A misplaced quarry consent issued by the Whangarei District Council (WDC) in 1988 started a two-decade-long legal battle between the quarry owner and the Council.
Twenty years ago, Jimmy Daisley bought a long-established and operating quarry near a farm in Ruatangata near Whangarei.
In the same year, the WDC approached him and gave him a Land Information Memorandum (LIM), claiming the quarry was not consented to. In the following years, Jimmy was issued infringement notices before enforcement actions were taken up in the Environment Court for his alleged breaches of these notices.
Jimmy contested this legal action until, in 2009, a land use consent issued in February 1988 was found among the Council’s old files. Unfortunately, by this time he was under so much financial pressure that he sold his farm to his neighbours at a ‘forced sale’ price.
It wasn’t until 2011 that the Council acknowledged the quarry had the necessary consent and withdrew its enforcement proceedings.
Daisley took the Council to court over his troubles and, in the Whangarei High Court in August 2021, Justice Kit Toogood found the Council had breached its duties by: failing to keep the 1988 land use consent in its current records; not conducting diligent searches before deciding to take legal action; and by being obstructive, particularly after the consent was found in 2009. Toogood also said the Council’s actions amounted to fraudulent concealment and it was liable for negligence and misfeasance, and the Court awarded damages totalling $4,279,622 and granted Daisley’s request for a sale order of Council land (Forum North) to pay him.
In 2022, the Council appealed. The hearing was held late last year, with the Court of Appeal finding that, as the current council officers did not know of the 1988 consent, they couldn’t have concealed it, but they were still deemed reckless for not searching council records before taking enforcement action. The Court of Appeal set aside the finding of liability for misfeasance (and an award of $50,000 in exemplary damages), but ruled the Council was still liable for the damages.
Veteran quarry inspector Andy Loader was a witness for the defence. He had been the regional inspector who had visited the working quarry in the course of his job, long before Daisley had purchased it.
“I congratulate Daisley on staying strong and seeing his fight out to the end. The result after the appeal process has vindicated his stand. My thoughts on the matter are that this should be considered a warning to all councils of the outcome of failing to ensure due process is followed when dealing with these types of issues that may carry huge impacts for all parties.
“After all, no matter how the situation occurred, it is the ratepayers who will have to carry the costs for redress, not the staff who made the mistake or who made the decision to fight to the bitter end, including going to appeal.”
