SHANKS v AUCKLAND COUNCIL [2017] NZHC 745

SHANKS v AUCKLAND COUNCIL [2017] NZHC 745

The interim application was refused because the shed, used in the interim for storage of farming and dwelling-related equipment, is a permitted activity under AUP rule H19.8.1 (activity status of buildings follows the activity they accommodate); the rule is clear and does not require an additional proportionality/scale assessment; a certificate of compliance is optional and not a precondition to constructing a permitted building; given construction was already underway and safety concerns, the balance of convenience favoured the respondents.

Citation
[2017] NZHC 745
Parties
Applicant: Jennifer Shanks; Applicant: Peter Shanks; Applicant: Ross Taylor; Applicant: Yvonne Box; Applicant: Michael Box; Applicant: Warren Gough; Applicant: Tania Gough; First Respondent: Auckland Council; Second Respondent: David Vujanic; Second Respondent: Danka Vujanic
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 April 2017
Procedural Posture
Judicial Review (resource Management Act) / Interim Relief Hearing
Outcome
Application for interim relief refused
Legal Topics
Notification, Permitted Activity, Interim Relief, Balance of Convenience, Certificate of Compliance, Interpretation of Planning Rules
Resource Management Administrative Law Judicial Review Planning Law Notification Permitted Activity Interim Relief Balance of Convenience +2 more

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Parties

Jennifer Shanks

Applicant

Peter Shanks

Applicant

Ross Taylor

Applicant

Yvonne Box

Applicant

Michael Box

Applicant

Warren Gough

Applicant

Tania Gough

Applicant

Auckland Council

First Respondent

David Vujanic

Second Respondent

Danka Vujanic

Second Respondent

Procedural Posture

Judicial Review (resource Management Act) / Interim Relief Hearing

Legal Issues

  1. 1 Whether the proposed 300 m2 shed is a permitted activity under rule H19.8.1 of the Auckland Unitary Plan
  2. 2 Whether the court should assess the scale of the shed against the intended use when determining permitted activity status
  3. 3 Whether a certificate of compliance is required before constructing a permitted activity building

Ratio Decidendi

The interim application was refused because the shed, used in the interim for storage of farming and dwelling-related equipment, is a permitted activity under AUP rule H19.8.1 (activity status of buildings follows the activity they accommodate); the rule is clear and does not require an additional proportionality/scale assessment; a certificate of compliance is optional and not a precondition to constructing a permitted building; given construction was already underway and safety concerns, the balance of convenience favoured the respondents.

Court Disposition

Application for interim relief refused

Orders

  • Application for interim relief to stop construction of the shed is dismissed
  • Second respondents are prohibited from undertaking their mould-making business in the shed and must use the shed only for permitted activities listed in rule H19.8.1 of the AUP until the judicial review proceedings have been determined or until 31 August 2017, whichever occurs first