At [106].11 The Court granted Housing New Zealand Corp and Emerald Group Ltd leave to file submissionson the leave application on the basis that costs would not be awarded for or against those partiesat the leave stage.12 Senior Courts Act 2016, s 74(2).public importance. There may also be questions about the effect of failure to providereasons on the decision in issue. But this case is not an appropriate one to addressthese questions. On relief, the Court of Appeal granted a lesser remedy than thatsought by the applicant in the context of a specific statutory provision, responding tothe specific facts of the case. On the failure to give reasons, as noted earlier, the natureof the requirement of a decision-maker to give reasons would not arise fordetermination in this case if leave were given.[11] As to the latter, the applicant's case that a substantial miscarriage will arise ifleave is not given. He challenges the Court of Appeal's conclusion described aboveat [6]. He also argues the Court did not take into account the potential difficulty forhim in challenging the decisions in fresh proceedings if the reasons given by the Paneldisclosed one or more errors of law and did take into account the potential impact onthird parties if the challenged decisions were set aside.[12] We think it is doubtful that these arguments have sufficient prospect of successto justify a further appeal. But, in any event, we are satisfied that the Court of Appealdecision on remedy does not involve "a sufficiently apparent error, made by theCourt of Appeal, of such a substantial character that it would be repugnant to justiceto allow it to go uncorrected".13[13] We therefore dismiss the application for leave to appeal.[14] The applicant must pay cost of $2,500 to the second respondent.Solicitors:Daniel Overton Goulding, Auckland for ApplicantBrookfields, Auckland for Second RespondentEllis Gould, Auckland for Housing New Zealand CorporationMacDonald Lewis Law, Auckland for Emerald Group Limited13 Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].