Bunnings Limited v Auckland Unitary Plan Independent Hearing Panel
[2017] NZHC 2141
•6 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2351 [2017] NZHC 2141
BETWEEN BUNNINGS LIMITED
Plaintiff
AND
THE AUCKLAND UNITARY PLAN INDEPENDENT HEARING PANEL First Defendant
(Continued next page)
Hearing: On the papers Counsel:
D J Minhinnick and L J Eaton for Bunnings Ltd
P Andrew for Independent Hearings Panel
M Wakefield and V Evitt for Auckland Council
D J Sadlier for The National Trading Company of NZ Ltd
S J Simons and R M Steller for Westgate Joint Venture and
Nuich TrustR E Bartlett QC for Western City Holdings Ltd and I B and G A Midgley
M Casey QC and A Davidson for Hugh Green Ltd
B J Matheson for NZ Retail Property Group Ltd D Allan for Waitakere Ranges Protection Society M Wright for Environmental Defence Inc
J Brabant for Samson Corporation Ltd & Sterling Nominees Ltd
C E Kirman for Housing New Zealand CorporationJudgment:
6 September 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 6 September 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
BUNNINGS LIMITED v THE AUCKLAND UNITARY PLAN INDEPENDENT HEARING PANEL [2017] NZHC 2141 [6 September 2017]
AUCKLAND COUNCIL Second Defendant
THE NATIONAL TRADING COMPANY OF NEW ZEALAND LIMITED
WESTGATE JOINT VENTURE NUICH TRUST
WESTERN CITY HOLDINGS LIMITED
IAN BERTRAM MIDGLEY AND GRAHAM ANDREW MIDGLEY
HUGH GREEN LIMITED
NEW ZEALAND RETAIL PROPERTY GROUP
Interveners
CIV-2016-404-2290
BETWEEN THE WAITAKERE RANGES PROTECTION SOCIETY INCORPORATED
Appellant
ANDAUCKLAND COUNCIL Respondent
ENVIRONMENTAL DEFENCE SOCIETY INC
Section 301 party
CIV-2016-404-2310
BETWEEN SAMSON CORPORATION LIMITED AND STERLING NOMINEES LIMITED Appellant
ANDAUCKLAND COUNCIL Respondent
ANDHOUSING NEW ZEALAND CORPORATION
Section 301 party
Introduction
[1] Forty-nine legal challenges were originally brought against the Auckland Unitary Plan (the Unitary Plan).1 A number of these challenges have since settled. This decision considers settlements reached in respect of three of those challenges.
[2] The appeals and judicial review application were brought by: (a) Bunnings Ltd (Bunnings);
(b) Waitakere Ranges Protection Society Incorporated (WRPS); and
(c) Samson Corporation Limited and Sterling Nominees Limited
(Samson).
[3] I set out the background, position of the parties, my reasons for allowing the appeals and judicial review application and appropriate relief below. Each of the matters before me has come by way of consent, and the parties to each appeal (or application) agree on the key facts and issues. I adopt these facts for the purpose of this judgment.
Approach
[4] The frame for the resolution of appeals by consent was set out in Ancona
Properties Ltd,2 which I adopt.
[5] In particular, consent orders are granted where:
(a) the consent orders reflect the proper resolution of issues of law raised by the appellants;
1 The Auckland Unitary Plan is now operative in part and named the “Auckland Unitary Plan
Operative in Part”. References in this judgment to the Unitary Plan refer to the operative plan.
2 Ancona Properties Ltd v Auckland Council [2017] NZHC 594.
(b)the proposed amendments and the resolution of the appeals is consistent with the purpose and principles of the Resource Management Act 1991 (RMA), including in particular Part 2;
(c) approval of the proposed consent orders would also be consistent with the purpose and intent of the Local Government (Auckland Transitional Provisions) Act 2010 (the LGATPA), namely Part 4, which provides a streamlined process designed to enable the Unitary Plan to become operative within a short period of time;
(d) the orders may be granted pursuant to r 20.19 of the High Court Rules
2016, ss 300-307 of the RMA and s 158 of the LGATPA;3 and
(e) the consent orders are within the scope of the appeals. [6] And:
[4] A curious feature of the Unitary Plan process is that the Council may accept or reject an IHP recommendation.4 A decision to accept an IHP recommendation may be appealed to this Court on a question of law, while a decision to reject an IHP recommendation triggers a right of appeal to the Environment Court.5 A decision of this Court to substantively amend the Unitary Plan must usually trigger a statutory right of appeal to the Environment Court because the effect of the amendment is to reject the IHP recommendation. Subject to futility, this statutory right of appeal should be activated. By futility I mean situations where:
(a) there are no other submitters on the relevant part(s) of the
Proposed Auckland Unitary Plan (PAUP); (b) any submitters consent to the changes; or (c) the changes are of a technical nature only.
[5] A corollary of this is that a consent order granting substantive amendments will ordinarily trigger the notice and appeal procedures of s 156 as if the consent order is a decision of the Council to reject an IHP recommendation. …
3 As I address later in the judgment, s 4(2) of the Judicature Amendment Act 1972 provides the
appropriate avenue for relief in respect of Bunnings’ judicial review application.
4 Local Government (Auckland Transitional Provisions) Act 2010, s 148.
5 Sections 158 and 156 respectively.
Bunnings Ltd
[7] Bunnings brought a judicial review proceeding against the first respondent, the Auckland Unitary Plan Independent Hearings Panel (the Panel) and the second respondent, Auckland Council (the Council) on 16 September 2016 alleging error of law in relation to the recommendation of the Panel and subsequent decision of Council to include roading changes in a new Redhills Precinct in the Unitary Plan.
[8] In a joint memorandum of counsel dated 21 June 2017, counsel recorded that five of the parties to the application had reached settlement,6 with four parties of the remaining parties agreeing to abide the Court’s decision.7
Background
[9] Bunnings owns and operates numerous building improvement and outdoor living stores. Among its portfolio is 2.8 hectares of land at 21 Fred Taylor Drive (the Site), on the corner of Fred Taylor Drive and Te Oranui Way, at which it has resource consent to construct a Bunnings Warehouse. The primary access route for the Site, and other properties owned by interested parties to this appeal, is Te Oranui Way.
[10] Immediately to the west of the Site is an area of approximately 600 hectares of greenfields land, known as Redhills (Redhills Area). The Redhills Area is bordered by Fred Taylor Drive and Don Buck Road to the east, Redhills Road to the south and west and Henwood Road to the north.
[11] In the notified version of the Proposed Auckland Unitary Plan (the PAUP), the Redhills Area was zoned Future Urban, which would not in itself enable urban development, and no indicative roading layout for the Redhills Area was included.
[12] Various of the interested parties to this appeal, as well as the Council, made submissions on the PAUP as it related to the Redhills Area. Hugh Green Ltd and
6 The parties in agreement are Bunnings, the Council, The National Trading Company of New Zealand Ltd, Ian Bertram Midgley and Graham Andrew Midgley and New Zealand Retail Property Group.
7 These parties comprise Hugh Green Ltd, Westgate Joint Venture, Nuich Trust and Western City Holdings Ltd. The final party, the Panel, does not take a position on the alleged errors of law and will abide the decision of the Court, consistent with approach to Unitary Plan judicial review applications.
Westgate Partnership, landowners in part of the Redhills Area, sought residential zoning and a new precinct to be known as Redhills Precinct. They attached proposed precinct plans, which included an indicative roading layout for the Redhills Area. Neither of their proposed precinct plans involved a direct connection to the roundabout from which Te Oranui Way begins, or arterial roads.
[13] Bunnings filed submissions on the PAUP in relation to the Site, but did not file further submissions in response to the proposal that it form part of a separate Redhills Precinct.
[14] Hugh Green Ltd and Westgate Partnership then provided evidence to the Panel on 14 March 2016 in support of their submissions. Their evidence at hearing attached a different proposed precinct plan from that included in submissions, and included an arterial road connecting to the roundabout.
[15] Bunnings alleges this new roading alignment will necessitate the closure of Te Oranui Way, or at the very least, a reduction in available movements to and/or from it, which will have significant consequential effects on it.
[16] On 22 July 2016, the Panel recommended to the Council that the Redhills Precinct be included in the Unitary Plan on the basis of the precinct plan presented in evidence at hearing. In its report it noted that at hearing the Council had opposed the precinct for a number of reasons, including incomplete agreement on strategic road alignments and cross-sections, but found that:8
All parties accept that roading and traffic issues are significant matters that need to be addressed. In addition to the submitters and Council, the Panel also heard from Auckland Transport and the New Zealand Transport Agency on wider strategic issues (such as access through the Northside Drive extension).
Rather than detail that considerable evidence, helpfully captured in Mr Ian Clark’s powerpoint presentation to the Panel on 14 April 2016, the Panel records it accepts that those issues are now well identified, understood and will need to be addressed not just for this proposed precinct but also for the wider development areas of Hobsonville, Massey and beyond. Furthermore, while the critical east-west arterial road alignment (from the Fred Taylor
8 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council Hearing topics
016, 017 Changes to the Rural Urban Boundary; 080, 081 Rezoning and precincts Annexure 5
Precincts West (22 July 2016) at 26-27.
Drive/Don Buck Road intersection to the Nelson/Nixon /Red Hills Road intersection) is not yet precisely anchored (although indicated on the precinct plan) it is clear that this, and the other key arterials, must be resolved before significant actual development within the precinct can occur – and provisions proposed ensure that. In addition the precinct provisions require defined transport issues to be resolved as a prerequisite for certain dwelling numbers to be exceeded.
The Panel is therefore satisfied that sufficient consideration has been given to these matters to enable their detailed resolution to proceed to the next stage.
[17] The Council accepted this recommendation.
Alleged errors of law
[18] Bunnings’ allegation is the Panel, in making its recommendation, failed to identify that it was beyond the scope of submissions made in respect of the topic, pursuant to s 144(8)(a) of the LGATPA. Specifically, Bunnings alleges there was no scope to introduce a precinct plan with the proposed arterial road network, including the arterial road connecting to the roundabout with consequential effects on the existing roundabout connections. Because the Panel did not identify the recommendations as out of scope, Bunnings had no right of appeal pursuant to s
156(3). In reaching settlement, the parties have been informed by the scope test cases decision.9
[19] The position of the parties who have agreed to settlement is the present application is analogous to the site-specific proceedings brought by Stand Holdings Ltd, which was considered as part of the scope decision:
(a) The Panel’s jurisdictional scope to introduce the Redhills Precinct had its foundation in the primary submissions lodged by Hugh Green Ltd and Westgate Partnership, which sought a new precinct and which proposed specific precinct plans and roading network layouts of local and collector roads only. Neither of these submissions sought, as part of their specific precinct plans, any arterial roads or any road
connection to the roundabout.
9 Albany North Landowners v Auckland Council [2017] NZHC 138.
(b)The Council’s notified “summary of decisions requested” report provided no clear signal to potential further submitters that the proposed roading layout sought could be amended, as a direct result of any other primary submissions, to include arterial roads.
(c) Because the relief sought by Hugh Green Ltd and Westgate Partnership was specific, the Panel’s recommended amendments to the precinct plan, specifically the inclusion of arterial roads, amendments to the alignment of those arterial roads relative to the indicative collector roads shown in the submissions, and the new arterial connection to the roundabout, are not a reasonably foreseen and logical consequence of those submissions.
(d)This is particularly so as the amendments are considered by some parties to have facilitated a fundamental change to the operation of the local road network, in a manner which would be disenabling, particularly for existing users of the roundabout, which has left them unduly prejudiced (in terms of s 156(3)(c)) and without a right of appeal.
(e) Accordingly, the recommendation as it relates to the changes above lacks jurisdictional scope and should properly have been identified as such pursuant to s 144(8) of the LGATPA. Failure to do so amounts to an error of law.
[20] Four of the parties do not adopt this position, but are willing to abide the Court’s decision as to error of law, in reliance on an agreement between the parties to seek a priority fixture in the Environment Court if the relief sought before this Court is granted.
Relief sought
[21] The parties request that, pursuant to s 4(2) of the Judicature Amendment Act
1972, the Court exercise its discretion to declare that the Panel made an error of law by recommending the inclusion of arterial roads, amendments to the alignment of
those arterial roads relative to the alignment of the collector roads shown in the submissions, and the new arterial connection to the roundabout as part of the precinct plan, without identifying those recommendations as beyond the scope of submissions made on the PAUP.
[22] Section 4(2) provides:
4 Application for review
…
(2) Where on an application for review the applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the Court may, instead of making such a declaration, set aside the decision.
[23] The effect of this relief is the Council’s decision to accept the Panel’s recommendations will have been made in relation to a recommendation that should properly have been identified as beyond the scope of submissions, triggering the right of unduly prejudiced persons to appeal to the Environment Court pursuant to s
156 of the LGATPA.10
Assessment
[24] Whether the precise roading changes were a logical and foreseeable consequence of the Hugh Green Ltd and Westgate Partnership submissions is disputable. I accept that the changes to the arterial roads or roundabout were not explicitly foreshadowed in their primary submissions or indicated in the “summary of decisions requested” report. They form part of subsequent evidence. I should note, however, that it is not uncommon in environmental matters for such detail to evolve during the course of a hearing and I would ordinarily be circumspect about finding lack of scope on matters of detail. However, as the parties have reached agreement or are prepared to abide my decision, I am content to allow the appeal for want of scope on the precise roading changes. I am also satisfied, given a right of appeal to the Environment Court for substantive assessment is now available, there is
no prejudice to any party in the result.
10 Bunnings filed a concurrent appeal with the Environment Court on 16 September 2016, which is on hold pending the outcome of this proceeding. The parties (except the Panel) have agreed to seek a priority fixture for any appeal in the Environment Court subsequent to the relief sought.
[25] Accordingly, the relief sought by the parties is granted.
Waitakere Ranges Protection Society Incorporated
[26] WRPS alleges the Panel and Council erred in law by changing the activity status for subdivision beyond certain density limits in the Waitākere Ranges Heritage Area (the Heritage Area).
[27] On 23 June 2017, the parties to this appeal filed a joint memorandum recording settlement and seeking consent orders from the Court.11
Background
[28] The PAUP as notified contained precincts and sub-precincts that identified the proposed subdivision pattern for land in the Waitākere Ranges. In some of those precincts and sub-precincts, the activity status for subdivision at a density greater than that provided for in the plan was a Prohibited Activity.
[29] WRPS is an incorporated society and registered charity, whose purpose is to protect and conserve the natural environment in the Heritage Area. It made submissions and a further submission on the PAUP which, relevant to this appeal, addressed various provisions relating to the activity status for subdivision beyond certain density limits in the Heritage Area. In particular WRPS:
(a) supported the provisions of the PAUP that allocated a default Prohibited Activity status for subdivision in certain precincts and subprecincts with the Waitākere Ranges; and
(b)through further submission, opposed submissions filed by third parties that sought to remove the default Prohibited Activity status for
subdivision.
11 The parties being WRPS, the Council and the Environmental Defence Society.
[30] During the hearing of submissions on Topic 075 Waitākere Ranges (Topic
075), WRPS presented legal submissions and called expert planning evidence supporting the relief it sought in its submissions.
[31] On 22 July 2017 the Panel recommended a non-complying activity status:12
During the hearing, the Panel explored the appropriate activity status for subdivisions exceeding the allocated entitlement. The Panel concluded that non-complying activity status is appropriate in the context of a policy framework that seeks to limit subdivision, particularly its cumulative effects. Where entitlements are allocated as a result of site-specific assessments carried out in the context of area-wide landscape, ecological and other studies, there will be few properties where additional lots can be justified. The exceptions are likely to arise where amalgamation and re-subdivision is proposed or circumstances have changed due to the passing of time (e.g. vegetation has matured).
Prohibited activity status implies that the Plan has got all the answers right which seems unlikely in the Waitākere Ranges, given its history and existing pattern of subdivision, use and development. Further, prohibited activity status imposes high costs on applicants seeking to change the status quo and is therefore not enabling of people and communities. The Panel’s new structure has an overlay containing objectives and policies limiting subdivision. Proposals to subdivide land over and above the allocated entitlement face robust assessment under sections 104 and 104D of the Resource Management Act 1991 and sections 7 and 8 of the Waitākere Ranges Heritage Area Act 2008.
[32] The Council accepted these recommendations in its decisions version of the
Unitary Plan.
Alleged errors of law
[33] WRPS raised various errors of law in its notice of appeal. Two alleged errors continue to carry relevance:
(a) the Panel failed to comply with its duties and obligations pursuant to ss10 and 11 of the Waitakere Ranges Heritage Area Act 2008 (the WRHAA); and
(b) the Panel applied an incorrect legal test for the implementation of
prohibited activity status in asserting that “prohibited activity status
12 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council Hearing topic
075 Waitākere Ranges (22 July 2016) at 21.
implies the Plan has got all the answers right which seems unlikely in the Waitākere Ranges, given its history and existing pattern of subdivision, use and development”.
[34] Sections 10 and 11 of the WRHAA provide:
10 Regional policy statements and regional plans
(1) When preparing or reviewing a regional policy statement or regional plan that affects the heritage area, the Council must give effect to the purpose of this Act and the objectives.
(2) The requirements in subsection (1) are in addition to the requirements in sections 61, 66, and 79 of the Resource Management Act 1991.
(3) When evaluating a proposed policy statement, or proposed plan, change, or variation that affects the heritage area, the Council must also examine whether the statement, plan, change, or variation is the most appropriate way to achieve the objectives (having regard to the purpose of this Act).
(4) The requirements in subsection (3) are in addition to the requirements in section 32(3) of the Resource Management Act
1991.
11 District plans
(1) When preparing or reviewing a district plan that affects the heritage area, the Council must give effect to the purpose of this Act and the objectives.
(2) The requirements in subsection (1) are in addition to the requirements in sections 74, 75, and 79 of the Resource Management Act 1991.
(3) When evaluating a proposed district plan, change, or variation that affects the heritage area, the Council must examine whether the plan, change, or variation is the most appropriate way to achieve the objectives (having regard to the purpose of this Act).
(4) The requirements in subsection (3) are in addition to the requirements in section 32(3) of the Resource Management Act
1991.
[35] The purpose section, s 3, then relevantly provides:
3 Purpose
(1) The purpose of this Act is to—
(a) recognise the national, regional, and local significance of the
Waitakere Ranges heritage area; and
(b) promote the protection and enhancement of its heritage features for present and future generations.
…
[36] On the first ground, WRPS submits:
(a) When preparing or reviewing a regional policy statement, regional plan or district plan that affects the Heritage Area, the Council must give effect to the purpose of the WRHAA and its objectives in ss
10(1) and 11(1).
(b)When evaluating a proposed policy statement, proposed regional plan or proposed district plan that affects the Heritage Area, the Council must examine whether the proposal is the most appropriate way to achieve the objectives, having regard to the purpose of the WRHAA (ss 10(3) and 11(3)).
(c) The reasons for the Panel’s recommendations with respect to the status change do not address the purpose of the WRHAA, the objectives set out in the WRHAA or ss 10 or 11. As such, the Panel’s recommendations with respect to the status change, and the Council’s decision to adopt the recommendations:
(i)do not give effect to the purpose of the WRHAA or the objectives set out in it;
(ii)do not examine whether the status change is the most appropriate way of achieve the objectives, having regard to the purpose of the WRHAA; and
(iii)instead, have regard to the WRHAA only in terms of the extent to which it might influence the assessment of the subsequent
applications for resource consent to subdivide land within the
Heritage Area.
[37] On the second ground, WRPS claims:
(a) In asserting that “prohibited activity status implies that the Plan has got all the answers which seems unlikely in the Waitākere Ranges, given its history and existing pattern of subdivision, use and development”, the Panel has misdirected itself as to the correct legal test for implementation of a prohibited activity status in planning instruments made under the RMA.
(b)The Panel effectively imposed a threshold test on the imposition of prohibited activity status, being it could only be adopted if there is no prospect of a resource consent being appropriately granted if non- complying activity status is allocated instead of prohibited activity status. Rather, WRPS submits prohibited activity status is a tool available to the Council pursuant to the RMA. There is no other threshold exclusively relating to the allocation of a prohibited activity status to an activity.
(c) Moreover, prohibited activity status is not necessarily permanent and:
(i) is subject to periodic review through the plan review process;
and
(ii)may be altered through a private plan change request or public plan change process.
(d)Prohibited activity status should be upheld if it is warranted in terms of the evaluation under s 32 of the RMA, regardless of whether resource consent might appropriately be granted to a proposal if non- complying activity status was adopted instead.
(e) The Panel’s evaluation is also contrary to the Court of Appeal decision in Coromandel Watchdog of Hauraki Incorporated v Chief Executive of the Ministry of Economic Development.13
(f) Had the Panel’s recommendations and the Council’s decision applied the correct legal test for the implementation of prohibited activity status in the planning instruments made under the RMA they would not have upheld the activity status change.
[38] The Council accepts these alleged errors in the following terms:
(a) The Panel did not adequately give effect to ss 11(1) and (3) of the WRHAA in recommending a change to the activity status for subdivision. There was little or no evidential basis to demonstrate that the change was an appropriate way of achieving the purpose and objectives of the Act, in particular that it would ensure appropriate level of protection for the area and its heritage features. This runs contrary to the objectives of the WRHAA which require the adoption of a holistic and precautionary approach to decisions which could adversely affect heritage features or the area (pursuant to s 8(b), (c) and (d)).
(b)The Panel misdirected itself as to the correct legal test for implementation of prohibited activity status in planning instruments made under the RMA, by applying a threshold test or requirement for certainty that does not accord with the RMA. Rather, under s 32 of the RMA, the decision-maker must only be satisfied that prohibited activity status is the most appropriate way of achieving the objectives of the Plan, which in turn must achieve the objectives and purpose of the WRHAA, and the purpose of the RMA. Circumstances where
such an approach may be appropriate include where a precautionary
13 Coromandel Watchdog of Hauraki Incorporated v Chief Executive of the Ministry of Economic
Development [2007] NZCA 473, [2008] 1 NZLR 562 [Coromandel Watchdog].
approach is adopted or where the Council wishes to ensure a
coordinated and integrated approach to development.14
Relief sought
[39] The parties have agreed to amendments to activity tables D12.4.2 and E39.4.5 in Chapters D12 and E39, which are set out in Appendix A. In effect, they amend the default activity status for subdivision from non-complying to prohibited activity when specific density requirements are exceeded in the following areas:
(a) the southern parts of the former Swanson Structure Plan; (b) the Oratia Ranges (the upper parts of the Oratia Valley);
(c) rural parts of Titirangi-Laingholm (but not those sites that were part of Titirangi Subdivison Area 1 and Titirangi-Laingholm Subdivision Area 2); and
(d)the Rural – Waitakere Ranges zone (comprising privately owned land around the periphery of the regional park).
[40] These areas represent the most sensitive parts of the Heritage Area which were afforded this level of protection under the legacy Waitakere Plan, as the relief is consistent with what the Council proposed in the PAUP. The parties consider this outcome better gives effect to s 11(1) and (3) of the WRHAA where:
(a) there is currently insufficient information to determine whether a particular subdivision proposal or pattern in excess of the existing entitlements will adversely affect the Heritage Area and/or its features; and
(b)the WRHAA requires a holistic approach to development which is better achieved through a plan change application for a given area or
catchment than on an ad hoc site by site basis.
14 Citing Coromandel Watchdog.
[41] The parties acknowledge the changes are substantive in nature and spatial extent, and there may be other affected submitters who wish to challenge the agreed position which has been reached. As such, they accept this is not a scenario where triggering a right of appeal under s 156 of the LGATPA would be futile. In the circumstances, they submit the most appropriate course of action would be to grant the relief as sought by consent but require the Council to serve notice of its decision on all affected submitters advising of their right of appeal pursuant to s 156(1) of the LGATPA, in effect treating the agreed amendments proposed by the parties as an
alternative solution adopted by Council pursuant to s 148(1)(b).15
Assessment
[42] Ordinarily, I would decline an appeal asserting in generic terms failure to have regard to legislation where that legislation is specifically referred to in the Panel’s reasoning. Furthermore, on the facts, the Panel was applying a planning judgment as to the suitability of prohibited activity status which was available to it, notwithstanding ss 10 and 11 of the WRHAA. This dispenses with the first and second grounds of the WRPS appeal. I also consider that the reference in the reasons to “prohibited activity status implies that the plaintiff has got all the answers right, which seems unlikely in the Waitākere Ranges, given its history and existing pattern of subdivision, use and development” was available to it and does not reveal an error of law on its face.
[43] By definition, “prohibited activity status” precludes a subsequent assessment process which necessarily means that by imposing prohibited activity status the Council is closing off further evaluation, at least and until the plan is changed. I am prepared to accept, however, given the consensus reached with the Council, that the Panel may have erred in a similar way to the Council in Coromandel Watchdog. In that case, the Environment Court found that prohibited activity status should not be used unless an activity was actually forbidden. This was upheld by the High Court. But the Court of Appeal held that the Court was in error insofar as it held that
prohibited status could only be used when a planning authority was satisfied that,
15 This was the relief provided in University of Auckland v Auckland Council [2017] NZHC 1150 at [19]-[21], and Man O’War Farm Limited v Auckland Council [2017] NZHC 1349 at [16].
within the time span of the plan, the activity in question should in no circumstances be allowed in the area under consideration.16
[44] The Court of Appeal noted:
[36] It is clear from the extracts from the Environment Court decision we have highlighted at paragraphs [3] – [4] above that the Court postulated a bright line test – that is, the local authority must consider that an activity be forbidden outright, with no contemplation of any change or exception, before prohibited activity status is appropriate. We are satisfied that, in at least some of the examples referred to at paragraph [34] above, the bright line test would not be met. Yet it can be contemplated that a local authority, having undertaken the processes required by the Act, could rationally conclude that prohibited activity status was the most appropriate status in cases falling within the situation described in that paragraph.
[45] The examples at [34] included the following:17
(a) Where the council takes a precautionary approach. … This would allow proper consideration of the likely effects of the activity at a future time during the currency of the plan when a particular proposal makes it necessary to consider the matter, but that can be done in the light of the information then available. …
…
(c) Where the council is ensuring comprehensive development. … it may be appropriate to provide that any development which is premature or incompatible with the comprehensive development is a prohibited activity. …
(d) Where it is necessary to allow an expression of social or cultural
outcomes or expectations …
[46] In the present case, I agree with the appellant that the WRHAA articulates a number of values which are expressions of social, environmental and cultural outcomes or expectations which might properly justify prohibited activity status as an outcome. The most effective way of achieving these objectives may have been to impose prohibited activity status on subdivision. To the extent the Panel did not approach the imposition of prohibited activity status in this way, it applied the
incorrect legal test, in terms of Coromandel Watchdog.
16 Coromandel Watchdog, above n 13, at [40]-[41].
17 At [34].
[47] In those circumstances, but particularly in light of the agreement of all parties, crucially including the Council, I allow the appeal. As with the earlier University of Auckland and Man O’War Farm Ltd appeals, I am fortified in adopting this approach because the parties accept that the proper relief is to grant the relief sought but require notification to all affected submitters. They are to be advised of a right of appeal under s 156(1) of the LGATPA.
[48] I had, however, one residual concern, namely whether subdivision of the affected properties will now lose the benefit of non-complying activity status if I grant the relief as sought. I convened a conference about this. Helpfully, counsel indicated that the effect of the relief affirms the status quo ante, as the subdivision of those properties is currently prohibited by operation of the existing operative plan rules.
[49] Accordingly the appeal is allowed and the relief granted on the terms sought by consent.
Samson Corporation Ltd and Sterling Nominees Ltd
[50] Samson holds a property portfolio in the Auckland area. Among its sites is a property at 1-3 Grosvenor Street, Grey Lynn (the Property). It has brought three appeals against decisions of the Council adopting Panel recommendations. The present appeal concerns the Council’s decision to zone the Property Residential – Single House Zone (SHZ) and apply a Special Character Overlay.
[51] On 26 June 2017, the parties filed a joint memorandum recording settlement and seeking consent orders.
Background
[52] The Property was zoned Residential 1 under the Auckland Council District Plan – Isthmus Section. The PAUP then applied a SHZ with a Special Character Overlay.
[53] Samson opposed this, and made a submission and further submission to that effect. It instead sought a Business – Mixed Use zone (MU), and removal of the Special Character Overlay. It then presented evidence before the Panel supporting its submissions, to the effect that the site has always been of a commercial nature, adjoins properties fronting Great North Road which are zoned MU, and that the Council granted resource consent on 10 September 2015 to Samson to demolish the existing building and construct a new commercial premises. Demolition was completed on 6 February 2017 and construction of the new premises began on 13
February 2017.
[54] The Council supported retention of the PAUP provisions at hearing, on the basis the Special Character Overlay was a constraint that best accorded with the SHZ. However its evidence did not address the specific features of the Property, resource consent or the existing commercial use.
[55] The Panel then recommended a SHZ and Special Character Overlay in relation to the Property. The Council accepted these recommendations.
[56] The purpose of the Special Character Overlay, as outlined in the operative Unitary Plan, is to “retain and manage the character of the traditional town centres and residential neighbourhoods by enhancing existing traditional buildings, retaining intact groups of character buildings, and designing compatible new building infill and additions that do not necessarily replicate older styles and construction methods, but reinforce the predominant streetscape character.”18
[57] In relation to the SHZ, in its recommendations the Panel stated:19
The purpose of the Residential – Single House Zone is to maintain and enhance the amenity values of established residential neighbourhoods in a number of locations…
To support the purpose of the zone, multi-unit development is not anticipated, with additional housing limited to conversion of an existing dwelling into two dwellings and minor dwelling units. The zone is generally
18 Auckland Unitary Plan Chapter D18 Special Character Areas Overlay D18.2.2.
19 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council Hearing topics
059-063 Residential zones (22 July 2016) at 14.
characterised by one to two storey high buildings consistent with a suburban built character.
[58] By contrast, the MU zone is described in the Unitary Plan as follows:20
The Business – Mixed Use Zone is typically located around centres and along corridors served by public transport. It acts as a transition area, in terms of scale and activity, between residential areas and the Business – City Centre Zone, Business – Metropolitan Centre Zone and Business – Town Centre Zone. It also applies to areas where there is a need for a compatible mix of residential and employment activities.
The zone provides for residential activity as well as predominantly smaller scale commercial activity that does not cumulatively affect the function, role and amenity of centres. …
…
New development within the zone requires resource consent in order to ensure that it is designed to a high standard which enhances the quality of streets within the area and public open spaces.
[59] The Plan’s policies in relation to the MU zone include:21
(16) Locate the Business – Mixed Use Zone in suitable locations within a close walk of the City Centre Zone, Business – Metropolitan Centre Zone and Business – Town Centre Zone or the public transport network.
(17) Provide for a range of commercial activities that will not compromise the function, role and amenity of the City Centre Zone, Business – Metropolitan Centre Zone, Business – Town Centre Zone and Business – Local Centre Zone, beyond those effects ordinarily associated with trade effects on trade competitors.
…
(20) Promote and manage development to a standard that:
(a) recognises the moderate scale, intensity and diversity of business, social and cultural activities provided in the zone;
(b) recognises the increases in residential densities provided in the zone; and
(c) avoids significant adverse effects on residents.
(21) Require activities adjacent to residential zones to avoid, remedy or mitigate adverse effects on amenity values of those areas.
20 Auckland Unitary Plan Chapter H13 Business – Mixed Use Zone H13.1.
21 Auckland Unitary Plan Chapter H13 Business – Mixed Use Zone H13.2.
[60] The Panel provided guidance on its approach to re-zoning. This “best practice” approach included the following considerations:22
1.1.The change is consistent with the objectives and policies of the proposed zone. This applies to both the type of zone and the zone boundary.
…
1.6.Changes should take into account features of the site (e.g. where it is, what the land is like, what it is used for and what is already built there).
…
1.11. Generally no ''spot zoning" (i.e. a single site zoned on its own).
1.12.Zoning is not determined by existing resource consents and existing use rights, but these will be taken into account.
Alleged error of law
[61] Samson initially alleged numerous errors of law. The Council accepts one of these – failure to consider mandatory relevant considerations. Specifically, it concedes in light of the Panel’s approach to rezoning and the purpose and application of the SHZ that the Panel failed to take into account certain relevant considerations which either separately or together would justify a MU zoning, including:
(a) the evidence addressing the specific features of the Property; (b) the evidence addressing its existing use; and/or
(c) the evidence detailing the resource consent granted by Council authorising the demolition of the existing buildings on the Property, and hence the destruction of the built character of those buildings, construction of a replacement non-residential building on the Property, and ongoing non-residential use of the Property for
retail/showroom/commercial warehouse activities.
22 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council Hearing topics
016, 017 Changes to the Rural Urban Boundary; 080, 081 Rezoning and precinct (22 July 2016)
at 6.
[62] The Council does not accept the other alleged errors, and Housing New Zealand Corporation, interested in this appeal only in relation to Samson’s allegation that the Panel failed to provide reasons, disputes that error.
Relief sought
[63] The parties seek an amendment to the Unitary Plan, whereby the Property is rezoned MU and the Special Character Overlay is removed. They request approval of the amendment by consent, and submit providing a right of referral to the Environment Court would be futile, given the amendment is technical in nature and
unopposed.23 The proposed relief is set out in Appendix B.
Assessment
[64] A bare assertion that the Panel failed to have regard to relevant considerations belies the context. But I am satisfied this appeal should be allowed on the more limited basis that the outcome was not available to the Panel on the evidence. In particular, there appears to be agreement between the parties to the appeal that the outcome is not reconcilable with the following considerations:
(a) The evidence addressing the specific features of the site; (b) The evidence addressing the existing use of the site;
(c) The evidence detailing the resource consent granted by the Council authorising the demolition of the existing buildings on the site; and/or
(d) The guidance provided by the Panel on its approach to rezoning. See
[60].
[65] I also agree with the parties that in the special circumstances of this case, where a resource consent for commercial use has been granted and the heritage value
of the building has been removed from the Property, the imposition of special
23 Citing Ancona Properties Ltd v Auckland Council, above n 2, at [4].
character zoning on a site adjacent to a major arterial suggests something has gone wrong in the decision-making process.
[66] I note for completeness, as I have with the other appeals in this judgment, that I place some significance on the fact the Council agrees there has been a failure to have regard to a relevant consideration.
[67] As to relief, I am advised that the only submitter on the appellant’s primary submission now consents to the relief sought. That being the case, referral of the matter back for the purposes of an appeal to the Environment Court would be futile. Accordingly, the relief as sought by the appellant is granted.
Outcome
[68] In relation to the Bunnings application, I set aside the decision of the Panel. As a result, a right of appeal to the Environment Court is available.
[69] The appeals by the parties in the WRPS and Samson matters are allowed.
[70] In relation to the WRPS appeal, the relief set out in Appendix A is granted, subject to the Council serving notice of its decision on all affected submitters advising of their right of appeal to the Environment Court, pursuant to s 156(1) of the LGATPA.
[71] In relation to the Samson appeal, the relief outlined in Appendix B is granted.
APPENDIX A
APPENDIX B
4
4
1