An elderly Auckland homeowner would have to seek a High Court judicial review to find out if the Auckland Council's resource consent botch up could have stopped his neighbour blocking out his daylight.
The Council granted 430 consents that it potentially shouldn't have between December 2016 and December 2017, because it incorrectly interpreted its own complicated, inconsistent Unitary Plan rules - consenting staff ignored zoning rules when a property was affected by a Special Character Overlay.
But despite the mistake being entirely the Council's, the neighbours of people who are building on a potentially unlawful consent have no recourse except a High Court judicial review.
Neighbours like Gary Pont, 82, who's lived on Beaconsfield Street in Grey Lynn his entire life and whose property developer neighbour Alistair Raw was granted consent to build a two-storey backyard extension.
"I don't think we'll see daylight somehow, with the way they've gone up," Mr Pont said. "It's a shock to the system."
Auckland Council has recommended that Alistair Raw and the other 429 people holding a potentially unlawful consent stop construction and obtain a new consent.
But Mr Raw, of Raw Landscape and Build Limited, has not stopped construction and has not applied for a new resource consent.
Mr Pont believes that when Mr Raw's renovations are finished, his home will decrease in value.
Mr Raw declined repeated requests to be interviewed.
Mr Pont cannot afford a High Court judicial review so is considering moving out of his Grey Lynn home, which he's lived in for 71 years.
"I've only got a few years to go here now. I thought I could've lived it out with a quiet lifestyle. But we'll wait and see on that," Mr Pont said.
Auckland Council declined to be interviewed but said in a statement it would try to "facilitate mediation between consent holders and neighbouring property owners".
The Council only noticed its mistake after it was brought to its attention by a specialist environment and resource consent lawyer Allan Webb.
Mr Webb said at first the Council refused to accept it had made a mistake.
"I spoke to their lawyers and said, 'Rather than being pistols at 50 paces over this, why don't we get a declaration? Or why doesn't the Council get a declaration to clear this up?'"
The Environment Court subsequently ruled that the Council was wrong in ignoring underlying Single House Zone rules when determining resource consent applications for properties affected by a Special Character Overlay.
But the consents are legally valid until they are challenged in the High Court, Mr Webb said, because the question is whether the decision to grant a consent would be different if the rules were applied correctly in the first place.
"Legally they may not have an obligation [to fix their mistake]. There's a legal dimension and a moral dimension - moral in the sense of should they do the right thing, and legal, do they have to?"
"Quite often, those two are different.
"But if the Council truly wanted to sort this out, then yeah there is a way and means for them to do that.
"Hopefully the Council will go above and beyond in these mediation sessions to try and get settlements that are as equitable as possible for all concerned."
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