Alpha Dairy NZ Limited v Auckland Council
[2020] NZHC 1517
•30 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-2455
[2020] NZHC 1517
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of sections 95A, 95B, 95D, 95E, 104 and 104D of the Resource Management Act 1991 in relation to an application to review a statutory decision to grant consents on a non- notified basis under the Resource
Management Act 1991
BETWEEN
ALPHA DAIRY NZ LIMITED
First Applicant
GEUMSOON SHIM AND LIAN SENG BUEN
Second Applicants
AND
AUCKLAND COUNCIL
First Respondent
TONEA INVESTMENTS (NZ) LIMITED
Second RespondentContinued over
Hearing: 7 – 10 October 2019 Appearances:
A W Braggins and E J Sheppard for First Applicant D K Hartley and W M C Randal for First Respondent
R B Brabant, J C Brabant and S T Darroch for Second Respondent R B Enright for Intervenor
Judgment:
30 June 2020
JUDGMENT OF PETERS J
ALPHA DAIRY NZ LTD v AUCKLAND COUNCIL [2020] NZHC 1517 [30 June 2020]
CIV-2019-404-1330 UNDER
the Judicial Review Procedure Act 2016
IN THE MATTER
of section 312 of the Resource Management Act 1991 in relation to an application to review a statutory decision to grant a
declaration on a confidential basis under the Resource Management Act 1991
BETWEEN
ALPHA DAIRY NZ LIMITED
First Applicant
GEUMSOON SHIM AND LIAN SENG BUEN
Second ApplicantsAND
THE ENVIRONMENT COURT
First Respondent
TONEA INVESTMENTS AND STUDIO NEW ZEALAND LIMITED
Joint Second Respondents
AUCKLAND COUNCIL
Third Respondent
This judgment was delivered by Justice Peters on 30 June 2020 at 5 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Berry Simons, Auckland
Keegan Alexander, Auckland DLA Piper, Auckland
Counsel:R B Brabant, Auckland J C Brabant, Auckland S T Darroch, Auckland
Introduction
[1] This judgment concerns two applications for judicial review arising from the following decisions.
[2] First, on 13 June 2018, Auckland Council granted the second respondent (“Tonea”) resource consent, on a non-notified basis, to build and operate a film production studio on a site in Takanini, Auckland at which films, including animated films and television series for streaming services such as Netflix, are to be produced by third party companies. The applicants, together referred to as “Alpha”, own an adjoining site, on which they have resource consent to construct and operate a factory to manufacture infant milk formula. The first application for judicial review (“CIV-2455”) is a challenge by Alpha to the Council’s decisions not to give it limited notification of Tonea’s application for resource consent and to grant the consent sought (the “notification decision” and “substantive decision” respectively). Alpha seeks orders setting aside both decisions, alternatively an order directing the Council to reconsider the conditions of Tonea’s resource consent.
[3] Alpha’s second application (“CIV-1330”) arises in this way. The Council determined Tonea’s application on the basis that what Tonea proposed was/is a non-complying activity within the relevant zone, being the Business – Light Industry zone of the Auckland Unitary Plan (“AUP”).
[4] Tonea did not, and does not, agree that its proposed activity is non-complying, contending film production, which is not otherwise provided for in the AUP, is “Manufacturing” and therefore “Industrial activity”, both as defined in the AUP.1 Tonea contends therefore that film production is a permitted activity in the Light Industry zone, and indeed in several other Business zones designated in the AUP.2 (References to “Manufacturing” below are references to Manufacturing as defined in the AUP.)
1 The AUP makes some provision for “filming” as a temporary activity but Tonea’s consent permits it to develop a substantial, “one stop”, facility which will accommodate all aspects of the film production process on site.
2 Those zones are Business – Light Industry, Business – Heavy Industry, Business – General and Business – City Centre.
[5] Having obtained the resource consent referred to in [2] above, Tonea, together with Studio New Zealand Ltd (“Studio NZ”), applied to the Environment Court for a declaration that what was proposed was Manufacturing.3 The Council was a party to the application, filed submissions partially in opposition, and was heard on the matter. The Environment Court largely accepted Tonea’s case, and made the following declaration:4
That the creation/manufacture of motion pictures, including development, pre-production, production, and post-production, distribution/merchandising, is an Industrial Activity, being Manufacturing – “Making items by physical labour or machinery”, by reference to the Definitions, controls, and context in the Auckland Unitary Plan (AUP) in the Business – Light Industry Zone and Business – Heavy Industry Zone.
[6] Moreover, in both proceedings, Alpha seeks a declaration that the film production activities Tonea proposes on its site are not Manufacturing.
[7] The Council opposes Alpha’s case for review of the notification and substantive decisions but otherwise abides the decision of the Court.
[8] Tonea likewise opposes Alpha’s case for review of the notification and substantive decisions, supports the Environment Court’s declaration and, with Studio NZ, counterclaims for a declaration in the following terms:
The creation/manufacture of motion pictures, including development, pre-production, production, and post-production is an Industrial Activity, being Manufacturing by reference to the definitions in the Auckland Unitary Plan (AUP).
[9] This is similar to the declaration the Environment Court made, but adds “development”, which is a specific phase of film production, and omits the Environment Court’s reference to “controls, and context”.
[10] Wiri Oil Services Ltd (“Wiri”), which operates the Wiri Oil Terminal, was given leave to intervene in CIV-2455. The terminal is in the Heavy Industry zone. Wiri’s interest in the proceeding relates to the declaration Tonea seeks. Wiri’s concern is that, if film production is Manufacturing, then it is a permitted activity in the Heavy
3 Studio NZ is in a joint venture with Tonea to develop the proposed facility.
4 Tonea v Auckland Council [2019] NZEnvC 61 at [56] (original emphasis).
Industry zone which Wiri considers entirely undesirable, as it has the potential to constrain the efficient use of land in the zone. Representatives of Fulton Hogan Ltd and one of its subsidiaries expressed similar views in affidavits filed in the proceeding.5
Summary
[11] For reasons set out below, I am satisfied the activities proposed for the Tonea site are Manufacturing.
[12] This is determinative of Alpha’s application in CIV-2455 for this reason. Alpha’s principal complaint is the Council failed to have sufficient regard to adverse “reverse sensitivity” effects on the Alpha site if the film studio is on the adjacent site. Reverse sensitivity refers to:6
... the effects of the existence of sensitive activities on other activities in their vicinity, particularly by leading to restraints in the carrying on of those other activities.
[13] In particular, there is the prospect of noise and air emissions from the Alpha factory and Alpha submits that its use of its site will be constrained if Tonea is permitted to develop on the adjacent site. Alpha’s case on the notification decision is that, as the activity proposed was non-complying, the Council was required to give sufficient consideration to those reverse sensitivity effects and it did not do so.
[14] As Alpha accepted, however, these objections fall away if film production activity is a permitted activity on the Tonea site, which I consider it is.
[15] Given that, it is unnecessary for me to address Alpha’s application for judicial review of the Council’s notification and substantive decisions.
[16] I do not propose to set aside the Environment Court’s declaration, although it goes beyond that I am willing to make. In determining whether what is proposed is Manufacturing, I have focused on the activities Tonea has said are to be conducted on
5 Affidavit of S C Dyne affirmed 23 August 2019; and affidavit of T J Ford affirmed 23 August 2019.
6 Outline of Legal Submissions on behalf of Auckland Council dated 20 September 2019 at [28].
the site. The focus before the Environment Court was somewhat different. It was predicated on affidavit evidence from Mr Murray Francis, referred to below, rather than Tonea’s specific application. The Court recorded that its declaration depended on the “factual underpinnings” as recorded in its decision and, accordingly, that decision speaks for itself.
Sites
[17] Alpha, Tonea, and Spark New Zealand Trading Ltd (“Spark”) own adjoining sites in Takanini.7
[18] Alpha, or strictly speaking the second applicants, own 3 Popes Road, Takanini (“Alpha site”).
[19] Spark, which has not participated in these proceedings, owns 23 Popes Road, Takanini, where it has a data centre.
[20] The film studio is to be constructed at 296 Porchester Road, Takanini (“Tonea site”). This land is owned by Mr Bruce Wallace, Ms Sarah Wallace, Tonea Trustee Company Ltd and TLR Wallace Trustee Company Ltd (“Wallace entities”).
Consents
Alpha
[21] Alpha’s site, presently 11.8 ha, is to be subdivided. Its factory will occupy Lot 1 (5.3 hectares), and be adjacent to the western boundaries of the Spark and the Tonea sites.
[22]Alpha applied for its consent in June 2017.
[23] The Council publicly notified Alpha’s application in March 2018. This was done at Alpha’s request due, as I understand it, to the proximity of land zoned for residential use. The Wallace entities, or parties associated with them, opposed Alpha’s
7 In addition to being zoned for Light Industry, the sites are within Sub-precinct A of the Takanini Precinct but nothing in particular turns on that in this proceeding.
application, as did Spark.8 The gist of the opposition was that what Alpha proposed had the potential to produce objectionable odour, dust and noise emissions, which are to be avoided in the Light Industry zone (see the zone description below). On its face, this ground of opposition appears to give weight to Alpha’s complaints of adverse reverse sensitivity effects. However, the matter is more complicated than that and I shall not lengthen this judgment exploring the point. A panel of Independent Hearing Commissioners, on behalf of the Council, granted Alpha’s application on 20 February 2019. The Wallace entities have appealed the decision to the Environment Court.
Tonea
[24] Tonea’s site is approximately 11.6 hectares. The film studio will comprise eight new buildings, with a combined gross floor area of almost 59,000 m2, and will operate 24-hours a day, seven days a week.
[25] Tonea made two applications for resource consent, the first in October 2017 and the second in April 2018. In each it sought various consents for earthworks, height infringements, and such like for the development. Nothing turns on those aspects of Tonea’s application. The important point is Tonea’s first application was made on the basis film production was permitted as an Industrial activity in the zone. In March 2018, the Council informed Tonea it considered the activity non-complying, requiring Tonea to seek consent for the activity itself. This was consistent with a view reached earlier by the Council, in respect of a different application to establish a film studio.
[26] Although it disputed this assessment, Tonea lodged its second application on 16 April 2018 (“April application”).
[27] The Council considered the April application in early May 2018. A consultant planner to the Council, Mr Hayden Taylor, prepared detailed advice on whether the Council was required to give public notification of the April application. Mr Taylor advised neither was required and recommended the Council grant the consent sought.
8 There were no other opponents.
[28] Ms Tracey Grant, the senior Council planner, assigned to “project manage” Tonea’s application, approved Mr Taylor’s report which was then referred to an Independent Duty Commissioner, Commissioner Hill, on 11 May 2018.
[29] Despite Mr Taylor’s recommendations, on 11 May 2018, Commissioner Hill determined the Council was required to publicly notify the application as he considered the adverse effects on the environment of a proposed vehicular access between the Tonea site and Nancy Wake Street, Takanini (“Nancy Wake access”) would be, or were likely to be, more than minor.9 Commissioner Hill also stated that, regardless, he would have determined public notification was required as a result of “special circumstances”:10
… the nature and scale of the activity and the uncertainty of the “environment” in relation the land on Nancy Wake Street … this combination of factors makes the proposal unusual and out of the ordinary ...
[30] This information was relayed to Tonea, following which it filed an “Addendum Report” dated 23 May 2018, advising it would delete the Nancy Wake access. Tonea also supplied additional specialist reports as to the significant changes to the application it considered such deletion would cause.
[31] Having received this Addendum Report, the Council commissioned a second notification report, this time from Mr Dylan Pope, another consultant planner. Mr Pope likewise concluded the Council was not required to give public or limited notification of the application, and that it should grant the consent sought. Ms Grant approved these recommendations, and the matter was referred back to Commissioner Hill who, on 13 June 2018, made the notification and substantive decisions referred to above.11
[32]The consent granted to Tonea was in the following terms:
To construct a new industrial development for the creation/manufacture of motion pictures, including pre-production, production and post-production;
9 Resource Management Act 1991, s 95A(8)(b).
10 Section 95A(9)(a).
11 One of Alpha’s grounds of review was that the Council was functus officio after its notification decision of 11 May 2018. Again, it is unnecessary to address this important point, given the decision I have reached.
associated earthworks, disturbance and remediation of contaminated land, and discharge of contaminants.
Declaration
[33]I turn now to the declaration Tonea seeks which, for convenience, I repeat:
The creation/manufacture of motion pictures, including development, pre-production, production, and post-production is an Industrial Activity, being Manufacturing by reference to the definitions in the Auckland Unitary Plan (AUP).
[34] On 16 July 2019, Palmer J directed this application be treated as an application for judicial review.12 Counsel for Alpha, Mr Braggins, submits this requires Tonea to identify an error on the part of the Council in requiring Tonea to apply for resource consent on the basis the activity it proposed was non-complying. That is incorrect. Palmer J directed Tonea’s application for the declaration be treated “as if” it were an application for judicial review.13 This direction is solely procedural in nature.
Auckland Unitary Plan
[35] Aside from a range of regional and district provisions which apply across Auckland or parts of it, the AUP includes a discrete chapter for each of the various Residential, Business, Rural and special purpose type zones. Amongst other things, these chapters identify the status of various activities in the zone.
[36] Permitted activities in the Light Industry zone, that is those which may occur without consent for the activity itself, include Show homes, Trade suppliers, Industrial activities, Wholesalers, Storage and lock-up facilities, Animal breeding or boarding, Horticulture, Offices accessory to the primary activity on the site subject to a permitted maximum area, Drive-through restaurants, Food and beverage facilities up to 120 m2, and Garden centres and Motor vehicle and Marine sales situated at least 100 metres from a Heavy Industry zone.14 “Restricted discretionary” activities include offices exceeding the maximum permitted as of right, and Garden centres etc within
12 Alpha Dairy NZ Ltd v Auckland Council CIV-2018-404-2455, Minute No 2 of Palmer J dated 19 July 2019.
13 Judicial Review Procedure Act 2016, s 12(2).
14 Auckland Unitary Plan, Chapter H – Light Industry Zone at [H17.4.1].
100 metres of a Heavy Industry zone.15 Restricted discretionary activities are those in respect of which the Council has confined its discretion to particular considerations.16 An activity not provided for is non-complying. In short, film production is either permitted as a form of industrial activity or is non-complying.
[37]Industrial activity is defined in the AUP as:17
The manufacturing, assembly, packaging or storage of products or the processing of raw materials and other accessory activities.
Excludes:
· mineral extraction activities.
This definition is nested within the Industry nesting table.
[38] The nesting tables in the AUP “gather specific land use activities into general groups”.18 A reference to one of the general activities is effective to include all of the nested activities unless otherwise specified. In addition, the activity status of the general applies to the nested activity, again unless provided otherwise.
[39]The Industry nesting table in the AUP is:
15 At [H17.4.1].
16 Resource Management Act, s 87A(3).
17 Auckland Unitary Plan, Chapter J – Definitions at [J1.4].
18 At [J1.1.1].
The AUP defines Manufacturing as:19
Making items by physical labour or machinery. Includes:
· assembly of items.
This definition is nested within the Industry nesting table.
[41] This definition is not materially different from the definition of manufacture in the Shorter Oxford English Dictionary:20
manufacture
Make or fabricate from material; produce by physical labour or machinery, now spec. on a large scale.
Bring (material) into a form suitable for use.
[42] For the sake of completeness, I record it is not suggested what will occur in the Tonea development is “Light manufacturing and servicing”, the definition of which is:
Places where articles, goods or produce are made, prepared and/or repaired for sale or rent and the light manufacturing and servicing activity is contained entirely within a building, does not require the use, storage or handling of hazardous substances requiring separate resource consent and does not require any air discharge consent.
Excludes:
sales or servicing of motor vehicles.
Use of the Tonea site
[43] Tonea’s April application included a description of expected activities in the built development, as follows.
[44] The studio will comprise eight new buildings and comprise 18 “Areas”, with up to 678 people expected on site at any one time, up to a maximum of 1,031.
[45] Taking the areas in the order in which they will usually be required, Areas 14 and 15 are to be used for the construction of sets and the making of “props”. Once
19 At [J1.4].
20 Shorter Oxford English Dictionary (6th ed, Oxford University Press, Oxford, 2007).
used, sets and props will be stored or broken down. The buildings containing these activities may be used by multiple personnel, such as electricians in one part and builders or carpenters in another.
[46] Filming will occur in Areas 1 to 8, these being described as “very large, acoustically insulated industrial sheds”, with sets installed and removed as required. These areas are in “pairs” so that filming may occur in one, whilst another is being de-commissioned and/or made ready.
[47] Area 18 is substantial and comprises 16,350 m2 (or 28 per cent of the entire facility) over three levels. Area 18 is to be used for digital film production and post-production editing and effects. It will include “motion capture stages” which, as its name suggests, is to capture movement principally for amination purposes; a reception area; meeting and screening rooms; staff facilities; and IT/data storage. Film shot in Areas 1 to 8, and on the motion capture stages, will be made into the finished product. In addition, film will be sequenced, digitally enhanced, sound recorded and added, special effects included and, in some instances, entire animated movies made.
[48] Areas 10 to 13, which serve Areas 1 to 8, are for hair, makeup, wardrobe/costume storage and dressing facilities.
[49]Area 9 is for storage of lights and scaffolding and such like.21
[50] Areas 16 and 17 are for administration matters, retail, and post-production works not accommodated in Area 18.
[51] Lastly, there are two uncovered “base camps” for car and motorhome parking, and “spill out” areas for extras.
[52] Tonea also adduced expert evidence from Mr Murray Francis, an experienced film producer.22 Mr Francis’s evidence is that film production typically entails the following five phases, with a production studio such as Tonea proposes commonly used for pre-production, production, and post-production activities:
21 Warehousing and storage is a nested activity and so permitted as of right in any event.
22 This evidence was also before the Environment Court.
(a)Development: the rights to exploit the story are acquired (if applicable), the screenplay developed and a production location and timing established.
(b)Pre-production: each step for creating the film is developed, cast and crew are hired, filming locations chosen, and sets designed.
(c)Production: sets and props are constructed, “stunts” are practised, lighting rigs are assembled, and filming takes place. This phase typically requires the greatest number of people.
(d)Post-production: the film material is assembled, edited, visual effects added and edited, and all elements are combined into the final version.
(e)Distribution/merchandising: the production company exploits revenue streams.
[53] Mr Francis’s evidence is that in the usual course of events a production studio will contract a production company to produce a particular film. The production company then contracts the film producer and director who in turn engage a director of photography, wardrobe designer and sound technician. Other personnel are then engaged in accordance with the film’s requirements. Mr Francis illustrates his evidence by reference to a particular film, The Warriors Way (“TWW”), of which he was the producer or executive producer. As Mr Braggins submitted, this is of course one example only and I do not set too much store by it. However, it does serve to evidence the activities that might be expected on the Tonea site.
[54] In TWW, a construction crew of approximately 35 people were engaged to construct the sets, and the carpenters involved, led by a construction manager, set up a workshop specific to the requirements of the project. Mr Francis states a full sawmill was constructed, together with “cutting bays, timber steaming bays, paint bays and assembly spaces”. The sets were transported to the filming areas by swing booms and diggers. Fifty carpenters, 15 hammer-hands, 10 specialised painters, three scenic artists, and various other staff were engaged.
[55] The construction crew were followed by “Riggers” (five to 10 people), who built rigs to hang lights from the studio ceiling whilst the art department prepared the set.
[56] The art department itself was managed by an art director and included set designers, graphic designers, illustrators and so on. Mr Francis’s evidence was the art department on TWW comprised approximately 60 people.
[57] Then there was a props manufacturing workshop to construct weapons and other props, including two full-time armourers to handle and build specialty weapons.
[58] In addition, there was a “Greens” department to create a suitable environment for filming, using excavators and bobcats.
[59] There was also a team of hair and make-up artists and a specialised team to manufacture various items such as wigs and prosthetics.
[60] There was an electrical department, a stunt team of 12 people who undertook five weeks of rehearsal and were involved in 13 weeks of shooting. There was an editing team of three people, Safety Officers were engaged to ensure compliance with relevant codes of practice, and security guards were also on site.
[61] The cast and crew list annexed to Mr Francis’s affidavit includes three and a half pages of cast and approximately 15 pages of crew.
[62] With this evidence in mind, I turn to consider whether what is proposed is on the Tonea site falls within the definition of Manufacturing.
Definitions
[63] Counsel supplied me with dictionary definitions for “physical”, “labour”, “machine”, “camera” and “computer”:23
physical ... of or relating to the body as opposed to the mind – involving bodily contact or activity
23 Judy Pearsall (ed) The Concise Oxford Dictionary (10th ed, Oxford University Press, Oxford, 2001).
labour ... work, especially hard physical work
machine ... an apparatus using or applying mechanical power and having several parts, each with a definite function and together performing a particular task ... technical any device that transmits a force or directs its application.
camera ... a device for recording visual images in the form of photographs, cinema film or video signals.
computer ... an electronic device which is capable of receiving information (data) and performing a sequence of logical operations in accordance with a predetermined but variable set of procedural instructions (program) to produce a result in the form of information or signals.
[64] It is helpful to have these definitions but, in my view, nothing in particular turns on them.
Environment Court decision
[65] Before I continue, I should refer briefly to the Environment Court’s declaration.
[66] The Environment Court’s decision was delivered by Principal Environment Court Judge Newhook with the assistance of Environment Commissioner, A E Leijnen. Aside from Tonea and Studio NZ, only the Council was a party to the application. Alpha was not served with the proceedings and so was not before the Environment Court to oppose the application.24 Alpha contends it ought to have been served as a party “directly affected”. Whatever the merits of that submission, Alpha has now been heard on the point and so there is no prejudice suffered.
[67] The Council made submissions in partial opposition to the declaration sought. The only substantial evidence before the Court was from Mr Francis, to whom I refer below. It does not appear Tonea’s April application was before the Court and so the factual underpinnings for the proceedings before that Court and this Court are quite different.
[68] For the purposes of this decision, it is sufficient to record the Environment Court was satisfied that much of what film production entails, as described in
24 Resource Management Act, s 312(1).
Mr Francis’s affidavit, constitutes Manufacturing for the purposes of the AUP. The Court also said it would not be appropriate to confine the declaration sought to some aspects of the process but, rather, to treat the entire film production exercise as a continuum. I agree.
Discussion
[69] The first matter to consider is whether “items” are to be made on the Tonea site.
[70] It was common ground that at least some items are to be made, and by physical labour or machinery or a combination of the two. This common ground consists of hard items such as film sets, props, lighting rigs and costumes.
[71] For Tonea, Mr (Richard) Brabant submitted that a film, however stored, is also an “item”. Mr Braggins acknowledged that item is a broad descriptor but submitted the balance of the definition of Manufacturing indicated the item was to have a physical manifestation and be capable of being held and touched.
[72] I am not persuaded as to this latter submission. As Mr Brabant submitted, there is no reason to confine what may constitute an item for the purposes of the definition by reference to the form of that item. That it is now convenient and possible to store and transfer film digitally, as opposed to reels of celluloid, cannot be determinative.
[73] For me the critical issue is whether those engaged in making a film can be said to do so “by physical labour or machinery”.
[74] Mr Brabant submitted the film is the end product of numerous processes entailing physical labour or machinery. There is physical labour in the construction or assembly of the hard items to which I have referred. However, there is also both physical labour and machinery in processes such as cameramen using or manipulating cameras, the use of equipment to record and edit sound, an actor on a “motion capture” stage, and the compilation of all elements into the end product of the finalised film, on a computer.
[75] Mr Braggins rejected the suggestion that a film could be described as made by physical labour or machinery. The gist of Mr Braggins’ submission was that a film is the product of mental exertion and intellectual creativity, as distinct from physical labour. Mr Braggins also submitted that cameras and computers are not “machinery”, at least for the purposes of the definition. This was an important point because the Environment Court considered “light tasks using computers and electronic equipment and means of communication, and writing” could constitute physical labour.25 Mr Braggins submitted that pressing a key on a keyboard or clicking a computer mouse is not physical labour.
[76] Mr Braggins further submitted that the term Manufacturing fell to be construed having regard to the objectives and policies of the Business zones. Mr Braggins submitted these require film production to be excluded from the definition of Manufacturing if the objectives of these zones are to be met. The specific objectives and policies of the Light Industry zone to which Mr Braggins referred me are these:
H17.2. Objectives
(1)Light industrial activities locate and function efficiently within the zone.
(2)The establishment of activities that may compromise the efficiency and functionality of the zone for light industrial activities is avoided.
H17.3. Policies
(1)Enable light industrial activities to locate in the zone.
(2)Avoid reverse sensitivity effects from activities that may constrain the establishment and operation of light industrial activities.
[77] Mr Braggins also submitted that the extent of the office space Tonea required evidenced what was proposed on the site was not Manufacturing. Offices of up to 30 per cent of the gross floor area of all buildings on the site are permitted activities. A restricted discretionary consent is required to exceed that percentage. In Tonea’s first application for resource consent it designated more than 50 per cent of the buildings on site as “offices”, a percentage vastly reduced in its April application. The gist of Mr Braggins’ submission was this reduction was purely cosmetic.
25 Tonea v Auckland Council, above n 4, at [50].
[78] With respect to Mr Braggins, I am not able to second guess the evidence before me but I accept that significant parts of the development are reserved for office-type spaces. The critical issue, however, is what is being undertaken in those spaces.
[79] The submissions of Mr Enright for Wiri were consistent with Mr Braggins’ but focused particularly on the differences between the Heavy and Light Industry zones. Mr Enright submitted that there was an “inherent incompatibility with the policy framework” if film production constitutes Manufacturing, as such would be a permitted activity in the Heavy Industry zone and give rise to, on Mr Enright’s view of it, particularly adverse reverse sensitivity effects.
[80] Lastly, I record that the parties filed numerous affidavits from risk consultants, planning consultants, environmental engineers and health and safety experts as to reverse sensitivity issues predicted for the Light Industry and Heavy Industry zones if film production is Manufacturing and therefore a permitted activity in these zones. I have read these affidavits but, for reasons which follow, I do not consider there is a sufficient basis for reading down the definition of Manufacturing so as to exclude film production, if otherwise encompassed by the definition.
Approach to interpretation
[81]Rule J1.1. of the AUP provides:
J1.1. Interpreting the definitions
(1)The meaning of the provisions in the Plan must be ascertained from all relevant text in the Plan and in the light of the purpose of the Resource Management Act 1991 and any relevant objectives and policies in the Plan.
(2)Words and phrases used in the Plan have the meaning set out in their definitions in this chapter unless the context otherwise requires.
...
[82] Counsel also referred me to the Court of Appeal’s decisions in J Rattray & Son Ltd v Christchurch City Council and Powell v Dunedin City Council, and a recent
decision of the Environment Court in Auckland Council v Budden.26 For present purposes, there is no material difference between these three authorities, all of which are encapsulated in the following excerpt from Powell:27
[35] ... While we accept it is appropriate to seek the plain meaning of a rule from the words themselves, it is not appropriate to undertake that exercise in a vacuum. As this Court made clear in Rattray, regard must be had to the immediate context (which in this case would include the objectives and policies and methods set out in section 20) and, where any obscurity or ambiguity arises, it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgment of this Court in Rattray or with the requirements of the Interpretation Act.
[83] I have considered the plain meaning of the words in the definition of Manufacturing and the contextual material to which counsel referred me. Having done so, I am satisfied the film production activities, or sufficient of them, to be undertaken on the Tonea site constitute Manufacturing.
[84] I accept Mr Braggins’ submission that some of what Mr Francis says occurs in the development and pre-production phases quite possibly falls outside the definition. However, I accept Mr Brabant’s submission that it is necessary to consider the overall process rather than to compartmentalise the individual processes. This is also the view the Environment Court took. I also note that as a general rule, activities ancillary to a principal activity are permitted.28
[85] Mr Braggins’ submission that there is a creative process at work is beside the point. The focus must be on the activities occurring on the site. Plainly, numerous skilled people will commonly be engaged, including carpenters, electricians, lighting and sound recording technicians, hairdressers, make-up artists, seamstresses, and cameramen. These people will perform their tasks using physical labour or machinery or a combination of the two.
[86] I turn then to the submission that the objectives and policies of the zones will be compromised by a finding that what is to occur on the Tonea site constitutes
26 J Rattray & Son Ltd v Christchurch City Council (1984) 10 NZTPA 59; Powell v Dunedin City Council [2005] NZRMA 174; and Auckland Council v Budden [2017] NZEnvC 209.
27 Powell v Dunedin City Council, above n 26.
28 Rotorua District Council v R [2020] NZCA 176 at [51].
Manufacturing. This submission takes no account of the activities permitted in the Light Industry zone, including all those nested in the Industry nesting table and the many other permitted activities such as Garden centres, Drive-through restaurants, Show homes, and Motor vehicle sales yards etc. If the objectives and policies of the Light Industry zone are not compromised by these activities, then it is difficult to understand how film production could do so.
[87] The range of permitted activities in the Heavy Industry zone is more confined but even then all of the nested Industry activities, for instance Light Manufacturing and servicing, are included. The only exceptions are Storage and lockup facilities, and Wholesalers.
[88] Accordingly, I am not able to reconcile the submission that the definition of Manufacturing must be read down when so many of the other nested activities would continue to be permitted. The issues Mr Braggins and Mr Enright identified arise from the Activity table in the relevant zones, and not the definition.
Terms of the declaration
[89] My conclusion is based principally on the activities Tonea says are to occur on its site. I consider it is appropriate to make a declaration those activities, taken as a whole, constitute Manufacturing. I am not willing to make a declaration in the terms Tonea and Studio NZ propose which is of much wider import and I am not persuaded the evidence before me provides a proper basis for doing so.
[90] I shall confer with counsel as to the precise wording of the confined declaration I am able to make.
CIV-2455
[91] As I have said, Alpha’s concern is the Council failed to have sufficient regard to the adverse reverse sensitivity effects on Alpha that Alpha contends will arise if film production activities occur on the Tonea site. However, these objections cannot succeed if Tonea is carrying out a permitted activity on its site.
[92]It follows that it is unnecessary for me to address Alpha’s grounds of review.
Result
[93] I shall confer with counsel regarding the terms of the declaration to be made in accordance with [89] above.
[94] I dismiss Alpha’s application for judicial review of the notification and substantive decisions, and its applications for the declaration referred to in [6] above.
[95]I decline to set aside the Environment Court’s declaration.
[96] Costs are reserved. The parties may make submissions if they are unable to agree.
Peters J
Addendum
Having issued this judgment to the parties, by memorandum dated 20 July 2020, counsel for Tonea and Studio NZ advised they were content to rely on the declaration made by the Environment Court as set out in [5] above, and that they withdrew their application for declaratory relief in these proceedings. Accordingly, the declaration referred to in [89] above is no longer required.
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