OGGI ADVERTISING LIMITED V AUCKLAND CITY COUNCIL HC AK CIV 2007-404-3251

OGGI ADVERTISING LIMITED V AUCKLAND CITY COUNCIL HC AK CIV 2007-404-3251 14 August 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-3251BETWEEN OGGI ADVERTISING LIMITED Plaintiff AND AUCKLAND CITY COUNCIL Defendant Hearing: 7 February 2008 Appearances: M Williams for Plaintiff M McCullough for Respondent Judgment: 14 August 2008 at 3:00 p.m.JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 14 August 2008 at 3:00 p.m. pursuant to r540(4) of the High Court Rules 1985. Registrar/Deputy Registrar Solicitors: Mr M Williams, Barrister, Auckland Ms M McCullough, Auckland City Council, Auckland[1] This is an application for judicial review of a decision of the defendant ("the Council") declining an application by the plaintiff ("Oggi") for dispensation from by-laws relating to billboards. [2] The decision was made by three city councillors acting as commissioners on behalf of the Council. The broad questions are: a) Were the commissioners bound to have regard to, and weigh the consequences of, the loss of income to a church parish and school if dispensation was not granted? b) If the commissioners were bound to have regard to and weigh those matters:• Did they consider themselves so bound?• Did they in fact have regard to the question of loss of income to the parish and school and weigh this as legally required? [3] Oggi's statement of claim contained a contention that the Council's decision was "unreasonable and irrational". This was not pursued. There was a separate cause of action alleging pre-determination or bias. This cause of action was formally discontinued.The factsThe billboards, the parish and the school[4] Oggi's business includes the erection and maintenance of advertising billboards in Auckland. [5] In 1992 three billboards were erected on a single site in Montrose Street, Pt Chevalier, Auckland. The property is owned by the Roman Catholic Bishop ofAuckland. It is administered by the Parish of St Francis and St Therese. St Francis Primary School is on the site. Oggi pays rent for occupation of the site to the parish. The rent is a percentage of the fees to Oggi for advertising on the billboards. The current agreement provides that 47% of the fees received by Oggi be paid to the parish as rent. Half of the rent is in turn paid by the parish to St Francis Primary School. [6] From 1992 to about May 2007, the total received by the parish was almost $254,000 with approximately $127,000 received by the school. There was uncontradicted evidence before the commissioners, and separately before me, which establishes that this income to the parish and to the school is important for each. [7] Evidence for the parish was given to the commissioners by Father Maurice Ford. He said that the parish "financially assists many charities that support people in need without regard to their religious affiliations". He listed numbers of these and described some of the work done. He said:Since the billboard signs were established in 1992, the revenue generated has been extremely important and helped enable the Parish to cover its costs and meet requests from individuals and charitable organisations where possible and when received. If the dispensation application is declined, that would seriously affect the Parish's financial position and naturally the 50% contribution to St Francis School would no longer be able to be made.[8] Mrs M McGivern, the deputy principal of the school, gave evidence to the commissioners. I was not provided with a transcript of her evidence, but a summary was provided in a letter from Father Ford which the commissioners received:Mrs McGivern submitted that the ability of the school to provide complete education, particularly for slow learners, disadvantaged, or handicapped children would be severely constrained if such income were not available.[9] In an affidavit in this proceeding, the principal of the school, Ms Marion Booth, said:If the school was to lose these funds I sincerely believe that our teaching standards would suffer. We would not have the funds to employ teacher aides as the extra funds would not be available. This would mean that ourchildren with special needs would not be properly catered for. Our teachers would not have the level of support required for effective practice. Our students would not receive the education that we believe they are entitled to. The school would have difficulty meeting ever increasing compliance costs It is also likely that the school would need to operate at a deficit from year to year. I spend a significant amount of time attempting to generate extra revenue for the school. Without the Oggi funds, the time required to generate revenue would increase. This means that I would have less time to execute my role as curriculum leader of the school, my prime responsibility. The Oggi funds are very important to our school, and to the parish as a whole.The bylaws[10] In 2001 the Council introduced a new by-law governing billboards. After the by-law became operative it became necessary for Oggi to register a large number of billboards, including the three at Montrose Street. There were dealings between Oggi and the Council in relation to many of Oggi's billboards over an extended period. In respect of the Montrose Street billboards this led to an application by Oggi in April 2006 for dispensation from compliance with some of the by-law requirements. [11] The by-laws applying to Oggi's application for dispensation included clause 27B.4.2. This provided that a dispensation from the billboard requirements "shall be assessed against" a number of criteria set out in the clause. These criteria are, in summary: visual amenity; traffic safety; whether it is possible to comply; the extent to which adverse affects could be avoided, remedied or mitigated; and size and height in relation to road level. [12] Clause 27B.4.2 is in Part 27B of the Council's by-laws. Part 27B is concerned with billboards. Part 1 of the by-laws is headed "By-law Administration". It contains a number of provisions of general application. Clause 1.3.1 (now 1.10.1) provides:The council may grant a dispensation from full compliance with any provision in this By-law or any other By-law enacted by the council, in a case where the council is of the opinion that full compliance would needlessly and injuriously affect any person or business, without a corresponding benefit to the public or any section of it.[13] Clause 1.3.1 is the by-law of importance on this application for review. Oggi relied on it to argue that loss of income to the parish and the school was a primary ground for dispensation. The essence of the submission for Oggi is that the commissioners did not consider themselves bound by it and did not apply it.Oggi's dispensation application and the Council planner's report[14] Oggi's application is dated 10 April 2006. It was accompanied by a report from a planner. The planner addressed the mandatory criteria set out in clause 27B.4.2. The planner also twice emphasised the importance of income from the billboards for the school. First, in the introduction:This proposal provides supplementary income for the maintenance and operation of the St Francis School while not compromising the established urban form of the Pt Chevalier area which is characterised by the busy transportation corridor and the Pt Chevalier shopping area to the east.[15] The second statement was at the end of the report. This included reference to the fact that the billboards would be in the Special Purpose 2 zone of the Council's District Scheme. Without a dispensation, billboards are not permitted in this zone. The planner said:As the site is within the Special Purpose 2 zone the objectives for the zone [are] as follows: To provide for educational facilities and specialised research facilities, while ensuring that any adverse effects are avoided or mitigated. To encourage the sustainable management of the isthmuses existing educational facilities. In terms of the above objectives it is considered that the existing billboards are consistent with these. In particular, the existing billboards provide a necessary supplementary revenue stream for the school to offset the operations and maintenance costs. This in turn should be seen as a net positive socio-economic benefit to the community which more thanadequately offsets any negative effects caused by the non-complying billboards.[16] A five page report on the application was prepared by a Council planner. The Council planner said:27B.4.2A states the criteria for which the billboard is to be assessed against.The suffix A was obviously a typographical error. The planner proceeded to consider the billboard in relation to the five criteria of clause 27B.4.2, which are summarised at para [11] above. In relation to the school there were the following statements:The three billboards are considered to have an adverse impact on the visual amenity of both the school site and surrounding area. It is my opinion that the billboards are unsympathetic to the school site being an additional commercial development that is not in keeping with the appearance or function of the school.[17] When dealing with the possibility of avoiding, remedying or mitigating adverse effects, the planner expressed an opinion that this was not possible and repeated the statement that the billboards are unsympathetic to the school site. This report was prepared in response to Oggi's application and the accompanying report from Oggi's planner. Although Oggi's planner referred to the financial benefits to the school, and expressed the opinions recorded above, there is no reference to these matters in the report of the Council planner. There is no indication in the report that the Council planner made any inquiry of the school or the parish. There is no reference in the report to the Council's own by-law 1.3.1. The Council planner concluded with a recommendation that the application be declined. [18] The application was set down for a public hearing on 18 October 2006. Two days before the hearing a member of the Western Bays Community Board, Rosemary Ward, sent a letter to the Council for the purposes of the hearing. Ms Ward recorded that she had earlier got a copy of the Council's planning report and had "strongly endorsed" the planner's recommendation to decline the application. That had been in August 2006. Ms Ward said that that day, 16 October, she had been contacted by the principal of St Francis School, Ms Booth, who had explainedthe importance of the billboards to the school because of revenue. She referred to other matters and concluded:As the report [from the Council's planner] is silent on the school's role in wishing these billboards to remain I have undertaken to convey this information. They very much value the income derived from these billboards which supports the employment of teacher aides, school camps and the school swimming program.The hearing : 18 October 2006[19] Submissions and evidence on Oggi's application were heard by the commissioners on 18 October 2006. The commissioners were Auckland City Councillors Storer, Mulholland and Christian. [20] At the commencement of the hearing, the letter from Ms Ward of the Western Bays Community Board was tabled. Counsel for Oggi, Mr Williams, then presented written submissions and spoke to them. Almost the first statements in the written submissions were as follows:First and foremost, the significant public and community benefit of these billboards cannot be overstated, and yet this factor has been entirely ignored in the officer's report. I make these points by reference to clause 1.3.1 of the Auckland City Consolidated By-law (1998).The text of clause 1.3.1 was set out. There was reference to the benefits to the parish and the school. The written submissions continued:To decline dispensation therefore, would be to deprive the Parish of St Francis and Therese, and St Francis Primary School, of significant revenue which is currently applied to a range of charitable and educational purposes, but for no demonstrable amenity benefit. That would be in direct conflict with clause 1.3.1. It would also I submit be in direct conflict with the purposes of local government as recorded in the Local Government Act 2002 (social, economic and cultural wellbeing of the community).[21] After Mr Williams had presented his submissions Father Ford, on behalf of the parish, and Ms McGivern, on behalf of the school, read their evidence. The essential nature of that evidence is outlined above.[22] A Council employee took notes of the hearing. A transcript is in evidence. This is not a verbatim record and in some respects the notes are a little cryptic. Nevertheless, this is an important record. [23] It is recorded in the transcript that, within a minute of Mr Williams' starting to read his submissions (the transcript has times), there was a statement from Councillor Storer as follows:Storer: Not wasting time here and not here to have a charade to show that the applicant has a say. Been on site and seen the signs. You need to accept the decision of this committee and not that the applicant feels that it has a legal right.Five minutes later:Storer: This is a legal process [process] and we have all been to the site.[24] At 10:02 there was the following, still in the course of Mr Williams' submissions:Mulholland: Nice that the school is willing to give evidence but this has no matter in this hearing as it has to be legally established before the school and [sic] gets these benefits. What would happen if the sign is granted that the advertising will not [sic] acceptable to the education of children. Williams: The discretion is the forming of the Storer: This is a by-law and this is how we're going to make our decision. What about the contents of the sign?[25] The evidence from Father Ford and Ms McGivern was read by each of them, commencing shortly after the comments from Councillors Mulholland and Storer last recorded. There were some interchanges between witnesses and commissioners recorded in the transcript. [26] The application was then adjourned. As stated by Councillor Storer, who chaired the meeting, this was done to enable the commissioners to "have a chance to read all the supporting documents tabled at the hearing". A further meeting was scheduled on 13 November 2006 for the commissioners to deliberate and give their decision in public. I will come to that in a moment.[27] Mr Frykberg is the managing director of Oggi. He attended the 18 October hearing, and the deliberations meeting on 13 November 2006. He swore an affidavit on 17 November 2006; that is to say, only four days after the deliberations meeting. The affidavit was not prepared for a proceeding but plainly made, within days of the final meeting, to record Mr Frykberg's recollections of aspects of the October hearing and the deliberations meeting. It is implicit from the affidavit that it was made because Mr Frykberg had a concern about statements made by Councillors Storer and Mulholland. [28] I am satisfied Mr Frykberg's affidavit record is an accurate record of statements made. Councillor Storer and Councillor Mulholland provided affidavits for this proceeding. These were sworn nine months after the October 2006 hearing. They questioned some opinions expressed by Mr Frykberg, but there was no material challenge to Mr Frykberg's record of what was said at the two meetings. Mr Frykberg referred to matters which are noted in the Council's transcript, as well as to some matters which do not appear in this transcript. Mr Frykberg's record of statements which are noted in the transcript is essentially the same as the transcript record. This reinforces my conclusion that Mr Frykberg's affidavit is a reasonably accurate record because Mr Frykberg would not have had the transcript when he made his affidavit. [29] In relation to the October hearing Mr Frykberg said, amongst other things:I can recall Mr Williams stressing that this evidence [about the school and parish income] was critical to the application and that unless it was going to be considered by the Councillors, there was no point in proceeding. He specifically referred to clause 1.3.1 of the by-law.Mr Frykberg said that Mr Williams sought confirmation from the commissioners that the evidence of the benefits to the parish and the school "would be considered as relevant". Mr Frykberg recorded a statement he said was made by Councillor Mulholland. Mr Frykberg's record is essentially the same as the Council's record recorded at para [24] above of this judgment. Mr Frykberg then said:Councillor Storer refused to "agree in advance" on the relevance of this evidence, and Oggi was effectively forced to proceed with its application regardless, or risk the application simply being declined.Councillor Storer was chairperson for the hearing. [30] The transcript evidence of the October hearing and the further evidence from Mr Frykberg satisfies me that, at least at that point of the process, Councillor Mulholland considered that he could not take into account the consequences for the parish and the school and Councillor Storer would not commit herself in that regard. I am also satisfied that there was in fact some positive resistance from Councillor Storer to Oggi's application that the commissioners were required to weigh the financial consequence for the parish and the school. This emerges from the statements recorded at [23] above. There is no evidence as to the position taken by the remaining commissioner, Councillor Christian.The public deliberations meeting : 13 November 2006[31] A note of the commissioners' public deliberations on 13 November 2006 was taken. At the beginning of the deliberations meeting, after Councillor Storer referred to the previous hearing, there was the following:Mulholland: Received the letter after the hearing was adjourned. Storer: It is not new info and out of the hearing and will remain as correspondence.This appears to be a reference to a letter dated 22 October 2006 from Father Ford, on behalf of the parish, to the chairperson of the St Francis School Board of Trustees. Father Ford's letter was forwarded to the Council by Oggi's solicitors on 2 November 2006 with a request that the letter be put before the commissioners. The main point of the letter was recorded as follows:The commissioners seem to be concerned that the arrangement by which the parish disburses half the income from the billboards is not contractual; apparently concluding that its continuance is at best tenuous. If this is their thinking, it may result from a failure to understand the relationship between the school and the parish.Father Ford proceeded to explain the position and make clear that the school would continue to get half the rent, principally because the parish was and is responsible for the school and no formal contract is required. There had been questions from thecommissioners at the 18 October 2006 hearing directed to the school's legal entitlement. They included the following from Councillor Storer to Father Ford (again setting out the transcript verbatim):Storer: You saying that the school has received large amount of money from the billboards. The school doesn't own the land.[32] At the deliberations meeting Councillor Mulholland is recorded as follows:[At 13:08] Mulholland: Find this hard as it benefits the parish and the school want to look at why there is a hearing. Concerned with major intersection and distraction that they can have on drivers looking for directional signage. Concerned that there are three signs in a row. Can't support the benefits that it brings to the parish and the school. There are too many in a row. Children of the school are not allowed to use this land. Prefer to decline the application. Wouldn't mind if there is only one. [13:15] Mulholland: Doesn't comply and is a dispensation. Contents of the sign might not be appropriate. Legally established something. No arguments to the benefits of the school. No to all three, but will go for one. Not part of the decision. Looked at my notes and legal arguments and can't accept that as it is a threat. Don't take threats. Prefer none but will bend to one.[33] There is possibly some ambiguity in some of Councillor Mulholland's recorded statements as to whether he considered that he was required to take into account benefits to the parish and the school. For reasons that I will explain below, I am satisfied that Councillor Mulholland believed that he could not take into account the financial benefits that the parish and the school were receiving. [34] The transcript of the 13 November meeting records other statements by Councillor Storer, and one statement by Councillor Christian, but none contains reference to the financial benefits to the school and the parish.The decision[35] The commissioners' decision and reasons are conveniently set out in full:DECISION That the application by Oggi Advertising Ltd for an exemption from Part 27B of the Auckland City Council Consolidated Bylaw (Billboard Signs) tomaintain three existing billboards at 2 – 2- Montrose Street Point Chevalier, which:y are located in the Special Purpose 2 zone at 2 Montrose Street, Point Chevalier described as LOTS 1 2 DP 49912 LOTS 100-105 DP 348 ALLOTS 358 359 TIT PARISH PT LOT 1 DP 2093, CT 3D/1130 be declined in part and approved in part. The reasons for declining the 3 billboards (a) The three billboards present a cluttered appearance and create a cumulative effect and are unsympathetic to the visual amenity of the site and surrounding area. (b) The three billboards dominate the schools' southern landscaping strip and are not in keeping with the appearance or function of the school. (c) The billboards represent an encroachment of commercial activity on an area provided for educational/residential activity. The reasons for approval of one billboard (d) The western most billboard entitled E1 is approved as it will have minimal impact on the school site and surrounding area as the sole permitted billboard.Issue 1 : Were the commissioners bound to take account of clause 1.3.1? Discussion[36] In its statement of claim and written submissions, Oggi maintained its contention that the application for dispensation had to be assessed against the criteria in clause 1.3.1 as well as the criteria in clause 27B.4.2. [37] In its statement of defence and written submissions, the Council denied this contention, arguing that the only criteria the commissioners were legally bound to consider were those in clause 27B.4.2. However, in the course of the hearing before me, Ms McCullough for the Council accepted that, having regard to the case put forward by Oggi on its application for dispensation, the commissioners were bound to weigh the factors stipulated in clause 1.3.1. In my judgment this was a concession responsibly and properly made. The plain meaning of clause 1.3.1 is that it is of general application. There was nothing in Part 27B, as it applied at the time, to exclude the application of clause 1.3.1.[38] If, as in this case, an applicant expressly raises issues covered by clause 1.3.1, then the Council, or commissioners on behalf of the Council, are bound to take those matters into account. Whether it would always be necessary for an applicant to raise issues covered by clause 1.3.1 for the clause to be taken into account, as was submitted by Ms McCullough, is a question I do not have to decide. [39] The answer to the first issue is, therefore, that the commissioners were bound in terms of clause 1.3.1 to have regard to, and weigh the consequences of, the loss of income to the parish and the school if dispensation was not granted. Although the issue as such does not require further consideration, the legal position taken by the Council up to the commencement of the hearing before me is relevant to the second issue to which I now turn to.Issue 2 : Did the commissioners consider themselves bound to have regard to, and weigh the loss of income to the parish and the school? Did they do so in fact?[40] What I am treating as the second issue contains two distinct questions, as indicated in the summary above. The two elements indicated by the questions are analytically distinct. A positive answer to the second question might mean that there was no material error in spite of a negative answer to the first question. However, in this case the two elements are conveniently dealt with together. [41] For the reasons set out in the following paragraphs I am satisfied on the balance of probabilities that the answer to both questions is "no".The recorded reasons[42] The commissioners' decision makes no reference to clause 1.3.1. It makes no reference to the general terms of clause 1.3.1. It makes no reference to the evidence given for the parish and the school, or to the planning report for Oggi on the benefits to the school, or to the submissions for Oggi in that regard. The absence of reference to a mandatory factor is prima facie evidence that the commissioners did not consider themselves bound to take it into account and that they did not take it intoaccount: see Taylor, Judicial Review (1991) para 14.32, and cases in footnote 3 in particular. [43] The record of the decision with the reasons was presented as a full record of the essential matters dealt with and I am satisfied that it is. That is a conclusion that I consider can be safely reached having regard to the form and the content of the decision itself and the prominence given by Oggi in its application to the impact on the parish and the school. [44] The commissioners' decision is a short decision, but it is one with a careful statement of reasons and by reference to legally required criteria. The matters referred to in the paragraphs setting out reasons are some of the mandatory criteria specified in by-law 27B.4.2. The 27B.4.2 matters not referred to are, in broad measure, ones which were accepted by the Council planner as not giving rise to concern (such as traffic issues). Having made express reference to the contentious criteria in clause 27B.4.2, it was to be expected that express reference would have been made to the negative impact on the parish and the school if the commissioners knew they were legally bound to take that into account. Also, if the commissioners properly weighed the impact on the parish and the school in fact, whatever their understanding of the legal requirements, it was to be expected that there would have been, at the least, a note of their decision on the issue and of their reason for the decision. The expectation that there would have been a record is heightened by the prominence given to the issue by the applicant, by the school and by the parish, and the fact that there are references in the decision to adverse effects on the school from the billboards. [45] The record of the deliberations meeting is a record of statements by the commissioners in public – the transcript records that, at 13:19, Councillor Storer, as chairperson for the commissioners, brought up the resolution. It is recorded that Councillor Storer closed deliberations at 13:27. The result is the record. It speaks for itself in the circumstances of this case. [46] As earlier noted, affidavits sworn by Councillor Storer and Councillor Mulholland were filed in this proceeding. They were sworn 10 months after thehearing in October 2006 and nine months after the final meeting when the decision was made. It may be appropriate in some circumstances to take into account evidence after the event given by decision-makers as to the reasons for their decision and how they went about it. But where there is a record not only of the decision but of the reasons for it, and one which on the face of it has been prepared with reasonable care, it would in my judgment be inappropriate to take into account explanations given after the event. Special circumstances might justify a different approach, but good grounds would have to be established. No grounds were established in this case for taking into account the evidence in the two affidavits. It seems simply to have been assumed that the decision-makers who had made a careful record of their decision could supplement it when faced by a challenge to the decision making process. [47] In this regard I agree with the following observation of Clifford J in Petone Planning Action Group v Hutt City Council & Anor (unreported HC WN, CIV 2006- 485-405, 10 October 2006) at para [59]:Finally, the Court's circumspection in receiving reasons for a decision where those reasons were not articulated at the time of the decision should be noted (see R (D) v Secretary of State for the Home Department [2003] EWHC 155 (Admin) at para [18]). There is a danger, both real and perceived, that a decision-maker may formulate ex post facto reasons with an eye to responding to a plaintiff's statement of claim. [48] R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 was a case concerned with the need to provide reasons. A statement of Lord Donaldson MR is nevertheless apposite on the present issue:[T]he board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree.[49] For the reasons recorded to this point I am satisfied that the commissioners considered they were not bound to weigh the adverse consequences for the parish and school and that they did not do so in fact. I am fortified in my conclusion by some further considerations.The legal position of the Council and its officers[50] As earlier recorded, the legal position taken by the Council, up to the commencement of oral submissions for the Council before me, was that matters arising under clause 1.3.1 were not matters that had to be taken into account. In the absence of evidence to the contrary, it is a reasonable inference that this legal position was conveyed to the commissioners and that they would have accepted it. There is no evidence to the contrary. There is evidence supporting the inferences, being the recorded statements of Councillors Storer and Mulholland. [51] The Council's solicitor at the hearing before the commissioners was Ms McCullough. Ms McCullough appears, from the statement of defence and other matters filed, to have been responsible for legal advice to the Council throughout. Because of the position taken by Ms McCullough up to the commencement of the hearing before me (see [37] above) it is reasonable to infer that any legal advice she gave for the dispensation hearing would have been to the same effect; that is, that the commissioners were not legally bound to weigh clause 1.3.1 matters. [52] Mr Stephen Bloxham was a Council employee responsible for matters relating to billboards and, as such, in charge of the department which handled Oggi's application. In an affidavit in this proceeding Mr Bloxham said in relation to Oggi's application:Because the dispensation application in this case was "retrospective" in that the By-law prohibited the construction of the subject billboards from the outset, I do not consider clause 1.10.1 [formerly 1.3.1] is relevant to Oggi's dispensation application.Although this was a statement after the event I infer that it was the position at the time. [53] The Council's formal record of the decision records the Council officers present. These include Mr Parkinson, the reporting planner, Mr Bloxham, the billboard registrar, and Ms McCullough, solicitor.[54] The legal position taken by or for the Council, and maintained into the hearing before me, was a position taken in the face of the strong argument for Oggi made from the outset that clause 1.3.1 applied and had to be taken into account. In the absence of indications to the contrary, it is reasonable to infer that the commissioners sought legal advice on the argument advanced for Oggi, received advice from Council officers to the effect just referred to, and then acted on it.The record of the October hearing and November meeting[55] As recorded at [30] above, I am satisfied that at the conclusion of the hearing in October Councillor Mulholland made clear that he could not take into account the consequences for the parish and the school and Councillor Storer said she was not prepared to commit herself in that regard. I am also satisfied that it is implicit in what Councillor Storer said that she was resistant to the clause 1.3.1 arguments for Oggi. There is no record of Councillor Christian's position. [56] The short record of comments by the commissioners at the deliberations meeting in November does not indicate that any of the commissioners had come to the conclusion that they were bound to take into account the financial consequences for the parish and the school. There is no recorded statement of relevance from Councillor Storer or Councillor Christian. The record in respect of Councillor Storer's position therefore remained unaltered from what it had been at the end of the October hearing. Councillor Christian's position on the relevant issued remained unrecorded, if he had a view on the matter at all. [57] There were two statements by Councillor Mulholland at the deliberations meeting. These are recorded at [32]. As noted at [33] there is possibly some ambiguity in what Councillor Mulholland said if his statements are read in isolation. However, in the overall context already dealt with, and including Councillor Mulholland's statement at the evidence hearing, recorded at [24], my conclusion is that he positively believed he could not take into account the benefits to the parish and the school. This is confirmed by Mr Frykberg's almost contemporaneous record of the deliberations hearing, as follows:14. When the commissioners came to decide upon the adjudication on 13 November 2006, Councillor Mulholland repeated his concern. 15. He stated that the case was difficult in that he could see the benefit in terms of the income to the Parish or to the School from the revenue from the billboards. 16. But he went on to say that what happens to those funds as may derive from the advertising was not the "prerogative of this hearing". He said that he had to look at why there was a hearing and it was because the billboard did not meet the requirements of the District Plan. He then went on to stress his concerns about the traffic impacts of the billboards and the visual effect of them being so close together.[58] That is a fairly accurate report of what is set out more cryptically in the Council's own record of the hearing. Councillor Mulholland, in his affidavit sworn over nine months later, said he could not recall making the remark about "prerogative" but said he did not disagree with what Mr Frykberg recorded him as saying. Mr Mulholland interpreted his reported remark as being to the effect that the Council could not direct Oggi or the parish to distribute the money in a particular way. This was a somewhat disingenuous interpretation of a statement Councillor Mulholland could not recall having made. I am satisfied, to the point I am required to be satisfied, that Councillor Mulholland, although he noted the evidence of existing benefits to the parish and the school, was of the view that he could not take them into account as a factor to be weighed against the matters that he considered justified removal of the billboards. [59] If I was to take into account Councillor Mulholland's affidavit evidence of his understanding of the legal position, this would confirm my conclusion reached without it. He said:I took into account the potential benefit rather than existing benefit to the school and wider community.This is not recorded in the decision, but it is in any event a misdirection in law.Conclusion[60] I am satisfied that the decision of the commissioners is invalid because they proceeded on the basis that they were not required to take into account the matters raised by Oggi under clause 1.3.1 of the by-laws and the commissioners did not in fact take those matters into account in the manner legally required. For these reasons the decision should be set aside unless, in exercise of the Court's ultimate discretion, there are good reasons not to do so. No reasons were advanced which would justify declining relief and I therefore propose to grant it. [61] The plaintiff is entitled to orders as sought setting aside the decision and for a rehearing. The statement of claim also seeks directions "as to the relevance and meaning of clause 1.3.1 of the by-law in reconsidering the application". Such a direction may no longer be necessary. This is because of the amended clauses 27B.4.3 and 27B.4.4.(d). Clause 27B.4.3 provides, in part, that "clause 1.10.1 of Part 1 of the Council's by-laws [formerly clause 1.3.1] shall not apply" to applications for dispensation. But the new clause 27B.4.4.(d) provides that any application for dispensation "must be assessed against" several factors including the following:Whether full compliance would needlessly and injuriously affect any person or business, without a corresponding benefit to the public.[62] Whether the rehearing of Oggi's application should be dealt with under the clauses applying at the date of the application when first heard, or under the amended clauses, it is clear that the matters dealt with in this judgment in respect of the parish and the school (and any other adverse effects on any person or business) must be taken into account. However, to avoid any uncertainty a declaration will also be made.Result[63] The decision of the defendant dated 13 November 2006 on the application by the plaintiff for an exemption from Part 27B of the Auckland City CouncilConsolidated By-law (billboard signs) to maintain three existing billboards at 2-20 Montrose Street, Pt Chevalier, Auckland ("the application") is set aside. [64] There is an order that the application be reheard. [65] On a rehearing the defendant is bound to take into account any matters raised by the plaintiff under clause 1.3.1 of the former by-law or under clause 27B.4.4.(d) of the current by-law. [66] The plaintiff is entitled to costs on a 2B basis and reasonable disbursements, subject to any submissions either party may wish to make on the question of costs. If either party wishes to make submissions on costs, a memorandum for that party is to be filed and served within 28 days of this decision with any reply for the other party to be filed and served within a further 14 days. ______________________________ Peter Woodhouse J