There is civil unrest in both New Caledonia and Rafah as conflict continues, the Waitangi Treaty is claimed to have been breached regarding the governments reforms on hospitals.
A legal saga spanning two decades, in which a council misplaced a crucial resource consent, has reached another chapter as the Court of Appeal reaffirms the council’s liability to pay millions for negligence.
Malcolm Daisley, known as Jimmy Daisley, has been in an enduring battle with the Whangārei District Council (WDC) for 20 years, clocking up such a financial burden he was forced to sell his property.
Despite rulings from the High Court for the WDC to pay up, the council has yet to pay a dollar and has failed once again in its latest bid to avoid penalty.
Daisley has been vocal about the penalty he is owed even applying to the High Court to force the sale of Whangārei’s largely vacant convention centre, Forum North.
In 2004 Daisley ventured into quarrying when he purchased a quarry alongside a farm property in Ruatangata near Whangārei.
The sellers assured Daisley, rightly so, that the quarry operations had faced no challenges or prohibitions until then.
However, in November 2004, the Whangarei District Council issued a Land Information Memorandum (LIM) to Daisley mistakenly stating that no resource consent had been issued for the quarry.
From 2005 onwards, the council adamantly denied the existence of any consent, claiming the quarry operations (that had been running for almost 30 years) were unauthorised and unlawful.
Caught in a legal quagmire, the council began bombarding Daisley with abatement and infringement notices followed by enforcement actions in the Environment Court for his alleged breaches of these notices.
Undeterred by the council’s persistence, Daisley sought to regulate his operations by applying for resource consent for quarrying activities in 2006.
However, his efforts were met with further resistance from the council, which continued its enforcement actions against him.
The turning point came in 2009 when Daisley’s solicitor stumbled upon a hidden gem among the council’s files - a land use consent issued in February 1988.
This revelation marked the first time Daisley became aware of its existence.
Facing the looming threat of a mortgagee sale of his property, Daisley opted to sell the farm in 2009 to his neighbours in what he described as a “forced sale” price.
Finally, in 2011, after a prolonged legal battle, the council relented and acknowledged Daisley did indeed possess the necessary consent to operate the quarry.
As a result, the enforcement proceedings were withdrawn.
Traumatised by the situation Daisley described as “17 years of hell”, he took the council to court alleging negligence and misfeasance in public office for knowingly and deceptively denying the existence of a valid consent.
Jimmy Daisley has been vocal about the WDC selling Forum North to pay the debt owed to him. Photo / NZME
High Court trial
During the three-week hearing in the High Court at Whangārei on August 2, 2021, Daisley’s case against the WDC involved testimonies from a few key witnesses.
The council called three witnesses to explain its record-keeping and rating systems but notably, none of the four council officers named in the 1988 consent testified.
Justice Kit Toogood found from November 2004 to September 2009, the council continuously breached their duties by failing to keep the 1988 land use consent in current records and did not conduct diligent searches before issuing abatement notices and taking enforcement actions.
Justice Toogood also found the council’s conduct was reckless and obstructive, especially after discovering the 1988 consent in 2009.
Their persistent opposition and failure to apologise demonstrated a clear disregard for Daisley’s rights and proper administrative process.
Furthermore, the judge found the council’s failure to acknowledge the consent amounted to fraudulent concealment and concluded the council was liable for negligence and misfeasance.
The High Court awarded Daisley damages totalling $4,279,622, with interest that continues to grow by the day. Included in the compensation is a payment of $50,000 in exemplary damages.
The court also granted his request for a sale order on the 2.387 hectares of land that the Forum North sits on in Rust Ave to pay the multimillion-dollar debt the council owes him.
Court of Appeal ruling
The WDC appealed the ruling in 2022 and a hearing was held in late 2023.
This week the Court of Appeal released their decision and made a slight adjustment to the High Court ruling.
The appeal court found no current council officers knew of the 1988 land use consent, thus they could not have wilfully concealed it. However, the officers were deemed reckless for not searching council records before taking enforcement actions against Daisley, despite credible indications a consent might exist.
Despite council officers being subjectively reckless, the Court of Appeal found they were not acting in bad faith.
Consequently, the appeal court set aside the finding of liability for misfeasance and the award of exemplary damages, $50,000, but ruled the council is still liable for the damages.
A council spokesperson told NZME councillors will be briefed next Thursday and may have a comment to make after that.
Messages left for Daisley by NZME were not returned at the time of publication.
Shannon Pitman is a Whangārei based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.
