Northland businessman fails in attempt to persuade High Court

The Whangarei District Council has been taken to the High Court by businessman Malcolm Daisley. Photo / Michael Cunningham

The High Court has dismissed an application to apply for summary judgment by a Whangārei businessman against a territorial authority and a well-known lawyer in a protracted legal battle.

Malcolm Daisley has taken the Whangārei District Council and lawyer Wayne Peters to court, alleging a number of breaches pertaining to a commercial quarry he operated on Knight Rd in Ruatangata.

Late in 2004, Daisley bought a block of land including the quarry, which he said had a 1988 open-ended land use consent for the quarrying of red/brown rock.

Between February 2005 and August 2009, WDC issued a series of abatement and infringement notices and an enforcement order and said the quarry's operation was an unconsented and unlawful use of the land.

Further notices were issued and in August 2009 the council applied to the Environment Court for an enforcement order preventing any mineral extraction for up to 16 months.

The council withdrew its abatement and infringement notices a month later after the land use consent documents were discovered by an employee of Peters, acting for Daisley.

Daisley claims the council's breach of its duty of care resulted in loss of revenue, its actions diminished the value of his property, and he incurred losses while making resource consent applications. He has since sold the quarry.

In the High Court, Daisley said WDC breached its statutory duty under the Resource Management Act 1991 and was negligent when issuing the abatement, infringement and enforcement notices.

His claim against Peters was that the lawyer was instructed to consider and advise him as to whether WDC was responsible for the infringement actions and on his options against WDC.

Justice Anne Hinton declined to grant leave for Daisley to make an application for summary judgment because she was not satisfied WDC had no arguable defence. She said Daisley's application was out of time, being brought two-and-a-half years after the key factual matters became known to him.

Daisley's main claim against WDC and Peters is still before the court.