Thompson v Invercargill City Council
[2020] NZHC 174
•14 February 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2019-425-000144
[2020] NZHC 174
BETWEEN LEWIS GAIRE HERDMAN THOMPSON
Plaintiff
AND
INVERCARGILL CITY COUNCIL
First Respondent
HWCP MANAGEMENT LIMITED
Second Respondent
Hearing: 21 January 2020 Appearances:
S R Gepp and F McDonald for Plaintiff R W Donnelly for First Respondent
J V Ormsby and T J Brown for Second Respondent
Judgment:
14 February 2020
REASONS JUDGMENT OF GENDALL J
This judgment was delivered by me on 14 February 2020 at 3 p.m. pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
THOMPSON v INVERCARGILL CITY COUNCIL [2020] NZHC 174 [14 February 2020]
Introduction
[1] Around 27 December 2019 the applicant Lewis Thompson (Mr Thompson) filed these proceedings ultimately seeking judicial review of certain decisions taken. Mr Thompson sought interim orders, pending his application for judicial review, to prevent HWCP Management Ltd (HWCP) from demolishing a large number of buildings in a block of the Invercargill CBD. The application was called on an urgent basis in this Court and as a holding measure an interim order was made by Mander J on 31 December 2019. This order prevented demolition in the meantime on the basis that a substantial hearing of the interim order application could take place on 21 January 2020 and a significant undertaking as to damages was given by Mr Thompson. The order was to expire on 21 January 2020 when the further hearing was to take place. Both HWCP and the Invercargill City Council (the Council) have opposed Mr Thompson’s application.
[2] On 21 January 2020 I heard over one day the application. I dismissed the application and lifted Mander J’s injunction order. In doing so, I indicated my detailed reasons would follow.1 I now set out those reasons.
Background
[3] A block of buildings stood largely vacant in the heart of the Invercargill City CBD. As at 21 January 2020 only four of 55 premises were tenanted. Arrangements had been made for those remaining tenants to vacate. Making up around 27 per cent of the CBD core, the block for some time had been earmarked for major commercial redevelopment.2 By Mander J’s interim order of 31 December 2019, HWCP was injuncted for some three weeks from demolishing any of the buildings and thus being able to proceed with its major redevelopment of this central Invercargill retail and commercial site. That redevelopment had been planned and was the subject of resource consent approvals for some time. It was for me to determine how long (if at all) this state of affairs would continue.
1 Thompson v Invercargill City Council [2020] NZHC 21.
2 Resource Management Commissioners Decision on Resource Consent (Invercargill City Council, RMA/2018/148, 4 June 2019) [Consent decision] at [4.4.22].
[4] In June 2019 HWCP had applied to the Council for a resource consent to demolish, alter and redevelop the land and buildings on the block in question. The Council heard that application on a notified basis, including submissions from Mr Thompson, effectively advanced in opposition to the application.
[5] One of the issues raised by submitters (including Mr Thompson), was the potential that demolition might occur without development following soon after, thus leaving an empty CBD site. Heritage value of some of the buildings would be destroyed, it was said, without any compensatory amenity value increase as a result of a prompt redevelopment.
[6] The Council granted consent, subject to a number of conditions. Condition 19 required HWCP as the consent holder to provide the Council with written confirmation from a registered trading bank that funding for stages 1 – 3 of the development had been obtained before demolition of stages 1 – 4 and 6 could proceed. Condition 19 read:
19. The consent holder must not undertake any demolition prior to providing the Council with written confirmation from a registered trading bank that funding for Stages 1 – 3 of the development as identified on the Staging Plan approved in Condition 1 has been obtained.
i.Upon providing such confirmation, the consent holder may demolish Stages 1 to 4 and 6, as identified on the Staging Plan approved in Condition 1, provided that Stages 1 to 3 must be built in one stage;
ii.Stages 4 and 6 may be built concurrently with or subsequent to Stages 1 – 3;
iii.The buildings located within Stage 5 of the Staging Plan approved in Condition 1, shall remain in place until such time as an agreement is entered into for the lease of a new building within Stage 5.
[7] Mander J noted in his 31 December 2019 judgment that the consent decision emphasised that it was “crucially important” for the development to “diligently” follow demolition. There was a need, too, that the sequencing of development was managed to ensure there was credible evidence that redevelopment would follow demolition promptly. The decision viewed condition 19 as going “a considerable distance in satisfying” those concerns.
[8] HWCP went about securing project funding from various sources, including the ANZ Bank, Community Trust Southland and the Provincial Growth Fund. Issues arose however on what condition 19 meant. On 16 September 2019 Commissioner Enright issued a minute setting out the Council’s interpretation of condition 19. This interpretation, however, was contrary to HWCP’s understanding. The Commissioner said, “the funding [must be] ‘confirmed’ on an unconditional basis”. In HWCP’s view, this was unworkable. ANZ had given it explicit notice that while an offer of finance would be made, it would be subject to conditions precedent, “as is normal in development finance”.
[9] HWCP applied to vary the resource consent conditions, including condition 19. The application was not notified and the variation was granted by Commissioner Maassen on 18 November 2019. Condition 19 was replaced by conditions 19A and 19B, which read:
19A. The consent holder must before commencing any demolition:
i.Provide the Council with written documentation demonstrating:
a.the consent holder’s commitment to develop Stages 1
– 3 as identified on the Staging Plan approved in Condition 1; and
b.the consent holder’s commitment to commence construction of Stages 1-3 within 9 months of demolition;
ii.Receive written acceptance from Council that the Council is satisfied that documentation supplied under (i) provides credible evidence of a commitment to proceed with Stages 1- 3 of the development. Council must assess this documentation within 10 working days of receipt. The assessment of credible evidence may include consideration of the progress towards; [sic] advancing the development and obtaining project funding; and entering into tenancy agreements.
19B Upon receiving written acceptance of compliance with Condition 19A, the consent holder may demolish Stages 1 to 4 and 6, as identified on the Staging Plan approved in Condition 1, provided that Stages 1 to 3 must then be built in one stage and:
i.Stages 4 and 6 may be built concurrently with or after Stages 1 – 3;
ii.The buildings located within Stage 5 of the Staging Plan approved in Condition 1, must remain in place until an agreement is entered into for the lease of a new building within Stage 5.
[10] Commissioner Maassen in his variation decision accepted that the requirement that HWCP provide written confirmation of funding approval from a bank was not workable. Relevantly, the Commissioner found in commercial developments of this type it was typical for a bank not to provide an unqualified or unconditional approval of lending. An alternative requirement that the Council be provided with other forms of evidence that demonstrated a commitment to redevelopment was appropriate.
[11] On 24 December 2019 the Council confirmed HWCP had satisfied all conditions necessary for demolition to commence. Demolition was due to commence on 6 January 2020.
[12] However, on 31 December 2019 Mander J (after a telephone hearing before him on a Pickwick basis) on a holding basis granted the interim order prohibiting HWCP from undertaking demolition until Mr Thompson’s application for interim orders could be heard on notice which had been pre-arranged and was due to take place before me on 21 January 2020.
Mander J’s 31 December 2019 decision
[13] In his decision, Mander J noted that s 15 of the Judicial Review Procedure Act 2016 provided that interim orders may be made in the course of a judicial review proceeding if it is necessary to do so to preserve the position of an applicant. Where that statutory threshold is met, the Court has a wide discretion and may take into account all relevant considerations, including the merits, the statutory framework, the public interest and the private and public repercussions of granting relief.3 The status quo, balance of convenience, and the overall justice of the position are all matters that are also to be taken into account.4
3 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430; Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) [McGechan] at [JR15.02(2)(b)].
4 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55 (HC) [Whale Watch Kaikoura (HC)]; ENZA Ltd v Apple and Pear Export Permits Committee HC Wellington CP266/00, 18 December 2000 at [17]; and McGechan, above n 3, at [JR15.02(2)(c)].
[14] Mander J found it unnecessary in his urgent telephone hearing on 30 December 2019 to engage in the merits of the parties’ respective arguments due to the matter being able to be fully argued on 21 January 2020.
[15] He noted that while interim orders would put on hold a long-awaited $100 million Invercargill CBD development, one in relation to which HWCP had already incurred $24 million in costs and had entered into tenancy agreements with sunset clauses, it was not apparent that a delay of a little over two weeks would risk dire financial consequences for the development. He found that on the face of the information before him, there was a “real contest between the parties and a reasonable chance of the applicant succeeding in that contest”.5 He made no definite finding as to the private or public repercussions, leaving that to the later 21 January 2020 hearing.
[16] Mander J made the order conditional on Mr Thompson providing an undertaking to pay HWCP’s actual and reasonable damages up to a maximum of
$64,262. This represented the cost of delaying the pre-arranged demolition work until 21 January 2020.
Submissions
Submissions for Mr Thompson
Non-notification decision unlawful
[17] Miss Gepp for Mr Thompson complained that the variation of condition 19 moved it from one seeking evidence of HWCP’s “capability” to promptly undertake development following demolition, to one simply seeking to ascertain HWCP’s “intentions”, as demonstrated by its “progress towards having the capability to proceed with the development”. Thus, she maintained the decision not to notify the variation was wrong because it materially changed the resource consent conditions. Miss Gepp suggested condition 19A does not achieve the same outcome as condition 19 because it merely requires “credible evidence” of HWCP’s “commitment” to the development. As a result, the new condition fails to effectively control the adverse effects of the
5 Citing Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC); Mahuta v Attorney-General HC Wellington CP67/99, 31 March 1999; and Attorney-General v Mahuta CA71/99, 1 April 1999.
no/delayed development scenario. This is the case because it does not require HWCP to show the Council it has finance for the development. As such, according to Ms Gepp, the notification assessment and the variation decision miscarried.
[18] Sections 95A–95E of the Resource Management Act 1991 (RMA) are also noted. These require notification of a proposed activity (including for a variation) that will, or is likely to, have adverse effects on the environment that are “more than minor”.6 “Less than minor” (emphasis added) has been explained by the courts as “that which is insignificant in its effect, in the overall context, that which is so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.”7 Miss Gepp submitted that unlike condition 19, condition 19A allows for a higher risk that the potential adverse effects of the no/delayed development scenario will eventuate.
[19] Arguments advanced here for Mr Thompson were that effectively, in varying condition 19, the Commissioner failed to take account of potential adverse effects flowing from the variation including:
(a)loss of heritage value buildings without the compensating benefit of a new development;
(b)loss of amenity in the CBD resulting in a loss of vibrancy and social amenity; and
(c)the presence of a large vacant block in the CBD, affecting other central city businesses.
[20] Miss Gepp submitted further that in terms of s 95A(9) of the RMA, public notification was required here due to special circumstances. “Special circumstances” are circumstances outside the common run of things, which are exceptional, abnormal or unusual but less than extraordinary or unique. She accepted that, while concern on
6 Resource Management Act 1991 (RMA), s 95A(8)(b).
7 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 at [94]. See also Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009, (2018) 20 ELRNZ 645 at [139]; and Knowles v Queenstown Lakes District Council [2019] NZHC 3227 at [27].
the part of an interested party could not of itself give rise to special circumstances, significant public interest may.8 She also noted the decision in Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council where Venning J said:9
…I consider there to be some force in [the judicial review applicant’s] submission that the fact [the resource consent applicant] is owned by ACIL, which is wholly owned by the Council, is an unusual feature of these applications. On its own it is not enough, but it is a factor.
[21] Miss Gepp said the notification assessment erred in finding no special circumstances to exist, as the Commissioner failed to consider three matters:
(a)The development relied on significant equity funding, of which it is claimed a sufficient amount had not yet been secured.
(b)HWCP is 50 per cent owned by Invercargill City Property Limited. This company is wholly owned by Invercargill City Holdings Ltd, which in turn is wholly owned by the Council. Because the project may require substantial public funding. She claims there is a high degree of public interest in whether the Council should be committing public funds to this type of project. The variation it is said created a heightened public finance risk.
(c)There was significant submitter interest in the no/delayed development scenario and the conditions originally imposed to avoid it. Some submitters Ms Gepp noted were directly involved in presenting alternative formulations of such conditions.
The Variation is void for uncertainty and its reservation of discretion to the Council
[22] Miss Gepp then suggested that Mr Thompson has a strong or at least an arguable case on the ground that the Council’s variation decision was wrong because
8 See Kawau Island Action Inc Society v Auckland Council [2018] NZHC 3306, (2018) 20 ELRNZ 848 at [168].
9 Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 at [142].
it was uncertain and it unlawfully reserved a discretion to the Council. She noted Aubade NZ Ltd v Marlborough District Council where the Environment Court set out five interrelated factors that determine the “meaning and lawfulness, and ultimately the validity” of a condition of a resource consent.10 Those factors relevantly include:11
(a)The meaning and application of the condition – which involves consideration of whether it is sufficiently certain, and whether it delegates or reserves too much discretion (policy) to a certifier or approver.12
(b)The persons potentially affected and the importance of the condition to them.
[23] A condition which, rather than seeking to delegate to a decision maker the task of certifying standards that have been met, confers on it the task of exercising a judicial function that ought to have been exercised at the time of assessing the application, it is claimed, must be seen to go beyond certification and is unlawful.13
[24] Ms Gepp further submitted condition 19A is void for uncertainty. The terms “credible evidence” and “a commitment to develop…” she said are uncertain and undefined. While examples of credible evidence are given, such as “advancing the development and obtaining project funding; and entering into tenancy agreements”, these are incapable of curing the core uncertainty of the condition. It is unclear, however, what level of progress will suffice. Miss Gepp asked the questions:
…is approaching a bank to request funding sufficient? Are letters of funding with conditions precedent that are presently unable to be satisfied sufficient (as provided here)? Must all (or any) conditions precedent be satisfied? How many tenancy agreements are needed?
[25] Ms Rachel Ducker, a consultant planner, it was noted, was engaged to assess satisfaction of condition 19A. In doing so, Ms Ducker adopted a dictionary definition
10 Aubade NZ Ltd v Marlborough District Council [2015] NZEnvC 154.
11 At [37].
12 Citing Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 40, [2014] 1 NZLR 673 [SOS] at [125]; and Turner v Allison [1971] NZLR 833 (CA).
13 Aubade above n 10; and Director-General of Conservation v Marlborough District Council [2004] 3 NZLR 127 (HC) at [28].
of “evidence”, not having found the term defined in the RMA or the Interpretation Act 1999. She defined “evidence” as “factual information that is capable of being believed.” Miss Gepp said the standard of information required is unclear.
[26] In her final submission Ms Gepp suggested that condition 19A unlawfully reserves a discretion to the Council here to determine whether there is “credible evidence” of a “commitment to proceed”. This is because she contends it goes beyond certification of compliance with an objective standard.
Submissions for HWCP
[27] In response, Mr Ormsby for HWCP submitted that Mr Thompson’s application must fail here. This is because he has not been able to point to any material error in the Council’s decision not to notify and he has failed to produce any evidence in support of his claim that the variation has adverse effects that are more than minor. According to Mr Ormsby, the outcome sought by Mr Thompson will perversely bring about the adverse effects he claims he seeks to avoid, namely that this important CBD block would remain vacant and undeveloped.
[28] Starting with the threshold question, Mr Ormsby maintained that Mr Thompson has no position to preserve, and he is unable to challenge the demolition or the redevelopment. Both activities have already been consented. That consent has not being appealed. His substantive concern then is solely about whether or not the demolition may occur without a guarantee of bank funding but instead with credible evidence that HWCP will proceed with the development.
[29] Mr Ormsby maintained that if Mr Thompson’s position (that the demolition should not proceed otherwise than in accordance with the substance of condition 19) prevails, the development will not occur (potentially at all) because the resultant delays would likely cause the loss of HWCP’s anchor tenant, The Farmers’ Trading Co Ltd (Farmers). He also said that HWCP, as a result of the variation decision, has relied upon the consent, variation and certification of compliance with condition 19A in preparing for demolition. It has done this in many ways, including removing existing tenants, and all buildings in the block are now effectively derelict for the purpose of demolition.
[30] Mr Ormsby noted the purpose of original condition 19 was said by the Commissioners explicitly to be to demonstrate “credible evidence that redevelopment will promptly follow demolition”.
[31] He properly noted that there is a need for this Court to consider the effect on HWCP, who while a respondent in the judicial review proceeding, was not the party who exercised the statutory power of decision-making, but who has since relied entirely on the decision made by the Council. He cited the decision in Videbeck v Auckland City Council. In that case, Heath J declined substantive relief to an applicant for judicial review of the Council’s decision not to notify an application for resource consent.14 Heath J did find that the effects of the relevant activity could not be considered de minimis and could rather be described (at their highest) as moderate. However, his Honour acknowledged that both the judicial review applicant and the respondent were innocent parties. He recognised that whatever decision he made, one of the parties would suffer prejudice. Heath J declined substantive relief on the basis that it would prejudice the respondent (who was the resource consent applicant) by forcing it to find an alternative location for the dwelling in question pending a notified hearing.
[32] However, the Court did grant an injunction pending the substantive review hearing.15 Mr Ormsby noted, relevantly at the Videbeck hearing for interim relief:
(a)The estimate of costs to the respondent if substantive relief was not granted was between $4,000 and $5,000.
(b)An undertaking as to damages was filed by the applicant and the Court was satisfied this was sufficient to address the level of potential damages.
[33] In the present case, Mr Ormsby submitted the Commissioner’s variation decision specifically considered:
14 Videbeck v Auckland City Council [2002] 3 NZLR 842 (HC).
15 Videbeck v Auckland City Council [2002] NZRMA 481 (HC).
(a)the requirements of ss 95A–95E RMA;
(b)the impact on those who had previously submitted; and
(c)in particular, the consultant planner’s report which gave reasons for why notification was not required.
[34] It was Mr Ormsby’s central submission here that there was no significant process error or material error in the considerations of the Commissioner. Ennor v Auckland Council was cited where Whata J reiterated that judicial review is “not an opportunity to revisit the merits of a decision made by the Council to proceed on a non-notified basis or to grant a consent.”16 It has been repeatedly emphasised that the Court should be reluctant to interfere with notification decisions (which are discretionary decisions of a local authority) unless a clear material error has been made.17
[35] In relation to the heritage value of the buildings, Mr Ormsby noted the Commissioners in their original consent decision found such value to be limited as the interiors of the buildings had been substantially modified. They accepted that the remaining heritage façades were in a highly compromised state, at risk of causing substantial damage to people and property in the event of an earthquake. He noted also that there was limited adaptive reuse opportunities available in the market and there was also no potential for economic return on the significant cost of remediation.
[36] Mr Ormsby contended too that Commissioner Maassen in his variation decision correctly determined notification was not required. His decision noted that the changes to condition 19 were to “improve [its] workability and ensure their reasonable operation.” Compliance with original condition 19, as Mr Ormsby acknowledged, had proved difficult for a number of reasons. This was in particular because a trading bank would not provide an unqualified approval of lending (as the Council’s interpretation of condition 19 required). He pointed to evidence offered by
16 Ennor v Auckland Council [2018] NZHC 2598, [2019] NZRMA 150 at [30], citing Auckland Regional Council v Rodney District Council [2007] NZRMA 535 (HC) at [44].
17 Urban Auckland, above n 9; and Seafield Farm (HB) Ltd v Hastings District Council [2018] NZHC 1980, (2018) 20 ELRNZ 746.
HWCP that revealed compliance with condition 19 was not commercially realistic, as a trading bank would not be in a position to offer unconditional terms until immediately before the drawdown of funds, and in any event not at that early stage of the development. In relation to the variation of condition 19 itself, the Commissioner said:
I accept the idea the Council can make a reasonable judgement based on a range of information that is collectively sufficient to credibly demonstrate that the consent holder is in a position to complete stages 1 to 3.
[37] Mr Ormsby also highlighted the consultant planner’s acknowledgement of the withdrawal of the commitment of $21 million in funding from an earlier investor, Mr Geoff Thomson (a concern Mr Thompson raises here), yet her recommended acceptance of condition 19A nonetheless.
[38] Mr Thompson’s assertion that there are “special circumstances” which required notification on the basis of “significant public interest” was also dismissed. Mr Ormsby rejected Mr Thompson’s submission that the Urban Auckland decision assists him.18 In Urban Auckland, Ports of Auckland Ltd sought and obtained a resource consent on a non-notified basis to extend the Bledisloe Wharf into the Waitemata Harbour. Urban Auckland (an incorporated society) sought judicial review, including of the Council’s decision not to publicly notify the application. There, Venning J was persuaded that “special circumstances” requiring notification existed. These included:19 the Council’s (ultimate) total ownership of the applicant; plans for future port development (beyond the extension); the national and regional significance of the Port; and significant public interest outside the common run of interest shown in applications for commercial development.
[39] Mr Ormsby submitted, however, that Urban Auckland can be distinguished here. This was on the basis that Mr Thompson is pursuing the present matter for private interest and there is no evidence that the public are supporting his position or indeed see any real adverse effects arising from the variation of the condition.
18 Urban Auckland, above n 9.
19 At [142]–[148].
Additionally, Auckland Council’s total (ultimate) ownership of Ports of Auckland Ltd is distinct from the Council’s half-ownership of HWCP here.
[40] Mr Ormsby then looked to the negative impacts of any interim order that might follow. He said delay to the development would negatively impact local retailers neighbouring the development. They are concerned, as some evidence before the Court indicated, about a reduction in foot traffic following an ongoing state of vacancy, lifelessness and dereliction in the block in preparation for a demolition that might not proceed. There are also significant costs, of around $20 million, that have already been incurred in progressing the development. It is also likely that further delays could mean HWCP would be unable to meet critical sunset clause dates outlined in the lease for the anchor tenant, Farmers. This would leave HWCP open to financial penalties and could engage the sunset clause. This would entitle Farmers to withdraw from the tenancy if the premises were not delivered on time. There would additionally be further delay costs in relation to other tenants. Delay would also, it is said, discourage interest from other prospective tenants, the securing of whom is critical to the overall success of the development.
[41] Overall, Mr Ormsby contended further that delay could mean Invercargill would lose the benefit of a major redevelopment in the CBD of the city, which had been in a state of decline for some time. He notes at the time of HWCP’s application for resource consent, two of the heritage buildings had been unoccupied for 35 years, only six buildings had tenancies above ground floor and at ground floor level there were 12 vacant tenancies. Since the variation, there have been negotiated exits of all the remaining tenants and the entire block is now vacant. Mr Ormsby also highlighted the concern that many of the buildings are earthquake-prone and evidence shows that squatters continue to be a problem.
[42] Mr Ormsby’s final submission was that the balance of convenience here favoured refusing to grant or extend interim orders. If orders were granted, HWCP would suffer significant prejudice as an innocent party. Further delays, as he noted, would cause significant costs to HWCP and put the development at a real risk of failing. Other innocent parties such as neighbouring retailers would also be prejudiced. The substantive judicial review issue is whether condition 19 ought to have been
varied in a minor way, not whether the consent for the whole development should have been granted.
Submissions for the Invercargill City Council
[43] Before me, Mr Donnelly for the Council highlighted the significant public repercussions of making or extending the interim orders, in terms of the added delays and costs to what he described as this core CBD development for Invercargill. He suggested the substantive judicial review challenge is weak. This is because the relevant matter to be taken into account, whether adverse effects would be more than minor, was taken into account by Commissioner Maassen and he maintained there was no identified material error in the discretionary decision. Mr Donnelly submits the Commissioner was the decision maker best placed to evaluate the variation application and whether the application required notification and he addressed these issues properly.
[44] Mr Donnelly then referred me to the Aubade decision of Judge Jackson sitting in the Environment Court.20 He noted the Judge had said that the scheme of resource management under the RMA is aimed at the potential effects of future activities, which necessarily means that some conditions of resource consents may need to be imposed in “circumstances of considerable uncertainty, which still require some of the assessments or decisions to be made in the future.”21 The Judge also cited the Supreme Court decision in Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd, where that Court gave some guidance on the relationship between that uncertainty and the “adaptive management” approach promoted by the RMA.22 That general approach requires that uncertainty is “sufficiently”23 reduced and any remaining risks are “adequately” managed.24 Judge Jackson extrapolated from the Supreme Court’s guidance thus:25
It seems that under the RMA, with its proportionate approach to risk which involves identifying the probability of an adverse effect and the cost of its
20 Aubade, above n 10.
21 Aubade, above n 10, at [34].
22 SOS, above n 12.
23 At [125].
24 At [125].
25 Aubade, above n 10, at [35] (footnote omitted).
consequences, conditions do not have to be completely certain: certainty – and validity – is a question of degree.
[45] Mr Donnelly also noted Judge Jackson’s reference to a decision of the Federal Court of Australia, Pyneboard Pty Ltd v Trade Practices Commission where a Full Court found “…uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning.”26 Judge Jackson concluded: “[t]hat is consistent with the more recent statement by the Supreme Court [of New Zealand] in SOS that rules need only ‘sufficiently reduc[e] uncertainty’27 to be lawful.”28
[46] Relevantly from the Council’s point of view, Mr Donnelly concluded by highlighting that Mr Thompson’s present proceeding, which the Council fully opposed, should be viewed as a collateral attack on the Council’s decision to invest in the development. That challenge does not pertain to a justiciable resource management issue.
Discussion
Law
[47] Section 15 of the Judicial Review Procedure Act 2016 provides that the Court may grant interim orders at any point before the final determination of an application for judicial review, if it is necessary to do so to preserve the position of the applicant. That is the statutory threshold that an applicant must first overcome. If the Court finds itself persuaded by the applicant, it then enjoys a wide discretion requiring it to consider all of the circumstances.
[48] The dominant judicial expression of the test for the granting of interim relief in judicial review proceedings is found in the Court of Appeal’s decision in Carlton & United Breweries Ltd v Minister of Customs.29 There, Cooke P said, in general, the High Court must be satisfied that the order sought is necessary to preserve the position
26 Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 (FCAFC) at 568.
27 SOS, above n 12, at [125].
28 Aubade, above n 10, at [40] (footnote original).
29 Carlton & United Breweries, above n 3.
of the applicant “which must mean reasonably necessary”.30 His Honour said if the Court was so satisfied:31
…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.
This approach, described as “flexible” by the learned authors of McGechan on Procedure, has been “adopted if not expanded” by cases post-Carlton.32
[49] In Esekielu v Attorney-General Hammond J found the proper approach to the statutory threshold will depend on the area of law.33 That decision involved an immigration case. There, in light of the competing rights of the State, on the one hand, and, on the other, of the individual who was seeking a favourable immigration status or decision, an applicant would not be required to show a very strong probability of success on the merits. Rather, it was enough if there was “a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest.”34 His Honour cited Beecham Group Ltd v Bristol Laboratories Ltd, a decision of the High Court of Australia, where that Court said, “[h]ow strong the probability [of success] needs to be depends, no doubt, upon the nature of the rights [asserted] and the practical consequences likely to flow from the order [the applicant] seeks.”35 Thus, Hammond J said, “…in various subject areas the threshold test has been raised or lowered as may be appropriate.”36
[50] The statutory threshold requires that interim relief be necessary to preserve an applicant’s position. The purpose of this requirement is to protect an applicant for judicial review from unfair prejudice that would arise by reason of delay in having a substantive hearing.37 In Woodhouse v Auckland City Council, Henry J found the Court must look at what is being sought by way of substantive relief to determine whether
30 At 430.
31 At 430.
32 McGechan, above n 3, at [JR15.02(2)(c)].
33 Esekielu, above n 5.
34 At 313.
35 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 (emphasis added by Hammond J).
36 At 313.
37 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC) at 8.
in fact there is a position which should be preserved.38 Moreover, there must be a “necessity” not just a “simple desire to preserve [a position] if possible”.39
[51] As to the definition of the “position of the applicant”, this Court has held that it is not always appropriate to adopt a narrow view of who the applicant is.40 In Criminal Bar Association of New Zealand Inc v Attorney-General MacKenzie J first found that it was appropriate to see the “applicant” in this context as including members of the Criminal Bar Association, not only the interests of the Association (an incorporated society) itself.41 His Honour went further and was prepared to consider whether defendants who were recipients of legal aid should be considered in this analysis. The impugned decision, made by the Secretary of Justice, was to introduce changes to the legal aid scheme. In the circumstances, the changes did not affect existing recipients of legal aid in the interim. Thus, they had no position to preserve.42 The Court said for the financial implications of a decision for an applicant to be raised, the applicant must point to evidence of a real and serious risk of those implications eventuating.43
[52] Once the statutory threshold is cleared, the Court has a wide residual discretion.44 The strength of the applicant’s substantive case is a centrally relevant consideration. In Osborne v Attorney-General Hammond J noted:45
…even allowing for a lower threshold test than employed in some kinds of applications for interlocutory injunctions, the Court is still entitled to have regard to the strength or otherwise of an applicant’s case. A meritless case is not entitled to interim relief, otherwise these applications become a mere delaying tactic.
[53] The public and private repercussions of granting relief are also relevant to the exercise of the Court’s discretion. This factor has been taken to include public health and safety issues, including, for example, situations involving releasing findings of an
38 Woodhouse, above n 37, at 8. See also Whale Watch Kaikoura (HC), above n 4 (upheld in Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission CA87/97, 12 May 1997).
39 Bishop v Central Regional Health Authority HC Palmerston North M47/97, 11 July 1997 at 21.
40 Criminal Bar Association of New Zealand Inc v Attorney-General [2012] NZHC 400, (2012) 21 PRNZ 221.
41 Criminal Bar Association, above n 40, at [25].
42 At [35].
43 Criminal Bar Association, above n 40, at [30].
44 McGechan, above n 3, at [JR15.05].
45 Osborne v Attorney-General HC Hamilton M198/99, 4 October 1999 at [44].
official traffic accident investigation report into capsizing of a tourist operator’s vessel causing the death of a tourist;46 and the revocation of a private pilot licence by the Director of Civil Aviation due to reports of a pilot’s dangerous flying.47 Prejudice to other parties is also a relevant consideration. In Hayes v Waitangi Tribunal and Watene v Minister in Charge of Treaty of Waitangi Goddard J found interim orders preventing the execution of a deed of treaty settlement would have unfairly prejudiced the majority of the claimant community which ratified the deed.48 In Cooks Beach/Ferry Landing Ratepayers Assoc Inc v Thames Coromandel District Council Laurenson J found a contractor due to begin works at the decision of the Council under review would be unfairly prejudiced by delay to its work, thus favouring a refusal to grant interim relief.49 His Honour found delay would cause “detriment to the community” as a result of the delay to the work to create a reticulated wastewater system.50
[54] Finally, the balance of convenience and the overall justice of the case must be considered. While in Manawatu Polytechnic v Attorney-General the main reason for granting interim relief was the irreversibility of a decision under review, Laurenson J in Minhinnick v New Zealand Historic Places Trust found the irreversibility that would flow from the refusal of interim relief was outweighed by the weakness of the substantive application.51 Importantly, the Court in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission held that, although an interim order could cause frustration to the respondents, it would not cause inconvenience.52
46 See for example Whale Watch Kaikoura (HC), above n 4, at 63.
47 O’Malley v Director of Civil Aviation HC Christchurch CP64/02, 8 November 2002.
48 Hayes v Waitangi Tribunal HC Wellington CP111/01, 10 May 2001; and Watene v Minister in Charge of Treaty of Waitangi HC Wellington CP120/01, 11 May 2001.
49 Cooks Beach/Ferry Landing Ratepayers Association Inc v Thames Coromandel District Council
HC Auckland CP310-SW01, 2 July 2001 at [47]–[49].
50 At [47].
51 Manawatu Polytechnic v Attorney-General HC Wellington CP324/97, 15 December 1997 at 19; and Minhinnick v New Zealand Historic Places Trust HC Auckland CP317/97, 28 November 1997 (upheld on appeal in Minhinnick v Historic Places Trust CA280/97, 18 December 1997).
52 Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission HC Auckland CP395/93, 31 March 1999 at 12.
Analysis
Statutory threshold – necessary to protect Mr Thompson’s position?
[55] The sole issue at this stage of the enquiry is whether an interim order preventing HWCP proceeding with demolition in accordance with its resource consent is necessary to preserve Mr Thompson’s position. I accept that there is at least an arguable or justiciable issue raised by Mr Thompson.53 It is within this Court’s review jurisdiction to determine whether the Council’s decision to vary the consent on a non- notified basis was lawfully and properly made.
[56] However, I am unconvinced Mr Thompson has a position to preserve. In Woodhouse, Henry J found the Court must look at what is being sought by way of substantive relief to determine whether in fact there is a position which should be preserved.54 As Mr Ormsby highlights, Mr Thompson did not avail himself of a substantive resource management appeal of the Council’s original consent decision and thus his application for judicial review is confined solely to the variation decision (and it being made on a non-notified basis). He cannot challenge the ultimate fact of demolition in this proceeding. He cannot and does not challenge the original consent.
[57] In the context of Mr Thompson’s application for interim relief now before the Court, his substantive position that he seeks to preserve is essentially the risk HWCP’s development will not promptly follow demolition as a result of condition 19A. His position cannot amount to an objection to the development proceeding or demolition occurring. In this light, it is clear on the evidence before the Court, particularly that of Mr Geoffrey Cotton (project director for the development) in relation to the development’s critical path dates, that if Mr Thompson’s position prevails, there is a strong likelihood the resultant delay would cause the development to be unable to meet those dates necessary to retain Farmers as the anchor tenant. On all the evidence, that will jeopardise the feasibility of the entire development. Mr Thompson says his complaint is that development will not occur promptly following demolition. But plainly it can be seen that if further delay is to occur by this Court granting interim relief, the development likely may not proceed at all.
53 Whale Watch Kaikoura (HC), above n 4, at 60, 61 and 65.
54 Woodhouse, above n 37, at 8.
[58] On one view, therefore, it could be said that Mr Thompson’s “position” is thus in large part illusory. As a result, I am unpersuaded that there is any real necessity to preserve a position that does not go far beyond a “simple desire” to injunct the development and restore the status quo ante.55 In the circumstances, it might also be suggested that this application for interim relief is approaching a “mere delaying tactic” on the part of Mr Thomson.56
[59] I would add, one further comment. In terms of the “position of the applicant”, I turn to consider whether or not he might claim to speak for a broader group of concerned Invercargill business owners and ratepayers, a group which I consider would be a legitimate group to recognise as part of the analysis of Mr Thompson’s position.57 But it is clear here that there is no evidence of this before the Court at all. To the contrary, there is evidence of a significant number of nearby business owners who support, are eagerly awaiting the start of the development, and oppose any further delays.
[60] In an affidavit before the Court, Mr Benjamin Fokkens gives evidence to that effect. He is the Chairperson of the Neighbouring Retail Group (NRG), a group of 26 Invercargill businesses all located in the area surrounding the block awaiting development. He deposes that the NRG does not want to see any further delays to the development because of the decrease in foot traffic and empty carparks already being experienced as a result of the now vacant block awaiting development. He also speaks to the wide-reaching effects of delay for the City. He says the block has slowly become a “lifeless, derelict heart to our city” and that any further delay will impact on visitors’ impressions of the City, as well as the community’s own confidence in Invercargill. NRG’s view is that demolition getting underway will at least be a positive sign of progress. It is clear that a significant group of surrounding businesses, a group whose interests Mr Thompson by necessary implication might invoke in support of his position, has expressed the unchallenged desire that there be no further delays to the development.
55 See Bishop, above n 39, at 21.
56 See Osborne, above n 45, at [44].
57 See Criminal Bar Association, above n 40, at [25].
[61] My earlier results decision was based upon the conclusion that Mr Thompson did not persuade me interim relief was necessary to preserve his position and declined his application on that basis. If I am wrong that the statutory threshold is not met in this case, I turn to address whether I would have exercised my discretion by granting relief by reference to the relevant factors.
Merits
[62] Mr Thompson’s substantive judicial review challenge, as I see it, is not a strong one. In terms of Hammond J’s decision in Esekielu v Attorney-General, I consider it appropriate in this case to require Mr Thompson to meet a standard of probability of success at the higher end of the sliding scale.58 Mr Thompson is a third party whose relevant legal rights are not directly prejudiced by the decision under review. The decision relates to a commercial development with no unusual resource management features. The matter has already been the subject of a high degree of scrutiny by competent resource management decision makers,59 including by way of a publicly notified hearing of the substantive application. The variation decision was also preceded by and based on a detailed analysis by an experienced and independent consultant planner. Commissioner Maassen was best placed to assess the substantive issues relating to the variation and whether notification was required. For those reasons, I would have required Mr Thompson to demonstrate to a relatively high standard, at least on an interim analysis, that his claim had merit.
[63] First, I will consider the variation decision. Before me, Miss Gepp submitted condition 19A “clearly” does not achieve the same outcome as condition 19. She said it fails to control the risk of adverse effects flowing from a no/delayed development scenario as it does not require HWCP to demonstrate that it has finance for the development. She also said the variation decision was unlawful because it created an unsatisfactorily uncertain condition which improperly reserved a discretion to the Council.
58 Esekielu, above n 33.
59 See Esekielu, above n 33, at 313.
[64] I do not accept that submission. After Commissioner Enright issued his minute finding that condition 19 would only be satisfied where a bank stated that “funding was ‘confirmed’ on an unconditional basis”, it was clear condition 19 was unworkable. This was recognised by Commissioner Maassen in his variation decision. And, he noted, “[t]his is typical of commercial funding arrangements of this type”. That is consistent with the view expressed by the ANZ Southern Regional Manager, Mr Andrew Weastell, in his covering letter to ANZ’s indicative terms of finance (attached to Mr Scott O’Donnell’s first affidavit). Mr Weastell said, “[t]here will still be conditions to be satisfied prior to drawdown of the funds, as is normal in development finance…” This view was confirmed in his 9 January 2020 letter (attached to Mr Scott O’Donnell’s second affidavit). Additionally, HWCP sought and received provisional funding from two other sources, Community Trust Southland and the Provincial Growth Fund, neither being a “registered trading bank” in terms of condition 19. The position facing HWCP was this: ANZ as the registered trading bank declined to offer unconditional finance, signalling that this would be inconsistent with lending practices for developments of this type; and additionally, further funding was indicatively secured from sources not registered as trading banks, thus not assisting it in satisfying condition 19.
[65] Mr Thompson in his application offered no contrary view that compliance with condition 19 was commercially realistic. I find that for the development to proceed according to its resource consent (again I note, not substantively appealed by Mr Thompson) it was imperative for condition 19 to be varied to allow HWCP greater flexibility in its ability to demonstrate its commitment to promptly proceed to development after demolition.
[66] As to whether the decision to replace condition 19 with condition 19A was wrong in an administrative law sense, I agree with Judge Jackson’s approach to the requirement of certainty for resource consent conditions in his Environment Court decision in Aubade.60 The Judge said the management of effects under the RMA sometimes requires conditions to be imposed in circumstances of considerable uncertainty. These may require future assessments or decisions and therefore these
60 Aubade, above n 10.
conditions do not have to be completely certain.61 As the Supreme Court said in SOS, the correct approach is for consenting authorities to “sufficiently” reduce uncertainty and “adequately” manage any remaining risk.62
[67] I consider condition 19A was sufficiently certain in all the circumstances here. It provided a flexible test that allowed the Council to take into account a range of factors that would collectively demonstrate a commitment on the part of HWCP to proceed to the development stage. As Commissioner Maassen said in his variation decision:
I accept the idea that the Council can make a reasonable judgement based on a range of information that is collectively sufficient to credibly demonstrate [a commitment on the part of the consent holder] to complete stages 1 to 3.
(Emphasis added)
[68] This prospective interpretation of the test required by condition 19A, in my view, meets the original purpose of condition 19, as outlined in the Resource Management Commissioners’ consent decision. The Commissioners sought to impose condition 19 on the basis it would, “ensure there is credible evidence that redevelopment will promptly follow demolition”. Both the consultant planner’s report and Commissioner Maassen’s variation decision took the view that the variation achieves the same outcome originally intended by the Commissioners in their consent decision. I agree.
[69] It is unrealistic, as I see it, for Mr Thompson to expect a condition to provide for rigid and quantifiable standards of commitment, such for example by specifying a specific number of tenancies to be first secured. The fluid nature of a commercial development is such that it is unlikely that a single factor at any one time in the development process would be capable of evincing a genuine commitment to proceed to completion. This commitment must be demonstrated through a range of factors that are seen as collectively sufficient. I consider that while condition 19 was impressively certain, its certainty made it unworkable. Additionally, it was undoubtedly inconsistent from a practical viewpoint with the purpose of the resource management
61 At [34] and [36].
62 At [125].
framework. Relevantly, that purpose is to promote sustainable management by, among other things, managing the use of resources in a way which enables people and communities to provide for their economic well-being.63 I agree with Commissioner Maassen that condition 19A provided a sufficient basis from which the Council could assess HWCP’s commitment through a range of evidential factors. Accordingly, in my view, Mr Thompson’s substantive challenge to the decision to vary condition 19 is weak.
[70] I turn then to the Commissioner’s decision not to notify HWCP’s variation application. In light of my stated view that condition 19A achieves the same outcome as condition 19, I also find that Commissioner Maassen was correct to adopt the reasoning contained in the consultant planner’s report that this activity would have (or likely have) adverse effects that were not more than minor. There was no material change in the effect of the condition.
[71] I also reject Miss Gepp’s submission that there were “special circumstances” requiring notification in terms of s 95A(9). She said special circumstances existed because the development relied on significant equity funding, some of which had been withdrawn in November 2019; HWCP is half-owned by the Council; and there was significant submitter interest in the no/delayed development scenario.
[72] It is clear that despite the withdrawal of $21 million of funding by Mr Geoff Thomson, I have noted above, HWCP has demonstrated that it and the Council would work with remaining investors to ensure there was sufficient funding to progress the development. This was sufficient in the opinion of the consultant planner, who recommended that the Council find HWCP had satisfied condition 19A. I agree with that assessment. The supposed funding issue is not one that takes Mr Thompson any further in relation to this special circumstances issue.
[73] Moreover, I do not consider the fact HWCP is half-owned by the Council to materially add to a claim of special circumstances. Miss Gepp cited Urban Auckland in support of her proposition.64 However, I consider that case to be distinguishable.
63 RMA, s 5(2).
64 Urban Auckland, above n 9.
There, the resource consent applicant, Ports of Auckland Ltd, was fully owned by the Council. In any event, Venning J said that alone could not be sufficient to find special circumstances.65 Venning J only found special circumstances to exist when the total ownership interest of the Council was put alongside (relevantly) the fact the Port of Auckland was of both national and regional importance;66 and there was significant public interest and controversy that “could be described as outside the common run of interest shown in applications for commercial development”.67 The present case, in my view, does not share similarly unusual features that would justify the conclusion that there are special circumstances.
[74] On those bases the variation likely did not require notification under s 95A. I consider the merits of Mr Thompson’s challenge of the decision not to notify to be weak.
Public and private repercussions
[75] In this case there is no doubt that there are competing private repercussions. If interim relief is refused, demolition will proceed. This will bring HWCP closer to meeting its critical path dates including its obligation to Farmers who would ultimately relocate its premises. This negatively affects Mr Thompson’s private business interests as he would lose a valuable tenant, Farmers being a present tenant of a building in the City owned by him or his interests. Conversely, HWCP will continue to suffer demolition delay costs at least at the rate of $33,498.67 plus GST per week, for which Mr Thompson was not prepared to provide an undertaking beyond 21 January 2020. There are the nearby business owners who will also suffer by being forced to languish in what they describe as a “lifeless, derelict heart to [Invercargill]” (Mr Fokkens, Chair of the Neighbouring Retail Group). Additionally, Farmers and other prospective tenants would face further uncertainty about the development, which obviously undercuts their ability to make prudent commercial decisions relating to the development in a timely fashion.
65 At [142].
66 At [144].
67 At [146].
[76] As to the public repercussions, I am satisfied that further delay to the development will be of detriment to the community, residents and ratepayers of Invercargill.68 On the evidence before me, the buildings are vacant, derelict and a risk to public safety. They are earthquake-prone and thus pose a potential threat to property and people in a seismic event. There is also evidence from the project developer, Mr Cotton, that squatters present a constant problem for the vacant buildings. As a result of squatters smashing windows, rats and other vermin have access to the buildings which will require constant management. I consider the public safety threat to be of some relevance to an assessment of the public repercussions of the delay that would result from interim relief.69 Ultimately, and more relevantly in the resource management context, the completion of this development will be of considerable economic and amenity benefit to the Invercargill CBD core and this will positively impact upon the City’s residents.
[77] I am satisfied the private and public repercussions justify refusing relief in this instance.
Balance of convenience and overall justice
[78] Finally, I express my view here that the balance of convenience clearly favours refusal of relief. In SmithKline Beecham (NZ) Ltd v Minister of Health Heron J declined to grant interim relief, though the applicant complained the reduction of a government subsidy for one of its pharmaceutical products would cause it harm in the marketplace.70 His Honour found that the fact the applicant was willing to “make up the revenue that would otherwise be lost if the subsidy was reduced and to pay that over the interim period to the Crown”71 reflected the “financial strength of the applicant, and its ability to undergo the difficulties in the interim, and perhaps not to suffer the losses that are alleged.”72 He found that he was not “convinced that irreparable harm in the marketplace will occur to the applicant. There are steps which it can take…including lowering its price, albeit temporarily.”73
68 See Cooks Beach/Ferry Landing Ratepayers Association, above n 49, at [47].
69 See for example Whale Watch Kaikoura (HC), above n 4, at 63; and O’Malley, above n 47.
70 SmithKline Beecham (NZ) Ltd v Minister of Health HC Wellington CP428/91, 26 June 1991.
71 At 5.
72 At 6.
73 At 8.
[79] In contrast, the evidence before me suggests that not only will further delay do HWCP financial harm at a weekly rate of at least $33,498.67 plus GST, but that such delay will put the development at serious risk of failing. This is distinguishable from SmithKline Beecham’s position, where its “financial strength” would allow it to absorb any interim losses.
[80] In Te Waka Hi Ika o Te Arawa, Anderson J noted that although an interim order may cause frustration to the respondents, it would not cause inconvenience.74 Here too, HWCP (an innocent party) would not merely suffer frustration, but genuine inconvenience through delay, added cost and the risk of project failure. In Foodstuffs (Auckland) Ltd v Progressive Enterprises Ltd Heath J refused interim relief, in part due to the likelihood of disruption to the ability of the respondents to raise funds on the capital markets.75 Here, there would be a high level of disruption to the development caused by interim relief that could ultimately be fatal to its success. I find the balance of convenience favours the refusal of interim relief.
[81] And, looking to the overall justice of the case, it appears an underlying concern stated by Mr Thompson is his objection to the Council’s involvement in commercial development in the City. That is not a relevant resource management issue. The legitimate and justiciable resource management grounds he does raise are weak. From a participatory and community-based approach to resource management, he has additionally failed to provide evidence that there is widespread concern about the loss of heritage value in these buildings with the necessary short delay between demolition and re-development. The evidence before me is that he stands apart from the general views of the business and wider community of Invercargill. I find the justice of this case favours a refusal to grant interim relief.
74 Te Waka Hi Ika o Te Arawa, above n 52.
75 Foodstuffs (Auckland) Ltd v Progressive Enterprises Ltd HC Auckland M680-SW02, 14 June 2002 at [66].
[82] For those reasons, I declined to make the interim orders he sought or to extend the earlier orders made by Mander J.
Costs
[83] Costs are reserved at this point pending the outcome of Mr Thompson’s judicial review application.
...................................................
Gendall J
Solicitors:
Hamish Fletcher Lawyers
Preston Russell Law, Invercargill Saunders Robinson Brown, Christchurch
Copies to:
Sally Gepp, Barrister, Nelson
Jared Ormsby, Barrister, Christchurch
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