The High Court has dismissed Whangarei District Council's attempt to strike out an application by a businessman seeking damages after problems with the land use consent of a quarry he owned.
Malcolm James Daisley, a contractor of Maungakaramea, has taken the council and Whangarei 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, Mr 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.
In February 2005, the council issued him with an abatement notice to stop quarrying brown stone and other material in excess of 500cu m, saying quarrying was not allowed by a resource consent.
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 Mr Peters, acting for Mr Daisley.
Mr 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 applica-tions. He has since sold the quarry.
Mr Daisley is seeking damages, interest and costs from the council. A hearing date on his statement of claim against the council and Mr Peters is yet to be set.
In September last year, the council filed an application for an order to strike out his claim on the basis it was filed out of time. Mr Daisley opposed the application.
The council argued in court it had not concealed anything and that the land use consent in question was always discoverable when the council's abatement notices were issued.
Mr Daisley argued through his lawyer, Simativa Perese, that the council proceeded to prosecute him knowing or being wilfully blind that there was no proper basis for the prosecution.
Associate Judge Anthony Christiansen said it was arguable the council issued a number of abatement notices and went to the Environment Court despite knowing of the land use consent's existence. He dismissed the council's application and ordered costs in favour of Mr Daisley. The costs are still being worked out.