Tegel Foods Limited v Christchurch City Council
[2016] NZHC 2324
•30 September 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-695 [2016] NZHC 2324
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
decisions made pursuant to the Resource
Management Act 1991BETWEEN
TEGEL FOODS LIMITED Applicant
AND
CHRISTCHURCH CITY COUNCIL First Respondent
MATTHEW BRETT HASELDEN Second Respondent
SOUTH ISLAND SHOTCRETE LIMITED
Third Respondent
Hearing: 14 September 2016 Appearances:
R Devine for Applicant
No appearance for First Respondent
R Smedley and G Cleary for Second and Third RespondentsJudgment:
30 September 2016
JUDGMENT OF MANDER J
[1] The applicant, Tegel Foods Limited (Tegel), has made application for interim relief pending determination of its application for judicial review of the Christchurch City Council’s (the Council) decision to grant a resource consent to the operator of an indoor trampoline centre, Mega Jump Limited (Mega). Tegel seeks to restrain
Mega’s continued operation of its trampoline centre.
TEGEL FOODS LIMITED v CHRISTCHURCH CITY COUNCIL & ORS [2016] NZHC 2324 [30 September
2016]
Background
[2] Tegel operates a poultry processing plant at 106B and 112-120 Carmen Road, Hornby. It shares an accessway with a number of other adjacent commercial properties, including that occupied by Mega. Tegel’s processing operation is a permitted activity under the Industrial Heavy and General zone provisions of the Christchurch Replacement District Plan (the Plan). Tegel holds a discharge consent to discharge contaminants into the air as a result of its processing activities. That consent is subject to the conditions that it not cause offence or objectionable odours beyond Tegel’s property boundaries, and that it maintain a record of any complaints made in relation to the odour discharged. Tegel’s processing operation at the Hornby site and its discharge consent are longstanding.
[3] The owners of Mega commenced establishing its trampoline enterprise in early 2016 and entered into a sublease of 106A Carmen Road for a period in excess of two years on 26 February. It made application for a resource consent on 28 April. Thereafter it commenced constructing a bespoke trampoline complex within the commercial building it had leased. During that period there was some interaction with Tegel involving complaints regarding odours sourced from Tegel and the activity of its trucks.
[4] On 10 June 2016, a resource consent was granted on a non-notified basis to establish and operate the indoor trampoline centre. After learning the resource consent had been granted, Tegel wrote to the Council requesting it be reviewed. It maintained it should have received notification of the application. The Council declined to initiate a review and maintained its decisions in relation to the resource consent application were valid. In response, Tegel filed judicial review proceedings challenging the Council’s decision to grant the consent and to do so on a non- notified basis.
The application for interim injunctive relief
[5] Tegel has made application for interim orders pending the determination of its judicial review application to restrain Mega from taking steps to “implement
and/or exercise the resource consent” and from operating the trampoline centre. It makes its application on the following bases:
(a) the interim orders are necessary to preserve its position prior to the determination of the review application;
(b)the substantive application discloses strong arguments that the Council, in granting resource consent on a non-notified basis, acted unlawfully;
(c) serious health and safety considerations arise favouring the granting of the orders;
(d)Tegel will suffer detriment and prejudice in the absence of such orders; and
(e) the overall justice of the matter favours Tegel.
[6] Mega opposes Tegel’s application because, in its submission, an interim
injunction is unnecessary to preserve Tegel’s position. Mega submits:
(a) Tegel will continue to be able to conduct its processing operation at its plant;
(b)Tegel will continue to be able to discharge contaminants provided it does so in accordance with its discharge consent and associated conditions;
(c) Tegel and its employees will continue to be able to use the right of way to access its premises; and
(d)in the four week period since Mega commenced its operations and the hearing of Tegel’s application, there is no evidence of its processing operation having been detrimentally affected.
Legal principles
[7] Section 8 of the Judicature Amendment Act 1972 provides the Court with the statutory power to grant interim orders for relief in respect of a judicial review proceeding taken under the Act. It relevantly provides:
8 Interim orders
(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:
…
(3) Any order under subsection (1) or subsection (2) of this section may be made subject to such terms and conditions as the Court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the Court may specify.
[8] The grant of relief under s 8 involves a two-stage process. The Court must ask:
(a) whether interim relief is necessary for the purpose of preserving the position of the applicant; and
(b)whether the Court ought to exercise its discretion to preserve that position.
[9] Cooke J described the two-stage test in Carlton & United Breweries Ltd v
Minister of Customs as follows:1
In general the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief — which must mean reasonably necessary. If that condition is satisfied… the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.
1 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.
[10] In examining the issue of whether the interim relief sought is reasonably necessary to preserve the position of the applicant, the Courts have applied the following guiding principles:
(a) it is necessary to consider what substantive relief is being sought in order to assess whether there is a position which should be preserved.2
If no arguable justiciable issue is raised, there is no position to preserve;3
(b)there must be an actual necessity; a “simple desire to preserve a position” is not sufficient;4
(c) the purpose of s 8 is to preserve the position of the applicant, not to improve it;5 and
(d)to justify interim relief on the basis of the financial implications for the applicant, the Court will require evidence of a real and serious risk of the financial implications alleged.6
[11] Once the statutory threshold has been met, a Court may then consider whether it should exercise its discretion to grant interim relief. When undertaking the second stage of the inquiry, the Court has a wide discretion to consider all relevant circumstances of the case, including but not limited to:7
(a) the strength of the applicant’s case;
(b) the competing advantages and detriments to the parties;8
2 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).
3 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55 (HC).
4 Bishop v Central Regional Health Authority HC Palmerston North M47-97, 11 July 1997 at 21.
5 Squid Fishery Management Co Ltd v Minister of Fisheries (2004) 17 PRNZ 97 (HC) at [29].
6 Criminal Bar Association of New Zealand Inc v Attorney-General [2012] NZHC 400, (2012) 21
PRNZ 221.
7 Carlton & United Breweries Ltd v Minister of Customs, above n 1, at 430.
8 In Phares v Treaty of Waitangi Fisheries Commission HC Wellington CP389-94, 23 December
1994, it told against relief that the respondent had “gone a long way down the track in arranging
for its year’s operations”.
(c) the motives of the applicant; (d) delay;
(e) public safety considerations; (f) the status quo; and
(g) overall proportionality.
Is it necessary for the purpose of preserving Tegel’s position to restrain the operation of the indoor trampoline centre at 106A Carmen Road?
[12] Tegel submitted it was necessary to restrain Mega’s trampoline operation because of adverse effects on it which are more than minor and which have neither been adequately avoided, remedied, or mitigated by the resource consent process nor by the consent itself. These are identified as adverse reverse sensitivity effects on its operation relating to its consent to discharge contaminants, the effects of a parking shortfall, inadequate parking configurations that do not meet minimum requirements, and other alleged instances of non-compliance with applicable Transport Rules of the Plan, including an increase in traffic and pedestrian movements, and inadequacies in onsite manoeuvring. These alleged adverse effects are cited as examples of why, in Tegel’s submission, “the interim orders sought are necessary to preserve the factual and legal position of Tegel pending determination of the substantive application”.
Traffic and pedestrian movements
[13] Tegel submitted that because of the influx of people using the shared accessway, a serious risk to the health and safety of the public arises. In support of that submission, reference was made to the movement of large trucks using the accessway as part of the poultry processor’s operations. Concern was expressed about an increased number of people, in particular children, being attracted to Mega, the resulting increase in traffic movements, and school age children on foot using the accessway or congregating outside Mega itself in the vicinity of the accessway.
[14] The parties have filed evidence from their respective traffic experts regarding this issue, and competing submissions were made regarding the adequacy of parking and the likely increase in vehicles and pedestrians in the immediate area. It is not necessary for me to go into that evidence in any detail except to note the conflicting contentions of the parties.
[15] Proceeding on the presumption there has been an increase in pedestrian and vehicular traffic, the evidence falls well short of providing a basis upon which to conclude it is necessary to close Mega’s operations in order to preserve Tegel’s position pending the substantive hearing of its application for judicial review.
[16] There is no evidence to suggest Tegel’s commercial operation has been affected. It may be that Tegel’s staff and, in particular, its drivers will have to take greater care in their use of the accessway. Their responsibilities to other users of the accessway and to members of the public in the immediate vicinity may have been brought into sharper relief as a result of the opening of the trampoline centre, and become more onerous. However, I do not consider those concerns to be of such a level that it is necessary to close down Mega in order for Tegel to discharge its health and safety obligations to members of the public.
The risk of increased complaints regarding Tegel’s industrial activity
[17] Tegel has the benefit of a discharge consent allowing it to vent contaminants into the air. Tegel has expressed concern that because of the increased number of people in the area visiting Mega there may be an increase in complaints relating to offensive or objectionable odours. Complaints, even if unsubstantiated, will need to be dealt with, and a concern has been expressed this will be costly and time consuming for Tegel.
[18] Tegel points to it having to respond to and investigate some nine complaints made by Mega since the commencement of its sublease. Those complaints were elevated to, or investigated by, the relevant local authority. Tegel maintains on the basis of the evidence of its air quality expert that it operates within the discharge permit’s limits but that it is obliged to act on each complaint it receives.
[19] The complaints on which Tegel relies to show increased sensitivity to its industrial activities appear to concern a number of complaints made by Mega’s operators in early 2016. This resulted in meetings between Tegel and Mega, the latest of which appears to have occurred on 13 June. Mega maintains that during the four week period it has been operating to date no complaints have been made, and there is no evidence of any complaints having impacted on Tegel’s compliance obligations. Mega submitted such a concern did not provide a sound basis for granting interim relief of the type sought.
[20] Tegel suggested the absence of complaints is linked with its application for judicial review and the interim orders it is seeking. I am not in a position to draw any inference about that, however, it would appear that in the interim, and at least until Tegel’s challenge to the resource consent has been finalised, it is not likely to be in Mega’s interests to make such complaints. In any event, Tegel’s lawful obligations to comply with the terms of its discharge consent remain unaffected. As matters presently stand, I do not consider Tegel’s concern of this particular reverse sensitivity to be impacting on its operations or imposing upon it any more onerous obligations beyond what it is already obliged to fulfil.
Difficulty in “unwinding” Mega
[21] Tegel expressed a concern that if the substantive proceedings are successful, it will have difficulty in, as it put it, “unwinding” the existing activity that Mega’s trampoline operation represents. It is concerned the continued use of the site by Mega may impact on any future reconsideration of the resource consent application.
[22] I do not consider this to be a persuasive argument. If Tegel is successful in its judicial review of the Council’s decision to grant a resource consent, the Council will be obliged to reassess Mega’s application in light of the Court’s decision. In so doing it will be obliged, as an impartial, objective consent authority, to apply itself to the issues raised by the application. Tegel refers to the “unfair influence of the existence of the indoor trampoline centre” which may impact on the future reconsideration of the resource consent application. The answer to Tegel’s concern lies in its own submission. If the existence of the indoor trampoline centre is an
“unfair influence”, the Council decision will no doubt be open to further challenge. I do not consider it necessary to restrain Mega’s existing operation to meet the speculative concern of Tegel about some potential future consideration which may be illegitimately taken into account by the consent authority.
[23] As was submitted on behalf of Mega, should Tegel be successful in its challenge, any subsequent and consequential assessment of the resource consent application will require the Council to act in accordance with the Plan and the Resource Management Act 1991. The fact the centre may have been in operation for some period does not impact on the Council’s obligation to diligently apply the statutory framework and act lawfully in any reassessment of Mega’s application.
Decision
[24] Tegel, by its application for judicial review, seeks to quash or set aside the Council’s decision to grant the resource consent on a non-notified basis to Mega. If it succeeds in its application it will be necessary for the Council to reassess Mega’s application. It is against that pleaded relief on the substantive proceeding that the question of whether it is reasonably necessary to restrain Mega’s operation to preserve Tegel’s position must be assessed.
[25] As matters presently stand, Mega has the benefit of a lawfully granted consent. It has made a considerable investment in its business infrastructure, including capital expenditure and the employment of staff. To grant Tegel an injunction I would have to be satisfied that it would be necessary to displace the status quo for the purpose of preserving Tegel’s position. The continuation of Mega’s operations does not impact on the efficacy of Tegel’s judicial review application, nor, on the evidence, in any significant way on its own commercial poultry processing operation.
[26] Tegel will continue to be able to carry out its processing activities at its plant. It will continue to be able to discharge contaminants into the air in accordance with its discharge consent, and it will continue to have use of the right of way for the purpose of its business. I do not overlook the potential increase in pedestrian and vehicular activity and the heightened obligation that may place on its staff.
However, that of itself, even when coupled with the greater risk of increased complaints regarding its discharge of contaminants, is insufficient to consider it reasonably necessary to impose an injunction on Mega’s trampoline operation.
[27] The current effects of Mega’s operation that have been identified by Tegel may be matters which potentially reflect on the merits of the resource consent. However, they do not materially impact on the essential question of why, in order to preserve Tegel’s position pending the outcome of its judicial review proceeding, it is necessary for Mega’s operation be closed down. Tegel’s legal position and the merits of its challenge to the Council’s decision to grant a resource consent on a non- notified basis are not prejudiced in the interim. Its application for judicial review will not, in any sense, be rendered redundant by Mega’s continued operation.
[28] I do not consider Tegel has met the statutory test for interim relief. It has not established that it is reasonably necessary for the purpose of preserving its position to prohibit Mega from continuing its operation of the indoor trampoline centre. Such a course is not reasonably necessary having regard to the substantive relief Tegel is seeking which is focussed on the validity of the Council’s decision. That will require scrutiny of the process by which the Council considered and approved Mega’s resource consent application. Apart from the limited and discrete concerns regarding its use of the accessway and potential concerns about its discharge of contaminants, Tegel’s commercial operations in the interim remain unaffected.
[29] It follows that Tegel’s application for interim relief under s 8 of the Judicature
Amendment Act 1972 must be declined.
Exercise of discretion
[30] Because Tegel has not met the statutory threshold for interim relief I have no jurisdiction to exercise my discretion. However, for completeness and in acknowledgment of the submissions of the parties, I review the relevant considerations raised for the Court’s assessment.
Apparent strength or weakness of applicant’s claim
[31] Tegel submitted that its substantive application has merit and that it has available to it strong arguments to challenge the Council’s grant of the resource consent on a non-notified basis.
[32] Tegel submitted the Council was in breach of s 95A of the Resource Management Act by not notifying Mega’s application to the public because Mega’s activity was likely to have more than minor adverse effects on the environment. Alternatively, Tegel submitted that it was one of a limited group of persons who, pursuant to s 95B, ought to have been notified even if adverse effects were considered to be minor.
[33] Tegel pointed to the evidence it had obtained from experts on air quality, transport and planning, which supported its case for notification as an affected party. It referred to the consequential parking and traffic effects of the indoor trampoline centre, the reverse sensitivity effects on Tegel as an established business activity within the industrial zone, and the health and safety concerns arising from increased traffic on the accessway and in the immediate vicinity of its processing operation.
[34] In response, Mega observed that the judicial review challenge was to the exercise of a discretion by the Council, including its decision not to notify the application made pursuant to s 95A of the Act. Relying upon judicial recognition of Parliament’s intent in enacting s 95A to provide greater certainty to councils regarding their non-notification decisions and to facilitate the processing of resource consents on a non-notified basis, Mega submitted Tegel has a high hurdle to
overcome in order to succeed on its substantive application.9
[35] Mega submitted that any conclusive opinion on the strength of Tegel’s case is
difficult to accurately assess in the present absence of all relevant evidence from the
Council. However, it submitted that because of the policy considerations behind s
9 Coro Mainstreet (Inc) v Thames-Coromandel District Council (2013) 17 ELRNZ 427 (CA); Resource Management Act 1991, s 95A, as inserted by Resource Management (Simplifying and Streamlining) Amendment Act 2009.
95A, this was likely to be an influential factor which would weigh against Tegel’s
challenge to the resource consent process.
[36] There is no single recognised test for assessing the strength of an applicant’s argument on its substantive application. Various formulations have been applied, including proof of a prima facie case;10 the presence of a serious question to be tried;11 a reasonably arguable case;12 a real contest between the parties and a
reasonable chance of an applicant succeeding in the contest;13 and whether the claim
has merit.14
[37] Tegel submitted the Council had made mistakes of fact when it incorrectly assessed aspects of Mega’s proposal which required consent. This related to allegations of an incorrect categorisation of the activity status for the purpose of the Transport Rules under the Plan, which should have resulted in the resource consent application having a discretionary activity status. Similarly, it submitted Mega failed in its application to seek consent for the provision of car and cycle parking spaces which did not comply with the minimum requirements under those rules. Further, Tegel submitted that in making its application Mega failed to assess the proposed change in activity to establish a recreational activity, which is a discretionary activity under the relevant Industrial General Rule of the Plan, against the applicable
provisions of the Resource Management Act.15
[38] Tegel also rests its challenge to the resource consent process on alleged failures to take into account relevant considerations and the taking into account of irrelevant considerations. Examples of the former include those to which I have previously referred, including the reverse sensitivity effects on Tegel and adverse environmental effects as a result of traffic and parking activity caused by Mega’s operation. It was submitted the Council failed to take into account relevant
objectives and policies of various planning instruments relating to transport and
10 Air New Zealand Limited v Overseas Investment Commission [1986] 2 NZLR 470 (HC).
11 New Zealand Association of Residential Care Homes Inc v Northern Regional Health Authority
HC Auckland CP522-96, 18 December 1996.
12 Petherick v Commissioner of Inland Revenue (1997) 11 PRNZ 92 (HC).
13 Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC).
14 Cale v Minister of Immigration HC Hamilton M214-96, 23 August 1996.
15 Industrial General Rule 16.2.2.1; Resource Management Act 1991, s 104.
reverse sensitivity effects, and material considerations relating to the establishment of a new development in an established heavy industrial zone.
[39] Other identified alleged errors include the taking into account of inaccurate material provided by Mega relating to survey data which accompanied the resource consent application, the scale of the adverse effects likely to be caused by Mega’s activities, and the flawed conclusion by the Council that no persons would be adversely affected by the application.
[40] Competing expert transportation and planning evidence was filed by the parties but as yet the Council has filed no evidence. In the half-day hearing available it was not possible to accurately assess the merits of this competing evidence. For the purposes of an application for interim relief, I would be inclined to the view that Tegel has provided a sufficient evidential basis to satisfy the Court there is a serious question to be tried, and that a real contest exists between them. In the absence of the participation of the Council, whether Tegel’s case has merit or is reasonably capable of success is difficult to gauge. However, as indicated, I would be prepared to proceed on the basis it has a prima facie case available to it.
Competing advantages and detriments to the parties
[41] Tegel submitted that Mega would suffer no detriment from the grant of the proposed interim orders. That broad submission on its face is unsustainable. It was largely advanced in reliance on the proposition that a party cannot take advantage of circumstances it has brought upon itself. Tegel submitted a defendant cannot create its own inconvenience and then have it taken into account when balancing the scales
of convenience.16 Tegel submitted the risk of detriment to Mega had been brought
about by its own conduct. It referred to the entering into a sublease for the site in February 2016 and undertaking the fit-out of its premises before the resource consent was granted in June. It had also, prior to the grant of the resource consent, employed
and trained staff and assumed significant risk in expending capital.
16 New Zealand Farmers’ Co-op Association of Canterbury Ltd v Farmers Trading Co Ltd (No 1) (1979) 1 NZIPR 212 (SC); Media Works NZ Ltd v Sky Television Network Ltd HC Auckland CIV-2007-404-5674, 18 September 2007.
[42] I do not find Tegel’s submission on this point persuasive. There is a disconnect between the identified assumption of risk and the status quo at the time Tegel brought its proceedings seeking interim relief to prevent Mega from continuing with its operation. Mega did obtain a resource consent and any risk it ran in expending resources prior to securing that consent is no longer relevant. At the time it commenced its operation, it had a resource consent on which it was entitled to rely, albeit four days after the filing and service of Tegel’s application for interim relief. By that time, however, the capital investment had been made by Mega in respect of a commercial enterprise for which it had secured a resource consent some two months previously. There was therefore obviously little economic choice but for it to continue with its intended venture which, having met the legal requirements, it was entitled to do.
[43] Tegel sought to draw some analogy with a scenario whereby, if Mega had sought and obtained a resource consent on a publicly notified basis, such consent would have been unlikely to have been granted until November 2016 at the earliest. This would place Mega “on par” with the effect of the interim orders Tegel sought. The matter, however, has to be dealt with on the facts as they exist, which are that Mega had secured a resource consent on a non-notified basis back in June, upon which it could justifiably rely.
[44] I accept there would be substantial detriment to Mega if interim orders of the type sought were granted. As has previously been noted, significant resources have been expended, including approximately $1.2 million in converting the premises to a trampoline gymnasium and establishing the business. There is evidence Mega is presently employing and training 25 staff to manage and run the centre, and that the shareholders of the business have entered into a sublease for a term of 2 years and
125 days, with annual rental of $175,000 (plus GST). There are associated finance and insurance costs and design consulting fees of approximately $55,000.
[45] The consequences for Mega are in sharp contrast to the commercial position of Tegel. No material financial impact on Tegel has been identified or is relied upon. Its commercial position as a large poultry processing plant remains unaffected. Unlike Mega which would suffer ongoing trading losses and staff redundancies as a
result of being shut down, Tegel will suffer no comparable impact. I accept Mega’s submission that Tegel has not demonstrated any negligible adverse operational consequence as a result of Mega being allowed to continue with its operations in the interim.
Interests of third parties
[46] Tegel sought to rely upon the interests of other neighbouring third parties who it was submitted were to some degree also adversely affected by Mega being able to operate as a result of a non-notified resource consent. The position of third parties is not relevant to the assessment of the statutory threshold which is focussed solely on the necessity of preserving the applicant’s position. It is a relevant consideration in the wider evaluation of the exercise of the Court’s discretion. However, in the absence of direct evidence from Mega’s neighbours, it cannot be an influential consideration.
Public interest matters – health and safety of users of the right of way
[47] As part of its submission regarding the interests of third parties, Tegel submitted Mega posed a risk to the public’s health and safety because of the adverse traffic effects which had not been adequately remedied or mitigated. Mega acknowledged that public safety concerns, if substantiated, are a relevant factor in the exercise of the Court’s discretion when considering whether to grant interim relief.
[48] The concern of Tegel is the potential risk to those visiting the trampoline centre, especially pedestrians using the right of way. Mega relies upon the affidavit evidence of its traffic expert who concluded that safety risks to pedestrian customers will be negligible. His opinion is based on his experience, his assessment of the standard of the right of way as a low speed means of access, and what he describes as “its excellent forward visibility”. It was noted that Mega requires all children under 13 to be supervised, and reference was made to the expert’s analysis of survey data which it was submitted did not support Tegel’s concerns.
[49] As I have previously observed, I do not underestimate the potential hazard created by the introduction of a recreational activity into an industrial zone which attracts members of the public to the area. A consequence of that development may well be that duties of skill and care and the taking of all reasonable steps to avoid risk become more onerous. However, the lawful obligations remain the same. The need for Tegel to take special care in its use of the accessway, and in particular by its large trucks, for the limited period pending the determination of its substantive proceeding remains, as before, its responsibility. It is to be hoped that both Tegel and Mega, as responsible commercial neighbours, are taking all reasonable steps to ensure the safety of the public.
Delay
[50] Tegel submitted it acted promptly once it learnt of the resource consent decisions on 16 June. Mega, to the contrary, submitted the two month delay before commencing its proceeding ought to be considered significant and that, despite having knowledge of the imminent opening of the centre after it learnt of the grant of the resource consent, Tegel took no formal Court action until 12 August. Tegel submitted during this two month period it took appropriate steps, requesting the Council to review the resource consent, engaging experts to obtain specialist advice about its concerns, and engaging with Mega seeking undertakings from it before commencing legal action.
[51] Whether this two month period represents unjustifiable delay or is time responsibly spent before taking Court action that would otherwise be precipitate, I do not consider to be particularly material. Whether the Court should exercise its wide discretion is better focussed on considerations of the need to preserve the status quo and overall proportionality.
Overall justice
[52] The accurate identification of the status quo can at times be problematic but in the circumstances of the present case I consider it is represented by both Mega and Tegel carrying out their normal commercial activities. At the risk of oversimplification, there is presently an issue between them regarding the interface
of their respective activities which is limited to the safe use of the accessway, parking, and possible difficulties arising from greater sensitivity to Tegel’s discharge of contaminants pursuant to its discharge consent. None of those matters is central to their respective commercial activities, and particularly not to Tegel’s operation. They are matters that have the potential to impact upon how they conduct themselves as neighbouring commercial businesses but they are issues which are required to be, and can be, managed. There is a public health and safety aspect which both parties have an important responsibility to meet in the present circumstances.
[53] Those considerations, however, do not require one of the parties, Mega, to close. Such a step in the circumstances would be unjust and an entirely disproportionate response to the current legal issues that presently exist between them arising from Tegel’s challenge to the non-notified resource consent issued by the Council.
Conclusion
[54] Tegel’s application for interim relief under s 8 of the Judicature Amendment
Act is dismissed.
Costs
[55] The interests of Mega, as represented by the second and third respondents, are entitled to costs on a 2B basis. It is expected the parties will be able to agree costs, however, in the absence of being able to do so, they are granted leave to exchange and file memoranda.
Solicitors:
Minter Ellison Rudd Watts, Auckland
Anthony Harper, Christchurch
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