WHITBY COASTAL ESTATES LIMITED V PORIRUA CITY COUNCIL HC WN CIV 2007-485-002441

WHITBY COASTAL ESTATES LIMITED V PORIRUA CITY COUNCIL HC WN CIV 2007-485-002441 12 December 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2007-485-002441UNDER Judicature Amendment Act 1972 IN THE MATTER OF an application for review of Statutory Powers of Decision under the Local Government Act 2002 and the Resource Management Act 1991 BETWEEN WHITBY COASTAL ESTATES LIMITED Applicant AND PORIRUA CITY COUNCIL Respondent Hearing: 10 December 2007 Appearances: Mr Todd for Applicant Mr McDermott for Respondent Judgment: 12 December 2007 at 11.30 amJUDGMENT OF MALLON J (Reasons for Oral Order) Interim order[1] Following submissions made by counsel at the conclusion of the Chambers List on 10 December 2007 I made an interim order in the following terms:The date for filing initial submissions to Plan Change 9 in the Porirua City Council is suspended until 20 working days after the Court's determination of the applicant's application for judicial review of the Council's decision to adopt and notify Plan Change 9.[2] This order was made on the applicant's undertaking not to use the suspension of the initial submission period in any argument as to the weight that Plan Change 9 should have in determining any application for resource consent relating to the applicant's land.[3] I advised counsel that my reason, in brief, was that granting the interim order involved the least prejudice, given that the applicant is the only land owner that is subject to Plan Change 9. I also advised counsel that I would set out in writing in more detail my reasons. I now do that.Background[4] The applicant ("Whitby") is the owner of a little over 40 hectares of land. It has owned the land for a number of years. Whitby proposes to develop the land. The land has been zoned Suburban for about 25 years. [5] On 28 September 2007 the respondent ("the Council") gave public notification of a proposed change (Plan Change 9) to the Council's District Plan. It set 1 February 2007 as the closing date for initial submissions. [6] Whitby's land is the only land which is subject to Plan Change 9. Under Plan Change 9 Whitby will be required to prepare a comprehensive development plan. The comprehensive development plan must then be publicly notified and the Council has a discretion whether or not to approve it. Whitby says that preparing a comprehensive development plan is a significant undertaking. For example, because the applicant proposes to develop the land over a 20 year period, under the comprehensive development plan the applicant will be required to specify all earthworks it proposes to undertake over the next 20 years. [7] Whitby has applied for judicial review of the Council's decision to adopt and notify Plan Change 9. Whitby says that the Council's decision is unlawful for failure to consult. It also pleads bad faith, unreasonableness, improper purpose, bias, breach of natural justice and breach of a legitimate expectation. The Council has filed a statement of defence to the judicial review application. It says that it was not required to consult Whitby and it otherwise denies the allegations. [8] Whitby seeks either an urgent fixture for its judicial review proceeding that would enable its challenge to the Council's decision to be determined in sufficient time to meet the 1 February 2008 deadline for submissions or an interim ordersuspending the time for filing submissions. The application for an urgent fixture and/or an interim order came before me in the Chambers List on 10 December 2007. [9] Prior to the hearing before me Whitby's solicitors attempted to obtain an agreement from the Council on a way forward that would enable Whitby to avoid having to prepare submissions on Plan Change 9 by 1 February 2008. [10] The Council's solicitors responded by advising that the Council would not support an application for an urgent fixture and nor would it agree to extension to the submission period for Plan Change 9. It was said that Whitby would not be prejudiced by not having the matter heard and determined before the submission period closed. The Council's solicitors noted that the Council had already provided for a significantly increased submission period for Plan Change 9. They said that the Council envisaged discussions with Whitby concerning the content of Plan Change 9. The Council also said that, if from any such discussions it proved useful to extend the submission period to achieve better outcomes, it would be willing to consider the extension.Application for urgent fixture[11] The Council opposes Whitby's application for an urgent fixture on the basis that it considers an urgent fixture was not necessary nor appropriate. The Council is nevertheless prepared to work to a timetable under which all affidavits to be relied on by the parties in the judicial review application would be filed by 18 January 2008. [12] I initially proposed to counsel that an urgent fixture could be allocated in the week of 26 January 2008. However, Mr Todd (counsel for Whitby) was concerned that this would not avoid the need to prepare an extensive submission on Plan Change 9 in order to meet the 1 February 2008 deadline.Application for interim order[13] The Council also opposes the application for an interim order. Mr Todd and Mr McDermott (counsel for the Council) advised me that they were in a position to argue the interim orders application. I gave Mr McDermott the opportunity to consider whether he had sufficient time to prepare his submissions. He said that he had and considered that his arguments would not be any different if he were given more time.Submissions[14] Whitby submits that there is a serious issue to be tried on its judicial review application. It submits that the interim order is reasonably necessary to preserve its position. Whitby further submits that if it is successful in its judicial review application it will have incurred substantial financial expenditure in putting together its submission and that expenditure would not be recoverable. Any other interested party who makes a submission will also have been put to unnecessary expense. [15] Whitby further submits that the order is appropriate. It submits that there is no prejudice to anyone other than itself if the date for filing submissions is suspended. It notes that in the meantime any resource consent application it might lodge would have to comply with both the existing plan and Plan Change 9. Whitby is prepared to undertake that in the interim period it would not use the suspension of the submission period in any argument as to the weight Plan Change 9 should have in determining any application for resource consent made by Whitby in relation to its land. [16] Mr McDermott, in response, submits that the Council has given Whitby more than adequate time to file its initial submissions. He points out that the statutory minimum period for submissions is 20 working days and the Council has allowed 72 working days. He submits that it is in the public interest for there to be a fixed date for submissions. He advises that the Council is prepared to undertake to suspend the process once the submission period has closed. That would enable the Council tohave a finite deadline for submissions. He says that would also protect Whitby until its judicial review application has been heard.My view[17] On the basis of the material before me I am not able to assess the strengths of Whitby's judicial review application. I therefore regard this is a neutral factor in determining whether an interim order should be made. [18] The proposal the Council has made to suspend the process does not deal with Whitby's concern that if its judicial review application is successful it will have been required to unnecessarily expend what it says will be considerable resources in preparing its submission to Plan Change 9. If the Council considers it can suspend its process once submissions are received, that confirms what Mr McDermott has said, namely that if an interim order is made the only potential "harm" is the public interest in there being a fixed date for submissions. In my view that public interest is adequately met by the Council advertising a new date for submissions. Mr McDermott confirmed that this could be done without any difficulty. Mr McDermott does not point to any other public or private interest that is affected if the interim order is granted. [19] In these circumstances I consider that the interim order sought by Whitby is necessary to preserve the position of Whitby and that an interim order in the terms sought, and on the basis of its undertaking, ought to be made.Leave[20] The interim order application came before me at short notice. I gave Mr McDermott the opportunity to comment on the terms of the interim order set out above. Other than suggesting that the applicant's land could be more precisely defined he had no other comment on the wording of the proposed order. Leave is reserved to either party to apply for such further directions or any amendment to the wording of the order as may be necessary.[21] The judicial review application has been set down for hearing on 23 April 2008. Mallon JSolicitors: G Todd, Macalister Todd Phillips, PO Box 653, Queenstown (ph: 03 441-0125, fax: 03 442 8116) M McDermott, Simpson Grierson, PO Box 2402, Wellington (ph: 04 499 4599, fax: 04 472 6986)