BELGIORNO-NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL [2018] NZHC 459

BELGIORNO-NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL [2018] NZHC 459

Leave to appeal to the Court of Appeal under ss66/67 is not excluded by the LGATPA; the Act does not contain clear words or necessary implication to abrogate the leave regime. However the applicant failed to show the proposed appeal raised a question of law capable of bona fide serious argument or matters of sufficient public or private importance to outweigh cost and delay; accordingly leave to appeal is refused. The Panel was entitled to group submissions and provide high‑level reasons where appropriate and the Court found the Panel's and Council's reasons were sufficiently clear in context.

Citation
(2018)20 ELRNZ 335
Parties
Plaintiff/applicant: Franco Belgiorno-Nettis; First Defendant/respondent: Auckland Unitary Plan Independent Hearings Panel; Second Defendant/respondent: Auckland Council; Intervenor: Housing New Zealand Corporation; Intervenor: McConnell Clearmont; Intervenors: Northcote RD1 Holdings Ltd / W Smale Ltd / Fred Thomas Drive Investments Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 March 2018
Procedural Posture
Appeal Under S158 Local Government (auckland Transitional Provisions) Act 2010 (question of Law) / Application for Leave to Appeal to the Court of Appeal (s67 Judicature Act Leave Application)
Outcome
Application for leave to appeal dismissed; Housing New Zealand Corporation granted leave to intervene; other intervener applications adjourned; costs reserved
Legal Topics
Statutory Interpretation, Reasons for Administrative Decisions, Right of Appeal, Unitary Plan Process, Intervention, Leave to Appeal
Administrative Law Local Government Law Resource Management Law Civil Procedure (appeals) Statutory Interpretation Reasons for Administrative Decisions Right of Appeal Unitary Plan Process +2 more

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Parties

Franco Belgiorno-Nettis

Plaintiff/applicant

Auckland Unitary Plan Independent Hearings Panel

First Defendant/respondent

Auckland Council

Second Defendant/respondent

Housing New Zealand Corporation

Intervenor

McConnell Clearmont

Intervenor

Northcote RD1 Holdings Ltd / W Smale Ltd / Fred Thomas Drive Investments Ltd

Intervenors

Procedural Posture

Appeal Under S158 Local Government (auckland Transitional Provisions) Act 2010 (question of Law) / Application for Leave to Appeal to the Court of Appeal (s67 Judicature Act Leave Application)

Legal Issues

  1. 1 Whether a right of further appeal from the High Court to the Court of Appeal exists (with leave) in respect of appeals under s158 LGATPA
  2. 2 Whether the Independent Hearings Panel was entitled to group submissions under s144(8)(c) and whether its grouped and high‑level reasons were adequate for site‑specific zoning and additional height control outcomes
  3. 3 Whether ss155/158 or other provisions of the Act expressly or by necessary implication exclude further appeal rights

Ratio Decidendi

Leave to appeal to the Court of Appeal under ss66/67 is not excluded by the LGATPA; the Act does not contain clear words or necessary implication to abrogate the leave regime. However the applicant failed to show the proposed appeal raised a question of law capable of bona fide serious argument or matters of sufficient public or private importance to outweigh cost and delay; accordingly leave to appeal is refused. The Panel was entitled to group submissions and provide high‑level reasons where appropriate and the Court found the Panel's and Council's reasons were sufficiently clear in context.

Court Disposition

Application for leave to appeal dismissed; Housing New Zealand Corporation granted leave to intervene; other intervener applications adjourned; costs reserved

Orders

  • Application for leave to appeal dismissed
  • Housing New Zealand Corporation granted leave to intervene pursuant to r7.43A and inherent jurisdiction