Wendco (NZ) Ltd v Auckland Council
[2015] NZCA 617
•18 December 2015 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA379/2014 [2015] NZCA 617 |
| BETWEEN | WENDCO (NZ) LIMITED |
| AND | AUCKLAND COUNCIL WIRI LICENSING TRUST |
| Hearing: | 10 September 2015 |
Court: | Wild, Fogarty and Mallon JJ |
Counsel: | R J Hollyman and S J Maloney for Appellant |
Judgment: | 18 December 2015 at 10 am |
JUDGMENT OF THE COURT
AThe appeal is allowed. Relief is granted in the terms set out at [91] of the judgment.
BThe first respondent is ordered to pay the appellant’s costs for a complex appeal on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
This appeal concerns an application for judicial review in which the appellant, Wendco (NZ) Ltd (Wendy’s), sought an order quashing a resource consent issued by the Auckland Council (the Council) to the Wiri Licensing Trust (the Trust) for its site at 639 Great South Road, Manukau. Peters J dismissed the application in the High Court at Auckland in a decision dated 27 June 2014.[1]
[1]Wendco (NZ) Ltd v Auckland Council [2014] NZHC 1481 [HC decision].
The area in question is a large commercial site. Commercial buildings are permitted activities for the purposes of the Resource Management Act 1991 (RMA). The need for a resource management consent was because planned redevelopment of this site entailed modification of two vehicle access points onto the primary road network (Great South Road). Such modification and associated provision of new parking spaces serving these access points required a “restricted discretionary activity” consent under r 8.10.3(b) (“Access and Traffic Generation”) of the Manukau Operative District Plan 2002 (the District Plan). The relevant activity under this rule is as follows:
Any non-residential activity that results in the construction or modification of vehicle access points (or parking areas serving these access points) onto the primary road network, or within 50 metres of the projected road boundary of intersections onto the urban primary road network.
Business activities on the site were changing. A Mobil service station was going and a new fast food business was coming, together with a three-unit retail building.
Position prior to the consent
Prior to the business activities on the site changing, Wendy’s was adjacent to a vehicle entry point off Great South Road, which ran along Lot B on the plan attached to the judgment. The other access onto Great South Road was exit only.
After the consent, Lot B changed from an entrance only to an entry and exit thoroughfare, with consequent increased flow of traffic onto the road from Lot B, and incoming traffic along Lot W, Wendy’s’ leasehold land. This was achieved by providing that the inbound traffic had a thoroughfare within Wendy’s leasehold title, and at the expense of a berm and some onsite parking for Wendy’s customers. New parking was located on the other side of the accessway, in front of exiting traffic. The exiting access was now left-hand only, enforced by a traffic barrier across the centre line of Great South Road.
In addition, carparks that had been separated by a berm, giving Wendy’s’ customers sanctuary from the incoming traffic, were moved so that they abutted the main thoroughfare. Wendy’s claims that these changes have adversely affected its business.
Wendy’s was not given a copy of the application for resource consent.
Prior to that application, Wendy’s’ customers enjoyed an ingress vehicle access from Great South Road and an exit access controlled by traffic lights, with left and right turns available.
Wendy’s argues that modifying these access points, and the concomitant alterations to site circulation and parking should have been examined for any adverse effects on Wendy’s’ use of the site.
Wendy’s has other complaints but, for the purposes of analysis, it is sufficient to use the changes to the traffic entering from Great South Road and going across Wendy’s’ land, and the parking changes, to test whether or not there was a reviewable failure of the Council to consider notifying Wendy’s of the Trust’s resource consent application.
Requirements of the District Plan
Rule 8.10.3 is part of chapter 8 of the District Plan, which deals with transportation. In the District Plan activities are set out in a table and are described as “permitted”, “discretionary”, and “non-complying” activities, among other categories. The activity referred to at [2] above is shown in the table as a “restricted discretionary activity” (r 8.10.3(b)). In relation to a restricted discretionary activity, the rules then set out the matters over which the Council has restricted the exercise of its discretion. They also set out “assessment criteria” to which the Council is to have regard when considering a resource consent for the restricted discretionary activity.
In this case the relevant matters for discretion and the assessment criteria are set out under r 8.12.2. That rule is headed “Activity Requiring Restricted Discretionary Consent to Access the Primary Road Network”. Under that heading is r 8.12.2.1, “Matters for Discretion”, and r 8.12.2.3, “Assessment Criteria”.
Under r 8.12.2.1, “Matters for Discretion”, r 8.12.2.1(iii) reads:
Council reserves discretion over the following matters for restricted discretionary activity resource consent applications for any activity defined within Table 8.10.3(b) involving access to a road within the primary road network or within 50 metres of an intersection with a primary road and may impose conditions in respect of each.
…
(iii)The site layout as it relates to pedestrian and passenger transport access, carparking and loading areas and internal circulation.
Under “Assessment Criteria”, r 8.12.2.3(e) provides:
When assessing an application for a restricted discretionary activity to obtain or modify access to a primary road or to a road within 50 metres of an intersection with a primary road, the Council will have regard to the following assessment criteria.
…
(e)Internal Conflicts on Site
Whether the internal circulation and carparking layout and exits and entries are designed to avoid traffic conflict that may result in congestion on the adjoining roads.
In short, the Council requires a consent for an activity that modifies access to a primary road. One of the matters over which it reserves discretion in relation to that activity is internal circulation on the site. It will have regard, when assessing the resource consent application, to whether the internal circulation will cause congestion on the adjoining road.
The purpose of these criteria, and their application, is to ensure that the internal circulation of traffic does not adversely affect traffic on the primary road network. If there was no control over internal traffic circulation, there could be disruption to the primary road network, such as queues of vehicles on Great South Road trying to get on to the site. Consideration of the restricted discretionary activities on the site is restricted to the matters described in the rules.[2]
[2]Resource Management Act 1991, s 87A(3)(a).
Consideration of the assessment criteria, particularly the provisions set out above, will naturally be directed to effects on the operation of the roading network. Therefore, even if the Council is persuaded that Wendy’s is adversely affected by the amended access to and from Great South Road, the onsite roading and the parking proposals, the Council can nonetheless grant consent without conditions.
Site layouts, however, are not usually inevitable. No one before us suggested that the site layout sought in the application was the only possible solution for meeting the criteria in r 8.12.2.3. Given it is possible that more than one site layout can satisfy these criteria, the consent authority has a discretion to approve one option over the other, consistent with discharging its duty under s 87A(3)(a) of the RMA .
Therefore, when assessing the particular application for consent to restricted discretionary activity, the Council can recognise that there may be occupiers and other users of the site who will be adversely affected by the proposal placed before them.
Chapter 8 of the District Plan covers a range of other activities. Where these activities are classified as restricted discretionary activities, the rules follow the same format: rules set out the matters over which the Council has reserved discretion and rules that set out the assessment criteria in relation to that activity. Included amongst the other restricted activities are activities that change parking in ways that do not comply with other rules (r 8.23.1). In relation to such activities, matters for discretion are set out at r 8.25.1.1 and the assessment criteria is set out at r 8.25.1.2.
Although some of the information obtained by the Council in this case referred to r 8.25.1, this did not form part of its decision. We agree with the respondents that r 8.25.1 was not relevant because r 8.23.1 was not engaged by the resource consent application. Rule 8.10.3(b) (activity) was, and in turn r 8.12.2.1 (matters for discretion) and r 8.12.2.3 (assessment criteria) were.
The Trust did not have to publicly notify the application. That is common ground.
The question is whether the Council should have considered whether Wendy’s qualified to be given notification by application of ss 95B(1) and (2) and 95E(1) and (2)(b) of the RMA, which provide:
95B Limited notification of consent application
(1)If a consent authority does not publicly notify an application for a resource consent for an activity, it must decide (under sections 95E to 95G) whether there is any affected person, affected protected customary rights group, or affected customary marine title group in relation to the activity.
(2)The consent authority must give limited notification of the application to any affected person unless a rule or national environmental standard precludes limited notification of the application.
…
95EConsent authority decides if person is affected person
(1)A consent authority must decide that a person is an affected person, in relation to an activity, if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).
(2)The consent authority, in making its decision,—
…
(b)in the case of a controlled or restricted discretionary activity, must disregard an adverse effect of the activity on the person that does not relate to a matter for which a rule or national environmental standard reserves control or restricts discretion;
…
(Emphasis added.)
Analysis by Auckland Council
Consistent with its duty in s 95B(1), the Council staff set about examining whether there was any need for public or limited notification. In the course of its deliberations, the Council staff did not identify the need for either.
The Council’s reasoning on notification appears in the combined Notification and Resource Consent Report dated 25 October 2013. The report has a section headed “Public Notification Assessment (Sections 95A, 95C–95D)”. This part of the report has an analysis of adverse traffic and transportation effects. That analysis is confined to an assessment of the additional traffic generation on Great South Road and Ronwood Avenue respectively, concluding:
Any effects on traffic or pedestrian safety or the operation of the adjoining local road network will be less than minor as the turning movements will not compromise safe and efficient movements for pedestrians and/or vehicles. The traffic-generating characteristics of the proposed activity including any need to accommodate large vehicles, and the existing and likely future traffic patterns within the adjoining roads was considered and the adverse effects will be less than minor.
It also concluded:
The modification made to mid-block vehicle crossing and northern-most vehicle crossing is minor and will not result in significant change to traffic flow pattern. There will be no impact on the sight distances. The northern‑most vehicle crossing is located at the signalised intersection of Great South Road with the access to the Countdown Supermarket to the east. The mid‑block vehicle crossing will be left in and left out only. The turning traffic could safely enter and exit the site without obstructing other traffic on the road due to the prohibition of right turns from this access point. The on road queuing and on site queuing is sufficient to accommodate traffic waiting to enter the site without adversely impacting on traffic or pedestrians on the adjoining road network.
That led to the further conclusion:
Overall, I concur with the findings of the Traffic Engineer in that the proposed traffic and transportation in association with the application is functional and appropriately designed for the proposed activity and any adverse effects relating to the safety and efficiency of the existing surrounding transportation network will be less than minor. The increased traffic from the increased business activity considered to be minor is adequately catered for within the existing transport network in the area.
The analysis moves on to what is headed “Limited Notification Assessments (Sections 95B, 95E–95G)”. It provides:
No person is considered adversely affected by the activity because: [and lists 12 bullet points, one of which is relevant to Wendy’s situation.]
•Any adverse effects on traffic or pedestrian safety or on the operation of the adjoining local road network will be less than minor as modification to the turning movements will not compromise safe and efficient movements for pedestrians and/or vehicles.
This consideration seems to come closest to a consideration of whether there would be any adverse effects of the proposed new traffic circulation and parking at Wendy’s. There was no question raised, however, as to whether the new access and parking arrangements, put in place to protect the primary road network, would incidentally have an adverse effect on Wendy’s, let alone a minor or more than minor effect.
The Council staff’s reasoning was focused on adverse effects on traffic or pedestrian safety or operation of the adjoining local road network. It did not entertain simultaneous adverse effects on users of the site. It seems to presume implicitly that the only adverse effects that are relevant under s 95B are traffic effects on Great South Road. Wendy’s submits that it is adversely affected in more than a minor way by the modification, particularly by the modification to the mid‑site access onto Great South Road.
The decision of the High Court
Peters J’s relevant reasoning as to the law is contained in the following paragraphs of her judgment:
[24] A person is an affected person if the adverse effects of the proposed activity on them “are minor or more than minor”.
[25] It is common ground that s 95E(2) RMA may limit the adverse effects to which regard may be had in making the notification assessment.
[26] First, s 95E(2)(a) permits a consent authority to disregard an adverse effect that would arise from a permitted activity under a plan. Existing activities and those that are permitted as of right under a plan make up what is referred to as the “permitted baseline”. The consent authority may put adverse effects arising from these activities to one side in carrying out the assessment required under s 95E(1). In this case, cafes, restaurants, takeaway food premises, entertainment facilities, and some land modification activities were amongst the permitted activities on the site. Nothing turns on that matter directly, although I accept the submission for the Council that, as a result, WLT did not require resource consent for the activity of the proposed Carl’s Jr restaurant and drive-through.
[27] Secondly, and this is relevant to the present case, if consent is sought for a “restricted discretionary” activity, by s 95E(2)(b) the consent authority may only have regard to an adverse effect within the scope of matters that the plan allows it to control or restrict.
(Footnote omitted.)
In rejecting the application for review, Peters J relied particularly on the Council’s assessment of the quality of traffic:
[48] The Council’s decision on notification reproduced parts of Mr Thambiah’s and Auckland Transport’s assessment. They had concluded that the application was functional and appropriately designed in so far as concerned traffic matters:
… and that any adverse effects relating to the safety and efficiency of the existing surrounding transportation network will be less than minor.
[49] They also said:
… The on road queuing and on site queuing is sufficient to accommodate traffic waiting to enter the site without adversely impacting on traffic or pedestrians on the adjoining road network.
(Footnote omitted.)
The Judge’s conclusion on whether the Council needed to notify Wendy’s was dealt with as part of her assessment of whether the Council had sufficient information to assess the adverse effects. She set out reasons why she was satisfied the Council did have sufficient information and concluded “[a]ccordingly, I am satisfied that the Council had sufficient information before it to assess the adverse effects of the proposal and to decide that they were less than minor”.[3] The Judge also incorporated this as part of her consideration of the effect of the proposal on Wendy’s own resource consent conditions, saying:[4]
… I accept the Council’s submission that the fact that the modification of access B and its surrounds alters the layout provided for in Wendy’s resource consent does not in itself constitute an adverse effect that is more than minor. I add that modification works themselves do not take place on Wendy’s premises but beyond its boundary.
The claimed adverse effects on Wendy’s
[3]Wendco (NZ) Ltd v Auckland Council, above n 1, at [51].
[4]At [52].
In the proceedings before the High Court, the contended adverse effects on Wendy’s were set out in the affidavits of Ms Danielle Lendich, the Chief Executive Officer, and a traffic expert, Mr Nigel Williams. Mr Williams summarised the traffic effects of the proposal as being:
(a)queuing or congestion, obstructing the manoeuvring of vehicles in the vicinity of the main entry/exit route;
(b)vehicles leaving Wendy’s carpark and drive-through lane being obstructed by a departure queue;
(c)vehicles leaving Wendy’s carpark and drive-through lane being obstructed by a queue on the approach;
(d)vehicles obstructing entry from Great South Road;
(e)departure queues obstructing entry and exit from adjacent 90-degree parking spaces;
(f)pedestrians not having safe access to the Wendy’s site;
(g)drive-through queues extending out into the main carpark on the WLT site; and
(h)the route to the single line crossing on Lot A (towards a different egress point) being difficult to discern and potentially obstructed.
In relation to Wendy’s, this meant:
(a)Wendy’s’ land (Lot W) changed from an area of limited vehicular access, used principally by Wendy’s’ customers, to a main thoroughfare for all vehicles entering or exiting the site through the middle access from Great South Road;
(b)this significantly changed thoroughfare-directed traffic through Wendy’s’ leasehold premises; and
(c)customers exiting Wendy’s’ drive-through were now required to exit directly into this flow of traffic entering from Great South Road.
This was said to seriously downgrade the convenience, safety and efficiency of the access and on-site circulation provisions in relation to the Wendy’s site, and of the wider site (owned by the Trust).
To understand these points it is important to keep in mind that Wendy’s is the closest business to the central access point and the resource consent application, and now the consent, places the lane for inbound traffic that is to be a thoroughfare on and across the front part of the leasehold title of Wendy’s, bringing passing traffic much closer to the Wendy’s Restaurant.
Analysis of the standard “relate to”
It is plain from the Council’s notification analysis that their staff considered the adequacy of the two-way thoroughfare connecting the mid-block access to Great South Road. This task entailed considering whether or not the new thoroughfare crossing Wendy’s’ land would impede the quality of traffic movements in and out of the middle accessway to Great South Road, among other considerations. The Council did not consider whether the new thoroughfare would cause adverse effects to Wendy’s, as distinct from adverse effects on the functioning of Great South Road.
Subsection (2)(b) of s 95E functions as a qualification of the mandatory consideration required by subs (1). It is a “must disregard” rule. Section 95E(2)(b) requires the Council to disregard an adverse effect of the activity on the person (Wendy’s) “that does not relate to a matter for which a rule or national environmental standard reserves control or restricts discretion”. In other words, as Peters J put it, it is only an adverse effect “within the scope of matters that the plan allows it to control or restrict” that is relevant in considering whether the activity’s adverse effects on the person are minor or more than minor and so must be notified under s 95B of the Act.[5]
[5]HC decision, above n 1, at [27].
The Judge’s assessment of that test was limited. She was satisfied the adverse effects of “the proposal” were less than minor. However, the issue under s 95E is whether the activity’s adverse effects on the person are minor or more than minor. Further, she regarded the access modifications of the proposal insofar as it altered what was provided in Wendy’s’ own resource consent as an adverse effect that was not “more than minor”. However, the factthe modifications differed from Wendy’s own resource consent was only one of Wendy’s concerns, and not one of its principal ones. The Judge did not address whether the Council was required to consider Wendy’s’ concerns as summarised above at [34] and [35], whether it did in fact consider those concerns, and whether it was open to the Council to conclude that those effects were “minor or more than minor”.
The respondents submit on appeal that the Council was not required to consider those concerns. This is because they say the focus must be on r 8.10.3(b) as the primary rule. They submit that rr 8.12.2.1 to 8.12.2.3 must be interpreted in that light. They say that the Council is concerned with the matters in rr 8.12.2.1 to 8.12.2.3 only as they impact on the primary road. We do not agree.
The respondents’ construction falls away once effect is given to the phrase “on the person” as it appears in s 95E. If the respondents were right, there would never be any consideration by the Council of effects on any person (except the public generally as road users) as distinct from effects on the operation of the primary road. The relevant link is that the adverse effects on the person must relate to a matter for which a rule or national environment standard reserves control or restricts discretion. That is why there is an injunction in s 95E(2)(b) that requires the Council to disregard an adverse effect that does not so relate. This reasoning can be compared with the submission to this Court by the first respondent:
The Council should not be concerned with specific tenancy arrangements where the internal layout and car parking areas within the property can be accessed from any of the five access points into the land at 639 Great South Road. The key consideration was whether there would be acceptable impacts on the traffic or pedestrians in terms of the adjoining primary road network.
The latter part of that submission is correct as to the ultimate question but s 95E addresses the preliminary issue who should be heard on the question what steps should be taken to avoid congestion of the adjoining primary road network.
We consider that, if there are adverse effects to Wendy’s by reason of the circulation of vehicular traffic over its land, and internal circulation and parking, which is designed “to avoid traffic conflict” that may result in congestion on the adjoining roads,[6] those adverse effects on Wendy’s will necessarily connect or, “relate to”, matters addressed in r 8.10.3(b) and r 8.12.2.3(e).[7]
[6]See [14] above.
[7]See [2] and [14] above.
It is common ground, quite properly, that the District Plan, r 8.10.3(b) (“Access and Traffic Generation”) is designed to protect the quality of the primary road network and, in context, the function of Great South Road. If not carefully planned, access to the site off Great South Road and exiting from the site onto Great South Road and internal circulation within the site could have an adverse effect on the flow of traffic on Great South Road. For example, it could generate congestion at the points of exit and ingress causing queues on Great South Road. These are risks of adverse effects to the road network. Once it is appreciated that the design of the internal road, including the thoroughfare across Wendy’s, is in order to prevent adverse effects on the function of the Great South Road, then it can be appreciated that the benefit of internal thoroughfares and parking, to avoid congestion, to protect the Great South Road, can also cause an adverse effect on Wendy’s. In that sense, the adverse effect on the person of the activity is related to matters over which the Council reserves discretion under rr 8.10.3(b) and 8.12.2.3(e).
To understand the concept of “relate to”, it is important to keep in mind the mischief that this provision is addressing. That in turn is informed by the previous section, s 95D, which requires the Council to disregard trade competition and the effects of trade competition. One of the reforms under the RMA when it was enacted in 1991 was to enable anyone to make submissions in opposition to planning consents, whether or not they were personally adversely affected.[8] Trade competitors took full advantage of this power. Persons with an interest in the environment generally but having no direct relationship to the activity being proposed were able to make submissions in opposition.
[8]The Resource Management Act did not carry forward restrictions on objection in the Town and Country Planning Act 1977, s 2(3), which limited objectors essentially to Councils, any “person affected” and any body or person representing some relevant aspect of the public interest.
The sections we are considering, ss 95B and 95E, were inserted into the RMA by the Resource Management (Simplifying and Streamlining) Amendment Act 2009. The same Act introduced a similar “related to” test in respect of limiting submissions that competitors could make. Section 308B of the RMA provides:
308B Limit on making submissions
(1)Subsection (2) applies when person A wants to make a submission under section 96 about an application by person B.
(2)Person A may make the submission only if directly affected by an effect of the activity to which the application relates, that—
(a) adversely affects the environment; and
(b)does not relate to trade competition or the effects of trade competition.
(3)Failure to comply with the limits on submissions set in section 149E or 149O or clause 6(4) or 29(1B) of Schedule 1 is a contravention of this Part.
The same 2009 Act also introduced new provisions on proposals of national significance, in pt 6AA. That part of the Act again addresses persons who are trade competitors of the applicant, and s 149E(5) provides:
149EEPA to receive submissions on matter if public notice of direction has been given
…
(5)If the person is a trade competitor of the applicant, the person may make a submission only if directly affected by an effect of the activity to which the matter relates, and the effect—
(a) adversely affects the environment; and
(b)does not relate to trade competition or the effects of trade competition.
(Emphasis added.)
In both provisions the word “relate” is used in the sense of “connect”.
It is also important to keep in mind that an activity or set of activities may generate simultaneously positive and adverse effects. “Effect” is defined in s 3 of the RMA as follows:
3 Meaning of effect
In this Act, unless the context otherwise requires, the term effect includes—
(a) any positive or adverse effect; and
(b) any temporary or permanent effect; and
(c) any past, present, or future effect; and
(d)any cumulative effect which arises over time or in combination with other effects—
regardless of the scale, intensity, duration, or frequency of the effect, and also includes—
(e) any potential effect of high probability; and
(f)any potential effect of low probability which has a high potential impact.
Indeed, it is commonplace, if not almost inevitable, that a consent condition will have both beneficial and adverse effects.
So Wendy’s can say of this new two-way accessway that the incoming traffic being directed across its land may be very good for maintaining the quality of flow of traffic on Great South Road and in that sense beneficial, but it imposes on Wendy’s a cost (that is, an adverse effect). Both these beneficial and adverse effects are a consequence of, and so related to, the standards for site circulation, parking and other relevant standards for which the District Plan reserves control or restricts discretion.
The record of the Council demonstrates that no one asked the relevant question, which is whether the site circulation and parking detail might cause an adverse effect on the business of Wendy’s. Plainly, the Council staff knew that the new two-way thoroughfare crossed in part Wendy’s’ title: the boundary of Wendy’s land is shown on the plan of the site, and the inbound traffic arrow is shown on the inside of the boundary.
The staff also knew the new traffic plan was inconsistent with Wendy’s’ current consent. But they did not examine whether these were adverse effects on Wendy’s “related to” protecting the primary road network and avoiding congestion,[9] as they considered their sole task was to examine any adverse effects on the road network.
[9]See [43] above.
To reason this way was an error of law, failing to apply ss 95B and 95E, leading to a breach of s 95E(1). The Council did not inquire as to whether any person would suffer adverse effects, let alone whether those effects would be minor or more than minor, because the Council considered the only relevant effects could be those to Great South Road. It proceeded on the basis there could be no adversely “affected person” by the design of the internal circulation and parking, designed to protect the local road network.
The private dispute between Wendy’s and the Trust
One of the submissions made on behalf of the respondents was that parties affected by activities requiring consent will not always be entitled to be notified of the activity. It is only in those matters over which the Council has reserved discretion. In such cases there are other mechanisms to which the affected party will potentially have resort. One mechanism is submissions to the Council on its transport plan. A more direct mechanism potentially available here is through contract.
In particular, Wendy’s has a lease with the Trust. The terms of that lease include, for example, provision providing rights of lessees to cross other lessees’ land. Wendy’s in fact brought a claim against the Trust. That claim has been settled.
Whatever the position under the contract, it is the regulatory rules that must be considered. The adverse effect analysis required by the statute does not require any enquiry into the contractual relationships of persons who may or may not be adversely affected by the granting of a resource consent under the statute. No requirement of that sort can be found in the statute. The task of consent authorities would be very difficult if they had to examine the private relationships of potentially affected persons with other persons, including with the applicant.
We also note that, while private and public regulation are separate matters, where a person might be affected by an application, but has a relationship with the applicant, it is open to the applicant to give informal notice to that person and obtain a written consent from them prior to lodging the application. That then obviates the need for the Council to do an adverse effects analysis in respect of that person.
Relief
Relief by way of judicial review is always discretionary. Peters J introduced her discussion on whether she would have granted relief had a ground been made out with this paragraph:
[55] As I said above, even if I considered a ground of review had been made out, I would have declined to grant relief. That is because to grant relief would cause delay and the effect of such delay on WLT and third parties would in my view be out of proportion to any failure in process or its consequences for Wendy’s. I am also satisfied that Wendy’s has delayed in commencing this proceeding.
As the above paragraph indicates, she considered that Wendy’s’ delay in and of itself was such that relief should be declined. We will return to that. She also relied on a review condition that the Council imposed on the grant of consent as justifying no relief.[10]
[10]HC decision, above n 1, at [71]–[72].
The Council’s submission is that any defects in its decision were not material. Secondly, that even if the Council had addressed in more detail the particular effects on Wendy’s, the Council would have reached the same conclusion. That is, the effects would have been less than minor and Wendy’s would not be considered an affected party. The Council notes that Wendy’s was seeking partial relief under s 5(4) of the Judicature Amendment Act 1972 (the JAA) for orders quashing those parts of the resource consent that affected Wendy’s (parts relating to access, the road network and traffic flows).
The Trust relies on the reasoning of Peters J. It relies on two propositions: that the error was at the low end of the scale and that Wendy’s had delayed.
The Council submits that if the Court found an error in the Council’s decision, relief should be refused as an exercise of discretion, relying on Panckhurst J in Just One Life Ltd v Queenstown Lakes District Council, who said:[11]
[50] Hence the modern approach is to take a broad-based view of the features of the case in determining whether relief should be granted. Put another way the tendency is to look at substance rather than form. The nature of the statutory requirement, the degree of non-compliance and the effect of non-compliance are all highly relevant.
[11]Just One Life Ltd v Queenstown Lakes District Council [2003] 2 NZLR 411 (HC).
As a statement of principle, we prefer the dictum by this Court in the same case where O’Regan J for the Court, which allowed the appeal, said: [12]
[39] But a discretionary withholding of relief is not the normal outcome of a successful attack on a reviewable decision. If some form of relief could have a practical value then it ought to be granted. This litigation has been concerned with the possibility of a declaration. The issue is not confined to whether or not a declaration ought to be made but to whether no form of declaration could have any practical utility. It might well be that a declaration that the impugned consents were issued unlawfully, without elaboration, would provide the appellant’s apt vindication and the respondent’s more general concerns.
[12]Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA).
This statement of the law is supported by numerous earlier authorities, many of which are cited by Graham Taylor in Judicial Review, where he describes the “default position”, which is to grant relief.[13] Taylor says:[14]
The scope for exercising a discretion to refuse a remedy is “very narrow”, “exceptional”,[15] “narrow [or] exceptional”[16] “there must be extremely strong reasons to decline to grant relief”,[17] it is rare to refuse relief,[18] …
[13]Graham Taylor Judicial Review: A New Zealand Perspective (3rd ed, LexisNexis, Wellington, 2014).
[14]At [5.29].
[15]See Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 129 at [60].
[16]Director of Maritime New Zealand v Survey Nelson Ltd [2011] NZSC 61 at [4].
[17]Air Nelson v Minister of Transport, above n 15, at [60].
[18]GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [67].
Taylor explains the reason for the policy as:[19]
Reversion to the “default position” represents the recognition that judicial review as the means of controlling unlawful action by public authorities is an important part of the rule of law. This public interest[20] in itself justifies the “default position”.
[19]Taylor, above n 14, at [5.29].
[20]Goodship v Minister of Fisheries [2001] NZAR 274 (HC); Taylor v Attorney-General [2013] NZHC 1659.
In the exercise of judicial review, however, the courts do not ordinarily undertake the task given by Parliament to another body, as distinct from identifying errors in the conduct of that task by another body.
We think there are only two available arguments that might possibly justify departing from the default position here. They are the two points relied upon by Peters J:[21]
(a)The failure of Wendy’s’ directors to open one of the attachments in the email sent in June 2013; and to act upon receipt of the consent in October 2013.
(b)The review provision inserted in the decision.
[21]HC decision, above n 1, at [64]–[72].
We start with the delay issue. Ms Lendich deposes that she did examine the email she received from the second respondent on 27 June 2013. The email contained mock-ups of the retail development, which showed the Mobil service station as still being there. Ms Lendich acknowledges the email also contained a plan in a file called “Wit BNZX included.PDF”, but states she did not notice it at the time and would have thought the plan would be consistent with the mock-ups. Having examined the plan subsequently, she notes the plan does not accurately reflect the mock-up pictures provided. In particular, the accessway over Lot B remained unchanged in the mock‑up pictures but the attached plan changed the one-way entrance on Lot B into a two‑way entrance/exit, removed the berm and added carparks in the middle of the accessway. She says:
With the mock ups that showed no changes to any accessways or berms and nothing advising such changes … I simply took it there would be no changes to the accessways, berms and entrances/exits.
The second key factor with respect to timing was the decommissioning of the Mobil service station, which Wendy’s was told about in August, and that commenced on 1 September 2013. It is argued that by that point, it must have been apparent to Wendy’s that there would be changes to the site.
The third key date was, at the latest, October 2013, when Wendy’s instructed its planner, Mr Havill, and in particular 30 October, when it obtained a copy of the Council’s decision regarding the resource consent.
For the significance of delay, the Trust relied heavily on the Court of Appeal decision in Turner v Allison.[22]This case can be distinguished immediately on the facts, as it was a case of gross delay. In Turner v Allison the Town and Country Planning Appeal Board had granted a specified departure from the Operative District Scheme of the Waimairi Council to allow a shopping centre, which included a supermarket, to be built. It was sited on the intersection of Clyde Road, Memorial Avenue and Fendalton Road in Christchurch. Memorial Avenue is the main route from the city centre to the airport — the shopping centre would therefore be in plain public view. The specified departure dated from 4 September 1969. Work started on the site very shortly thereafter, commencing on 14 October with the demolition of a house and earthworks. The respondents, however, did nothing until 24 January 1970, when they served on the Turners their proceeding for certiorari, which they had filed on 22 January, seeking to challenge the grant of the specified departure. This gross delay while demolition and construction was being undertaken obviously to implement a planning consent is far removed from the suggestion here that Wendy’s’ advisors should have opened a second attachment to an email from the Trust (which was not consistent with the first attachment, the mock-ups), and so discovered the scope of the likely adverse effects on their property much earlier.
[22]Turner v Allison [1971] NZLR 833 (CA).
Peters J accepted the evidence of Ms Lendich, that she did not open the second attachment (the plan) as the impression she gained from the email was that little would change. The Judge went on: [23]
Be that as it may, Wendy’s had the means of knowledge of the proposed modifications by the end of June 2013.
(Footnote omitted.)
[23]HC decision, above n 1, at [65].
The Judge then also relied on advice given to Wendy’s in August that Mobil would close its service station and there would be demolition works on the site.
Peters J then recorded email exchanges from October 2013:
[67] This email exchange was followed by a meeting on 10 October 2013 at which Mr Wilkinson informed Dianne Lendich (of Wendy’s) that Carl’s Jr was to become a tenant. After that meeting, Wendy’s instructed a planner, Mr Havill, to make “enquiries about resource consent for the development”. On 30 October 2013, Mr Havill emailed Danielle Lendich a copy of the consent, said that it was in respect of three retail units “plus Drive-Through” and that he had discussed the matter with the “Council planner and traffic engineer”. Mr Havill then described various aspects of the consent.
[68] Ms Lendich’s evidence is that she was “somewhat surprised” to learn that consent had been granted without prior notification to Wendy’s but that she understood any changes to access would be minor. Her evidence is that this changed in February 2014, when she learned that the access previously enjoyed over areas A and B had been damaged, and when WLT’s contractors erected fences that blocked access to some areas. That led to correspondence between Wendy’s and WLT and their solicitors in February and March 2014.
[69] Ms Lendich states that Wendy’s then began to make detailed enquiries, including obtaining a copy of the Council’s file.
(Footnote omitted.)
The resource consent was granted on 25 October 2013. It was sent by the Trust to Wendy’s’ planner, Mr Havill. Mr Havill sent it on to Ms Lendich on 30 October as an attachment to an email. The email said, inter alia:
The varied crossings were for modifying the petrol station crossings. See second bullet point on page 2. Councils traffic engineer said there would be no impact on the sites operation.
Wendy’s first became aware that Mobil would be leaving on around 12 August 2013. That was a substantial change to the site. Wendy’s was advised in an email of that date from Mr Wilkinson, the general manager of the Trust, that Mobil would be leaving, but Mr Wilkinson gave no indication of impending changes to the site. On the contrary, his words remained reassuring:
… I have been advised by Mobil that their exit from the site will be seamless with little impact on current tenants, and I am also confident that the further re development of the Mobil site will be the same.
Wendy’s immediately sought information from the Trust about access and whether it would be maintained through the decommissioning process and who the new tenants would be. Mr Wilkinson responded that the Trust would be working to ensure “as little disruption as possible to existing tenants”.
On about 10 October 2013, Wendy’s first learned the new development would include a “Carl’s Jr” restaurant. At this point Wendy’s decided it did need to make some enquiries about the consent and did so through the planner, Mr Havill.
Ms Lendich did not study the three site plans attached to the consent, the first of which shows the existing carparks to be relocated (two sets of nine) opposite Wendy’s and the second two of which show the two-way inbound traffic crossing across Wendy’s’ land. The gist of Ms Lendich’s affidavit is that she was not put on notice by her planner, Mr Havill, as to this consequence. It would appear from Mr Havill’s email that he was relying on discussions with the Council’s planner and traffic engineer, rather than on a personal scrutiny of the new site plans.
Ms Lendich learned of the changes on 25 February 2014 and immediately started correspondence with the Trust and its solicitors. She had been alerted by the installation of fencing in the early hours.
The letter from Wendy’s’ lawyers of 25 February to the Trust was written on the morning Wendy’s advised them. The lawyers relied on the rights held by Wendy’s under its lease. The significance of this letter of 25 February is that it corroborates Ms Lendich’s narrative of events. It eliminates the notion that Wendy’s ever sat on its rights. It is the equivalent to the plaintiffs in Turner v Allison immediately taking action in October 1969 on seeing demolition and construction work taking place on the site, rather than, in that case, doing nothing until 24 January 1970.
We differ, with respect, from Peters J’s reliance on Ms Lendich’s ability to find out the proposed modification by the end of June and then in August when Wendy’s’ counsel learned that Mobil was closing.[24] In a judicial review of administrative action, we think it is important not to impose on the parties a standard of care or diligence that is not imposed in the statutory process under review. The RMA does not expect persons potentially adversely affected to monitor closely the progress of any application for resource consent and to be proactive as to whether they will be adversely affected. Rather, the obligation is cast on the consent authority, here the Council, to notify such persons if adversely affected in more than a minor way. Nor can lack of notice by the consent authority be resolved by examining the merits of good communications as between the landlord and the tenant. Again, that is not the statutory concern. For these reasons, we do not agree that Wendy’s should be deprived of relief by its delay.
[24]See [73]–[74] above.
Second, Peters J also relied on the review condition in the Council consent:
[71] Lastly I refer to the “review” condition that the Council imposed on the grant of consent, which provides:
27.Pursuant to Section 128 of the Resource Management Act 1991, the conditions of this consent may be reviewed by the Council at the consent holder’s costs:
a.At any time after 12 months and thereafter annually up to 36 months following commencement of consent in order:
(i)To deal with any adverse effect on the environment which may arise or potentially arise from the exercise of this consent and which it is appropriate to deal with at a later stage, in particular adverse traffic effects on the primary road network and Ronwood Avenue including parking/loading/ rubbish/traffic movements, impact on the intersection of the access point with Ronwood Avenue and on site management.
b. At any time, if it is found that the information made available to Council in the application contained inaccuracies which materially influenced the decision and the effects of the exercise of the consent are such that it is necessary to apply more appropriate conditions.
[72] This review condition will enable the Council to address any adverse effect of the nature Wendy’s foresees, if it should come to pass.
(Footnote omitted.)
This review process does not expressly provide for notice to complainants or other persons adversely affected so that they can be heard during the review. It does not provide for a hearing. The question is one of review of the status quo, that being the decision of the Council. The scheme and purpose of the legislation is that parties who may be adversely affected in a more than minor way have an audience before the decision is made, not in a review after it is made. The resource consent process is also subject to rights of appeal. The review is not.
The review condition is not a sufficient substitute for the default position of holding the Council to the statutory process set by Parliament to identify persons adversely affected prior to conducting the hearing as to the merits of an application for resource consent.
Where administrative actions affected by legal error have led to outcomes, the Court will naturally take into account the practical effect of granting a remedy. Recognising this, counsel for Wendy’s seeks limited relief: setting aside those parts of the resource consent dealing with traffic flows onto and on the site, the parking and roading plan, and the two entrance/exit points onto Great South Road.
Wendy’s’ pleading had sought, in the alternative, amendment of the resource consent by replacing the approved site layout with a plan attached to the pleading. The plan is not attached to this judgment because of its informal character. But, essentially, it recommends moving the incoming traffic off Lot W, Wendy’s’ land, and making adjustments to the design of the kerbs at this middle access entry point, and protecting the end parking alongside the outgoing thoroughfare of traffic by raising traffic islands. Granting this alternative relief would require the Court to reach a judgment that the effects are more than minor. Wendy’s did not pursue this alternative relief, recognising that it is for the Council to make the decision the statute has entrusted to the consent authority.[25] The same point applies to the Trust’s submission that the Court should decline relief because the effects on Wendy’s were less than minor.
[25]Judicature Amendment Act 1972, s 4(5) and (5A).
Rather, the proper remedy is to require the Council to discharge its statutory obligations and so correct the error of law, preserving the status quo in the meantime.
Result
The application for review succeeds on proof of error of law.
The relief granted is:
(a)A declaration that the Council’s determination that there were no persons adversely affected by the proposal, the subject of the application for consent, was affected by errors of law, in the application of ss 95B and 95E of the RMA.
(b)An order under s 4(2) of the JAA setting aside that part of the resource consent issued by the Auckland Council to the Wiri Licensing Trust for its site on 639 Great South Road, Manukau that defines the ingress, egress, circulation, and parking on the site.
(c)A direction, pursuant to s 4(5C) of the JAA, that, pending giving effect to this judgment, the current two accesses off Great South Road will remain in operation; the internal circulation will remain the same, as will the parking.
(d)The Council is directed to reconsider the application of s 95B(1) and (2) and s 95E(1) and (2) of the RMA, pursuant to s 4(5) of the JAA.
(e)The Council shall release to the parties to this litigation its decisions under s 95B(1) and 95E(1). The decision should be released with reasons.
(f)If the decision is that Wendy’s and/or others have or will suffer adverse effects that are more than minor, then: There is a direction pursuant to s 4(5) of the JAA that the first defendant reconsider its decisions regarding the resource consent insofar as they relate to site layout and traffic issues and make new determinations (by different officers) on those issues, such reconsiderations to proceed on the basis that the plaintiff has received notification under ss 95B(2) and 95E(1) of the RMA; hearing Wendy’s and/or others.
(g)If the decision is that Wendy’s and/or others have not suffered any adverse effects, or that they have suffered adverse effects that are not more than minor, then the Council may reconfirm the decision quashed, being a direction made by this Court pursuant to s 4(5B) of the JAA, or the Council may reconsider the application.
Costs
This appeal is classified as a complex appeal. The appellant is entitled to costs from the first respondent on a band A basis with usual disbursements. We leave to the parties the question whether the appellant should obtain costs from the second respondent or the second respondent should contribute to the first respondent’s costs. If the parties cannot agree, the Court will receive submissions.
Solicitors:
LeeSalmonLong, Auckland for Appellant
Simpson Grierson, Auckland for First Respondent
Kemps Weir, Auckland for Second Respondent
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