Tran t/a Hanoi Vietnam Caf� v City Rail Link Limited
[2019] NZHC 2739
•25 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-825
[2019] NZHC 2739
BETWEEN THI LAN ANH TRAN (Trading as Hanoi Vietnam Café)
Appellant
AND
CITY RAIL LINK LIMITED
Respondent
Hearing: 23 October 2019 Appearances:
Appellant in person
J A Gregory and T Crawford for Respondent
Judgment:
25 October 2019
JUDGMENT OF KATZ J
This judgment was delivered by me on 25 October 2019 at 2:30pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Bell Gully, Auckland Copy to: T L A Tran (Appellant)
TRAN (Trading as Hanoi Vietnam Café) v CITY RAIL LINK LIMITED [2019] NZHC 2739 [25 October 2019]
Introduction
[1] This appeal arises from a decision of the Environment Court relating to the City Rail Link Project (“CRL Project”).1 The CRL Project is a major infrastructure project currently being undertaken in Auckland. It includes the construction of a
3.4 km underground rail link between Britomart Station in central Auckland and the North Auckland Line in Mt Eden and three new stations at Albert Street, Karangahape Road and Mt Eden.
[2] The CRL Project is authorised in the Auckland Unitary Plan (“Unitary Plan”) by six individual, but related, designations under the Resource Management Act 1991 (“RMA”). Those designations (each of which relate to a different part or aspect of the CRL Project) were confirmed by the Environment Court in November 2015.
[3] Designation 4 provides for the Karangahape Road Station. In July 2017 Auckland Transport publicly notified some proposed alterations to Designation 4. Following consultation, City Rail Link Ltd (“CRL Ltd”) (who took over responsibility for the CRL Project from Auckland Transport in 2017) issued a decision making certain alterations to Designation 4 (“the Alteration”) on 30 April 2018.2
[4] Thi Lan Anh Tran operates a café on Pitt Street known as the “Hanoi Village Café”. Her business is within the area covered by Designation 4. Ms Tran did not oppose the original making of Designation 4. She did, however, oppose the alterations that were subsequently proposed. Ms Tran appealed CRL Ltd’s decision to make the Alteration, to the Environment Court. That Court dismissed Ms Tran’s appeal and confirmed the Alteration in a modified (more limited) form, in a decision dated 12 April 2019.3 The modifications to the Alteration reflected that, by the time of the hearing in the Environment Court, it was no longer necessary for CRL Ltd to proceed with some of the more contentious aspects of the Alteration due to changes in its construction programme. Ms Tran, who is self-represented, now appeals the Environment Court’s decision.
1 Hanoi Vietnam Café v City Rail Link Ltd [2019] NZEnvC 074.
2 Decision of CRL Ltd signed by Caroline Beaumont, dated 30 April 2018.
3 Hanoi Vietnam Café v City Rail Link Ltd [2019] NZEnvC 074.
Approach on appeal
[5] Appeals to the High Court from decisions of the Environment Court are available only on questions of law.4 The High Court has confirmed the specialist jurisdiction of the Environment Court and that its decisions will only be interfered with on appeal in circumstances where the Environment Court:5
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
The statutory context – designations under the RMA
[6] The RMA provides for areas of land to be “designated” for use as public works or for use as network utilities. Land can only be designated for public works or network utilities, however, by ‘requiring authorities’. Ministers of the Crown and local authorities are automatically requiring authorities. Network utility operators (such as organisations that distribute gas, telecommunications, electricity, water, or which construct or operate roads, railway lines and airports) have to apply for requiring authority status from the Minister for the Environment. 6
[7] If a requiring authority wants land to be designated for a particular purpose, it must submit a notice of requirement to the territorial authority. The requiring authority
4 Resource Management Act 1991, s 299.
5 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145, at 153; and
Manukau City Council v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA 58 at 60.
6 Resource Management Act 1991, ss 166 – 168.
has to have financial responsibility for a project, work or operation on the designated land. Once a notice of requirement has been submitted the following process applies:7
(a)the territorial authority can seek further information from the requiring authority;
(b)the territorial authority decides whether to publicly notify the notice of requirement;
(c)if notified, submissions can be made to the territorial authority on the notice of requirement;
(d)the territorial authority holds a hearing, and hears evidence and submissions from the requiring authority, submitters and officers of the territorial authority;
(e)the territorial authority issues a recommendation to the requiring authority, to confirm, modify, impose conditions or withdraw the notice of requirement;8
(f)the requiring authority makes a decision to accept or reject the recommendation in whole or part;
(g)the territorial authority and submitters have a right to appeal the requiring authority decision to the Environment Court; and
(h)following the resolution of any Environment Court appeals the territorial authority must include the designation in the district plan.
[8] Designated areas (or ‘designations’) are identified in district plans. They are shown on the planning maps and the conditions are usually included in a schedule or
7 In some circumstances a different process may apply, for example where a notice of a requirement is lodged with the Environmental Protection Agency. Those circumstances do not apply in this case.
8 The territorial authority can appoint independent commissioners to make a recommendation on behalf of the territorial authority. See Resource Management Act 1991, s 34A.
chapter to the district plan.9 Once a designation is included in a district plan it replaces the need for the requiring authority to obtain district council resource consents for the project.10 The requiring authority may do anything allowed by the designation, and the usual provisions of the district plan do not apply to the designated site.
[9] Once a designation is included in a district plan, a requiring authority may, at any time, give a territorial authority notice of a requirement to alter a designation.11 The RMA provides two pathways to address alterations to designations:12
(a)if the alteration involves only minor changes or adjustments to the boundaries of the designation or no more than a minor change to the effects on the environment, and all directly affected owners and the territorial authority agree with the alteration, the alteration can be made to the district plan without any further process;
(b)if the alteration does not meet the requirements in (a) the alteration follows the same process as for a new notice of requirement, as set out above.
[10] The alteration that is the subject of this appeal was treated, in terms of process, as if it were a new designation.
Factual and procedural background13
City Rail Link designations
[11] Auckland Transport was financially responsible for the CRL Project at the outset. Auckland Transport was established by the Local Government (Auckland Council) Act 2009.14 Auckland Transport is an Auckland Council
9 Resource Management Act 1991, s 166.
10 Section 176.
11 Section 181(1).
12 Section 181.
13 The factual and procedural background, which is complex, was helpfully summarised in the respondent’s submissions (with appropriate cross-references to the supporting evidence). I have drawn on that summary in this section of my judgment. Most of the facts do not appear to be in dispute. To the extent that Ms Tran did raise any material factual disputes, they are addressed in the next section of this judgment.
14 Local Government (Auckland Council) Act 2009, s 38.
council-controlled organisation and was deemed to be approved as a requiring authority under the RMA.15
[12] The designation process for the CRL Project commenced in August 2012. As noted above, in November 2015 the Environment Court issued a final decision confirming the six designations. The six designations were then included in the Unitary Plan (shown on the planning maps) and the conditions were included in Chapter K, with the reference number 1714.
[13] Once the relevant regional consents were obtained and funding confirmed, the relevant design and construction management planning was undertaken, and physical construction of the City Rail Link commenced in December 2015.
Karangahape Station design development
[14] The City Rail Link designations and conditions are complex, reflecting the complexity of the CRL Project. Since their initial inclusion in the Unitary Plan, various alterations have been made to the CRL Project designations.
[15] When Designation 4 was first made, the concept plan for the Karangahape Station included two station entrances – one on Mercury Lane and one at Beresford Square. The works that were authorised by the original designation were in accordance with that plan, albeit it was envisaged that the Beresford Square entrance would likely to be constructed first.
[16] A decision was subsequently made to change the layout and timing of the Karangahape Station entrances. It was decided to construct the Mercury Lane entrance first, and only to construct the Beresford Square entrance once patronage increased. To provide for the future construction of the Beresford Square entrance without disrupting or closing the railway as a whole, the single entrance station design needed emergency stairs and a ventilation stack to be located away from the Beresford Square location. Auckland Transport determined that the best location for these structures
15 Section 47.
would be on the eastern side of a widened Pitt Street footpath. This had the potential
to impact on Ms Tran’s café, which is located at 84 Pitt Street.
[17] At the same time, developments in the design for the Karangahape Station resulted in the need for other changes to the designation boundaries and conditions. These changes related to the removal and replacement of canopies, the extension of the construction support area on Pitt Street and the need to partially demolish buildings at 16 and 18 East Street for the Mercury Lane shaft.
Karangahape Station Alteration – content
[18] Auckland Transport gave notice of a requirement to alter Designation 4 to provide for these developments on 4 May 2017. The notice of requirement for the Alteration was supported by an Assessment of Environment Effects (“the Environmental Report”) and a number of technical appendices.
[19] The proposed changes to the designation boundary were shown in Appendix J to the Environmental Report. The boundary of the designation area was proposed to be slightly expanded to include some additional land on Pitt Street and a narrow portion of further land at 16 and 18 East Street. As recorded in the notice of requirement for the Alteration:
No further permanent land acquisition is required to construct these works. All areas where the CRL Designation 4 is to be extended are either owned by [CRL Ltd], are part of the existing road reserve, or will be the subject of a construction lease.
[20] The Alteration also proposed changes to certain designation conditions, to reflect updated planning that had taken place.
Karangahape Station Alteration – process
[21] Having received the notice of requirement for the Alteration, Auckland Council requested further information from Auckland Transport about a number of aspects of the Alteration. Following a meeting with Auckland Council, Auckland Transport (through its planning consultant, Aurecon) responded to the Council on 4 July 2017.
[22] Auckland Council publicly notified the Alteration on 26 July 2017 and submissions closed on 1 September 2017. Ms Tran made a submission. Auckland Council delegated its role to Independent Commissioners (Mr Alan Watson and Ms Rebecca Macky) who held a hearing on 4 December 2017 and issued a recommendation dated 13 April 2018. The recommendation confirmed the Alteration and, as a result of submissions and evidence from the parties, recommended some additional changes to the designation conditions.
[23] CRL Ltd (which by then was the relevant requiring authority) issued its decision on the Alteration, on 30 April 2018.16 It largely accepted the recommendations of the Independent Commissioners.
[24] Ms Tran then lodged an appeal to the Environment Court. The Environment Court dismissed her appeal and approved the Alteration (in a modified form) in its decision of 12 April 2019.17
Changes to the Alteration during the RMA process
[25] After the Alteration had been approved/made by CRL Ltd, further work and assessments indicated that a number of aspects of the Alteration were no longer required and could be withdrawn, and CRL Ltd advised the parties and the Environment Court of this. In particular, a revised assessment of passenger demand for rail services in Auckland had indicated that demand for the City Rail Link would exceed capacity of the planned six carriage trains earlier than expected. The CRL Project sponsors (Auckland Council and the Government) accordingly decided that both entrances to Karangahape Station should be constructed now and that the platform should be constructed to accommodate nine carriage trains.
[26] The decision to construct both entrances at the same time meant that the contentious above ground structures for the emergency stairs and ventilation stack on Pitt Street (which would have potentially impacted Ms Tran’s business) were no longer needed. From 11 September 2018 onwards (prior to the Environment Court
16 Decision of City Rail Link Ltd signed by Caroline Beaumont, dated 30 April 2018.
17 Hanoi Vietnam Café v City Rail Link Ltd [2019] NZEnvC 074.
hearing in December 2018) the only parts of the Alteration that CRL Ltd still required were:
(a)an extension of the designation over Pitt Street for construction activities;
(b)partial demolition of two buildings at 16 and 18 East Street in an extended construction support area, in order to construct the Mercury Lane shaft;
(c)temporary canopy removal and reinstatement at 55-59 Pitt Street, 61-65 Pitt Street and 9 Mercury Lane; and
(d)changes to the conditions as required to give effect to the above amendments.
[27]The conditions proposed to be altered were:
(a)Condition 1 – additions to reference the latest plans.
(b)Condition 41.2(h) – additions related to the detailed design of the reinstated or replaced canopies.
(c)Condition 51.2(c) – adding a gradient requirement for Mercury Lane.
(d)Condition 51.3 – a new condition related to the public realm design for Mercury Lane.
[28] As a result of the changes proposed by CRL Ltd, the other appeals that had been filed against the Environment Court’s decision were able to be resolved. Ms Tran, however, wished to proceed with her appeal (and did so). Ultimately, however, the Environment Court dismissed her appeal. The Alteration was approved, albeit on the more limited basis then sought by CRL Ltd.
Alleged errors of law raised in Ms Tran’s submissions
[29] In its decision, the Environment Court noted that it, and the other parties to the appeal, were only able to follow Ms Tran’s submissions “with great difficulty”.18 The Court noted that Ms Tran had unfortunately resisted all suggestions that she take specialist legal advice during the “tortuous case management process”.19
[30] Regrettably, similar challenges arose during the course of this appeal. Ms Tran’s written submissions were difficult to follow and my attempts to obtain oral clarification during the appeal hearing met with only limited success. I have endeavoured to identify and address the key issues raised in Ms Tran’s submissions below. I acknowledge the considerable assistance provided by counsel for the respondent in distilling the key issues in this appeal.
[31] Ms Gregory submitted that none of the matters raised by Ms Tran (even if accepted) could properly be characterised as errors of law by the Environment Court. Further, CRL Ltd did not accept the substance of most or all of Ms Tran’s criticisms. In broad terms, CRL’s position is that most of the alleged errors of law and claims of unlawful actions by CRL Ltd simply reflect Ms Tran’s failure to understand the complexities of the designation process under the RMA, both from a legal and factual perspective.
Was the Notice of Requirement deficient for failing to adequately describe (or incorrectly describing) the site(s) of the proposed Alteration?
[32] Ms Tran submitted that the notice of requirement for the Alteration (dated 4 May 2017) failed to comply with Form 18 of the RMA, which is the prescribed form for giving a notice of requirement.
[33]Form 18 includes the following passage:
The site to which the requirement applies is as follows:
[describe the site as it is commonly known and in a way that will enable it to be easily identified (eg, the street address, the legal description, proximity to any well-known landmark, the grid reference (if known))].
18 Hanoi Vietnam Café v City Rail Link Ltd [2019] NZEnvC 074 at [8].
19 See footnote 1 at [8].
Ms Tran submitted that the description of the site in the notice of requirement was insufficiently precise to comply with this requirement.
[34] I have summarised the content of the Alteration at [18] to [19] above. The notice of requirement is four pages long and is also cross-referenced to various other documents including “Table 1 to the land requirement plan” and the Environmental Report. Specific reference is also made to two drawings included in Appendix J to the Environmental Report, identified as CRL-SYM-RME-000-DRG-0134 and 0135 (“Drawings 134 and 135” respectively), as showing “The location of the proposed works and revised designation extent”. A fairly comprehensive explanation of the proposed alterations is set out and a number of streets (and particular addresses on those streets) that will be impacted by discrete aspects of the proposed work are identified.
[35] Ms Tran requested a copy of the “Table 1” from CRL Ltd (as referred to in the notice of requirement) but was advised that that reference was an error and there is no such document. Counsel for the respondent confirmed that that is the case. Obviously, that is regrettable, but there is nothing to suggest that the error was anything other than inadvertent.
[36] Drawings 134 and 135 are both based on plans sourced from Land Information New Zealand, with various annotations relating to the proposed alterations noted on those plans, as described in the legend to each drawing. The drawings include the boundary of Designation 4, the names of all the relevant streets and lanes within Designation 4, and the legal boundaries of individual titles or properties on those streets or lanes.
[37] Drawing 135 identifies the further (small) additional parcels of land that CRL Ltd proposed to include in Designation 4. Drawing 134 illustrates (using thick bold red lines) the street frontages where canopies will be removed, and then subsequently reinstated. Thin red lines are used to show where canopies will remain. Ms Tran submitted that the use of the colour red for both categories is potentially confusing. I have reviewed the relevant drawing. There is a very clear distinction between the two types of lines. I am satisfied that there is no material risk of confusion.
[38] Ms Tran submitted that Drawings 134 and 135 are insufficiently precise because they do not include street numbers. CRL Ltd declined a request from Ms Tran to include street numbers on the drawings. Helen McLean (a planner with Aurecon NZ Ltd, who gave evidence for CRL Ltd) explained the reasons for that as follows:
Ms Tran would like the property street numbers added to the drawings referred to in the conditions. I do not consider adding the property numbers is necessary and it would be inconsistent with all the other drawings referenced in the CRL conditions. Having a different labelling system for this alteration could result in confusion for users of the Designation.
….
While not displaying property numbers, drawing CRL-SYW-RME-OOO- DRG-0134 Revision 2 identifies the building canopies to be removed with a thick red line. Building canopies to remain are identified with a thin red line.
[39] In my view the addition of street numbers to the drawings is not necessary to meet the requirements of Form 18. It is quite clear from those drawings what land is encompassed within Designation 4, and which additional parcels of land are proposed to be included pursuant to the Alteration. As for Drawing 134, it is quite clear where canopies are to be removed and reinstated.
[40] None of the other matters raised by Ms Tran under this head have any substance. I am satisfied that the notice of requirement, when considered together with the associated documents, adequately identifies and describes the site(s) that are the subject of the proposed alteration, as required by Form 18. The Environment Court did not make any error of law in relation to this issue.
Ms Tran’s unwillingness to attend mediation
[41] Ms Tran was invited to attend a mediation by CRL Ltd but declined to do so. She explains the reasons for her decision in her submissions. She says that it was her view that CRL Ltd could not design an emergency egress stair in the position that was proposed, and there was no possible way to successfully reduce adverse impacts on the environment and heritage values solely through design changes. As set out above, however, the emergency egress stair is no longer needed as a part of the Alteration due to the changes announced last September. In any event, there is no suggestion that Ms Tran’s failure to attend mediation impacted on the Environment Court’s decision- making in any way. This issue is irrelevant for the purposes of this appeal.
Did the Environment Court err in referring to designation 2500 rather than designation 1714?
[42] The Environment Court approved alterations to “CRLL designation 2500-4”. Ms Tran submitted that this is not the same Designation 4 that was originally approved, and accordingly there has been no valid alteration to (that) Designation 4. Her written submissions expressed her concern as follows:
Designation 1714 is the only Designation mentioned in all documents since the [notice of requirement] lodged on 4 May 2017 until the Council recommendations issued dated 13 April 2018. During this time, designation 2500 has never been mentioned in any of the documents, but designation 2500 suddenly appears for the first time in the respondent’s decision dated 30 April 2018 with a wrong indication for its legal approval.
[43] The Environment Court referred to Ms Tran’s “irrelevant and incorrect assertions about how designation 1714 came to be referred as designation 2500” and explained that:
During the processing of the [notice of requirement] the Unitary Plan reference number for the designation subject to the alterations changed from ‘Designation 1714 (City Rail Link Designation 4)’ to ‘Designation 2500-4’. This change reflects [CRL Ltd] being approved as a requiring authority for the purposes of the CRL project, and the subsequent transfer of responsibility for the six [City Rail Link] designations from Auckland Transport to [CRL Ltd].
[44]Ms Tran submitted that the Environment Court erred in this finding.
[45] Section 180 of the RMA provides that where financial responsibility for a designation transfers from one requiring authority to another, responsibility for any relevant designation itself also transfers. The authority that transfers responsibility for the designation must advise the Minister for the Environment and the relevant council. The transfer is then noted in the district plan.
[46] On 1 July 2017 CRL Ltd was established as a company jointly owned by the Crown and Auckland Council. CRL Ltd was approved as a requiring authority under the RMA by gazette notice dated 10 August 2017. The financial responsibility for the City Rail Link Project was then transferred from Auckland Transport to CRL Ltd. Consequently, the City Rail Link designations were also transferred from Auckland Transport to CRL Ltd.
[47] Auckland Council has a system of numbering designations within the Unitary Plan. Auckland Transport designations begin in a series numbered 1400 through to the 1700s. When the City Rail Link designations were first included in the Unitary Plan, the next available Auckland Transport number was 1714.
[48] When the City Rail Link designations were transferred from Auckland to CRL Ltd, Auckland Council created a new number series for CRL Ltd, starting at 2500. The Unitary Plan numbering is administrative only, for ease of use by Council officers and members of the public.
[49] It was apparent from Ms Tran’s submissions that she believes that designation 2500 is different in substance to designation 1714 and as such needs its own separate approval. Ms Tran argued that Ms McLean’s evidence showed that the wording of some of the conditions in designations 1714 and 2500 differed. Ms Gregory explained, however, that the difference referred to by Ms Tran is simply because Ms McLean’s evidence refers to certain subsequent amendments that are not in the original designation. I accept that explanation. Ms Tran is mistaken in her belief that designation 2500 is a different designation to designation 1714, and therefore requires its own separate approval.
[50] Any submission that the transfer of financial responsibility from Auckland Transport to CRL Ltd, or the consequential renumbering of designation 1714 to designation 2500, has resulted in any error of law being made by the Environment Court is misconceived. I accordingly reject this ground of appeal.
Has an error of law arisen as a result of Auckland Council and CRL Ltd “helping each other to hide their mistakes”?
[51] Ms Tran alleges a number of “mistakes” (mostly of a relatively minor procedural nature) on the part of Auckland Council or CRL Ltd. She further submitted that they had colluded to hide their mistakes.
[52] CRL Ltd strongly rejected any suggestion that it and/or Auckland Council have acted improperly. Ms Gregory noted that similar claims by Ms Tran in the Environment Court were found to be entirely unsubstantiated.
[53] There is no evidence that CRL Ltd and Auckland Council have acted improperly or in bad faith at any time. Nor did Ms Tran explain how any of the “mistakes” that she alleges have resulted in (or contributed to) an error of law on the part of the Environment Court. Ms Tran has a limited right of appeal to this Court. The matters raised by Ms Tran under this head appear to be without substance. Further, she has failed to establish that any of the matters referred to have given rise to errors of law by the Environment Court. This ground of appeal accordingly fails.
Can issues relating to costs in the Environment Court be addressed in this appeal?
[54] The Environment Court is yet to issue a decision on costs arising from the proceeding before it. Nevertheless, Ms Tran submitted that CRL Ltd and Auckland Council have both erred in law by applying for costs in respect of the Environment Court hearing.
[55] The only errors of law that can be the subject of an appeal to this Court are those made by the Environment Court, not the parties before it. The Environment Court has not erred in law by reserving costs and allowing applications for costs to be made by CRL Ltd and Auckland Council. Issues of costs are beyond the scope of the present appeal, which is an appeal from the substantive decision of the Environment Court.
Other errors
[56] I have endeavoured to address all of Ms Tran’s key arguments, to the extent that I am able to discern them. To the extent that Ms Tran’s submissions raise any further matters, including further “process” issues, I am satisfied that none of those matters have resulted in, or contributed to, any errors of law on the part of the Environment Court.
Costs
[57] I heard from the parties on the issue of costs at the conclusion of the hearing. In the event that the appeal was dismissed, CRL Ltd sought costs on a 1B scale basis. The usual costs principle is that the successful party is entitled to an award of costs. No reason has been advanced that would justify departing from that principle in this
case. CRL Ltd’s request that costs be assessed on a 1B scale basis is reasonable in all the circumstances. Indeed, category 2 scale costs could arguably have been justified, given the amount of work that was clearly required to prepare for the hearing, and the voluminous material before the Court.
Result
[58]The appeal is dismissed.
[59] The respondent is awarded costs on a 1B scale basis, together with its reasonable disbursements (including the costs of preparing the bundle of documents for the appeal).
[60] I anticipate that calculating the quantum of costs and disbursements should be relatively straightforward. In the event of disagreement, leave is reserved to the parties to file memoranda (limited to issues of quantum only). Any memorandum on behalf of CRL Ltd is to be filed by 15 November 2019. Any memorandum on behalf of Ms Tran is to be filed by 22 November 2019.
Katz J
0
1