Berry Simons closes the book on eight years of litigation with Cable Bay

Fri Dec. 9th 2022

It has been a long journey however our clients can finally enjoy the amenity they were always entitled to, says Sue Simons.

Sue Simons has finally closed the book on an enduring case on Waiheke Island following the High Court’s dismissal of an appeal for costs by Cable Bay Wine Ltd and Motukaha Investments Ltd and Auckland Council in Auckland Council v Loranger [2022] NZHC 3241 on 6 December 2022.

Sue initially took instructions from her clients in 2015, a year after the neighbours of Cable Bay began experiencing significant adverse effects from the unlawful activities conducted by Cable Bay. Auckland Council, in the meantime, took years to enforce the provisions of the District Plan.

It was not until four years after the unlawful activities commenced that Auckland Council sought an enforcement order, and Cable Bay was made to apply to Auckland Council for retrospective consent for the activities. During this application process, the Commissioners could assess the actual effects of the activities, confirming that the application could not pass through either of the “gateway tests” of the Resource Management Act 1991, and consent was declined.

In February 2018, Cable Bay appealed the Commissioner’s decision to the Environment Court, and the neighbours joined as interested parties. Almost two years of Environment Court litigation followed, culminating in four interim decisions and a final decision. During the proceedings, the Environment Court stated that consent remained “…no more than a possibility; not a probability, let alone a certainty.”

In September 2020, the parties reached a consensus on suitable conditions found through implementing the novel Erskine approach. As a result, the resource consent granted was a heavily modified version of the original 2017 application, thus allowing Cable Bay to lawfully operate its winery, restaurant, and some of its ancillary activities. However, still unhappy with this result, Cable Bay appealed to the High Court and Court of Appeal. Both appeals were unsuccessful and dismissed by the Courts.

In May 2022, the Environment Court awarded costs in favour of the neighbours: $412,770 to be paid by Cable Bay; and, $82,554 to be paid by Auckland Council. This is thought to be the highest costs award made by the Environment Court.

Auckland Council and Cable Bay appealed to the High Court, alleging several errors of law in the Environment Court’s costs decision. Berry Simons was able to successfully defend the appeals in favour of the neighbours. The High Court’s dismissal of these appeals signals the end of nearly eight years of litigation.

Partner Sue Simons says:

“It has been a long journey for our clients, with Cable Bay resisting every effort made to have them comply with the law. Ultimately through the Neighbour’s tenacity, they can finally enjoy the amenity they were always entitled to.”

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