The case of the wrongly-filed resource consent which cost Whangārei District Council $5.7 million just got more expensive – because of a defence a High Court judge says would “never be accepted”.

In scathing comments
from the High Court, Justice Kit Toogood described a separate peg of the council’s defence as the result of a “deeply flawed analysis”.

The comments come in a new High Court judgment which ordered the council to pay one-time quarry owner Jimmy Daisley increased legal costs of $510,000 because of its flawed defence in the case.

It was one of two developments in the case – the other was the council filing an appeal over the judgment which ordered it pay Daisley $5.7m.

Asked about the appeal, Daisley, 69, told the Advocate: “I was disappointed – but they are absolute low-life mongrel bastards.

“I thought maybe I would get on with my life. But it’s not unexpected because of the type of people they are – just low lives.”

The saga of Daisley, his quarry and the misplaced resource consent began in February 2005 when a council officer issued a legal notice telling him to stop removing quarried dirt and rocks from his property at Ruatangata, north of Whangārei.

Whangārei District Council claimed there was no resource consent that allowed Jimmy Daisley to run a quarry on his land even though it held the paperwork for it.

When Daisley bought the property a few months earlier he knew it had been quarried for decades and extra rates were charged to cover mineral extraction even though there was no resource consent explicitly stated on the council’s LIM report.

Four years later, Daisley was heading to Environment Court and “suffering financial difficulties”, according to the judgment. It said he “was forced by his bank to place the property on the market for sale” where it went for less than if quarrying was an accepted consented activity.

It was then, in 2009, a lawyer working for Daisley found the missing consent in council’s archived records.

In May 2011, council granted the new owner permission to quarry the land. Council didn’t drop the Environment Court action against Daisley two months later.

Daisley filed the legal case against the council in August 2015 claiming its actions were unlawful and the judgment in his favour was issued in June.

A new judgment released late last week had Toogood ordering the council to pay a higher share of Daisley’s legal costs because it was responsible for “untenable legal and factual issues”. He said those issue “contributed unnecessarily to the time and expense of the proceeding by pursuing arguments lacking merit”.

Toogood said council’s criticism of Daisley for buying the land as a quarry when there was no consent on the LIM was “a deeply flawed analysis”. He said the absence of a consent on the LIM – when one did exist – was “false information negligently provided by the council”.

He said it was also wrong of council to criticise Daisley for failing to prove there was a resource consent that allowed a quarry to operate on the land.

Toodgood said the court would never have accepted the council’s argument it was up to Daisley to prove a consent existed when there was a consent and it was in council’s possession.

He said it was “unreasonable” the council didn’t acknowledge before trial “its negligence in regard to the storage and retrieval of records” and “unfathomable” its insistence Daisley was to blame for not proving a consent existed.

The decision to appeal will further extend a saga that has been running for 17 years which Daisley said came close to breaking him and ruining his life.

Daisley said he expected the appeal to stretch the case out for at least another year. “It’s what they do. They’re hoping I’ll die or disappear but it’s too late now – my estate will take over.”

He said the council should be reviewing the steps it had taken from the outset through an independent inquiry.

“You can’t treat people like this. That’s why I’ve hung in because it may help someone else. I can see why people don’t do it. If I knew then what I know now, I might have let them win.”

He said the constant pressure and ongoing resistance by council had him feeling it was “hammering, hammering, hammering and still are”.

A spokeswoman for the council said “the council’s indemnifier” made the decision after reading the High Court judgment. The council has insurance cover for legal action. The Advocate asked the council if it had to follow its insurer’s decision-making or if it could make its own decision. No reply has been received.