Belgiorno-Nettis v Auckland unitary Plan Independent Hearings Panel
[2020] NZHC 6
•27 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2810
[2020] NZHC 6
BETWEEN FRANCO BELGIORNO-NETTIS
Plaintiff/Applicant
AND
AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL
First Defendant/First Respondent
AUCKLAND COUNCIL
Second Defendant/Second Respondent
Hearing: 29 June 2020
Submissions received on 28 August and 17 September 2020
Counsel:
R B Stewart QC, S Ryan and M Chevalier for Plaintiff/Applicant M C Allan for Second Defendant/Second Respondent
A Witten-Hannah for Body Corporate - Intervener R Bartlett QC for Emerald Greg Ltd - Intervener
C Kirman and J Kado for Kainga Ora-Homes and Communities - Intervener
Judgment:
27 November 2020
JUDGMENT OF WHATA J
This judgment was delivered by me on 27 November 2020 at 4:45 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Daniel Overton Goulding, Onehunga
Brookfields Lawyers, Auckland
FRANCO BELGIORNO-NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL [2020] NZHC 6 [27 November 2020]
[1] Mr Belgiorno-Nettis successfully reviewed the decision of the Auckland Unitary Plan Independent Hearings Panel (the IHP/Panel) in relation to submissions made by him on the Proposed Auckland Unitary Plan (PAUP) for want of reasons.1 The IHP was directed to, and then provided, its reasons. Mr Belgiorno-Nettis remains dissatisfied and has applied for judicial review to test the adequacy of those reasons.
Background
[2] The full background is helpfully set out in the judgment of the Court of Appeal in the previous judicial review proceedings.2 This summary is largely based on it.
[3] Mr Belgiorno-Nettis resides in Sanders Avenue, Takapuna, and owns unit number five in the Promenade Terraces at the Corner of Hurstmere Road and The Promenade, Takapuna. The IHP was established by the Minister for the Environment and the Minister of Conservation under s 161 of the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA). The IHP was empowered to make recommendations to the Council for the first combined plan for Auckland Council (known as the Proposed Auckland Unitary Plan (PAUP)) under the Resource Management Act 1991 (RMA). The Auckland Council (the Council) is the unitary authority for the Auckland area established under the Local Government (Tamaki Makaurau Reorganisation) Act 2009, the Local Government (Auckland Council) Act 2009 and the LGATPA.
[4] Mr Belgiorno-Nettis was a submitter on the PAUP. For the purpose of this appeal, his submissions related to the proposed zoning and building height controls on properties located in Takapuna and in particular, in respect of land comprised between “The Promenade”, “Alison Ave”, “Earnoch Ave” and “Hurstmere Road” (the Promenade Block) and in respect of land located adjacent to Lake Road (the Lake Road Block).
1 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, [2019] 3 NZLR 345 at [115].
2 At [1]-[43].
[5] As notified, the Promenade Block was zoned Terrace Housing and Apartment Buildings (THAB) with a proposed Additional Zone Height Control (AZHC) up to
20.5 metres. In relation to the Lake Road Block, the PAUP zoned properties fronting Lake Road as Mixed Use business zoning (MUZ) with a proposed AZHC of 24.5 metres (with the exception of a small area of MUZ land on the corner of Lake Road and Park Avenue). Properties on the western side behind the MUZ were zoned THAB, with a proposed AZHC of 20.5 metres.
[6]Figures one and two of appendix A show these Blocks.
[7] Mr Belgiorno-Nettis sought (among other things) the following relief relevant to Takapuna:
(a)remove the THAB zone on the properties bounded by The Promenade, Alison Avenue, Earnoch Avenue and Hurstmere Road (the Promenade Block), and replace that zone with the Mixed Housing Urban (MHU) zone;
(b)remove the Metropolitan Centre (MC) zone from the west side of Lake Road from Bracken Avenue to Byron Avenue;
(c)remove the AZHC from the MUZ properties on the west side of Lake Road in Takapuna from Bracken Avenue to Esmonde Road; and
(d)alter the Additional Height Control for the MUZ properties on the east side of Lake Road in Takapuna from Blomfield Spa to Park Avenue to a maximum height of three stories.
[8] Mr Belgiorno-Nettis also supported a freeze on THAB zoning in Takapuna and that all THAB zoning be zoned Mixed Housing Suburban (MHS) pending a full precinct urban design study. He also opposed the THAB zoning for the Promenade Block and any Additional Height Control of the land. In relation to the Lake Road Block, he supported a MHU zoning.
[9] Mr Belgiorno-Nettis’ primary submission and further submissions regarding zonings in Takapuna were allocated to Topic 81, and later, to Topic 81(c). His submission points were allocated as follows:
(a)his primary submission points relating to land zoned MUZ on the east and west sides of Lake Road were allocated to the business zone topics; and
(b)his further submission points responding to the submissions of another submitter and relating to Additional Height Control on the Promenade Block were allocated to Topic 078.
[10] Mr Belgiorno-Nettis filed detailed evidence and appeared at the hearings on Topics 078 and 081. The North Panel heard submissions on Topic 081 centre by centre, and Mr Belgiorno-Nettis presented his submissions and evidence regarding both business and residential zonings and height controls to this Panel.
[11] The Council tabled evidence of a town planning expert, Nick Roberts (Mr Roberts), who proposed that there should be an additional height control of 22.5 metres for part of the Promenade Block. Later in the process, the Council filed further evidence including a joint statement of two planners, Ewen Patience (Mr Patience) and Emily Ip (Ms Ip). They did not support Mr Roberts’ 22.5 metres height recommendation and instead proposed two zonings for the Block, being THAB for the southwestern part and MHU for an L-shape area facing Earnoch Avenue and Alison Avenue.
[12] The IHP did not adopt Mr Belgiorno-Nettis’ submissions in relation to the Promenade Block. Rather, it divided the Promenade Block into two zones as proposed by Ms Ip and Mr Patience and incorporated the 22.5 metres Additional Height Control (recommended by Mr Roberts) over the proposed THAB portion of the Block. There was no Additional Height Control for the L-shaped MHU portion.
[13] The Lake Road Block recommendation was more complex, reflecting the conflicting submissions on it. As summarised by the Court of Appeal, the Panel recommended, and the Council decided, to:3
(a)Retain Mixed Use zone on both eastern and western sides of Lake Rd (recommended by Mr Patience/Ms Ip);
(b)Decrease the height of the Additional Height Control applying to the land zoned Mixed Use to the west of Lake Rd from 24.5m to 21m (as recommended by Mr Moffatt who gave evidence-in-chief for the Council);
(c)Decrease the height of the Additional Height Control applying to the land zoned Mixed Use zone to the east of Lake Rd from 24.5m to 18m (as recommended by Mr Moffatt);
(d)Rezone part of the MHS to the east of the land zoned Mixed Use on Lake Rd to MHU (as recommended by Mr Patience and Ms Ip); and
(e)Increase the height of the Additional Height Control for the THAB land to the west of the Mixed Use zone land on Lake Rd from 20.5m to 22.5m (as recommended by Mr Roberts who also gave evidence as a consultant planner for the Council).
[14] Figures three and four of appendix A show the Blocks as amended in accordance with the Panel’s recommendations.
Court of Appeal decision
[15] Mr Belgiorno-Nettis challenged the Panel’s recommendations, claiming failure to give adequate reasons. His claim failed in the High Court but succeeded in the Court of Appeal. The Court of Appeal found that:4
[65] We accept the Judge’s observation that it would be sufficient for the Panel to group submissions by reference to “matters” if particular features arising from submissions were stated and submissions on those topics grouped, and reasons on each topic given. Accepting this, there is still a duty to give reasons for accepting or rejecting submissions on a topic even if those submissions are grouped, and the reasons be of a summary nature. If the Judge is indicating otherwise, we respectfully disagree with him. While grouped and summarised reasons could be sufficient in the context of the particular process, some articulation of the Panel’s thinking was required. A reader should understand why a decision such as the zoning and height levels for a significant block of land has been made. This can be in short form, and depending on the circumstances a few paragraphs or even a few sentences may be enough. But the “why” should be stated.
3 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [38].
4 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [62]-[65]
[16] The Court reviewed the Overview Report said to contain the reasons for rejecting Mr Belgiorno-Nettis’ submissions and stated:5
[72] We have examined the Overview Report. It is an extensive document. Counsel made reference to the Executive Summary where it is stated:
The recommended response to this issue is to enable greater capacity both by identifying areas at the edges of the existing metropolis which are suitable for urbanisation and by allowing greater intensification of existing urban areas with a strong focus on the existing centres. By utilising several methods for greenfield development and brownfield redevelopment, this response provides multiple ways of accommodating growth. It also protects existing values of significant areas and items of natural and historic heritage and of ecological value, the taonga held closely by Mana Whenua, volcanic viewshafts and the maunga themselves, air and water quality, the natural character of the coastal environment and the special character of many places.
[73] It is stated that the Panel’s recommended response to this involves many elements which, implemented together, can improve the Unitary Plan’s approach to managing growth. In summary, the recommendations for managing use and development to provide for growth included:
i.Affirming the Auckland Plan’s development strategy of a quality compact urban form focussed on a hierarchy of business centres plus main transport nodes and corridors.
ii.Concentrating residential intensification and employment opportunities in and around existing centres, transport nodes and corridors so as to encourage consolidation of them while:
a.allowing for some future growth outside existing centres along transport corridors where demand is not well served by existing centres; and
b.enabling the establishment of new centres in greenfield areas after structure planning. …
[74] The Panel goes on to refer to the need to ensure capacity to meet the next seven years’ demand:
A reasonable estimate of residential demand over the next seven years includes a current shortfall of around 40,000 dwellings and annual demand in the order of 13,000 dwellings or 91,000 over the seven years.
(Citations omitted.)
[75] A Plan is attached to the Overview of the Report showing high density for the Takapuna area (amongst a number of areas) which would appear to include the Promenade and Lake Road Blocks. It is stated:
5 At [72]-[78].
The spatial pattern of enabled residential capacity can also be observed from the zoning maps. The more intensive residential zones of Residential-Terrace Housing and Apartment Buildings Zone and Residential-Mixed Housing Urban Zone are clustered around centres, transport nodes and along transport corridors, while the lower intensity zones of Residential-Mixed Housing Suburban Zone, Residential-Single House Zone and Residential-Large Lot Zone are, generally, located at a greater distance from these places.
[76] We agree that the Overview Report sets out a general approach to zoning and height controls which would enable intensification of development in and around metropolitan and town centres and transport corridors. The reason for that approach, evident from the Overview Report, is that the Proposed Plan envisaged the need for approximately 400,000 additional dwellings in the Auckland region by 2041 to accommodate between 700,000 to 1,000,000 more residents over that period.
[77] We do not see these general statements as providing any sort of a reason for the acceptance or rejection of a specific submission or group of submissions when they are competing. It is no more than a statement of principle or approach. We are unable to agree with the submission that this was a reason for the rejection of Mr Belgiorno-Nettis’ submission. The competing evidential positions on the Promenade and Lake Road Blocks are not mentioned at all. There is not sufficient material to be able to say why the Panel made its recommendations concerning those Blocks. It is not self- evident.
[78] We cannot agree with the assumption of the Judge that by making various overview statements of policy, the Panel was providing reasons for the acceptance or rejection of submissions or groups of submissions. The Panel did explain in the Overview Report that site-specific topics were included in its re-zoning and precincts reports. There were reasons given for Precinct recommendations. They were reasons given directly relating to specific zoning areas or maximum heights or groups of or individual submissions. But there were no reasons either grouped or otherwise, that could explain the Promenade Block and Lake Road Block decisions.
(footnotes omitted)
[17] The Court referred, by way of example, to the parts of the Overview Report that refer to the regional policy statement requirement to ensure on an ongoing basis that there is sufficient feasible enabled capacity to meet demand and the recommendation that promotes and centres a corridors-based strategy and a more compact urban form.6 It then observed that all that can be taken from this is that these very broad principles have in some way been preferred to Mr Belgiorno-Nettis’
6 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [79].
specific submission and “[h]ow the submissions and evidence worked to achieve this result is left unstated”7 and “a reader is left to speculate about a compromise.”8
[18] The Court also observed that, “[there] is nothing at all in the Overview Report relating to a specific Takapuna area”9 and that it was unable to see in the report’s discussion about heights, “a statement of reasons that in any way explains the Council zoning and height decisions in relation to the Promenade and Lake Road Blocks.”10 The Court said:11
[83] … They are statements of principle that may guide the Panel in reaching specific decisions, but they do not explain why individual height decisions in the face of competing submissions, were made for particular areas.
[19] The Court of Appeal contrasted this to the statements in the precincts report which it considered served to demonstrate how it is possible to give general reasons for grouped submissions. The Court said:12
[84] There is a zoning and precincts report that the Panel prepared which explains the changes it recommended. In an annexure to the Panel’s rezoning and precincts report the Panel explained the reasons for its recommendations regarding Takapuna Precincts 1 and 2. The Panel explained that the Takapuna Precinct 1 was recommended for inclusion in the Plan as it provides for a more nuanced building and height outcome and that it considered the Precinct appropriate:
… because it provides for an urban design outcome in regard to building heights that will better maintain the amenity values of the coastal environment and the existing developments than the default heights in the underlying Business-Metropolitan Centre Zone. The precinct will provide for a graduated increase in building heights from four to five storeys on the coastal edge to unlimited heights mid-block to the west of Lake Road. The Panel relies on the modelling evidence of Mr Sills for the Council that demonstrated that the shadowing and dominance effects of the precinct heights on the coastal reserve would be acceptable.
[85]And in relation to Takapuna Precinct 2 the Panel said:
Having reviewed the evidence, the Panel finds that the precinct is no longer necessary with the changes recommended to the general
7 At [80].
8 At [80]
9 At [81].
10 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [83].
11 At [83]
12 At [84]-[85].
provisions for the Residential-Terrace Housing and Apartment Buildings Zone and the associated Business-Metropolitan Zone, along with other Auckland-wide requirements. It agrees with those submitters [details omitted] who recognised that Takapuna is a key metropolitan centre around which intensification must follow in order to give effect to the compact quality urban form principle. Concerns regarding urban design and spatial form can and will be addressed through the relevant provisions.
[20] The Court noted that no such reasons grouped or otherwise were given for the ultimate decisions as to the planning of the Promenade and Lake Road Blocks.13 The Court said:14
[87] … The decision itself on the zone and heights can only be discerned from an examination of the maps that were attached to the report. It is these maps which show the ultimate recommended zoning and height controls that we have summarised earlier in this judgment. Clearly there will have been a reasoning process carried out by the Council for it to have reached this decision. However, no reasons are given as to why the Panel re-drew the maps to show the particular zonings and height restrictions. The reader is left to infer that there has been some reasoning process that presumably involved the application of the principles set out in the Overview Report. But which principles and to what extent?
[21] The Court concluded that while broad policies governing the Panel’s decision- making process can be discerned from the Overview and the particular reports, there are no reasons given for the recommendations made for the Promenade and Lake Road Blocks.15
[22] A contention that responding to the more than 1.4 million submissions was impossible was rejected. The Court referred to spreadsheets produced to the Panel which show:16
(a)A summary of what the submitter wanted and a submission theme;
(b)A statement as to the properties subject to the submission and their locality and zoning;
(c)A statement of the requested zone and relevant overlays, precincts and complaints;
(d)A statement of the planners’ proposed position and the reasons for that planners’ proposed position; and
13 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [87].
14 At [87] (emphasis added).
15 At [90].
16 At [94].
(e)A statement of the zone change proposed by the planner, whether there was a GIS map change and any consequential amendments.
[23] The Court was unable to see why a similar document could not have been adopted or adapted by the Panel, with reasons shown as part of it. It said that, “ [t]here could have been a further box or area in the spreadsheet in which the Panel expressed its reasons for its decision on the competing positions” and “their expression could have been in summary form, grouping the submissions and giving general reasons.”17 The Court also emphasised that the grouping of submissions and general reasoning by geographic area or zoning or height could be permissible provided the reason for the zoning or other conclusion reached by the Panel was clear, noting also that, “[a] few paragraphs, sometimes a few sentences, per issue could be sufficient.”18
[24] The Court concluded that the Panel did not give any reasons in respect of the submissions on the Promenade and Lake Road Blocks only. The Court also noted that, putting to one side the question of reasons, there was nothing that gave it “cause for concern about the process undertaken.”19 In terms of relief, the Court declined to quash or set aside the IHP recommendations but directed the Panel, in respect of the zoning and height decisions relating to the Promenade and the Lake Road Blocks, to set out the reasons which led to its recommendations. The Court said that, when responding, the Panel could address Mr Belgiorno-Nettis’ submission specifically or could group his submission with others.20 It also said that the Panel, consisting as it does of a Judge and a number of senior professional persons, would need to confer before it summarised its reasons for reaching the two decisions.21
The Reasons
[25] On 14 October 2019, the Chairperson of the IHP, Judge David Kirkpatrick, delivered for the IHP the reasons for its recommendations to the Council relating to the zoning and height requirements for the Promenade and Lake Road Blocks.22
17 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [96].
18 At [97].
19 At [103].
20 At [110].
21 At [106].
22 Statement of reasons for the AUPIHP recommendations on the Lake Road Block and the Promenade Block, dated 14 October 2019.
[26]The reasons commence as follows:
Pursuant to the order made by the Court of Appeal in its decision dated 22 May 2019 in Belgiorno-Nettis v AUPIHP & Auckland Council [2019] NZCA 175 at paragraph [117], and following the decision dated 10 October 2019 of the Supreme Court in Belgiorno-Nettis v AUPIHP & Auckland Council [2019] NZSC 112, the Panel gives its reasons for its recommendations to the Auckland Council relating to the zoning and height requirements for The Promenade and Lake Road Blocks in Takapuna.
[27]The IHP stated, in relation to Takapuna:
As set out in sections 1 and 6 of the Panel's overview of recommendations and elsewhere in the Panel's particular recommendations, projected growth requires substantial increases in the provision of residential capacity. Key higher-order objectives and policies of the AUP to be given effect to (as set out in the Auckland Regional Policy Statement in Section B2, and in particular the objectives and policies for urban growth and form in B2.2 and for a quality built environment in B2.3) are to provide for increased capacity and intensification around centres and along corridors to try and achieve a more compact urban form that would have a reduced urban footprint and transport demand.
Takapuna was therefore recommended by the Panel to be confirmed as one of many appropriate locations for intensification for those reasons. Mr Belgiorno-Nettis' general submissions raising concerns about intensification and building height in Takapuna at a general strategic or growth management level were accordingly not recommended to be accepted.
[28]And further:
… Following the hierarchy of the statutory planning documents and the prior strategic recommendations for the Regional Policy Statement necessarily resulted in the recommendation of rejection of individual submissions which ran counter to that strategy.
One of the consequences of the strategic recommendations to increase capacity by providing for more intensive development around centres was to make spatial changes to zonings, as described in section 4.4.4 of the Panel's overview of recommendations. Achieving additional residential capacity required making provision for taller buildings in and around metropolitan centres where, among other things, employment opportunities and commercial services are currently available and expected to increase.
(footnotes omitted)
[29] It reasoned, in relation to the zoning, precincts and height of buildings in Takapuna:
The North Panel of the whole Panel heard submissions and evidence on the zoning, precincts and heights of buildings in Takapuna, including the
submissions and evidence presented by Mr Belgiorno-Nettis. Parties who were heard in relation to this area included the Council and Housing New Zealand.
…
To assist in achieving the increased capacity and intensification that the Panel had found was appropriate for Takapuna, the residential land with frontage to The Promenade and Hurstmere Road was recommended to be zoned Terrace Housing and Apartment Buildings. As well, additional building height to 22.5m was to be permitted given the character of development on the other side of The Promenade and Hurstmere Road (intensive residential development and commercial development respectively). This increase was considered to have only limited effect on the residential areas to the north and east.
At the periphery, for the properties with frontage to Earnoch and Allison Avenues, the degree of intensification was recommended to be reduced by zoning those Properties Mixed Housing Urban.
The resultant split zoning across the block bounded by The Promenade, Hurstmere Road and Earnoch and Allison Avenues also reflected the existing pattern of development, with the more intensive uses (short-term accommodation and residential apartments) on that part zoned Terrace Housing and Apartment Buildings, and also the intensity that could be achieved and expected in the future while providing sufficient protection of amenity values within the zone and at its edges.
The area to the west of Lake Road, south of the centre, was considered to be quite different to the area to the northeast of the centre. The character and amenity values of that area were already in a state of transition. The proximity of that area to the centre and to major transport options justified intensification through the application of the Terrace Housing and Apartment Buildings zone. As well, increased building height to 22.5m, as also provided for on other land zoned Terrace Housing and Apartment Buildings, was found to be appropriate to encourage intensification.
In recognition of the proximity to other areas that were zoned mainly for residential uses, the Panel was also relying on the general development controls in the Terrace Housing and Apartment Buildings zone that have particular regard to protecting the residential amenity values of neighbouring areas.
[30]In conclusion, the reasons given for the IHP stated:
After the consideration and weighing of the evidence and submissions, no compelling reasons were identified as to why the residential areas immediately adjoining the metropolitan centre of Takapuna should not provide for greater capacity and a higher level of intensification. Mr Belgiorno-Nettis' particular submissions and evidence about the zoning and building height provisions in the residential areas around the Takapuna metropolitan centre were accordingly not recommended to be accepted.
[31] On 21 October 2019, Judge Kirkpatrick for the IHP issued further reasons, which stated:23
The Panel's attention has been drawn to the absence of clear reference to the Mixed Use zoning on either side of Lake Road to the south of the Takapuna Metropolitan Centre in the reasons given for our recommendations dated 14 October 2019.
The reasons given also relate to that area of Mixed Use zoning. To make this clear, the reasons should be amended so that the last two paragraphs under the heading "Local reasons" on page 4 read as follows:
The area on either side of Lake Road, south of the centre, was considered to be quite different to the area to the northeast of the centre. The character and amenity values of that area were already in a state of transition. The proximity of that area to the centre and to major transport options justified intensification through the application of the Terrace Housing and Apartment Buildings zone to the west of Lake Road and of the Mixed Use zone on either side of Lake Road. As well, increased building height to 22.5m, as also provided for on other land zoned Terrace Housing and Apartment Buildings, and 21m to the west and 18 metres to the east in the Mixed Use zone, was found to be appropriate to encourage intensification.
Auckland Regional Policy Statement
[32] As can be seen from the reasons, the Auckland Regional Policy Statement (RPS) sets the frame for the zoning recommendations made by the IHP.24 Given the importance of the RPS to the matters under review, I set out here the key parts of the RPS that are most relevant to the issues in focus in this proceeding.25
[33] Firstly, section B2.1. Issues, identifies the key urban form issues to which the RPS seeks to respond. It states:
Section B2 of the Regional Policy Statement
B2.1. Issues
Auckland’s growing population increases demand for housing, employment, business, infrastructure, social facilities and services.
23 Further statement of reasons for the AUPIHP recommendations on the Lake Road Block, dated 21 October 2019.
24 For detailed discussion of the hierarchy of resource management instruments, including the requirements of plans to “give effect to” policy statements see Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [11] and [80].
25 I am referring here to the most recent published version of the RPS which is not materially different from the recommendations version.
Growth needs to be provided for in a way that does all of the following:
(1) enhances the quality of life for individuals and communities;
(2) supports integrated planning of land use, infrastructure and development;
(3) optimises the efficient use of the existing urban area;
(4) encourages the efficient use of existing social facilities and provides for new social facilities;
(5) enables provision and use of infrastructure in a way that is efficient, effective and timely;
(6) maintains and enhances the quality of the environment, both natural and built;
(7) maintains opportunities for rural production; and
(8) enables Mana Whenua to participate and their culture and values to be recognised and provided for.
[34]B2.2.1 then identifies the corresponding objectives, most relevantly:
B2.2. Urban growth and form B2.2.1. Objectives
(1) A quality compact urban form that enables all of the following:
(a) a higher-quality urban environment;
(b) greater productivity and economic growth;
(c) better use of existing infrastructure and efficient provision of new infrastructure;
(d) improved and more effective public transport;
(e) greater social and cultural vitality;
(f) better maintenance of rural character and rural productivity; and
(g) reduced adverse environmental effects.
…
(3) Sufficient development capacity and land supply is provided to accommodate residential, commercial, industrial growth and social facilities to support growth.
…
[35] The RPS then identifies a number of policies directed to the achievement of these objectives, including most relevantly:
B2.2.2. Policies
Development capacity and supply of land for urban development
(1)Include sufficient land within the Rural Urban Boundary that is appropriately zoned to accommodate at any one time a minimum of seven years’ projected growth in terms of residential, commercial and industrial demand and corresponding requirements for social facilities, after allowing for any constraints on subdivision, use and development of land.
(2)Ensure the location or any relocation of the Rural Urban Boundary identifies land suitable for urbanisation in locations that:26
(a)promote the achievement of a quality compact urban form
(b)enable the efficient supply of land for residential, commercial and industrial activities and social facilities;
(c)integrate land use and transport supporting a range of transport modes;
(d)support the efficient provision of infrastructure;
(e)provide choices that meet the needs of people and communities for a range of housing types and working environments; and
…
(3)Enable rezoning of future urban zoned land for urbanisation following structure planning and plan change processes in accordance with Appendix 1 Structure plan guidelines.
Quality compact urban form
(4)Promote urban growth and intensification within the urban area 2016 (as identified in Appendix 1A), enable urban growth and intensification within the Rural Urban Boundary, towns, and rural and coastal towns and villages, and avoid urbanisation outside these areas.27
26 Recommendations version, dated 22 July 2016, states:
(1) Ensure the location of the Rural Urban Boundary identifies land suitable for urbanisation in locations that:
(a) Enable the efficient supply of land for residential, commercial and industrial activities and social facilities;
(b) Support the efficient provision of infrastructure; and
(c) Provide choices that meet the needs of people and communities for a range of housing types and working environments …
27 Recommendations version, dated 22 July 2016, states:
(4) Enable urban growth and activities within the Rural Urban Boundary, towns, and rural
(5)Enable higher residential intensification:
(a)in and around centres;
(b)along identified corridors; and
(c)close to public transport, social facilities (including open space) and employment opportunities.
(6)Identify a hierarchy of centres that supports a quality compact urban form:
(a)at a regional level through the city centre, metropolitan centres and town centres which function as commercial, cultural and social focal points for the region or sub-regions; and
(b)at a local level through local and neighbourhood centres that provide for a range of activities to support and serve as focal points for their local communities.
(7)Enable rezoning of land within the Rural Urban Boundary or other land zoned future urban to accommodate urban growth in ways that do all of the following:
(a)support a quality compact urban form;
(b)provide for a range of housing types and employment choices for the area;
(c)integrate with the provision of infrastructure; and
…
(8)Enable the use of land zoned future urban within the Rural Urban Boundary or other land zoned future urban for rural activities until urban zonings are applied, provided that the subdivision, use and development does not hinder or prevent the future urban use of the land.
…
[36] “A quality built environment” is also identified as an important goal. To this end, B.2.3. identifies objectives and policies in terms of a quality built environment:
B2.3. A quality built environment B2.3.1. Objectives
(1) A quality built environment where subdivision, use and development do all of the following:
and coastal towns and villages, and avoid urbanisation outside these areas.
(a) respond to the intrinsic qualities and physical characteristics of the site and area, including its setting;
(b) reinforce the hierarchy of centres and corridors;
(c) contribute to a diverse mix of choice and opportunity for people and communities;
(d) maximise resource and infrastructure efficiency;
(e) are capable of adapting to changing needs; and
(f) respond and adapt to the effects of climate change.
(2) Innovative design to address environmental effects is encouraged.
(3) The health and safety of people and communities are promoted.
B2.3.2. Policies
(1) Manage the form and design of subdivision, use and development so that it does all of the following:
(a) supports the planned future environment, including its shape, landform, outlook, location and relationship to its surroundings, including landscape and heritage;
(b) contributes to the safety of the site, street and neighbourhood;
(c) develops street networks and block patterns that provide good access and enable a range of travel options;
(d) achieves a high level of amenity and safety for pedestrians and cyclists;
(e) meets the functional, and operational needs of the intended use; and
(f) allows for change and enables innovative design and adaptive re-use.
(2) Encourage subdivision, use and development to be designed to promote the health, safety and well-being of people and communities by all of the following:
(a) providing access for people of all ages and abilities;
(b) enabling walking, cycling and public transport and minimising vehicle movements; and
(c) minimising the adverse effects of discharges of contaminants from land use activities (including transport effects) and subdivision.
(3) Enable a range of built forms to support choice and meet the needs of Auckland’s diverse population.
(4) Balance the main functions of streets as places for people and as routes for the movement of vehicles.
(5) Mitigate the adverse environmental effects of subdivision, use and development through appropriate design including energy and water efficiency and waste minimisation.
[37] Special provision is then made for residential growth at B2.4.1 which includes the following objectives:
B2.4. Residential growth B2.4.1. Objectives
(1)Residential intensification supports a quality compact urban form.
(2)Residential areas are attractive, healthy and safe with quality development that it in keeping with the planned built character of the area.
(3)Land within and adjacent to centres and corridors or in close proximity to public transport and social facilities (including open spaces) or employment opportunities is the primary focus for residential intensification.
(4)An increase in housing capacity and the range of housing choice which meets the varied needs and lifestyles of Auckland’s diverse and growing population.
(5)Non-residential activities are provided in residential areas to support the needs of people and communities.
(6)Sufficient, feasible development capacity for housing is provided, in accordance with Objectives 1 to 4 above, to meet the targets in Table
2.4.1 below:28
Table B2.4.1: Minimum Dwelling Targets
Term Short to Medium
1-10 years
(2016-2026)
Long
11-30 years
(2027-2046)
Total
1-30 years
(2016-2046)
Minimum Target (Number of
dwellings)
189,800 218,500 408,300
[38]Policies to implement these objectives then include the following:
B2.4.2. Policies
28 Recommendations version, dated 22 July 2016, does not contain bullet point number six or table B2.4.1: Minimum Dwelling Targets.
Residential intensification
(1)Provide a range of residential zones that enable different housing types and intensity that are appropriate to the residential character of the area.
(2)Enable higher residential intensities in areas closest to centres, the public transport network, large social facilities, education facilities, tertiary education facilities, healthcare facilities and existing or proposed open space.
(3)Provide for medium residential intensities in area that are within moderate walking distance to centres, public transport, social facilities and open space.
(4)Provide for lower residential intensities in areas:
(a) that are not close to centres and public transport;
(b) that are subject to high environmental constraints;
(c) where there are natural and physical resources that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal environment, historic heritage and special character; and
(d) where there is a suburban area with an existing neighbourhood character.
(5)Avoid intensification in areas:
(a) where there are natural and physical resource that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal environment, historic heritage, or special character; or
(b) that are subject to significant natural hazard risks;
where such intensification is inconsistent with the protection of the scheduled natural or physical resources or with the avoidance or mitigation of the natural hazard risks.
(6)Ensure development is adequately serviced by existing infrastructure or is provided with infrastructure prior to or at the same time as residential intensification.
(7)Manage adverse reverse sensitivity effects from urban intensification on land with existing incompatible activities.
Residential neighbourhood and character
(8)Recognise and provide for existing and planned neighbourhood character through the use of place-based planning tools.
(9)Manage built form, design and development to achieve an attractive, healthy and safe environment that is in keeping with the descriptions set out in placed-based plan provisions.
(10)Require non-residential activities to be of a scale and form that are in keeping with the existing and planned built character of the area.
…
[39] Relevantly also there is specific provision for a range of open spaces and recreational facilities at B.2.7, which includes as a policy:
B2.7. Open space and recreation facilities
…
B2.7.2. Policies
(7) Avoid, remedy or mitigate significant adverse effects of land use or development on open spaces and recreation facilities.
Overview
[40] By way of brief overview, the management of Auckland’s growing population is identified as a key issue. The RPS responds by identifying objectives and policies specifically directed to urban growth and form via a quality compact urban form, development capacity and efficient supply of land for urban development, and promotion of urban growth within specified areas. Enabling higher residential intensification in and around centres, along identified corridors and close to public transport, together with the identification of a hierarchy of centres that supports a quality compact urban form, are recognised as a means of achieving a quality compact urban form.
[41] A further key objective is a quality built environment where use and development responds to the intrinsic qualities and physical characteristics of the site and area, including its setting, as well as maintaining the hierarchy of centres and corridors. Residential intensification is also identified as a means of supporting a quality urban compact form. Corresponding policies emphasise provision for a range of residential zones and for enabling higher residential intensities in areas closest to centres, the public transport network, large social facilities and educational facilities.
Encouraging use and development to promote health and wellbeing, and mitigating the adverse effects of such use and development through design, is also envisaged.
Evidence
[42] Mr Belgiorno-Nettis provided affidavit evidence in support of his application. He says that he has brought these further proceedings to test, again, the adequacy of the IHP’s reasons. He considers that these are very important public interest issues for the Courts to consider, and that bringing the proceedings is about respecting the rights of those submitters who participated in the very lengthy hearing process and who are now affected by decisions which do not show their concerns have been heard, or even understood.
[43] He confirms that he was a submitter at hearing sessions on various dates and in relation to the following topics:
a.Business Zone Topics relevant to Lake Road, on 9 September 2015;
b.Residential Zone Topics – 22 October 2015;
c.Topic 078 – additional height controls – 22 October 2015; and
d.Site-Specific Topics – Topic 081 on 28 April 2016.
[44] He refers to appearing in relation to Topic 081 on 28 April 2016 before a Panel comprising Mr Des Morrison (Chair), Mr Les Simmons and Mr Allan Watson. He takes issue with the reference in the reasons that the strategic recommendations of the Regional Policy Statement (RPS), “necessarily resulted in the recommendation or rejection of individual submissions which ran counter to that strategy”. He complains that the IHP is now saying that submitters like him were wasting their time and that the submissions were going to be dismissed outright, as running counter to the strategy in the RPS. He says his concerns were about building height and the negative environmental effects of such heights on nearby land and local amenities. He says he
was not, however, opposed to additional height controls as a blanket opposition. He says his intention was to:29
… limit the inappropriate high-rises in identified specific sites adjacent to the Takapuna waterfront and along Lake Road but to increase the capacity in other areas especially closer to the bus routes and Akoranga Bus Station where intensification could have been more immediate and also more suitable for affordable housing.
[45] He also confirms that he made further submissions in support of Auckland 2040 Incorporated (Auckland 2040):30
… seeking a more balanced approach, and a freeze on Terraced Housing and Apartment Building (THAB) zoning in Takapuna and that all THAB zoned land be zoned Mixed Housing Suburban (MHS) until a full precinct urban design study had been prepared …
[46] He says, at the same time, he made submissions supporting intensification at Barry’s Point and Tennyson Avenue. He notes his submissions and further submissions into the Promenade Block and to the Lake Road sites were supported by expert evidence called by him and other submitters, specifically referring to the evidence of Ms Tracy Ogden-Cork (Ms Ogden-Cork). He also refers to the evidence given by Auckland 2040 in relation to Lake Road.
[47] He expresses the view that it is “fanciful and artificial” zoning to zone the Promenade Terraces as a THAB zone, with an additional height control of 22.5 metres, which is much higher than their existing build form (of about nine metres in height, accompanying three levels and an underground carpark) and which, he says, “will never be achieved as a credible development.”31 He also refers to the Mon-Desir apartments, which have a height of approximately 18 metres and are in individual ownership. He says it is an unlikely scenario that these apartments will ever be built any higher than existent built form.
[48] He says this is important because the zoning imposed in relation to the Emerald Inn site, at The Promenade, and owned by the Emerald Group Limited (Emerald), does
29 Affidavit of Franco Belgiorno-Nettis in support of Application for Judicial Review, dated 11 December 2019, at [12].
30 Affidavit of Franco Belgiorno-Nettis in support of Application for Judicial Review, dated 11 December 2019, at [13].
31 At [24].
not achieve a “transition” with what has been built nearby and which already exists because, at 22.5 metres, it will be substantially higher than compared to the Promenade Terraces (also zoned THAB, with additional height control) but approximately nine metres high.32
[49] He expresses concern about the loss of direct sunlight to surrounding areas. He notes also that the Promenade Block is close to the Takapuna Northern Reserve.
Evidence of John Michael Duguid
[50] Mr Duguid is a planner of Auckland. He has provided a comprehensive affidavit detailing the background to the AUP process, notification, a summary of provisions of the notified AUP, and submissions on the AUP. He also identifies hearing topics, allocation of submission points, the IHP hearings and evidence, the IHP reports and recommendations and the Council’s decision. He also provides background as to the previous judicial review and responds to the affidavit of Mr Belgiorno-Nettis.
[51] Counsel for Mr Belgiorno-Nettis objected to Mr Duguid’s evidence, submitting that it inappropriately goes to the substantive merits of the decision under challenge and is otherwise unnecessary. Counsel also complains that large parts of the statements amount to legal submissions and contain unqualified opinions. It is also said that the evidence runs counter to the decision of the Court of Appeal in Taylor v Chief Executive of the Department of Corrections,33 which states that the general rule is that judicial review proceedings are determined on the basis of the material before the decision-maker at the time of the decision.
[52] I agree that opinion evidence that trespasses directly into the merits of a decision under review will not usually be substantially helpful as required by s 24 of the Evidence Act 2006. Nevertheless, I admit Mr Duguid’s evidence because, for the most part, it includes relevant admissible material, including important background information. Furthermore, in a case like this, which involves the interpretation and
32 At [26].
33 Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [33].
application of planning instruments, Mr Duguid’s evidence is not presumptively irrelevant or unhelpful. Indeed, planning evidence of this kind can be of considerable use in terms of providing insight into the application of objectives and policies. It transpires that, in the end, I have only briefly scanned Mr Duguid’s evidence and I have not found it necessary to refer to, or rely on, his opinion evidence in any material respect. I have however referred to his evidence as a cross-check on background matters.
National Policy Statement on Urban Development
[53] After the hearing, Counsel for Emerald filed a copy of the National Policy Statement on Urban Development 2020. While I have noted it, I have not weighed it in my deliberations because it was not part of the information before the Panel.
Threshold for review
[54] The threshold for oversight of specialist tribunals are well settled in the RMA jurisdiction. I approach the review exercise on the following basis. I may test the IHP’s decision for error of law, irrelevant considerations or failure to have regard to relevant considerations, procedural impropriety and/or unreasonableness, which includes a conclusion without evidence or one to which on the evidence it could not have reasonably come. The objective of the review process is to secure both legality and substantive fairness. To this end, I must examine the IHP’s decision and reasons to ensure that its statutory discretion was exercised lawfully and fairly.34
Issues on review
[55]The parties agree that five issues need to be resolved. These issues are:
(a)Issue one: Did the Panel err in law in finding that prior strategic decision-making meant that submissions running counter to the intensification strategy in the Regional Policy Statement (RPS) necessitated the rejection of individual submissions, including the
34 Albany North Landowners v Auckland Council [2017] NZHC 138 at [90] onwards. See also
Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 (HC)
submissions and further submissions of the plaintiff? A subsidiary question is:
(i)Did the obligation to give effect to the RPS necessitate rejection of the submissions and further submissions of the plaintiff?
(b)Issue two: Did the Panel make a mistake of fact by holding that the submissions and further submissions of the plaintiff ran counter to the intensification strategy in the RPS?
(c)Issue three: By stating that it considered and weighed the evidence, did the Panel err in law and not provide reasons by reference to the common law and s 144(a) of the LGATPA for rejecting or accepting the zoning and additional height submissions by failing to identify which lay or expert witness was preferred?
(d)Issue four: Do the new reasons fail to have regard to relevant mandatory considerations, as to the effect of the height and zoning regime on the environment, including the environment as it exists?
(e)Issue five: Did the appropriate Panel confer as directed by the Court of Appeal in all the circumstances? A subsidiary question is:
(i)Whether there is an error of law or breach of natural justice in that it is not evident that the North Panel, who heard the site- specific submissions and evidence of the plaintiff, accurately reported to the whole Panel, and when the North Panel did not hear all the relevant evidence.
Issues one and two
[56] Issues one and two concern the same subject matter, so I will address them together. They correspond to claimed error of law (misapplication of the requirement to give effect to the RPS and thus negating material relevant factors) and mistake of fact (mischaracterisation of the plaintiff’s position).
[57] In order to address these issues, it is necessary to identify the key matters in dispute raised by the plaintiff’s submissions. As helpfully summarised by his counsel, contested issues in relation to the Promenade Block included:
(a)whether the THAB zoning with an additional height control of 22.5 metres over part of the Block (in the PAUP as notified) would allow for an adequate transition between the Takapuna metropolitan centre and low-density residential zones;
(b)whether the up-zoning of the Block would adversely affect the character and amenity of the site and environs, including adverse effects of shading and visual dominance; and
(c)whether the current built form of the Promenade Block (which included the Promenade Terraces and other buildings with no feasible development capacity for the foreseeable future) meant that the proposed zoning of the Block resulted in artificial zoning or 'spot- zoning.'
[58] Furthermore, as stated by counsel, contested issues in relation to the Lake Road Block included:
(a)whether the additional height control over the MU zone would provide an adequate transition to lower-density residential zones to the east;
(b)whether the MU zone on either side of Lake Road (in the PAUP as notified) would have adverse impacts on the amenity values of the surrounding residential areas;
(c)whether the MU zone on either side of Lake Road and the MHU zone on the eastern side of Lake Road would have the effect of extending commercial activity beyond a compact centre, and whether this accorded with the RPS strategy; and
(d)whether 'high' buildings on the western side of Lake Road would adversely affect development of THAB zone land to the west.
[59] As noted above, since Takapuna was recommended as one of the many appropriate locations for intensification, the Panel found that Mr Belgiorno-Nettis’ general submissions raising concerns about intensification and building height in Takapuna at a general strategic or growth management level were not recommended to be accepted.
[60] Mr Belgiorno-Nettis contends that the Panel was wrong to find that the prior intensification strategy of the RPS “necessitated” the rejection of his submissions because:
(a)The requirement to give effect to the strategy of the RPS is not an exclusive mandatory requirement and to treat it as so effectively neutralises other mandatory considerations.
(b)The Panel misapplied Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd,35 insofar as the Panel suggested that the requirement for lower order planning documents “to give effect to” the strategy of the RPS necessarily resulted in the rejection of Mr Belgiorno-Nettis’ submissions.
(c)The RPS policies were slavishly applied in an acontextual way and do not mandate automatic rejection of submissions.
(d)The Panel wrongly referred to the “strategy” of intensification rather than the RPS itself and the RPS does not have a sole objective of intensification.
(e)The Panel mischaracterised and did not engage with Mr Belgiorno- Nettis’ actual submissions which, among other things, identified further opportunities for intensification, including at Barry’s Point and Lake
35 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 24.
Road. This is said to be a mistake of fact.36 For example, in his further submission prepared by planning consultants SFH Consultants Limited, Mr Belgiorno-Nettis:37
i.supported submissions by Auckland 2040 (submitter 1473), and the Barry's Point Road Property Owners Collective (submitter 2557) – who sought to provide for apartment development within a mixed-use environment adjacent to the Northern Busway; and
ii.in the “Outcomes Sought”, expressed concern about “excessive height and bulk intensification” along the Takapuna coastal edge, but contended that “a more balanced strategy” could achieve a similar intensification outcome. It was stated that, "[w]hile residential intensification was appropriate ... a more balanced approach [is sought] in order to avoid excessive concentration … while supporting for example, the rezoning sought by the Barrys Point Collective".
Assessment
[61] As explained above, the RPS seeks to respond to Auckland’s growth needs via objectives and policies that achieve a quality compact urban form and a quality built environment. Intensification at specified locations, including, in particular, in and adjacent to centres and along identified corridors, is clearly identified as an important mechanism for implementing these objectives and policies. However, while important, the RPS does not mandate intensification at all costs. I therefore accept Mr Belgiorno- Nettis’ submission that intensification is not a pre-eminent consideration. Effects on local amenity values must be weighed.
36 Citing Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC).
37 Further Submission to Auckland Unitary Plan, dated 18 February 2014.
[62]But, I do not consider that the Panel:
(a)treated intensification as an exclusive or pre-eminent mandatory requirement;
(b)found that to give effect to the RPS necessarily resulted in the rejection of Mr Belgiorno-Nettis’ submissions in any presumptive sense;
(c)undertook a slavish acontextual application of a “strategy” of intensification; or
(d)automatically dismissed Mr Belgiorno-Nettis’ submission as anti- intensification.
[63] First, it is misdirected to engage in line by line dissection of the Panel’s reasons. Rather, the reasons must be read as a whole in order to properly understand why the Panel rejected Mr Belgiorno-Nettis’ submissions.38 And, when the Panel’s reasons are read as a whole, it is clear that the Panel simply found that parts of Takapuna were appropriate locations, in resource management terms, for high (or higher) rise intensification as clearly mandated by Section B2 of the RPS and so, it did not accept the submissions, including Mr Belgiorno-Nettis’ submissions, that advocated for low (or lower) rise intensification at those locations.
[64] Importantly, the Panel’s reasons expressly referred to various considerations that informed their approach to intensification, including, most relevantly, local conditions and amenity values. There was therefore no rote application of a pre- eminent resource management strategy of intensification. Illustrative of this are the key reasons referred to in relation to the Promenade Block (which I repeat here for ease of reference):
To assist in achieving the increased capacity and intensification that the Panel had found was appropriate for Takapuna, the residential land with frontage to The Promenade and Hurstmere Road was recommended to be zoned Terrace Housing and Apartment Buildings. As well, additional building height to 22.5m was to be permitted given the character of development on the other
38 For similar reasoning see Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 (HC) at 185 onwards.
side of The Promenade and Hurstmere Road (intensive residential development and commercial development respectively). This increase was considered to have only limited effect on the residential areas to the north and east.
The resultant split zoning across the block bounded by The Promenade, Hurstmere Road and Earnoch and Allison Avenues also reflected the existing pattern of development, with the more intensive uses (short-term accommodation and residential apartments) on that part zoned Terrace Housing and Apartment Buildings, and also the intensity that could be achieved and expected in the future while providing sufficient protection of amenity values within the zone and at its edges.
[65] Similarly, in relation to the Lake Road Block, the Panel acknowledged that “[t]he character and amenity values of that area were already in a state of transition”, and thus, that the area was appropriate for higher rise intensification. This reasoning must also be understood in light of the other relevant recommendations made by the Panel, including a recommendation referred to in the Rezoning and Precincts report that at the interface of zones, there be a rule that imposes the stricter of the two zones’ standards.
[66] I also agree with the Council’s submissions that there is no statement made by the Panel that it considered Mr Belgiorno-Nettis’ submissions to be antithetical to the RPS per se. The Panel, in the relevant part of its reasons, expressly refers to “general submissions raising concerns about intensification”. That part of the reasons most clearly relates to Mr Belgiorno-Nettis’ submissions which seek to achieve low (or lower) rise intensification generally (for example, the submission in support of Auckland 2040)39 and specifically in relation to the Promenade and the Lake Road Blocks. His submissions sought a reduction, for example, of the extent of the THAB zoning, and lower height levels in relation to the Promenade Block and reduction of the height levels in relation to parts of the Lake Road Block. He was also very critical of high-rise intensification generally in his evidence.40 The following statement in his evidence is illustrative:41
39 Auckland 2040 sought, among other things, a freeze on THAB zoning pending a study as to whether intensification was necessary. Its position is canvassed in detail in Albany North Landowners v Auckland Council, above n 34.
40 Franco Belgiorno-Nettis, Notes for Hearing topics 059/060/062/063 Submission S1167/FS507.
41 Franco Belgiorno-Nettis, Notes for Hearing topics 059/060/062/063 Submission S1667/FS507 (emphasis added).
I am against AZHC in all the THAB areas, these AZHC could always be reconsidered by way of plan change and in any case I am also against the proposal of the Council to increase the maximum height in the THAB and MHU zones.
[67] Mr Belgiorno-Nettis also complains that his submissions and evidence given before the Panels clearly indicated that, far from opposing intensification, the issue was simply one of location and that he preferred a more balanced approach. To use Mr Ryan’s phraseology in argument, Mr Belgiorno-Nettis took a “not here, over there” approach. That is, he sought to reduce the level of high-rise intensification in the Promenade Block and on the east side of the Lake Road Block, while promoting high- rise intensification in Barry’s Point Road and at Tennyson Avenue. The apparent failure to recognise his approach to intensification was said to reveal mistake of fact.
[68] While it is true that the Panel does not specifically refer to this aspect of Mr Belgiorno-Nettis’ submissions, the Panel, in fact, recommended intensification as sought “over there”, that is, at Barry’s Point Road. Thus, the Panel accepted, at least in part, submissions that sought intensification at Barry’s Point Road, but evidently did not consider that it was enough to satisfy the urban form objectives and policies of the RPS.
[69] An associated submission, said to reveal the Panel’s assumption that Mr Belgiorno-Nettis was “anti-intensification”, is the apparent failure to recognise that Mr Belgiorno-Nettis did not oppose intensification per se on the western side of Lake Road. But an apparent omission of this kind provides a weak basis only for an inference that the Panel assumed Mr Belgiorno-Nettis’ submission was anti- intensification and thus had to be rejected outright.
[70] In the result, I answer the first issue in the negative. The Panel did not slavishly apply the RPS’ objective and policies of intensification and did not simplistically assume that Mr Belgiorno-Nettis was “anti-intensification”. Rather, as the reasons clearly record, the Panel rejected submissions that called for low (or lower) rise intensification adjacent or near to the Takapuna centre as inconsistent with the RPS. More importantly, it found that the proposed high-rise intensification of Takapuna at the Promenade and Lake Road Blocks could be appropriately accommodated having regard to existing local amenity values. This accords with the thrust of Section B.2 of
the RPS insofar as it seeks to achieves quality compact urban form and a quality built environment.
[71] Similarly, I answer the second issue in the negative. I do not consider that the Panel assumed that the submissions and further submissions of Mr Belgiorno-Nettis ran counter to the intensification strategy in the RPS in any presumptive sense. Rather, as I have said, the Panel evidently found that the specific submissions which sought less intensive development generally or in specified areas were rejected as inconsistent with the RPS, notwithstanding the ability to provide for further intensification “over there” as the Panel, in fact, recommended.
[72] Finally, whether Mr Belgiorno-Nettis is characterised as pro or anti intensification is not in fact material to the key issue in dispute, namely, whether the specific relief sought by him better achieved the objectives and policies of the RPS which favoured high-rise intensification around existing modes or centres. The Panel found that the relief sought by him was not consistent with those objectives and policies, and that was plainly a finding available to them.
[73] Accordingly, the corresponding claims based on alleged error of law (misapplication of the requirement to give effect to the RPS and thus negating material relevant factors) and mistake of fact (mischaracterisation of the plaintiff’s position) are dismissed.
Issue three
[74] The third issue corresponds to Mr Belgiorno-Nettis’ claim that the Panel failed to give adequate reasons for dismissing his case. It is said that the Panel has failed to address the problems identified by the Court of Appeal, namely, how the submissions and the evidence worked to achieve the result is still left unstated and the reader is still left to speculate.42 Counsel further submit that the requirement to give a basic explanation of why evidence was rejected is required by the common law,43 and is consistent with the requirements of s 22(1) of the Local Government Official
42 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [80].
43 Citing, among other authorities, Ngāti Hurungaterangi v Ngāti Wahiao [2017] NZCA 429, [2017] 3 NZLR 770.
Information and Meetings Act 1987 which requires a written statement of reasons, including the findings on the material issues of fact; a reference to the information on which the findings were based, and the reasons for the decision or recommendation.
[75]More specifically, it is submitted that the Panel does not:
(a)refer to or explain why certain expert evidence is preferred over other evidence;
(b)engage with Mr Belgiorno-Nettis’ submissions and the evidence, including as they relate to alternative opportunities;
(c)identify whether The Promenade Terraces represented a feasible opportunity for intensification;
(d)identify or address the conflicts on the Council case for The Promenade Block;
(e)refer to or explain why the evidence of Mr Belgiorno-Nettis and Ms Ogden-Cook is rejected;
(f)refer to evidence on the Lake Road Block, including the evidence on behalf of the Auckland 2040; and
(g)refer to the evidence heard before the Panels other than the North Panel.
Assessment
[76] The Panel’s reasons do not contain a detailed discussion of individual submissions or supporting evidence. Failure to discuss the evidence and the competing positions may, in some cases, amount to a reviewable error of law. Where, for example, the outcome turns on the acceptance or rejection of expert evidence on a particular issue, an explanation as to why the evidence was accepted or rejected is to
be expected. This point was succinctly made by the Court of Appeal in Ngāti Hurungaterangi v Ngāti Wahiao as follows:44
[87] Mr Hodder is correct that the Trust Deed gave the panel a discretion about the admissibility of and weight to be given to certain evidence. The panel was “master of the facts”, to adopt Mr Hodder’s description, and exclusively entitled to decide “the admissibility, relevance, materiality, and weight of any evidence”. But an evidentiary discretion does not absolve the panel from stating why it preferred certain evidence, and what that evidence was, and why it simply disregarded a large body of expert evidence, other than stating the obvious.
[77] The Court of Appeal in this matter also commented adversely on the fact that “[h]ow the submissions and evidence worked to achieve [the] result is left unstated” and that “… a reader is left to speculate about a compromise.”45
[78] But I do not consider the omission to describe the evidence or to explain which evidence was preferred, reveals a reviewable and/or material error. Firstly, the Panel confirms that the North Panel heard the submissions and evidence on the zoning, precinct and heights of buildings in Takapuna, including the submissions and evidence presented by Mr Belgiorno-Nettis. There is no reason to doubt the truthfulness or accuracy of this statement. It also noted other relevant submissions considered included those seeking to rezone the Promenade Block in Takapuna from THAB to MHU or to otherwise reduce the development levels of that Block. It notes also that a submission seeking to retain the development potential was received from Emerald.
[79] Secondly, the reasons for preferring the case to retain the development potential of the Promenade Block are clearly explained. That is, the residential land with frontage to The Promenade and Hurstmere Road was recommended to be zoned THAB and the permitted height level of 22.5 metres because it was considered appropriate given the character of the development on the other side of The Promenade and Hurstmere Road. This increase was considered to have only a limited effect on the residential area to the north and east. However, at the periphery, the degree of intensification was recommended to be reduced by zoning that area MHU. Overall, it
44 Ngāti Hurungaterangi v Ngāti Wahiao, above n 43, at [87].
45 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [80].
was considered that this provided sufficient protection of amenity values. That conclusion was supported by evidence, including the evidence of Mr Roberts.
[80] For completeness, I have examined Mr Roberts’ evidence in response to a submission by Counsel that he erroneously relied on a submission of Auckland 2040 in support of his recommendation that the height of 22.5 metres be adopted. Mr Roberts acknowledges he made that mistake and corrects it to refer to the submission by Emerald. Most importantly, he maintains his position that:
[the] additional height zone of 22.5 metres for this site will achieve a transition between the Metropolitan zone and the THAB zone (with no height control) along Hurstmere Road and then to the SH zone, and is therefore consistent with Policy 3 for the THAB zone …
[81] The reasons for preferring the case to retain the development potential within the Lake Road Block are also clearly explained. The character and amenity values there were already in a state of transition, and proximity to major transport options justified intensification through the THAB zone to the west of Lake Road and MUZ on either side of Lake Road. The specified heights were considered appropriate to encourage intensification. The Panel also relied on the general controls that have particular regard to residential amenity values. Therefore, contrary to the position before the Court of Appeal, we are not left to speculate about a compromise. Rather, clear, cogent and well-understood resource management rationale is provided for the recommendations.
[82] I also see nothing in the fact that the Panel has not expressly addressed the evident conflict between the expert planners for the Council. It needs to be recalled that the Panel is comprised of experts in planning matters and is not obliged to accept, in a binary way, a case for or against a particular planning outcome. What is important is that the reasons for preferring a particular planning outcome are clearly stated. For the reasons just mentioned, I am satisfied the Panel has done just that.
[83] Thirdly, I have examined the evidence relied upon by Mr Belgiorno-Nettis and Ms Ogden-Cork in respect of both the Promenade and Lake Road Blocks to assess whether the matters raised by them have been adequately addressed by the Panel. Three key issues were raised by Mr Belgiorno-Nettis. First, that there was little, if
any, prospect of the Promenade Block being fully developed. Second, that the high- rise built form in the Promenade Block and in parts of the Lake Road Block would have very significant adverse amenity effects on existing environment. Third, that intensification could occur elsewhere.
[84] Ms Ogden-Cork emphasised that the Promenade Block should be zoned Mixed Urban Housing because of its:46
(a)unique character features that contribute to its ‘Sense of Place’;
(b)current built form;
(c)position in relation to the height provision in the PAUP for other parts of Takapuna; and
(d)the potential for adverse shading effects.
[85] She provided an assessment of visual effects of the 20.5 metre limit proposed in the PAUP at the Promenade Block, supported by a Sketch up comparison of estimated building heights at 10 metres and 20 metres. She also produced shading diagrams, again using a Sketch up model with an assumed height of 20.5 metres. She identified that the proposed height limit of 20.5 metres would result in a considerable increase in the amount of afternoon shading across The Promenade area, beachfront reserve, coastal walkway and Takapuna café through the entire year. She strongly advocates for MHU in the Promenade Block.
[86] I have already explained that the Panel expressly referred to local amenity values in reaching its decision and provided for intensification “over there.” It is equally clear from the reasons given that the Panel has rejected, in part, Mr Belgiorno- Nettis and Ms Ogden-Cork’s views about the different mix of controls, for example, Ms Ogden-Cork’s evidence in support of the MHU.
46 Evidence of Tracy Ogden-Cork (Urban Design) on behalf of Body Corporate 312977 for the Promenade Terraces and Franco Belgiorno-Nettis for topic 081 Rezoning and Precincts (Geographical Areas) at [27].
[87] The Panel also dealt with the existing and likely future environment. To repeat, it said:47
The resultant split zoning across the block bounded by The Promenade, Hurstmere Road and Earnoch and Allison Avenues also reflected the existing pattern of development, with the more intensive uses (short-term accommodation and residential apartments) on that part zoned Terrace Housing and Apartment Buildings, and also the intensity that could be achieved and expected in the future while providing sufficient protection of amenity values within the zone and at its edges.
[88] While Mr Belgiorno-Nettis and Ms Ogden-Cork may disagree with this conclusion, they cannot say that the Panel omitted to consider this matter or any of the other key matters raised by them.
[89] Fourthly, I have examined the evidence of Auckland 2040 identified by Counsel as relevant to Lake Road, namely the evidence of Brian Putt, Stephen Matthews and Richard Burton. Mr Putt is a Town Planner with extensive experience. He relevantly, for present purposes, gave evidence in relation to the Mixed Use zone and the Mixed Housing Urban zone proposed for Lake Road from Blomfield Spa, south to Park Avenue. He says:
(a)The use of the Mixed Use zone (MUZ) on the eastern side of Lake Road from Blomfield Spa to Park Avenue undermines the character and format of development prompted through the Takapuna Centre plans over many years.
(b)Because of the height available under the MUZ the opportunity is lost to provide a height transition from west to east across the urban setting to Takapuna beach.
(c)There is a longstanding pattern of Takapuna development that requires recognition in the PAUP.
47 Emphasis added.
(d)In the same manner the introduction of Mixed Housing Urban (MHU) into the street (Blomfield Spa, Sanders and Park) has the effect of extending more intensive three-storey development into these residential streets and environments in a manner that is not compatible with the existing spatial setting and longstanding expectations of redevelopment.
(e)The submitter seeks replacement of the MU zone on the eastern side of Lake Road with the MHU zone and the removal of the MHU zone from intruding into Blomfield Spa, Sanders Avenue and Park Avenue.
[90] In support of these conclusions, he provides evidence as to the urban character of the affected Lake Road Block and its development history, noting that the zone selection for the eastern side of Lake Road and the adjoining streets needs to take into account that development history which, in short, has been involved with low-rise development for at least thirty years. He also refers to planning best practice, noting that the Council’s selection of zone intensification in Lake Road and extending into identified streets, is out of step with the pattern of THAB zoning envisaged for the balance of Takapuna. He refers to Objective B2.2 – “Quality Built Environment” – of the Regional Policy Statement as giving some lead as to why the zone selection needs to be cognisant of the coastal setting and the desirability for views and aspect towards the sea wherever possible. He notes that the interface and potential for conflict between the Mixed Use zone and residential environment has always been a difficult urban management task.
[91] Mr Matthews is a registered architect with 35 years’ experience. He provides evidence in relation to, among other things, the urban environment in respect of the Lake Road zoning. He says, “[i]t is clear that extending the commercial precinct of Mixed Use onto Lake Road, south Takapuna CBD, is out of step with the character of the area.” He says that the existing widely disbursed houses, with significant trees and vegetation, provide good opportunity for views to the water – blocking this with Mixed Use is out of step with policy objectives for a Quality Built Environment”. He says, “[i]nstead of Mixed Use, a Mixed Housing Urban zone is more appropriate on Lake
Road, then Mixed Housing Suburban to the east, leading into Single House by the water.”
[92] Mr Burton’s evidence addresses the MUZ for Lake Road. He refers to the previous zoning of this area, noting that, “Lake Road has gradually been redeveloping with a number of two-storey residential scale office developments in keeping with the residential character.” By contrast, the MUZ, he says, “proposes an entirely different scale of development”, including height of up to 18 metres on the east side and 21 metres on the north side. He notes that the MUZ proposes “very large, bulky five to six storey buildings in a location where they are divorced from the large buildings in the Takapuna Commercial area.” He says that the development of the scale and bulk proposed in the MUZ on Lake Road will have “a significant adverse effect on the residential area, particularly to the east.” He notes there is no need for a MUZ on Lake Road and the MHU zone with an overlay permitting offices and medical facilities only would be far more appropriate. He concludes that the seaward side of Lake Road has been a highly desirable residential area for many years. He refers to progressive intensification that has been enabled but that the residential character has largely been retained of one – two storey residential development in landscaped grounds. He also expresses concern about a proposal to introduce Mixed Housing Urban along Lake Road from the southern side of Park Avenue, mostly to Belmont. He notes that, “[t]he proposed introduction of MHU zone reflects [the] Council’s doctrinaire approach to planning which applies a policy that areas within walking distance of a centre or on a main bus route should be zoned MHU.” He complains the Council has done no assessment of the suitability of the MHU zone in this area or of the implications on development on Lake Road.48
[93] While the reasons do not expressly refer to this evidence, the addendum to the reasons provided by Judge Kirkpatrick clearly addresses the key matters raised by them as they relate to the provision for intensification along Lake Road. In short, contrary to the opinions expressed by Messrs Putt, Matthews and Burton, the Panel was satisfied that the proposed intensification was justified, given the affected area
48 Evidence of Richard Jay Burton.
was already in a state of transition and the proximity to the centre and major transport options.
[94] I am also confident that the Panel would have taken into account Auckland 2040’s submissions and evidence. Auckland 2040 was a major submitter on issues of urban form with a particular focus on protecting residential amenity values. For example, Auckland 2040 filed submissions in opposition to all of the major submitters who sought further liberalisation of urban form controls to ensure that projected growth needs were met.49 Auckland 2040 was also actively engaged throughout the IHP process. It cannot possibly be that the Panel was not cognisant of their position. Moreover, the Auckland 2040 submission is referred to at length in Mr Belgiorno- Nettis’ evidence,50 including a note that Auckland 2040 was:
… asking as a matter of fact for all the AZHC to be deleted everywhere in Takapuna and indeed to treat all the THAB zones around Takapuna as MHU until a proper comprehensive development plan has been made and then proceed by way of plan change.
[95] Therefore, it can be assumed that the Panel (including the North Panel) had regard to the major urban form issues raised by Auckland 2040.
[96] I note that the Court of Appeal said that the reasons given in relation to the recommendations on Precincts were adequate and that “[a] few paragraphs, sometimes a few sentences, per issue could be sufficient.” 51 The reasons given in relation to both the Promenade and the Lake Road Blocks are comparable to the reasons given in relation to the Precincts. In the result, as envisaged by the Court of Appeal, the Panel has clearly and adequately explained “why” Mr Belgiorno-Nettis’ (and Auckland 2040’s) submissions were not adopted.
[97] Finally, to those unfamiliar with the lengthy process undertaken by the IHP, the relatively brief reasons given by the Panel may appear slight having regard to the evidence presented by (among others) Mr Belgiorno-Nettis, Ms Ogden-Cork and Messrs Putt, Matthews and Burton. I acknowledge, in this regard, it would have been
49 Including Generation Zero, New Zealand Institute of Architects and Urban Design Forum, Property Council of New Zealand, Housing Corporation.
50 Franco Belgiorno-Nettis, Notes for Hearing for topic 059/060/062/063 Submission S1667/FS507.
51 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [97].
helpful for the Panel to expressly address Ms Ogden-Cork’s shading analysis and why it did not consider that analysis to be persuasive. But it is a matter of judicial record that the Panel is comprised of recognised experts in resource management and that the Panel members were engaged in one of the largest inquiries into urban planning ever undertaken in this country.52 The issues raised by Mr Belgiorno-Nettis and Auckland 2040 were thoroughly contested at numerous locations across the Auckland region.53 The Panel was therefore well placed to understand the potential effects of the proposed intensification at the Promenade and Lake Road Blocks. The assessment therefore as to those effects, and the consistency of the proposed zoning for those Blocks with urban form objectives and policies, were matters well within their expertise and experience to assess. Furthermore, there is nothing to suggest that this wider experience did not form part of the background to the Panel’s recommendations as they relate to the two Blocks. Therefore, the brevity of the reasons should not be confused for lack of either consideration or comprehension of the key matters in issue.
[98] Accordingly, the claim based on error of law for inadequate reasons is dismissed.
Issue four
[99] As pleaded, issue four relates to the wide-ranging claim that the Panel failed to have regard to the existing and likely future environment. That is not a sustainable proposition given that the Panel specifically refers to the existing and future environment in its reasons. Counsel for Mr Belgiorno-Nettis, however, maintain that the Panel has failed to specifically address the evidence about the development feasibility in the Promenade Terraces and some parts of the Lake Road Block, namely, that it was unlikely to be capable of development in the foreseeable future. They also say that the Panel’s conclusion that the THAB zoning for the area represented what “could be achieved and expected in the future” is not consistent with the evidence.
52 See Albany North Landowners v Auckland Council, above n 34, at [10]-[33],[47]-[64], [65]-[72], [78]-[83].
53 See Albany North Landowners v Auckland Council at [155] where “test cases” are discussed. I also note that, in relation to Ms Ogden-Cork’s shading analysis, the Council closed to the North Panel on the basis that her shading analysis was considered of limited assistance given the adverse effects of the shading and visual dominance would be reduced by the Council’s proposed changes which included some MHU zone.
Citing Aley v North Shore City Council,54 Smith Chilcott Ltd v Auckland City Council55 and Arrigato Investments Ltd v Auckland Regional Council,56 this is said to be important because an assessment of the effects on the environment should be on the environment as it exists57 and that the Act contemplates the relevant environment being addressed in a realistic and factually based way.58
Assessment
[100] The authorities cited by Counsel for Mr Belgiorno-Nettis are concerned with the framework for the assessment of effects on the “environment” of particular activities seeking consent, and the extent to which permitted effects could be taken into account. They confirm that a practical and fact-specific assessment is required of what is permitted by the relevant planning instrument,59 and that what is permitted as of right by a plan was part of the environment, but beyond that, the relevant environment must be assessed in a realistic and factually based way.60 Counsel for Mr Belgiorno-Nettis thus submits that the same analysis should be applied in the rule making context.
[101] Unsurprisingly, I accept that the existing or future environment must be assessed in a “realistic and factually based way”. But, as the Council submits, zoning is concerned with the district-wide sustainable management of resources. It is not involved in a granular consent level assessment of effects on the environment as it exists or might exist having regard to what is permitted in a plan. Rather, it is engaged in a higher level, more complex, forward looking exercise, that necessarily involves making very broad assumptions about potential patterns of development. That necessarily involves an assessment of (among other things) whether the zoning will enable the Council to discharge its functions under s 31 of the RMA, including the integrated management of effects of the use, development, or protection of land. Inevitably, there will be individual sites that may not be “likely” to utilise the
54 Aley v North Shore City Council [1999] 1 NZLR 365 (HC) at 381.
55 Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473 (CA) at [8].
56 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA) at [36].
57 See submissions at [8.62] – referring to Aley Investments Ltd v Auckland Regional Council, above n 54; Smith Chilcott Ltd v Auckland City Council, above n 55.
58 Referring to Arrigato Investments Ltd v Auckland Regional Council, above n 56.
59 Smith Chilcott Ltd v Auckland City Council, above n 55, at [26].
60 Arrigato Investments Ltd v Auckland Regional Council, above n 56, at [36].
development potential of a proposed rezoning. But that is simply a factor to be considered by the Panel when discharging its s 31 functions (including integrated management of effects) and achieving the sustainable management purpose. The premise, therefore, of Mr Belgiorno-Nettis’ claim under this heading is misguided. There is no mandatory requirement on the part of the Council to be satisfied, when settling on a zone for an area, that the development potential is “likely” to be taken up by individual sites.
[102] I also note that whether the development potential of a site is “realistic” was an evaluative matter for the Panel and not amenable to review, unless it was a conclusion not available to it on the evidence. In this regard, I have examined the evidence tabled before the Panel said to show that the Promenade Terraces are not amenable to further development, namely, the evidence of Ms Ogden-Cork as follows:61
All four corners of the block are currently defined by development of 2-3 storey scale and of the four corners three are unlikely to be subject to change due to being existing multi-unit development or heritage buildings.
[103] But neither of the factors mentioned by Ms Ogden-Cork preclude the realistic potential for full utilisation of the THAB zoning. Therefore, to the extent the Panel’s conclusion as to the future environment is inconsistent with this evidence, it remained a conclusion available to it.
[104] The evidence in relation to the alleged lack of potential for development at the Lake Road site was given by Mr Burton. He opines that development potential in parts of the Lake Road Block is limited, referring to the ratio of capital value to land value, and noting that if it is high then the cost of redeveloping the site becomes prohibitive. Based on his assessment of specified sites, he says it is “difficult to see how the MHU zone is appropriate for these sites”. He also says that “in my opinion it is wrong to apply a zoning to land which does not recognise the extent of the existing development and the likelihood of redevelopment occurring.”62 He did, however,
61 Evidence of Tracy Ogden-Cork (Urban Design) on behalf of Body Corporate 312977 for the Promenade Terraces and Franco Belgiorno-Nettis for topic 081 Rezoning and Precincts (Geographical Areas) at [38].
62 Evidence of Richard Jay Burton at [32].
observe that other parts of Lake Road had considerably higher potential for development and while difficult, it cannot be said that the Panel’s assumption of development potential overall of the Lake Road Block was not available to it.
[105] Finally, Mr Belgiorno-Nettis has also filed evidence in this proceeding which refers to the fact that relevant title documents include restrictive covenants preventing further development without approval of the Body Corporate of the Promenade Terraces. Nevertheless, I remain satisfied that the development potential of the Promenade Terraces is not so obviously low or fanciful as to make the Panel’s conclusions about potential development patterns for the Promenade Block “unrealistic” for the purpose of the zoning exercise.
[106]Accordingly, this claim is also dismissed.
Issue five
[107]Issue five corresponds to the following pleading:
The new reasons breach natural justice … on the ground that the persons giving the decision on the new reasons had not listened to and heard the evidence or all of the evidence provided or relied on by the plaintiff.
Particulars:
(a)Those members of the IHP who heard and listened to the evidence concerning the prior strategic recommendations for the RPS topics did not hear and listen to all of the evidence provided or relied on by the plaintiff;
(b)A majority of the panel members of the Red or North Panel (comprising Des Morrison (Chair), Les Simmons, and Alan Watson) who actually heard and listened to the evidence and expert evidence of the plaintiff (and other submitters) in relation to the Promenade Block and the Lake Road Block did not hear and listen to the evidence concerning the prior strategic recommendations for the RPS;
(c)The new reasons do not indicate any process by which the appropriate members of the IHP who heard and listened to the evidence in relation to the Sites actually conferred and provided the new reasons as directed by the Court of Appeal.
(d)As a consequence of the misdescription of the plaintiff’s position, it is not apparent that the members of the IHP who actually heard and listened to the evidence and expert evidence of the plaintiff accurately reported the position of the plaintiff to members of the IHP who made decisions;
(e)Holding that the prior decision-making on the RPS strategic direction necessarily led to the rejection of individual submissions without this policy or approach being disclosed to submitters was in breach of the rules of natural justice.
[108] Counsel for Mr Belgiorno-Nettis submits that the Panel does not identify or explain how it conferred on his submissions. In particular, Counsel submit the Panel does not explain:
(a)how, if at all, the evidence and submissions provided at the hearings before the North Panel (comprised of only three Panel members), informed the deliberations of the Full Panel; or
(b)how the evidence and submissions heard by the South Panel informed the deliberations of the Full Panel.
[109] However, during the hearing, Counsel for Mr Belgiorno-Nettis withdrew the claims in relation to [107] (a) and (b) above, and conceded that any allegation that Judge Kirkpatrick signed the new reasons for the Panel unilaterally was withdrawn.63 Counsel maintains, however, that the pleaded errors [107] (c)-(e) are still engaged.
[110] Central to this claim is the following passage of the judgment of the Court of Appeal:64
[106] Given the nature of this quasi-judicial process chaired as it is by a Judge of the Environment Court, the danger of new reasons being composed to support the decision does not in our view arise. The indications in the material before us are that the decision of the Panel was thorough, and that it did consider individual submissions (although no conclusion can be reached on this until reasons are given). There is no suggestion that the appropriate Panel cannot be brought together again to report on the reasons. The Panel, consisting as it does of a judge and a number of senior professional persons, will need to confer before it summarises its reasons for reaching the two decisions.
63 In a memorandum filed after the hearing, Counsel clarified that the Counsel conceded that any allegation Judge Kirkpatrick in signing the new reasons for the Panel had “not” done so unilaterally was withdrawn. I assumed this to be a typographical error.
64 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 1, at [106] (emphasis added).
[111] Counsel for Mr Belgiorno-Nettis submits that the reasons provided do not demonstrate that the appropriate Panel conferred. It is further submitted that the Panel’s new reasons indicate that the Panel was “unwilling to shift from the idea of making broad policy decisions about intensification”, with the implication that they automatically flowed down to decisions at an individual property or area level. It is also said that the Panel did not engage with the key points made by Mr Belgiorno- Nettis, reinforcing the view that due consideration was never given to them.
[112] It is further submitted that in the absence of any transparent record of who conferred, Mr Belgiorno-Nettis cannot be sure that his submissions were in fact considered individually or in the round. This is then said to engage the type of breach of natural justice identified by the Privy Council in Jeffs v New Zealand Dairy Production Marketing Board.65 In that case, the decision-making Board delegated responsibility to a Committee to receive the evidence and to report to the Board. In so doing, the Privy Council held that, by not hearing the evidence directly, it breached its duty to act judicially.66
Assessment
[113] I can address this claim briefly. But first, it is helpful to explain the statutory basis for the “Hearings Panel” and its recommendations. The “Hearings Panel” is established pursuant to s 161(2) of the LGATPA , and is to comprise a chairperson and two to seven members. Additional members may be added so long as the total is no more than seven.67 The hearing procedure is then governed by s 136 of the same Act, which provides that there must be no fewer than two members of the Hearings Panel present at a hearing and that the Hearings Panel must establish a procedure that is appropriate and fair in the circumstances. The Hearings Panel is then empowered by s 144 of the Act to make recommendations on the proposed plan and must do so after it has finished hearing all of the submissions that will be heard on the proposed plan. These recommendations must be provided in reports. Each report must include recommendations on the topic or topics covered by the report and the reasons for
65 Jeffs v New Zealand Dairy Production Marketing Board [1967] 1 AC 551, [1967] NZLR 1057 at 1068.
66 At 1066-1067.
67 Section 161(7).
accepting or rejecting submissions, and may address them by grouping them according to provisions or matters to which they relate.
[114] As can be seen, the Hearings Panel refers to the body responsible for making the recommendations, while a hearing may be comprised of some (but no less than 2) or all of the members of the Hearings Panel. The scheme therefore contemplates that the members present at the hearing will report to the Hearings Panel, and that the Hearings Panel will then make its recommendations. That is what in fact transpired here. The Panel resolved to adopt a split panel process which was explained in its Hearing Procedure for Site Specific Topics. As noted the “North Panel” heard submissions and evidence in relation to topic 81. That process is not subject to challenge in this case. Furthermore, on the face of the reasons, the North Panel reported to the Hearings Panel and that Panel has provided its reasons for its recommendations in relation to the Promenade and Lake Road Blocks.
[115] With that background in mind, I reject any submission that the Panel was not properly assembled and/or for that purpose, did not reach a decision based on all of the information available to the Panel members. The answer lies in the first paragraph of the reasons, which is repeated here for ease of reference:68
Pursuant to the order made by the Court of Appeal in its decision dated 22 May 2019 in Belgiorno-Nettis v AUPIHP & Auckland Council [2019] NZCA 175 at paragraph [117], and following the decision dated 10 October 2019 of the Supreme Court in Belgiorno- Nettis v AUPIHP & Auckland Council [2019] NZSC 112, the Panel gives its reasons for its recommendations to the Auckland Council relating to the zoning and height requirements for The Promenade and Lake Road Blocks in Takapuna.
[116] Counsel for Mr Belgiorno-Nettis quite properly conceded that Judge Kirkpatrick can be assumed to have signed the Panel’s reasons on behalf of the Panel, and not unilaterally. It can also be assumed, therefore, that the reasons given are the reasons of the full Hearings Panel. There is no credible basis to hold otherwise.
68 Emphasis added.
[117] I also see nothing in the point that the reasons refer only to the North Panel when addressing “Local Reasons”. As noted, unlike Jeffs, no issue of improper delegation or failure to hear the evidence has been raised or arises.
[118] Furthermore, it can be assumed from the face of the reasons that they are the product of the combined inputs of the members of the Hearings Panel, including Panel members who heard the more generalised evidence relating to urban form and in light of the evidence placed before the North Panel. Moreover, the critical importance of the reasons is to understand and to be sure that ‘the Panel’ satisfactorily addressed the key issues in light of the submissions and evidence. For the reasons given in relation to issues one to four, I am satisfied that the full Panel has done just that.
[119]This claim must also be dismissed.
Outcome
[120] I am satisfied that the Panel gave due and careful consideration to the matters raised by Mr Belgiorno-Nettis and that the conclusions reached by the Panel in respect of both the Promenade and Lake Road Blocks were available to it. No error of law or substantive unfairness arises. The application for review is therefore dismissed.
[121]Submissions on costs may be filed, no longer than five pages in length.
Appendix A
Figure 1: Lake Road Block Map with Additional Height Zone Control in blue – Notified Plan (block edged red)Figure 2: Promenade Block Map with Additional Height Zone Control in blue – Notified Plan (block edged red)
Figure 3: Lake Road Block with height variation control in blue – IHP Recommended (block edged red)
Figure 4: Promenade Block Map with height variation control in blue – IHP Recommended (block edged red)
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