Atlas Concrete Limited v Auckland Transport

[2014] NZHC 755

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7344 [2014] NZHC 755

IN THE MATTER              of an application for Judicial Review

under Part 1 of the Judicature Amendment

Act 1972

ANDIN THE MATTER     of the Resource Management Act 1991 and the Public Works Act 1981

BETWEEN  ATLAS CONCRETE LIMITED Plaintiff

ANDAUCKLAND TRANSPORT First Defendant

ANDAUCKLAND COUNCIL Second Defendant

Hearing:                   16 October 2013

Appearances:           K W Berman for Plaintiff

G C Lanning and A D Brent for First Defendant

C J Brown and A N Furniss for Second Defendant

Judgment:                10 April 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 10 April 2014 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           McVeagh Fleming, Auckland

Simpson Grierson, Auckland

Counsel:            K W Berman, Auckland

Copy for:           Auckland Council, Auckland

ATLAS CONCRETE LTD v AUCKLAND TRANSPORT [2014] NZHC 755 [10 April 2014]

[1]      The First Defendant, Auckland Transport, wishes to vary (to use a neutral word) a designation under the Resource Management Act 1991 (“RMA”).

[2]      Auckland Transport contends that it may do so in accordance with s 182

RMA, as it proposes to “remove” part of a designation.  The Plaintiff, Atlas Concrete Limited (“Atlas”), disputes this and contends that Auckland Transport is required to comply  with  s 181  RMA,  as  Auckland Transport  proposes  an  “alteration”  of  a designation.

[3]      If Auckland Transport were to proceed under s 181 RMA, its proposal would be publicly notified  and Atlas,  and  others,  would  have an  opportunity to  make submissions, and have rights of appeal.   The procedure provided in s 182 RMA, however, does not require public notification and the matters which may be taken into account in determining whether the removal sought should be granted are confined.

[4]      At  present,  Auckland  Transport  has  only  “proposed”  the  exercise  of  a statutory power.  The Court has power to grant review of a proposed exercise of a statutory power,1 but whether it should do so in any given case is another matter.  I am satisfied, however, that  I should do so in this case.   Counsel for Auckland Transport confirmed in submissions that Auckland Transport seeks to proceed under

s 182 RMA, so there is little to be gained by deferring the matter.

[5]      Atlas seeks the following relief:2

(a)       A declaration that the proposed section 182 notice is invalid and of no effect.

(b)       A declaration  that Auckland  Transport  is  required  to  follow  the practice prescribed by section 181(2).

(c)       Such orders as may be required restraining the exercise by Auckland Transport  of  the  purported  power  to  lodge  a  section  182  notice and/or setting aside any amendment to the District Plan made by the Council.

1 Judicature Amendment Act 1972, s 4(1).

2 Statement of Claim for Judicial Review dated 7 December 2012, at 4 and 5.

[6]      I heard submissions for Atlas and Auckland Transport.  Auckland Council, the Second Defendant (“the Council”), filed submissions and appeared in support of Auckland Transport. The Council is the relevant territorial authority for the purposes of this proceeding and, as such, may be required to determine matters arising from this judgment.  Given that, there was discussion at the hearing as to whether it was appropriate for the Council to take a position on the issues in dispute.  Ultimately, counsel advised that the Council would abide the decision of the Court.

[7]      The parties did not file evidence, but submitted an agreed statement of facts and an agreed bundle of documents to which I refer below.

[8]      For the reasons set out below, I am satisfied that what Auckland Transport proposes in this particular case is not a removal of part of a designation within the contemplation of s 182(1) RMA.  For that reason I propose to make the declaration set out in [5](a) above.   For reasons set out below, I do not propose to make the declaration referred to in [5](b).   In addition, I do not consider that any orders encompassed by the words in [5](c) above are required.

[9]      My conclusion that what Auckland Transport proposes is not a removal for the purposes of s 182 reflects the circumstances in which the designation was made and for that reason it is necessary to address the background in some detail.

Background

[10]     At the heart of this proceeding is a designation of land in the North Shore City District Plan and relating to the “Wairau Road/Taharoto Road Transport Corridor” (“designation”, “the Plan” and “Corridor” respectively).

[11]     The Corridor is a busy arterial route on the North Shore and comprises that part of Wairau Road that runs between Forrest Hill and Nile Roads in the north and Northcote Road in the south.  Wairau Road joins Taharoto Road at a point south of Forrest Hill and Nile Roads.

[12]     Atlas operates various facilities on land it owns on the eastern side of the

Corridor, including 7, 9 and 11 Wairau Road (“the Atlas land”).   Amongst other

things, Atlas has a concrete “batching plant” on 11 Wairau Road.   Heavy vehicles require access to the plant during business hours.

[13]     To date, those vehicles have entered and exited the Atlas land at 11 Wairau Road.   However, as a consequence of events set out below, and particularly the recent construction of a controlled intersection on Wairau Road (“intersection”), it has become more difficult for vehicles to use that access.  The intersection followed a Notice of Requirement to alter a designation that the North Shore City Council (“NSCC”) issued in August 2005, pursuant to s 181 RMA.  As appears below, Atlas made a submission in opposition to the requirement and, when that submission was rejected, appealed to the Environment Court.   The appeal was resolved in 2006, when,  by  consent,  the  Environment  Court  made  an  order  that  parts  of  7  and

9 Wairau Road (referred to as “the throat”), should be included in the designation. Auckland Transport now wishes to abandon the designation over the throat, a step which Atlas opposes.

Designation procedure

[14]     Section 166 RMA defines “designation” as follows:

166     Meaning of “designation”, …

In this Act—

designation means a provision made in a district plan to give effect to a requirement made by a requiring authority under section 168  or section

168A or clause 4 of Schedule 1:

[15]     Part 8 of the RMA governs the procedure by which land is designated, other than in the preparation of a regional or district plan.   The parts of the procedure relevant for present purposes may be summarised as follows.

[16]     A “Notice of Requirement”, referred to as “a requirement” in s 166 above, for

a designation is given by a “requiring authority” to a “territorial authority”.3

As a

general rule, the Notice of Requirement is notified as if it were an application for resource consent and any person may make a submission.  Submissions are heard by

the territorial authority or, if the territorial authority is the requiring authority, by

3 Resource Management Act 1991, ss 168 and 168A.

independent commissioners appointed for the purpose.  The territorial authority must have regard to a wide range of matters and, having done so, may recommend to the requiring authority (or, if the territorial authority is the requiring authority, decide) that the requirement be confirmed, modified or withdrawn, or made subject to conditions.4

[17]     The   requiring   authority   must   then   decide   whether   to   accept   the recommendation of the territorial authority.   The requiring authority’s decision is notified to those who made submissions and land owners and occupiers “directly affected” by the decision.5

[18]     A person who made a submission on the requirement has a right of appeal to the Environment Court against the requiring authority’s decision.   In determining that appeal, the Environment Court must have regard to the same range of matters as the territorial authority and may cancel, confirm or modify a requirement, or impose

conditions on the requirement as the Court thinks fit.6

[19]     In the absence of cancellation of the requirement, the territorial authority must include the designation (as confirmed or modified) in its District Plan and in any proposed District Plan,7 as if it were a rule in the Plan.8

[20]     Pursuant to s 181 RMA, a requiring authority responsible for a designation may give notice if it requires an alteration to the designation.  Such notice is given to the territorial authority and largely proceeds as if it were a Notice of Requirement for designation, that is in accordance with the procedure referred to above.

[21]     Section 181 RMA provides:

181     Alteration of designation

(1)       A requiring authority that is responsible for a designation may at any time give notice to the territorial authority of its requirement to alter the designation.

4 ss 168A(4) and 171(2).

5 s 173.
6 s 174(4).
7 s 175.

8 ss 2 and 43AA.

(2)       Subject  to  subsection  (3),  sections  168  to  179  shall,  with  all necessary modifications, apply to a requirement referred to in subsection (1) as if it were a requirement for a new designation.

(3)       A territorial authority may at any time alter a designation in its district plan or a requirement in its proposed district plan if—

(a)      The alteration—

(i)        Involves no more than a minor change to the effects on the environment associated with the use or proposed use of land or any water concerned; or

(ii)      Involves only minor changes or adjustments to the boundaries of the designation or requirement; and

(b)       Written notice of the proposed alteration has been given to every owner or occupier of the land directly affected and those owners or occupiers agree with the alteration; and

(c)       Both  the  territorial  authority  and  the  requiring  authority agree with the alteration—

and sections 168 to 179 shall not apply to any such alteration.

(4)      This section shall apply, with all necessary modifications, to a requirement by a territorial authority to alter its own designation or requirement within its own district.

[22]     There is provision in s 182 RMA for a requiring authority to seek to remove a designation or part thereof.   If, in this case, Auckland Transport were to proceed pursuant  to  s 182  RMA,  it  would  give  notice  of  its  proposal  to  the  territorial authority, that is the Council, and to Atlas, and possibly others.  The Council would be required to remove the part of the designation in issue, unless it considered doing so would have a more than minor effect on the remaining designation.  If it were to

reach that conclusion the Council would decline to remove the part.9

[23]     Counsel for Auckland Transport informed me that the process provided for in s 182 reflects the fact that, as a general rule, a land owner considers a designation a “blight” on their land which they are only too pleased to have removed.   Such an

owner does not usually resist removal.

9 s 182.

[24]     Section 182 RMA provides:

182     Removal of designation

(1)       If a requiring authority no longer wants a designation or part of a designation, it shall give notice in the prescribed form to—

(a)      The territorial authority concerned; and

(b)       Every person who is known by the requiring authority to be the owner or occupier of any land to which the designation relates; and

(c)      Every other person who, in the opinion of the requiring authority, is likely to be affected by the designation.

(2)       As soon as reasonably practicable after receiving a notice under subsection  (1),  the  territorial  authority  shall,  without  using  the process in Schedule 1, amend its district plan accordingly.

(3)       The provisions of Schedule 1 shall not apply to any removal of a designation or part of a designation under this section.

(4)       This section shall apply, with all necessary modifications, to a notice by a territorial authority to withdraw its own designation or part of a designation within its own district.

(5)       Notwithstanding subsections (2) to (4), where a territorial authority considers the effect of the removal of part of a designation on the remaining designation is more than minor, it may, within 20 working days of receipt of the notice under subsection (1), decline to remove that part of the designation.

(6)       A requiring authority may object, under section 357, to any decision to decline removal of part of a designation under subsection (5).

[25]     Schedule 1 RMA is concerned with the preparation, change and review of policy statements and plans.

Notice of Requirement – 2005

[26]     In  August  2005  and  pursuant  to  s 181  RMA,  NSCC  issued  Notice  of Requirement to alter a designation already in place in respect of the Corridor. At this time   NSCC   was   both   “requiring   authority”   and   “territorial   authority”.10

Responsibility  for  the  designation  was  transferred  to  Auckland  Transport  on

1 November 2010, hence its involvement.11

10 Resource Management Act 1991, ss 2 and 166.

11 Local Government (Auckland Transitional Provisions) Act 2010, s 79.

[27]     NSCC proposed that Wairau Road should be widened to the east and west and to this end sought the designation of a 5 metre wide strip from the front of properties to the east of Wairau Road, including from the Atlas land.   The additional land was sought to enable various works or projects, such as the provision of a bus lane for south bound traffic between Nile Road and the Westlake bus station; a redesign of three existing and substantial intersections; the provision of exclusive south and north bound cycle lanes the full length of the Corridor and the construction

of the intersection.12

[28]     NSCC proposed three lanes for each of south bound and north bound traffic on the relevant part of the Corridor, including a bus lane or lanes, with traffic signals for  south  bound  traffic  adjacent  to  9  Wairau  Road  and  for  north  bound  traffic adjacent to 7 Wairau Road.  Those signals were also to control traffic to and from a new entrance to Westlake Girls’ High School (“Westlake Girls”), situated on the western side of Wairau Road and opposite the Atlas land.

[29]     The Notice of Requirement described the intersection as one of “the key traffic changes proposed” as follows:13

Westlake Girls High School Wairau Road new entrance. A set of traffic signals is proposed as the safest method of providing for access to Westlake Girls School at a point some 180 metres to the north of the Shakespeare/Wairau Roads intersection and to allow for pedestrians to cross Wairau Road.   Desirably, this intersection should also provide for truck traffic associated with Atlas Concrete on the opposite side of Wairau Road. Unfortunately, this could not be achieved within the time frames required to progress this Notice of Requirement.

[30]     Atlas’s plant was listed in the Notice of Requirement as one of the Corridor’s

“Major Destinations”, as follows:14

The Wairau/Taharoto corridor traffic …

e.Atlas Concrete – this manufacturing plant is expected to continue its existing  level  of  operation  at  its  present  site  and  possibly  even expand at this locality.   The business creates its own particular requirement for safe and efficient access for large vehicles.

12 Notice of Requirement dated 20 August 2005, at 7.

13 At 27.

14 At 18.

[31]     It appears to have been generally accepted that, if the intersection were to be constructed – as it has been – it would be desirable for provision to be made for an “Atlas leg” of the intersection and for the entrance/exit to and from the Atlas land to be relocated to 7 and 9 Wairau Road.  That was because south bound traffic could now be stationary at the traffic lights and block the existing access at 11 Wairau Road.  If, however, the access point were to be at 7 and 9 Wairau Road the zoning of those sites would need to change, from residential to business.

Submissions

[32]  The Notice of Requirement was notified and Independent Hearing Commissioners (“Commissioners”) were appointed to hear submissions, given that NSCC was both “requiring” and “territorial” authority.

[33]     The Commissioners heard submissions in December 2005.   Atlas made a submission in opposition to both the designation of the 5 metre strip and the effect of the proposed intersection on the Atlas land, if the designation did not to include the land required to create a “leg” to and from the Atlas land.

[34]     Atlas’s grounds of opposition before the Commissioners included:15

…

5.The  taking  of  land  from  the  site  frontage,  together  with  other proposed work, including the wall, the footpath, the grass berm, the cycle  lane, and the  tree planting,  would have  an immediate  and substantial negative impact on the functionality of the Atlas Concrete depot.

6.Such works would also have a substantial and negative effect on the future development of the site.

7.A claimed benefit of the altered designation is an improvement of the amenity of the Wairau Road frontage. Such benefit cannot be gained unless and until alternative access arrangements are made in respect of the site.

8.The Council has failed to recognise and implement the mitigation measures necessary to limit the adverse effect of the proposed works on the Atlas Concrete depot.

15 Atlas Submission on the Notice of Requirement dated 27 September 2005, at 57 and 58.

9.Mitigation   measures   are   available   but   are   best   initiated   and implemented by the Council. Such mitigation measures include:

(a)       A rezoning of the 6 residentially zoned sites owned by the submitters at the southeastern and southwestern end of their block;

(b)       Provision,  by  the  Council,  of  access  to  the  proposed controlled intersection of Wairau Road and the Westlake Girls High School entrance.

…

[35]     Atlas sought:16

(a)       That the [Notice of] requirement be withdrawn; or

(b)       That the requirement be modified to accommodate the concerns of the submitters including adopting the mitigation proposals contained in the submission.

[36]     In  support  of  its  submission,  Atlas  presented  a  brief  of  evidence  from Mr P R Brown, a traffic engineer of more than 20 years’ experience.   Mr Brown’s evidence was that provision had to be made for access to the Atlas land and that:17

25… the existing situation will be made worse from an operational perspective by the close proximity of the proposed signalised intersection.

[37]     Mr Brown concluded his brief by saying:18

49For  these  reasons  I  believe  that  the  proposed  designation  and adjacent signalised intersection will impact on the ability for the larger vehicles to move to and from the Atlas site in an acceptable manner, …

50I  therefore  believe  that  the  signalised  access  that  was  originally proposed by Council to serve the Atlas site is necessary, and should be incorporated into the requirements of the designation.

Commissioners’ decision – March 2006

[38]     The Commissioners issued their decision on 3 March 2006.  They confirmed the requirement for the (altered) designation but rejected the modification that Atlas

had sought.

16 At 59.

17 Evidence of P R Brown dated 14 December 2005, at [25].

18 At [49] and [50].

[39]     The Commissioners said that the designation and the effects of the proposed works made it desirable to provide controlled access from Wairau Road to the Atlas land and vice versa.  The issue was, however, that 7 and 9 Wairau Road first had to be re-zoned.  The Commissioners considered they lacked jurisdiction to bring about the necessary re-zoning.19  They concluded:20

6.33In summary, having regard to all the evidence including the results of the traffic surveys undertaken and the assessments of the potential effects of that signalised intersection, the Commissioners consider that any adverse effects of the requirement on the Atlas site are insufficient to withdraw the requirement or make any modification of it that is within our jurisdiction.

Appeal to Environment Court

[40]     Atlas and two unrelated third parties appealed  to the Environment Court against the Commissioners’ decision (“appeal”).21

[41]     The powers of the Environment Court in determining an appeal are contained in s 174(4) RMA, which provides:

174     Appeals

…

(4)       In determining an appeal, the Environment Court must have regard to the matters set out in section 171(1) and comply with section

171(1A) as if it were a territorial authority, and may—

(a)      cancel a requirement; or

(b)      confirm a requirement; or

(c)      confirm a requirement, but modify it or impose conditions on it as the Court thinks fit.

[42]     In its Notice of Appeal, Atlas stated that:22

The appeal relates to the Council declining to make a modification to the requirement so as to provide access to Wairau Road from the appellants’

19 Decision of the Independent Commissioners on the Notice of Requirement dated 3 March 2006, at

[6.24].

20 At [6.33].

21 Notice of Appeal to Environment Court dated 28 March 2006.  See also Resource Management Act

1991, s 174(1).

22 Ibid.

land  by  way  of  a  controlled  intersection  opposite  Westlake  Girls  High

School and to include in the requirement land for that purpose.

In particular the appellants proposed that the requirement be modified along the following lines:

“That the amount of land required for the road be increased in respect of  parts  Lots  62  and  63  on  DP9156  so  as  to  make  provision  for signalised access to the land occupied by Atlas Concrete. The shape of the increased area shall be generally of a design which will allow four- turn access by the maximum legal sized truck and trailers, semi trailers, and B trains. It is directed that sheets 10 and 11 of attachment 1 to the Notice of Requirement be modified accordingly.”

[43]     Atlas sought orders:

(a)       [Directing the modification of the requirement, as set out above.]

(b)       Alternatively an Order that there be attached to the requirement a condition that before the works referred to in the Notice of Requirement be undertaken, a further requirement be issued to the effect described above.

Consent memorandum to the Environment Court

[44]     The appeal was resolved in October 2006, after the parties, including NSCC, filed a consent memorandum to the Environment Court.

[45]     In their memorandum the parties advised the Environment Court that they had agreed to seek an order amending what was referred to as “condition 1” of the designation.  Condition 1 was one of the conditions imposed by the Commissioners on the designation in their decision of 2 March 2006.   The effect of the agreed amendment, if ordered by the Court, would be to extend the area included in the designation so as to encompass that part of the Atlas land at 7 and 9 Wairau Road, that is the throat.

[46]     The relevant passages of the consent memorandum are as follows:23

2.... The only issue raised in the appeal relates to the provision of a signalised access to the appellants’ property on Wairau Road. This would be combined with the new proposed access to Westlake Girls High School (on the opposite side of Wairau Road) and replace the current access to the property ...

23 Memorandum of Counsel in Support of Draft Consent Order, at [2] – [7].

3.        The appellants and the respondent have agreed that, subject to the

Court’s approval, this appeal can be disposed of by way of consent.

4.In  particular,  the  appellants  and  the  respondent  have  agreed  to amend condition 1 of the designation to read as follows (additions shown as underlined text):

“That the scope and extent of the works within the altered designation  area  titled  “Wairau-Taharoto  corridor Upgrading: Scheme Plan Design – Land to be designated for road widening” be generally in accordance with the Notice of Requirement dated 30 August 2005 as modified in the Council’s decision and shown in the Annexure 1 plan titled “Wairau-Taharoto Corridor Upgrading: Scheme Plan Design

– Land to be designated for road widening” and including areas of Part Lot 62 and 63 on DP 8798 so as to make provision for signalised access to the land as shown on the Plans  titled  “Wairau  Road  Widening  Land  Required  for Road Pt Lot 62 DP 8798” and “Wairau Road Widening Land Required for Road Pt Lot 63 DP 8798” and both dated 12

May 2006;   and in accordance with the conditions set out below.”

5.The  effect  of  this  amendment  is  to  alter  the  boundary  of  the designation to provide for a signalised access to the appellants’ property.   The agreed changes are scheduled in the draft consent order.

6.The respondent and the appellants respectfully request that the Environment Court dispose of this appeal by amending the proposed designation as set out in the draft consent order and by otherwise dismissing the appeal.

7.Counsel note that the proposed relief extends the physical extent of the  designation  over  land  owned  by  the  appellants,  in  order  to provide a signalised access to the appellants’ land. In that regard counsel note the following:

(a)      …

(b)       The altered designation only provides for the possibility of access. Actual use of the access will require reconfiguration of  the  appellants’  site  which  will  involve  either  a  plan change or resource consent process. At that stage the adverse effects  (if  any)  of  vehicles  using  the  access  will  be addressed.

…

Order

[47]     On 2 October 2006, the Environment Court made the order (“order”) that the parties had sought:

CONSENT ORDER

HAVING CONSIDERED the notice of appeal, and the memorandum of counsel lodged on behalf of the parties THIS COURT ORDERS BY CONSENT that the designation be modified amending condition 1 of the designation to read as follows:

[As set out in [4] of the memorandum of counsel and also attached the Plans dated 12 May 2006.]

Plan

[48]     Following the making of the order and in accordance with s 175(2) RMA, NSCC included the designation in the Plan as follows:24

Reference

Number

Purpose and Authority        Location       Underlying

Zoning

Map

Reference

…

183

…

Wairau  Road/Taharoto

Road/

Transport Corridor widening and

associated works

North Shore City

Council

Forrest Hill Road Intersection/ Wairau Road/ Taharoto Road/ Shakespeare Road intersection

Various          25

[49]     The areas marked “183” on Map 25 do not show the throat but it is common ground that is an oversight and that they should do so.

Present position

[50]     The intersection is now operational, including the leg to service vehicular traffic to and from Westlake Girls. The Atlas leg, however, has not been formed.

[51]     Atlas has commenced the process to seek a plan change to alter the zoning of

7 and 9 Wairau Road.

24 Agreed Statement of Facts dated 12 September 2013, at [17].

[52]     Auckland Transport, as requiring authority, does not now wish to implement signalled  access  to  the Atlas  land  and  it  wishes  to  remove the throat  from  the designation.     This  appears  from  Auckland  Transport’s  letter  to  Atlas  dated

7 November 2012.   The letter referred to Atlas’s application for plan change and said:25

With respect to 7 & 9 Wairau Road, it is noted that the existing designation over these properties includes provision of a ‘throat’ for the possibility of access to a future signalised intersection (refer attached plans).

Whilst Auckland Transport acknowledges the merits of a future signalised intersection at 7 & 9 Wairau Road, this would not be possible without the rationalisation by Atlas of its existing access arrangements.   Auckland Transport has no plans for the implementation of a signalised access and no longer wishes to retain the financial responsibility for the ‘throat’ area.

At some future time, should Atlas wish to treat all of its land in a comprehensive manner, which would include rationalising of its access arrangements, then consideration could be given to a signalised intersection, the cost of which would be borne by Atlas.

Consequently, Auckland Transport will be commencing a process at the end of November 2012 to remove the ‘throat’ area from the designation.

[53]     Auckland Transport has refrained from further steps pending determination of this application.

Discussion

[54]     Auckland Transport’s submissions may be summarised as follows.

[55]     First,  the  “throat”  area  is  “a  part  of”  the  designation  which  Auckland

Transport wishes to remove.

[56]     Secondly,  Auckland Transport  may  initiate  the  removal  of  the  throat  by giving notice in the prescribed form to the parties listed in s 182(1)(a) to (c) RMA. Thereafter it will be for the territorial authority, in this case the Council, to carry out its obligations under s 182 RMA.

[57]     Atlas  submits  that,  having  regard  to  the  circumstances  in  which  the designation was extended to encompass the throat and the fact that the intersection

25 Letter Auckland Transport to Atlas dated 7 November 2012.

has been constructed, what is proposed is an alteration of the designation within the ambit of s 181(1) RMA.

[58]     I accept the submission for Atlas that whether what is proposed constitutes an alteration of a designation or the removal of part of a designation is a matter to be determined having regard to all the material circumstances.

[59]     In this particular case, I am satisfied that what Auckland Transport proposes is an alteration of the existing designation.  The throat was designated, by agreement and subsequent order of the Environment Court, as part of the broader designation of the land required to improve the Corridor, and undertake various works including the intersection.   In my view, it is apparent from condition 1 of the designation, as amended by the Environment Court’s order, that the designation was treated as a whole.   The position might be different if the designation of the throat had been treated in isolation of other parts of the designation.   That, however, is not the position in this case.

[60]     Auckland Transport made several other submissions which may well have merit but which I do not consider relevant to the issue that I am required to decide, namely whether what is proposed is an alteration of a designation or removal of part of a designation.

[61]     One such submission was that Auckland Transport does not wish to have financial responsibility for the throat or for the provision of vehicular access from

the intersection to the Atlas land and vice versa.  In this regard counsel for Auckland

Transport  referred  me  Waiotahi  Contractors  Ltd  v  Owen,26

being  a  decision  of

Henry J  under  the  Town  and  Country  Planning  Act  1977.     With  respect  to Auckland Transport,  I consider its submissions overstated  the significance of its present wish to disclaim financial responsibility for the throat and related work. Auckland Transport’s submission in this regard did not allow for the fact that the intersection has already been created and that the incorporation of the throat was a

result of conditions imposed on the designation.  In any event, I do not consider that

26 Waiotahi Contractors Ltd v Owen (1993) 2 NZRMA 425 (HC).

a disclaimer or purported disclaimer of financial responsibility is determinative of whether what is proposed is an alteration or removal.

[62]     I accept that Atlas may not succeed in obtaining the plan change it requires to secure the re-zoning of 7 and 9 Wairau Road.  A failure to secure that plan change may well be relevant to whether the throat should continue to be designated.  It does not, however, affect the issue of whether what is proposed is an alteration or a removal.

[63]     Auckland Transport  also  submitted  that  condition  1  does  not  impose  an obligation  on  it  to  provide signalised  access  to  and  from  the Atlas  land.    It  is unnecessary for me to express a view on that matter because, again, I consider it irrelevant to the issue to be determined.

Result

[64]     It follows that I am satisfied that Auckland Transport may not proceed under s 182 RMA and I shall make the first declaration sought.   I decline to make the second, however.  That is because whether Auckland Transport may proceed under s 181  RMA may  be  affected  by  the  terms  on  which  the  parties  to  the  appeal (including third parties not presently before the Court) resolved those proceedings.  I do not consider that any further orders are required.

[65]     Atlas is entitled to costs on a 2B basis, together with disbursements.

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M Peters J