Auckland Council v Auckland Council

COURT OR TRIBUNAL

Environment Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

22/02/2018

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Coastal hazard

REVIEW TYPE

Merits review

SUMMARY

(Linxplus case summary from Lexis)

ENVIRONMENTAL LAW - appeal by Auckland Council against the decision not to grant it resource consent - the application had been for resource consent for works associated with a walkway on, and the protection of, the esplanade reserve which ran between Kohu Street and Marine View at Orewa Beach - preliminary jurisdictional issue as to whether a local authority could lodge an appeal against its own decision with itself as the applicant - Orewa Beach was subject to climate change and sea level rise, including erosion or at least littoral movement of sand - the Hibiscus and Bays Local Board of the Council was concerned that pedestrian access along the esplanade reserve between Kohu Street and Marine View was inadequate - it had sought and been refused consent for works in this area - the Community Facilities department of the Council prepared a plan to create a concrete walkway along the esplanade reserve, protected by a seawall - the application was publicly notified and was made to the Council as consent authority - after receiving the decision of the Council, the applicant met informally with members of the local Board staff of the Facilities department and external legal advisors to review the position - core issue at this preliminary stage was whether a council could appeal against its own decision - EnvC considered the nature of the Council and the assumption in legal theory that a single entity has unity of intent or purpose - generally under NZ law, you could not sue yourself - in public law a fundamental principle was that the Crown speaks with one voice - it was pertinent that no counsel in this case could direct the Judge to a case where a council had pleaded not guilty to a charge laid against itself - the EnvC remained of the view that a council, as a single legal entity, must act with integrity and accountability - there was no basis on which a council could assert that it was able to split itself - if it were to act as both appellant and consent authority, then it must do so in a way that carefully addressed and avoided apparent conflicts and minimised complications

HELD: the appeal should proceed to a hearing unless otherwise resolved among the parties -parties directed to confer to see whether they could agree on a joint memorandum setting out proposed terms and conditions for the hearing - joint memorandum to be filed

(Excerpt from second judgment)

[1] The esplanade reserve in the middle section of Orewa Beach is badly affected by erosion from storm events. Public use of the esplanade reserve is hindered or even prevented by this erosion. This case is about a proposal to construct a seawall to protect the reserve and to provide a formed walkway along it. The issues arising from the application for resource consents in respect of the proposal include whether such a seawall is the most appropriate method of responding to the erosion and whether the designs of the seawall and of the pathway are suitable taking into consideration their effects on users of the beach and the reserve and on owners and occupiers of properties adjoining the reserve.

CASE DOCUMENTS

Auckland Council v Auckland Council [2018] NZEnvC 56
Auckland Council v Auckland Council [2020] NZEnvC 70