Westgate Town Centre Limited v Auckland Council
[2023] NZHC 1455
•12 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000380
[2023] NZHC 1455
BETWEEN WESTGATE TOWN CENTRE LIMITED
First Plaintiff
WESTGATE PROPERTIES LIMITED
Second Plaintiff
NZRPG MANAGEMENT LIMITED
Third Plaintiff
(Continued overleaf) AND
AUCKLAND COUNCIL
First Defendant
AUCKLAND TRANSPORT
Second Defendant
Hearing: 14 – 17, 21 – 25 and 28 February 2022
1 – 4, 7 – 11, 14 – 18, 21 – 24 and 28 March 2022
5 – 7 April 2022Appearances:
B D Gray KC, A I C Denton and G N M Tompkins for Plaintiffs R B Lange, L B Harrison, A G A Trask-Coombs and K S Burns for Defendants
Judgment:
12 June 2023
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 12 June 2023, at 4:00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar Date……………………………..
Counsel/Solicitors:
B D Gray KC, Auckland Wilson Harle, Auckland
Simpson Grierson, Auckland
WESTGATE TOWN CENTRE LTD v AUCKLAND COUNCIL [2023] NZHC 1455 [12 June 2023]
WESTGATE TOWN CENTRE (2017) LIMITED
Fourth Plaintiff
WESTGATE PROPERTIES (2017) LIMITED
Fifth Plaintiff
NZRPG MANAGEMENT (2017) LIMITED
Sixth Plaintiff
TABLE OF CONTENTS
INTRODUCTION [1]
The plaintiffs’ allegations [10]
The defendants’ responses [17]
BACKGROUND TO THE DISPUTE [25]
The initial policy and planning context for the Auckland region [25] Waitakere City engagement with NZRPG over development of Town Centre [32] Westgate Memorandum of Understanding [37]
Local Government (Auckland) Amendment Act 2004 [39]
Planning for Westgate Town Centre and for MUL shift proceeds [40] Plan Change 7 to ARPS and Plan Changes 13 to 18 to Waitakere District Plan [42]
Plan Change 15 – the MNUCP[44]
Waitakere City report on submissions on PC 15[49]
Waitakere City Integrated Transport Assessment[50]
Adoption of PC 15 and MNUCP [53]
Key features of MNUCP as adopted
Massey North Urban Concept Plan – Road Network and Street Typologies[57]
Royal Commission on Auckland Governance established [59]
Preparation of CDPs for Precincts A and B, the NorSGA Integrated Project Plan, and commercial discussions between Waitakere City and NZRPG [60]
Waitakere Council and NZRPG engage in commercial discussions [64] Royal Commission on Auckland Governance reports to Government [67] PC 7 becomes operative [68]
Submission of CDPs for Precincts A and B [69]
Negotiations continue between Waitakere City and NZRPG [71] Waitakere City resolution on the purchase of assets in Westgate Town Centre [75] Maki Street South Acquisition Agreement (MSSAA) [81]
Westgate Sign Licence Agreement [85]
Local Government (Tamaki Makaurau Reorganisation) Act 2009 [86]
Local Government (Auckland Council) Act 2009 [89]
NorSGA Overview Report for Auckland Transition Agency [90]
Infrastructure Funding Agreement [91]
Waitakere City allocates funding for NorSGA, including Westgate, in LTCCP 2009-2019
[94]
Further traffic modelling for Town Centre [96]
Auckland Transport established [97]
Council correspondence on timeline for completion of Northside Drive [99]
Draft Corridor Management Plan [100]
Decisions on CDP applications [102]
Development of Isthmus paving hierarchy and palette [106]
Works Development Agreements and Cost Sharing Agreements [109] Auckland Council comes into being; WDAs and CSAs re-executed [118] Work gets under way in development of Town Centre [121]
Design work on Fred Taylor Drive widening [122]
Consent orders for CDPs, including detailed design conditions [123]
Arrangements to coordinate delivery of the project [128]
WHAT HAPPENED? [133]
General observations [137]
2011 [143]
Early tensions[143]
23 Fred Taylor Drive[144]
Designs for Fred Taylor Drive reconstruction[145] Auckland Transport/Waka Kotahi agreement on Northside Drive Bridge[146] Road Safety Audit on Fred Taylor Drive reconstruction[148]
Bus interchange discussions[149]
2012 [150]
23 Fred Taylor Drive acquisition[151]
Maki Street South upgrade[153]
NZRPG funding difficulties[157]
Meredith Connell report on arrangements between NZRPG and Auckland Council [158] Calland Properties acquires title to NZRPG-owned land in Westgate[159] Detailed design report on Fred Taylor Drive[160]
Auckland Transport revises budgets for NorSGA[162]
Negotiations on WDA 3[163]
Execution of WDA 3 delayed by Calland[166]
Auckland Transport business case for Fred Taylor Drive widening[167]
Western Embankment for Northside Drive Bridge[168]2013 [169]
Further tensions in relationships[169]
NZRPG concerns regarding Northside Drive East, ramps and Maki Street South[170]
Bus Interchange discussions continue[172]
NZRPG regains title to Westgate Town Centre land[173]
WDA 3 executed[174]
Environment Court consent orders for PC 15[176] Auckland Transport lodges Notice of Requirement for Northside Drive East[177] More concerns over the Bus Interchange[179]
NZRPG plans for land adjacent to Fred Taylor Drive[180]
2014 [181]
Work to begin for resource consents for Bus Interchange[181]
WDA 7 concluded[182]
NZRPG letter to Auckland Council CEO on outstanding matters[183]Development agreement and designs needed for Bus Interchange[184]
Auckland Transport reviews plans for Fred Taylor Drive widening[185]
Auckland Council reassurance on Northside Drive East[187]
NZRPG signals interest in alternative location for Bus Interchange[188] Mr Gunton signs Affected Person Consent Form for Fred Taylor Drive works[189] Agreement for acquisition of land for Fred Taylor Drive widening signed[190] NZRPG says still pursuing undercroft proposal for Bus Interchange[191]
Resource consent application for Fred Taylor Drive widening[193] Auckland Council seeks more information on Fred Taylor Drive consent application [195] Transpower signals need for its consent to Fred Taylor Drive works[196]
Notice of Requirement for Northside Drive East[197] Auckland Transport response to request for information on Fred Taylor Drive works [198] NZRPG raises Limited Access Road status of Fred Taylor Drive[201] Auckland Transport advises NZRPG of need to relocate Westgate sign[202] NZRPG’s view on limited access road status and function of Fred Taylor Drive[204] Bus Interchange: costs escalate; Auckland Transport provides Terms Sheet to NZRPG
[205]
Auckland Council grants resource consents for Fred Taylor Drive and Town Square [209] Bus Interchange discussions inside Auckland Transport and with NZRPG[211] NZRPG ceases engagement with Auckland Transport[214] Auckland Transport and Auckland Council respond to NZRPG letter[218]
2015 [220]
Fred Taylor Drive widening works commence[220]
Discussions appear to resume on Bus Interchange[221]
Further discussions on Westgate Sign[226]
NZRPG asserts Fred Taylor Drive works contrary to Partial Acquisition Agreement [230] Further developments regarding the Bus Interchange[232] Transpower approve Westgate Sign, Auckland Transport seek safety audit[236] Auckland Transport terminates negotiations with NZRPG over Bus Interchange[239] Auckland Transport advises NZRPG of safety audit of Westgate Sign[242] Town Square and Northwest Mall open; Fred Taylor Drive works completed[244] Concerns expressed about traffic through Town Square[246] Efforts made to repair relationship between NZRPG and Auckland Transport[247]
2016 [249]
Auckland Transport advises landowners affected by Northside Drive of delay[249] Post-construction safety audit of Northwest Mall[250] Discussions continue on Westgate Sign, the form of Fred Taylor Drive and the Bus Interchange[251]
NZRPG formally advises Auckland Council of breaches of contract[258]
More concerns expressed about traffic safety in Town Square[259]
Road Safety Audit for Fred Taylor Drive/Maki Street Intersection[260]Northwest Mall Stage 2 opens[263]
Measures taken to restrict traffic in Town Square and Maki Street[264]
NZRPG seeks design changes to Maki Street South upgrade[266]2017 [267]
Auditor-General’s report on Auckland Council management of Westgate issued[267]
NZRPG raises road controls and Service Level Agreement[268]
Safety audit of Town Square[270]
WDA 9 executed[271]
NZRPG restructuring[272]
Present proceeding commences [273]
RELEVANT LEGAL PRINCIPLES [277]
Contractual interpretation [277]
Implied terms [288]
THE CONTRACTUAL OBLIGATIONS BETWEEN THE PARTIES [292]
Should any extrinsic evidence be excluded? [292]
The nature of the agreements [295]
The plaintiffs’ and the defendants’ submissions[296]
Overall purpose of the Agreements[299]
Westgate Memorandum of Understanding[302]
Maki Street South Acquisition Agreement[304]
Infrastructure Funding Agreement[308]
The initial Works Development Agreements[323]
Cost Sharing Agreements 1 and 2[329]
23 Fred Taylor Drive Agreement[336]Works Development Agreement 3[337]
Works Development Agreement 7[340]
Partial Acquisition Agreement[341]
Works Development Agreement 6[342]
Works Development Agreement 8[343]
Works Development Agreement 9[344]Conclusions about the agreements between NZRPG companies and Waitakere City/Auckland Council [345]
FRED TAYLOR DRIVE [352]
Submissions for the plaintiffs [357]
Submissions for the defendants [367]
Analysis of Fred Taylor Drive obligations in the IFA and other agreements [379]
Purpose and structure of the Infrastructure Funding Agreement[380]
Specific undertakings in relation to Fred Taylor Drive[393] What Plan Change 15 and related instruments said about the form and function of Fred Taylor Drive[401]
Post IFA conduct with respect to the design of Fred Taylor Drive[415]
Conclusions regarding undertakings in IFA regarding Fred Taylor Drive[426] Was there an implied term as to the form and function of Fred Taylor Drive? [428] Obligations under CSA 1 and Demarcation Schedule [434]
Other agreements said to be relevant [452]
Consequences for allegations concerning form and function of Fred Taylor Drive
[456]
Fred Taylor Drive Te Oranui Way intersection[457]
Westgate Sign[460]
Other alleged Fred Taylor Drive breaches: limited road access status and parking[468]
Conclusion on claims concerning Fred Taylor Drive [473]
NORTHSIDE DRIVE EAST AND BRIDGE [474]
Relevant contractual provisions [476]
Submissions for the plaintiffs [479]
Submissions for the defendants [486]
Analysis of Northside Drive East and Bridge obligations [492] Conclusion on claims concerning Northside Drive East and Bridge [518]
TOWN SQUARE AND SURROUNDING ROADS [519]
Relevant contractual provisions [523]
Submissions for the plaintiffs [525]
Submissions for the defendants [527]
Analysis of Town Square obligations [529]
Conclusion on claims concerning Town Square and adjacent roads [537]
MAKI STREET SOUTH UPGRADE [538]
Relevant contractual provisions [539]
MSSAA – executed 8 May 2009[539]
CSA 1 – Demarcation Schedule – executed 29 November 2010[540]
WDA 3 – executed 13 May 2013[543]
WDA 9 – executed 31 May 2017[548]
Submissions for the plaintiffs [555]
Submissions for the defendants [563]
Analysis of Maki Street South obligations [566]
Conclusion on claims concerning Maki Street South [582]
THE BUS INTERCHANGE [583]
Relevant contractual provisions [585]
Submissions for the plaintiffs [589]
Submissions for the defendants [602]
Analysis of Bus Interchange obligations [609]
Conclusion on claims concerning the Bus Interchange [626]
SERVICE LEVEL AGREEMENT [627]
Relevant contractual provisions [628]
Submissions for the defendants [629]
Analysis of service level agreement obligation [630]
Conclusion on claims concerning service level agreement [634]
GENERAL OBLIGATIONS OF GOOD FAITH AND CONSULTATION [635]
Relevant contractual provisions [637]
Submissions for the defendants [642]
Analysis of good faith obligations [646]
Conclusion on claims of good faith and consultation [651]
DAMAGES AND ENTITLEMENT TO DAMAGES [652]
Are the plaintiffs entitled to the losses claimed? [663] RESULT [675]
COSTS [676]
ANNEX 1: PLAN AND A PHOTOGRAPH OF WESTGATE SHOWING THE PRECINCTS AND ZONES OF THE TOWN CENTRE AND THE NAMES OF THE STREETS AS THEY NOW ARE (PAGE 190)
ANNEX 2: ACRONYMS AND ABBREVIATIONS USED IN JUDGMENT (PAGE 192)
ANNEX 3: AGREEMENTS AND ARRANGEMENTS BETWEEN NZRPG COMPANIES AND WAITAKERE CITY/AUCKLAND COUNCIL (PAGE 195)
ANNEX 4: MASSEY NORTH URBAN CONCEPT PLAN (MNUCP) AND MASSEY NORTH URBAN CONCEPT PLAN - ROAD NETWORK AND STREET TYPOLOGIES (CONCEPTUAL ROAD NETWORK PLAN) (PAGE 199)
ANNEX 5: RELEVANT PROVISIONS OF POLICY 11.44 OF PLAN CHANGE 15 (PAGE 201)
ANNEX 6: BACKGROUND RECITALS AND CLAUSES 1, 4 TO 6 OF IFA (PAGE 204)
ANNEX 7: ASSET SET B PLAN ATTACHED TO WAITAKERE CITY RESOLUTION 698/2009 AND SET OUT AT SCHEDULE 2 OF THE IFA (PAGE 207)
INTRODUCTION
[1] This proceeding involves a dispute over the development of the Westgate Town Centre in Northwest Auckland.1
[2] The question in dispute is whether the defendants, the Auckland Council and Auckland Transport, as successors to the Waitakere City Council (Waitakere City), breached contractual undertakings made by Waitakere City and by Auckland Council for the development of the Westgate Town Centre. If such breaches are established, secondary questions are whether those breaches have caused damage, and, if so, whether those damages are claimable by the plaintiff companies, which are part of the New Zealand Retail Property Group (NZRPG).2
[3] The Westgate Town Centre was intended to be developed principally on land owned or leased by companies controlled by Mark Gunton. That land is located across Fred Taylor Drive, directly north of the existing Westgate Shopping Centre (Original Westgate).3 Original Westgate was developed and is still largely owned by companies controlled by Mr Gunton.
[4] Mr Gunton manages his investment and development activities under the auspices of the NZRPG. Except where the context requires otherwise, I refer to the plaintiffs collectively as NZRPG. The structure of the NZRPG group of companies has changed a number of times over the almost 20 year period to which this proceeding relates. Some companies have been removed from the Companies Register. Some
1 Attached at Annex 1 to this judgment are a plan and a photograph of Westgate prepared by the plaintiffs which shows the precincts and zones of the Town Centre and the names of the streets as they now are.
2 The plaintiff companies are:
Westgate Town Centre Ltd (Company No 1521247); Westgate Properties Ltd (Company No 606242); NZRPG Management Ltd (Company No 3828319);
Westgate Town Centre (2017) Ltd (Company No 6260900); Westgate Properties (2017) Ltd (Company No 6260950); NZRPG Management (2017) Ltd (Company No 6260931).
3 Fred Taylor Drive, which was formerly known as Hobsonville Road, used to be State Highway 16 (SH 16). It connects directly to, and runs from the North Western Motorway, the current SH 16, which runs northwards along the eastern boundary of the Westgate Town Centre. From its connection to SH 16, Fred Taylor Drive runs west and then north around the western side of the Westgate Town Centre until it intersects with Brigham Creek Road and the continuation of SH 16.
newer companies have taken the same or similar names to companies that previously formed part of the NZRPG Group.
[5] The direction for the future development of Auckland was set out in a series of legislative, policy and planning instruments which included amendments to the Local Government Act 1974, the Auckland Regional Growth Strategy (ARGS) and the Local Government (Auckland) Amendment Act 2004 (LG(A)AA), following which the Auckland Regional Council and Waitakere City made various policy and planning decisions in changes to the Auckland Regional Policy Statement, the Waitakere District Plan and, later, in the Auckland Unitary Plan.4
[6] In July 2004, Mr Gunton’s company, IMF Westland Ltd, and Waitakere City signed a memorandum of understanding in which they agreed to work together in achieving shared goals for Westgate Town Centre.
[7] The vision for the Westgate Town Centre was set out in Plan Change 15 to the Waitakere District Plan (PC 15) implementing the Massey North Urban Concept Plan (MNUCP).5 The vision was given further detail in Comprehensive Development Plans (CDPs) for the Town Centre applied for by NZRPG and approved by Waitakere City.
[8] Following the adoption of the MNUCP, an infrastructure funding agreement (IFA) was concluded between Waitakere City and NZRPG companies by which Waitakere City obtained title to NZRPG land on which roads and other key items of infrastructure for the new Town Centre would be built, some by Waitakere City itself but many by NZRPG on behalf of Waitakere City and at Waitakere City’s cost. The IFA also identified key items of infrastructure that Waitakere City agreed to build on land not owned by NZRPG. The IFA was followed by the execution of a series of Works Development Agreements (WDAs) and two Cost Sharing Agreements (CSAs)
4 The acronyms and other abbreviations used in this judgment are set out at Annex 2.
5 At the time of adoption of the MNUCP, it was envisaged that the new town centre would be named Massey North. Later, it was accepted that the town centre would be named Westgate. In this judgment, I use the term Westgate rather than Massey North, except where it would be confusing to do so. I also use the current names of streets in the town centre rather than the symbols or names ascribed to the streets at various stages of the development process.
which set out the arrangements by which NZRPG would carry out works on behalf of Waitakere City and how costs would be allocated.
[9] The IFA, WDAs and CSAs were negotiated and executed in the knowledge Waitakere City was to be disestablished as part of the reorganisation of local government in the Auckland region, and its assets and responsibilities taken over by Auckland Council when it was established. The WDAs and CSAs were re-executed by Auckland Council when it came into being. Subsequently, further WDAs were concluded between Auckland Council and NZRPG, one of which amended the IFA in various respects. In addition, NZRPG entered into other agreements with Auckland Council over the acquisition of specific areas of land required for the construction of roads and intersections identified in the IFA.
The plaintiffs’ allegations
[10] The plaintiffs allege that the defendants failed to comply with their obligations under the contracts which, they say, must be interpreted as a package and with regard to their background and context, including the legislative, policy and planning instruments adopted by central and local Government.
[11] The plaintiffs allege that the defendants have failed to construct in the agreed form, or at all, or within agreed timeframes, various elements envisaged for the Town Centre in PC 15 and the CDPs, and as provided for, explicitly or by necessary implication, in the relevant contracts.
[12]The principal breaches alleged by the plaintiffs are that the defendants:
(a)failed, when performing their undertaking to widen Fred Taylor Drive, to construct the road and relevant intersections in the form intended to integrate Original Westgate with the new Town Centre, in accordance with agreed urban design principles and as provided for in the contracts;
(b)failed to give effect to an implied obligation to construct, at the northern end of the Town Centre, Northside Drive East, including a bridge over SH 16, to connect with Trig Road and SH 18 by October 2015 so as to
reduce traffic volumes on Fred Taylor Drive and within the new Town Centre;
(c)failed to operate the Town Square and adjacent roads as intended and agreed
(d)failed to upgrade Maki Street South, the section of the main street of the Town Centre that runs through Original Westgate, by October 2015;6 and
(e)failed to accept there was an agreed location in the new Town Centre for the construction of a Bus Interchange and refused to locate the Bus Interchange at that location as agreed.
[13]In addition, the plaintiffs allege that the defendants:
(a)failed to carry out contractual obligations with respect to securing the removal of the limited access road status for Fred Taylor Drive;
(b)failed to conclude a service level agreement for Precinct A in the new Town Centre in respect of land owned or controlled by NZRPG; and
(c)failed to give effect to good faith obligations in the contracts entered into by Waitakere City and Auckland Council.
[14] The plaintiffs say these breaches are apparent from or are to be implied from the language of the relevant contracts, having regard to what the contracts would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contracts.
6 Maki Street, initially called Tahi Street, is the main street of the new town centre. It includes what used to be called Fernlea Drive in Original Westgate and is now called Maki Street South. Because the claims in respect of Maki Street South are distinct from the claims relating to the new street through the town centre, in this judgment “Maki Street” means the street extending northwards from Fred Taylor Drive through the new town centre and “Maki Street South” means the street extending southwards from Fred Taylor Drive through Original Westgate.
[15] NZRPG says that, as a result of the contractual breaches, the development of the Town Centre has not proceeded in the integrated and cohesive manner intended, has rendered the Town Centre dysfunctional, and has caused NZRPG loss in the value of its assets and loss of rental income.
[16] The plaintiffs seek damages of $87,775,175, comprising $69,575,175 for loss in the capital value of their properties and $18,200,000 for loss of rental income from some of those properties, plus interest and costs.
The defendants’ responses
[17] While the plaintiffs advance their claims within the broad context in which the development of the Westgate Town Centre was agreed and then undertaken, the defendants focus on the contractual provisions at issue and the extent to which the evidence is consistent with the breaches alleged by the plaintiffs. The defendants do not put up their own counter-narrative to the plaintiffs’ account of what happened at Westgate. Rather they challenge the plaintiffs to prove their claims and challenge the accuracy and reliability of aspects of the plaintiffs’ evidence.
[18] The defendants say that many of the documents put in issue by the plaintiffs about the history of the Westgate Town Centre are irrelevant to determining the contractual breaches alleged by the plaintiffs. The defendants do not dispute the vision for the development of the new Westgate Town Centre as set out in PC 15 and the CDPs. Nor do they dispute that the vision for the Town Centre has not yet been achieved. They deny, however, that they are contractually responsible.
[19] In particular, the defendants deny they have breached any obligations under the contracts entered into by Waitakere City and Auckland Council. They say that some of the contractual obligations alleged by NZRPG do not exist, either expressly or by implication, having regard to the terms of the contracts and the established test for implied terms. They say that, to the extent the obligations alleged by NZRPG exist, the obligations have been satisfied, either by the timely and satisfactory construction of the required works or by good faith negotiations and the defendants’ best endeavours to reach agreement with NZRPG.
[20] The defendants also say that, even if they are held to have breached the contracts in one or more respects, those breaches have not given rise to the losses claimed by NZRPG.
[21] The defendants further say that, even if they are held to have breached the contracts and to have caused losses, the plaintiffs are not entitled to damages for those losses. That is because the plaintiff companies that currently own land in Original Westgate and the new Town Centre were not parties to the relevant contracts at the time the losses were incurred and have not been assigned the benefit of those contracts.
[22] The defendants also say that the plaintiffs’ difficulties with the development of the Westgate Town Centre are the product of the commercial circumstances in which the plaintiffs found themselves after losing their principal funder as a consequence of the Global Financial Crisis (GFC). As a result, the plaintiffs had to sell off to a rival developer the land on which they were developing the new Westgate mall and to grant that rival developer a peppercorn lease over, and a right to acquire, the desirable commercial land in the Town Centre. The defendants say, however, that none of those matters had anything to do with the contracts between the plaintiffs and the defendants.
[23] The Common Bundle for the proceeding comprised many thousands of documents referring to the planning and commercial history of the Westgate Town Centre project. While the parties referred to only selections of those documents, I considered it necessary to review many more documents in order to understand the context and significance of the documents referred to by counsel.
[24] A notable aspect of the hearing of the proceeding was that Sir Robert Harvey, the former Mayor of Waitakere City, Penelope Hulse, a former Deputy Mayor of Waitakere City and of Auckland Council, Dr Graeme Campbell, a former Director at Waitakere City, and Mark Tollemache, a consultant planner who advised Waitakere City on the process that led to the adoption of PC 15 and the MNUCP, all gave evidence on behalf of the plaintiffs.
BACKGROUND TO THE DISPUTE
The initial policy and planning context for the Auckland region
[25] The development of the Westgate Town Centre followed policies and decisions adopted in the late 1990s and 2000s by central Government, the Auckland Regional Council (ARC), Waitakere City and the other city and district councils in the Auckland region to address expected growth in the region.
[26] In July 1998, the Local Government Act 1974 was amended to require the ARC to prepare and adopt a regional growth strategy to ensure that growth would be accommodated in a way that met the best interests of the inhabitants of the Auckland region.
[27] In February 1999, Waitakere City issued Greenprint Waitakere setting out the Council’s goals and strategy for Waitakere becoming an eco-city. An objective of the Greenprint was that future growth would be accommodated within the current built up areas and near town centres, so that people lived within walking distance of a range of facilities including shops, schools, libraries, parks, railway stations and bus stops, through design based on “new urbanism” principles.
[28] In November 1999, the Auckland Regional Growth Strategy (ARGS) was issued. It provided a vision for what Auckland could be like in 50 years’ time and adopted a Growth Concept under which the effects of growth would be managed by promoting compact urban environments. Under the Growth Concept, most future growth would be within the existing metropolitan area, but some growth would be accommodated in greenfield areas in the north, south and west of the region. Westgate/Redhills was a greenfield area identified for future growth.
[29] In October 2001, North Shore City Council, Waitakere City, Rodney District Council and the ARC signed the Northern and Western Sectors Agreement (NWSA). The NWSA set out how growth capacities in the northern and western sectors of the Auckland region could be accommodated over the next 20 years. Westgate, Hobsonville Corridor and Redhills were identified as future urban growth areas
outside the 1999 Auckland Metropolitan Urban Limits (MUL).7 Because the Auckland Regional Policy Statement (ARPS) discouraged development outside the MUL, it was recognised that, for the anticipated growth to occur, the ARPS would have to be amended to bring Westgate and Redhills within the MUL.8
[30] The NWSA stated that roading and transport networks could influence the form of urban development and that key decisions that exerted this influence were made by external agencies. The construction of SH 16 and State Highway 18 (SH 18)9 by Transit NZ and its successor, Waka Kotahi New Zealand Transport Agency (Waka Kotahi),10 were identified as key decisions that would influence growth at Westgate.
[31] Following execution of the NWSA, Waitakere City embarked on its Northern Strategic Growth Area programme (NorSGA). Under NorSGA, various projects were developed to implement the ARGS in the Westgate/Hobsonville area. The purpose of NorSGA included promoting the sustainable development of Waitakere City and the surrounding area in a way which would enable the development of further services, jobs and amenities in the north-west of Waitakere City to serve the existing population and projected population growth, and which would reduce pressure for growth in rural areas and the Waitakere Ranges.
Waitakere City engagement with NZRPG over development of Town Centre
[32] In early 2002, the Mayor of Waitakere City, Mr Harvey, and officers of Waitakere City approached Mr Gunton about the possibility of developing the
7 Broadly speaking, the Hobsonville Corridor is the area east of the Westgate Town Centre and lying between Hobsonville Road and SH 18. Redhills is south-west of the Westgate Town Centre.
8 In 2001, the MUL ran along Hobsonville Road (part of which later became Fred Taylor Drive) as far as Don Buck Road where it ran south towards the Auckland CBD. The MUL included Original Westgate but excluded the land on the northern side of Hobsonville Road on which the Westgate Town Centre was to be constructed.
9 At the time, SH 16 ran along the Northwestern Motorway until the motorway ended at Hobsonville Road. SH 16 then headed west and north along Hobsonville Road (later Fred Taylor Drive) towards Kumeu while SH 18 ran east and north-east along Hobsonville Road through Hobsonville. Transit NZ intended to extend the Northwestern motorway from Hobsonville Road up to Brigham Creek Road. SH 16 would then run along the extended motorway up to Brigham Creek Road, after which it would continue along the old route. Transit NZ also intended to construct the Upper Harbour Motorway, which would become SH 18 and would extend from SH 16 at Westgate to SH 1 on the North Shore.
10 Transit New Zealand ceased to operate in 2008; its operations were taken over by Waka Kotahi.
Westgate Town Centre on land owned or leased by NZRPG companies on the northern side of Hobsonville Road, directly across the road from Original Westgate.
[33] By that stage, Original Westgate had been open a few years. NZRPG was intending to develop a bulk retail centre on the northern side of Hobsonville Road to complement Original Westgate but was constrained by the fact the land was outside the MUL. NZRPG was also considering expanding the footprint of Original Westgate, including the development of a vertical mall.
[34] Waitakere City established a process to investigate the potential urban form of the Westgate/Hobsonville Corridor areas. Workshops were held with interested stakeholders about the development of the proposed town centre. The Council also included in its 2002/2003 Annual Plan a project to plan for the area between Hobsonville and Westgate. The strategic outcomes sought from the project included a town centre and employment zone in the area north of Waitakere City.
[35] Documents produced through these processes recognised the town centre project needed to link with Transit NZ’s intended development of SH 16 and SH 18 and with development plans for the Hobsonville peninsula and the Redhills area. They also recorded the desirability of an interchange on the extension of SH 16 north of the Town Centre to serve the new employment area to be built north of the town centre.
[36] Three design options for the new town centre were identified. All envisaged the construction of Northside Drive to the north of the new town centre linking to Trig Road in the east and with an interchange to the new SH 16 where Northside Drive would cross the planned motorway.
Westgate Memorandum of Understanding
[37] On 2 July 2004, Mr Gunton, on behalf of IMF Westland (which then held title to land on the northern side of Fred Taylor Drive), and the then Chief Executive Officer (CEO) of Waitakere City signed a memorandum of understanding (Westgate MOU).
[38] In the Westgate MOU, the parties recorded that they were committed to working together to ensure the establishment of an integrated city centre at Westgate.
However, they also recorded that the MOU did not replace the need for a more detailed formal contractual relationship over any specific development project and was not intended to create a relationship between Waitakere City and IMF Westland in the nature of a partnership or joint venture. The Westgate MOU also recorded that it was not legally binding.
Local Government (Auckland) Amendment Act 2004
[39] On 1 July 2004, the LG(A)AA came into force. It required each Auckland local authority to amend its planning documents to give effect to the growth concept in the ARGS and to contribute to matters set out at sch 5 of the Act. Those matters included supporting compact sustainable urban form and sustainable urban land use intensification.
Planning for Westgate Town Centre and for MUL shift proceeds
[40] In September 2004, NZRPG and Waitakere City exchanged correspondence over the possible fast-tracking of the construction of the extension of SH 16, Northside Drive and the Northside Drive/SH 16 interchange. The Council agreed that Northside Drive was to be included in the process to shift the MUL and that all associated interchanges and connecting roads should be planned and promoted so the whole Westgate area would function in a cohesive way from a transportation perspective. However, Council correspondence recorded that Transit NZ’s position at that time was that the SH 16 interchange with Northside Drive was not part of its current project plan and Transit NZ would not be prepared to fund it.
[41] In January 2005, Patrick Partners, consultants for NZRPG, prepared an updated report on the economic and urban design outcomes and information derived from the workshops held in 2003 and 2004. The introduction to the report noted that the performance and future of the proposed town centre was heavily reliant on a change in the urban condition of the Westgate centre and that the public domain qualities of the future town needed to establish a high level of amenity if the town was to have a more sustainable future. The report included a draft concept plan for the proposed town centre.
Plan Change 7 to ARPS and Plan Changes 13 to 18 to Waitakere District Plan
[42] On 31 March 2005, the ARC notified Plan Change 7 to the ARPS (PC 7) and Waitakere City notified Plan Changes 13 to 18 to the Waitakere District Plan (PC 13 to 18).
[43] The purpose of PC 7 was to move the MUL as part of its revision of the ARPS. PCs 13 to 18 were Waitakere City’s response to the LG(A)AA. PCs 13 to 15 provided for the establishment of new urban centres at Hobsonville Airbase (PC 13), Hobsonville Village Centre (PC 14) and Westgate Town Centre (PC 15). PC 18 introduced city-wide urban design standards, including street typologies which were largely carried through into the typologies for the Westgate Town Centre in PC 15.
Plan Change 15 – the MNUCP
[44] PC 15 comprised a proposed MNUCP, which would provide for the establishment of the Westgate Town Centre Special Area and the Westgate Employment Special Area, and policies and rules that would apply to activities in the two special areas.
[45] The proposed MNUCP envisaged five precincts for the Town Centre Special Area, including Precinct E which comprised Original Westgate. The Town Centre was to comprise Precinct A and Precinct E, with Precinct A to be located directly across Fred Taylor Drive from Precinct E. The other Precincts were to be used for large format activities (Precinct B), periphery town centre activities (Precinct C) and mixed use and residential activities (Precinct D). The Employment Special Area was to be located north-west of the town centre.
[46] Both Precinct A and Precinct B would be located principally on land owned or controlled by NZRPG. Precinct C would be located primarily on land owned by others
– in this case, the Midgley interests, west of NZRPG’s land. Some of the roads envisaged for the Town Centre, and part of the area on which the new Employment Special Area was to be built, would also be located on land owned by others – in this case, the Garjelo interests, northwest of NZRPG’s land.
[47] In the MNUCP as notified, the main street of the new town centre extended only north of Fred Taylor Drive and did not extend into Original Westgate. Transport interchanges were shown in both Precincts A and E. Northside Drive was shown as linking to but not over SH 16. No link was shown from Northside Drive to Trig Road and SH 18.
[48] Waitakere City’s report on PC 15 prepared in accordance with s 32 of the Resource Management Act 1991 (RMA) noted that the proposed MUL shift was based on retrofitting and expanding the existing Westgate shopping centre into a traditional main-street based town centre. The report stated that conclusions of modelling and assessment of the traffic, parking and access issues associated with the establishment of the proposed Concept Plan were that:
(a)the extension of the SH 16 motorway was essential for the sustainable development of the Westgate Town Centre;
(b)Northside Drive would have an increasing importance with time in providing the centre with accessibility for traffic sourced in all directions and was an essential road for the sustainable operation of Fred Taylor Drive through the Town Centre; and
(c)while a full interchange for the SH 16 motorway at Northside Drive was desirable, south-facing ramps were of greater importance because they would carry about twice the volume of north-facing ramps and would contribute to the sustainability of acceptable traffic conditions in Fred Taylor Drive.
Waitakere City report on submissions on PC 15
[49] In January 2006, Waitakere City provided a report to the Joint Hearings Panel on submissions on PC 15. The report said that discussions with Transit NZ indicated it was likely the existing State Highway would remain a state highway in the medium term and that the MNUCP had been developed on the assumption that Fred Taylor Drive would remain a state highway in the medium term. Accordingly, the MNUCP had been developed on the assumption that Fred Taylor Drive would remain a state
highway, with limited access road provisions. The report also said a draft transport audit had shown it was possible to integrate movements across Fred Taylor Drive, although the width of the highway would remain as a physical feature separating Precincts A and E.
Waitakere City Integrated Transport Assessment
[50] In January 2007, Waitakere City issued an integrated transport assessment (ITA) analysing the transport implications of the proposed MUL shift and PCs 13, 14 and 15.
[51] The ITA said that Waitakere City recognised the need for strong pedestrian linkages between Original Westgate and the proposed Town Centre and that efforts had been made to give pedestrians greater priority and a high amenity environment. It also said Waitakere City had been working with Transit NZ to agree how Fred Taylor Drive between Original Westgate and the Westgate Town Centre would be developed.
[52] The ITA stated that one of the “Givens for the Proposal” was that Waitakere City would need to ensure the construction of Northside Drive linking Fred Taylor Drive (then existing SH 16) to SH 18 at Trig Road.
Adoption of PC 15 and MNUCP
[53] In May 2007, the Joint Hearings Panel recommended that PC 7 and PC 15 be approved, generally as notified. The following month, Waitakere City and the ARC adopted the recommendations of the Joint Hearings Panel.
Key features of MNUCP as adopted
[54] The MNUCP as adopted retained key features of the Concept Plan as notified. It continued to provide for:
(a)five Precincts in the Town Centre Special Area in the locations identified in the Concept Plan;
(b)the Town Centre core to comprise Precincts A and Precinct E (Original Westgate); and
(c)a slightly expanded Employment Special Area to the north-west of the Town Centre Special Area.
[55]Relevant changes from the MNUCP as notified were:
(a)the extension of the main street of the town centre into Precinct E along the full length of Maki Street South;
(b)the extension of Northside Drive across the extension of SH 16 to connect with Trig Road and then the new SH 18 as one of a number of “Indicative Future Road Alignments”;11
(c)the identification of an “Indicative Location” for a bus interchange in Precinct A on Kohuhu Lane, east of Maki Street on the basis that Kohuhu Lane would continue across Maki Street until it intersected with Gunton Drive; and
(d)the identification of an “Indicative Location” for a Park and Ride on land east of Gunton Drive.
[56]The MNUCP as adopted did not:
(a)include Fred Taylor Drive within the limits of the precincts being provided for; or
(b)show any connection of Northside Drive to the extension of SH 16.
11 In this judgment, “Northside Drive West” refers to the section of the road west of the new SH 16; “Northside Drive East” refers to the section of the road east of the new SH 16; “Northside Drive Bridge” is the bridge over SH 16.
Massey North Urban Concept Plan – Road Network and Street Typologies
[57] The Massey North Urban Concept Plan – Road Network and Street Typologies (Road Network Plan) was adopted as part of PC 15. It showed various typologies for street frontages within the Town Centre Special Area, including typologies for Maki Street in Precincts A and B, Maki Street South in Original Westgate, and the northern frontages of Fred Taylor Drive. No typologies were indicated for the southern frontages of Fred Taylor Drive.12
[58] PC 15 also included the rules and policies applicable to any activity on land in the Westgate Town Centre Special Area. The relevant provisions of Policy 11.44, the principal policy applicable to the Town Centre Special Area, are set out at Annex 5.
Royal Commission on Auckland Governance established
[59] In October 2007, a Royal Commission was established to inquire into, investigate, and recommend local government arrangements for the Auckland region over the foreseeable future.
Preparation of CDPs for Precincts A and B, the NorSGA Integrated Project Plan, and commercial discussions between Waitakere City and NZRPG
[60] Although NZRPG and others lodged appeals to the Environment Court against aspects of PC 15, following the adoption of PC 15, NZRPG and its consultants worked with Waitakere City on the preparation of CDPs for Precincts A and B.
[61] Seminars were held at which the vision for the Town Centre was explained in documents and presentations prepared by NZRPG and its consultants. The documents stated that the vision was to create a vibrant, mixed use town centre based on main street philosophies that reinforced the public realm. The vision was also to create a town centre founded on mixed-use street-focused retail shops and a high quality public realm. Various site constraints were noted, including, with respect to Fred Taylor Drive, high traffic volumes, poor amenity for residential development and parking and vehicle access limitations. However, examples were provided of the potential to
12 The MNUCP and the Road Network Plan are set out at Annex 4.
transform Fred Taylor Drive over time through developments on either side of the road.
[62] A project control group comprising NZRPG representatives and Waitakere City officers was established to meet on a regular basis to discuss issues relating to the town centre development. Many documents were prepared by NZRPG and its consultants and submitted to Waitakere City for comment as NZRPG prepared its applications for CDPs for Precincts A and B. Waitakere City was directive in its engagements with NZRPG to try to ensure the town centre was developed consistently with the Council’s goals.
[63] A number of the documents, including draft Design Guidelines for the Town Centre and Council/NZRPG presentations, contained artists’ conceptions of how the new township would look. These included depictions of Fred Taylor Drive fronted by multi-storey buildings in the blocks east and west of Maki Street.
Waitakere Council and NZRPG engage in commercial discussions
[64] As work progressed towards the development of the new town centre, NZRPG and Waitakere City discussed options for direct Waitakere City involvement in the development. NZRPG wanted Waitakere City to contribute financially to the development. Mr Campbell, who was Director: Strategic Planning at Waitakere City at the time, explains that this related to financial pressures facing Mr Gunton and NZRPG. Waitakere City was concerned that Mr Gunton would be unable to continue with the Town Centre project, particularly when international financing arrangements came under strain as a result of the GFC. Waitakere City went so far as to write letters to the Treasury of the United Kingdom who were underwriting the Bank of Scotland, NZRPG’s principal funder at that time.
[65] Waitakere City decided it would become financially involved in the development but only if it could be satisfied that this would be in the public interest. In July 2008, Mr Campbell wrote to Mr Gunton to confirm Waitakere City’s interest in working with NZRPG in the development of the Hobsonville and Westgate town centres, either as a debt funder or as an equity partner. The letter made clear that
Waitakere City’s interest was only in respect of the Town Centre on land owned by NZRPG and only in respect of the true town centre elements of that land.
[66] On 26 November 2008, the Council delegated authority to its CEO to negotiate and conclude with NZRPG an agreement under the Public Works Act 1981 to purchase the land Waitakere City required for the principal roading network and other physical and social infrastructure within the Westgate Town Centre.
Royal Commission on Auckland Governance reports to Government
[67] In March 2009, the Royal Commission on Auckland reported to the Government. Its principal recommendation was that the local authorities governing the Auckland region be dissolved and a single entity be formed to replace them.
PC 7 becomes operative
[68] On 12 March 2010, PC 7 became operative. From that date, the MUL was extended to include the proposed Westgate Town Centre and Employment Area.
Submission of CDPs for Precincts A and B
[69] In March and April 2009, NZRPG submitted its applications for CDPs for Precincts A and B. The application for Precinct A was prepared jointly by NZRPG and its architects, Jasmax, and set out a more developed version of the vision in PC 15, with modifications to accommodate some design changes.
[70] The application was accompanied by an ITA prepared by NZRPG consultants, Sinclair Knight Merz (SKM), and other reports assessing the proposal and its potential effects. Although the SKM ITA was focused on traffic effects in Precincts A and B, it modelled traffic flows across the whole of the proposed development and assumed the construction of Northside Drive from Fred Taylor Drive to Trig Road. It said south- facing ramps connecting Northside Drive to the extension of SH 16 would offer significant traffic benefits in terms of reducing congestion on the road network and would take traffic away from Fred Taylor Drive.
Negotiations continue between Waitakere City and NZRPG
[71] As NZRPG was preparing its CDP applications, negotiations continued with Waitakere City over the structuring of the Town Centre development and over possible Waitakere City involvement in delivering the development.
[72] In March 2009, Jeff Murray of Waitakere City prepared a report reviewing the extent to which assets purchased from NZRPG and other relevant landowners might be recoverable through development contributions and reporting on progress in the negotiation of an infrastructure funding agreement between Waitakere City and the NZRPG. Mr Murray noted that NZRPG planned to carry out its development without subdividing its land, which meant that assets that would normally come to the Council at no cost through the subdivision process would not pass to the Council. At the same time, NZRPG had asked the Council to share development risk by taking a stake in the project. The Council had sought, therefore, to purchase land for roads, open space and social infrastructure purposes. Funding for the purchase of land for the town square, library, town park and certain other land had already been budgeted for in the draft Long Term Council and Community Plan (LTCCP) prepared for 2009 – 2019.
[73] Even at that stage, there were differences between Waitakere City and NZRPG over how the vision of the Town Centre was to be achieved. On 30 April 2009, Tim Watts, the Manager: Urban Design and Development wrote to Mr Campbell recording his concerns about NZRPG’s insistence on delivering a mall as part of the first stage of the Town Centre development and at NZRPG’s refusal to accept that Kohuhu Lane should continue across Maki Street - which would cut through NZRPG’s proposed mall.
[74] Mr Watts considered the proposed mall to be contrary to the vision and expected outcomes for the Westgate Town Centre in PC 15. Mr Watts advised that if Waitakere City was to accept a shift in the original vision to accommodate a significant mall component, Waitakere City should insist on specific conditions relating to the Town Square and piazza – which should include provision for light penetration for Kohuhu Lane East if it was not to be a public street, the location of the library, acceptable design conditions for the development of Precincts A and B, and the
location of the Bus Interchange (which could no longer be on Kohuhu Lane east of Maki Street).
Waitakere City resolution on the purchase of assets in Westgate Town Centre
[75] On 7 April 2009, Waitakere City authorised its CEO to negotiate and conclude an agreement for the purchase of Maki Street South for a price not exceeding
$7 million, plus GST, on the basis, among other things, that “Town Centre & Main Street Typology 2” in PC 18 would apply to the full length of the road.
[76] The report considered at the Council meeting on 7 April 2009 recommended the purchase of Maki Street South because Original Westgate and the proposed Town Centre would form a single place, the quality of which would be extremely important to the nature and quality of growth across the Westgate – Hobsonville area. The Report said the street was of strategic value to Waitakere City because, through ownership of the entire route through the Town Centre, Waitakere City could more effectively influence the development of the Town Centre over ensuing decades. The report noted that Council officers considered the street was likely to need rebuilding in five years at a cost of about $1.7 million.
[77] On 7 May 2009, Waitakere City adopted Resolution 698/2009 authorising its CEO to negotiate and conclude an agreement for the purchase of the land to comprise streets and other infrastructure in the new Town Centre and beyond for a price not exceeding $29 million, plus GST, inclusive of the price agreed for the purchase of Maki Street South. The resolution also provided that the urban form of the town centre had to be acceptable to the CEO, having particular regard to the need for a library site, a town square and piazza, the development of Precinct A, light penetration for over Kohuhu Lane East if it was not a public street and the location of the Bus Interchange. That is, the resolution included as specific considerations the matters Mr Watts had indicated should be addressed if NZRPG was to proceed with its proposal for what became the Northwest Mall.
[78] Referred to in, and attached to, the resolution was a plan headed “Asset Set B” and labelled “Massey North Town Centre – Public Land Diagram” (the Asset Set B
plan).13 The Asset Set B plan showed the roads and other infrastructure envisaged for the Town Centre. The plan also showed the areas of land within the envisaged development that were owned or leased by NZRPG or owned by the Midgley family interests and the Garjelo interests.
[79] On the Asset Set B plan, the roads to be built on NZRPG land were, with one exception, coloured black to identify “Core Roads” or brown, to identify “Non-Core Roads”.14 As a result, these roads came to be referred to as the Black and the Brown Roads. The Black and Brown Roads were all on land that would form Precincts A and B of the Town Centre.
[80] Other roads, including Fred Taylor Drive between the motorway interchange and Don Buck Road and at the proposed intersection with Northside Drive, Northside Drive itself, and where roads crossed land not held by NZRPG were coloured yellow. The already existing Westgate Street, now Maki Street South, was coloured orange.
Maki Street South Acquisition Agreement (MSSAA)
[81] On 8 May 2009, Westgate Properties Ltd (WPL), the NZRPG company that then owned Original Westgate; Waitakere City; Cannuck Holdings Ltd (Cannuck), the NZRPG company that then owned and leased land on the northern side of Fred Taylor Drive and NZRPG Management (formerly IMF Westland), the NZRPG company responsible for managing the development of Cannuck’s land for the town centre, signed the Maki Street South Acquisition Agreement (MSSAA). Under the MSSAA, Waitakere City acquired the land comprising the Maki Street South roadway. It did not acquire title to the footpaths and other adjacent land. Instead, WPL granted Waitakere City easements in gross over the land comprising the footpaths and other land adjacent to Maki Street South. The total price paid was $6 million, plus GST, payable in two tranches.15
13 A copy of the Asset Set B Plan is attached at Annex 7.
14 The exception was the northern-most section of Maki Street, identified as A16, from where the street left NZRPG land in Precinct B, crossed Garjelo land and then crossed another section of NZRPG land until it intersected with Northside Drive.
15 It is common ground that NZRPG chose not to transfer title to the footpaths and other land adjacent to Maki Street South so that it could continue to control activities on its land.
[82] Schedule 2 to the MSSAA set out the terms of the easement granted to Waitakere City over the footpaths adjacent to Maki Street South. Under cl 3(a) of the schedule, WPL undertook to maintain the easement area and, when upgrading the footpaths, to ensure that the design treatment and quality of the upgrade was consistent with the design treatment and quality of footpaths on the northern side of Fred Taylor Drive. No time period was specified for any upgrade.
[83] Payment of the second tranche of the purchase price was conditional on the execution of certain documents, including execution by Cannuck of a memorandum of encumbrance giving effect to the agreement reached with the Council that Kohuhu Lane would not extend east of Maki Street. The memorandum of encumbrance did not refer to the associated issue of the location of the Bus Interchange.
[84] The MSSAA also addressed issues relevant to the intended development of the new Town Centre that were not directly related to the purchase of Maki Street South. These included:
(a)Waitakere City’s acknowledgment of WPL’s concerns about the application of the Street Typologies in PC 18 to the sloping land on the south side of Fred Taylor Drive and Waitakere City’s agreement that the typologies would not apply to existing buildings in Original Westgate;
(b)An acknowledgment of the parties’ respective positions on the location of the library and their agreement to try to reach a solution in the context of the negotiations over the IFA; and
(c)the location of the Bus Interchange, which the parties agreed must be centrally located on Kohuhu Lane, west of the library site.
Westgate Sign Licence Agreement
[85] Subsequent to the conclusion of the MSSAA,16 Waitakere City and WPL entered into a licence agreement under which Waitakere City granted WPL a licence to occupy the land occupied by a large sign advertising Original Westgate (the Westgate Sign) that was situated on a traffic island in the Maki Street South roadway (the Sign Licence Agreement). The Sign Licence Agreement recorded that the Westgate Sign may have to be relocated as part of the planned Fred Taylor Drive re- alignment, in which case, the Council could serve notice on WPL requiring the sign to be relocated to an alternative location on Maki Street South.
Local Government (Tamaki Makaurau Reorganisation) Act 2009
[86] On 25 May 2009, the Local Government (Tamaki Makaurau Reorganisation) Act 2009 (LG(TMR)A) entered into force. In accordance with the recommendations of the Royal Commission on Auckland, the LG(TMR)A provided that, on 1 November 2010, each existing local authority in the Auckland region, including Waitakere City, was to be dissolved and their powers and responsibilities and any contractual and other rights and obligations transferred to the Auckland Council.
[87] The LG(TMR)A established the Auckland Transition Agency (ATA). The functions and duties of ATA included planning for and managing the reorganisation of local governance in Auckland to ensure the Auckland Council was ready to function from 1 November 2010 (s13(1)). Among other things, the LG(TMR)A required that any decisions taken by a local authority during the transition period (25 May 2009 - 31 October 2010) that may significantly constrain the powers or capacity of the Auckland Council or any of its subsidiaries following the reorganisation, must be confirmed in writing by the ATA before being implemented.
[88] The LG(TMR)A provided that, on 1 November 2010, each local authority within the Auckland region was dissolved and their functions, duties, powers, property rights, liabilities, contracts, and entitlements transferred to the Auckland Council. It also provided that anything done, or omitted to be done, or that was to be done, by, or
16 The date of execution is not on the deed but it is understood the licence agreement was executed shortly after the MSSAA was executed.
in relation to, a local authority must be treated as having been done, or having been omitted to be done, or to be done, by, or in relation to, the Auckland Council.
Local Government (Auckland Council) Act 2009
[89] On 22 September 2009, the Local Government (Auckland Council) Act 2009 (LG(AC)A 2009) provided for the establishment of the Auckland Council as a unitary authority, with effect from 1 November 2012.
NorSGA Overview Report for Auckland Transition Agency
[90] In September 2009, Waitakere City prepared an overview report on the NorSGA for the ATA. The report noted that the Council had budgeted capital expenditure in the LTCCP 2009-2019 to support private sector investment in Westgate. An appendix to the report summarised Council expenditure on NorSGA and set out a summary of 10 year costs budgeted in the LTCCP 2009-2019. This included entries for Northside Drive and the Westgate Bus Interchange.
Infrastructure Funding Agreement
[91] On 22 February 2010, Cannuck, NZRPG Management and Waitakere City signed the IFA. The terms of the IFA are discussed more fully below. For present purposes, it is sufficient to note that, under the IFA:
(a)Waitakere City agreed:
(i)to undertake or procure, at its cost, identified works or projects at its expense, including the widening of Fred Taylor Drive between SH 16 and Don Buck Road and the construction of Northside Drive West, up to but not including the bridge over the new SH 16, and the construction of certain infrastructure, including the town square and library, and the acquisition of land for a community park and other open space land;
(ii)to use its best endeavours to ensure that the widening of Fred Taylor Drive and the construction of Northside Drive and other
specified works were completed prior to 30 June 2012 or such later date as the parties may agree;
(iii)to pay for, at agreed prices, the acquisition of identified parcels of Cannuck land to be used for the town square, library and other public spaces and to contribute towards the costs of works to be carried out by NZRPG on its behalf;
(b)Cannuck agreed:
(i)to Waitakere City acquiring at no cost the land to be used for the Black and Brown Roads and to sell Waitakere City, at agreed prices, the land to be used for the town square, library and other public spaces; and
(ii)to construct the Black and Brown Roads and associated services in accordance with plans and minimum standards agreed by the parties or approved by Waitakere City.
[92] The IFA set a cap of $23,000,000, plus GST,17 on the amount Waitakere City would pay NZRPG for the land obtained from NZRPG and the works carried out by NZRPG on behalf of Waitakere City.
[93] An incidental issue addressed in the IFA was to amend the memorandum of encumbrance recording the parties’ agreement over Kohuhu Lane (that was scheduled to the MSSAA) to record their agreement that the bus interchange would be on Kohuhu Lane west of the library site and to record agreed design parameters for the interchange.
17 That is, the $29,000,000 provided for in resolution 698/2009 less the $6,000,000 agreed for the purchase of Maki Street South and the easements over the footpaths.
Waitakere City allocates funding for NorSGA, including Westgate, in LTCCP 2009-2019
[94] In its Long Term Council Community Plan (LTCCP) for 2009 to 2019, Waitakere City provided for the expenditure of $205 million for a public amenity and infrastructure development programme for Westgate as part of a total funding package of $323 million for the delivery of NorSGA Stage 1. The LTCCP 2009-2019 identified funding for:
(a)the design and construction of the Northside Drive bridge over the new SH 16;
(b)the design and construction of the interchange between Northside Drive and SH 16; and
(c)the purchase of the land needed for Northside Drive East and the design and construction of Northside Drive East.
[95] It was understood this funding would be carried over into the new Auckland Council as part of the consolidated LTCCP.
Further traffic modelling for Town Centre
[96] In May 2010, Traffic Design Group (TDG), traffic consultants commissioned by NZRPG to update and revise the SKM ITA, produced an addendum to the SKM ITA to support the CDP application. The TDG addendum updated the modelling in the SKM ITA to take account of the fact that, following further discussions between Waitakere City and Waka Kotahi, ramps connecting Northside Drive to SH 16 had been removed from all traffic scenarios.
Auckland Transport established
[97] On 14 June 2010, the LG(AC)A 2009 was amended. The amendment Act put in place arrangements for the management of transport and water supply and wastewater services for Auckland. These included the establishment of Auckland Transport with effect from 1 November 2010.
[98] Under the LG(AC)A 2009 as amended, the purpose of Auckland Transport was to contribute to an effective, efficient, and safe Auckland land transport system in the public interest. Its functions included management and control of the Auckland transport system. Section 46 of the LG(AC)A 2009 provided that Auckland Transport had certain functions and powers in relation to the Auckland transport system. These included most of the powers of a council in relation to the management of roads under pt 21 of the LGA 1974 and most of the powers of a council in relation to the provision of parking places, buildings and transport stations18 under s 591 of the LGA 1974. Section 47 provided that Auckland Transport was deemed to be a requiring authority under the RMA for the purpose of constructing and operating roads and for carrying out other activities in relation to the Auckland transport system for which it or Auckland Council had financial responsibility.
Council correspondence on timeline for completion of Northside Drive
[99]On 13 July 2010, Waitakere City advised Mr Gunton that:
(a)funding for the construction of Northside Drive had been provided in the LTCCP 2009-2019 so it would be built in five stages, two of which were for the construction of the bridge over SH 16 and for Northside Drive East connecting to Trig Road;
(b)funding for four of the five stages of Northside Drive West, including the bridge over SH 16, had been allocated for 2010-2014;
(c)funding for Northside Drive East had been allocated for 2012-2015;
(d)the actual timing of construction depended on various factors including land acquisition and, in the case of Northside Drive East, securing a designation for the road; and
18 Under s 591(6) of the LGA 1974, a transport station meant a place where transport-service vehicles, or any class of transport-service vehicles, may wait between trips.
(e)Waitakere City had determined that the first priority was to construct the roads in three of the five identified stages; these stages did not include the bridge over SH 16 or Northside Drive East.
Draft Corridor Management Plan
[100] As planning for the Westgate Town Centre proceeded, Waitakere City developed a Corridor Management Plan to identify how to manage those sections of Fred Taylor Drive and Hobsonville Road East for which state highway status would be revoked after construction of the motorways extending SH 16 and SH 18.
[101] Version 7 of the draft Corridor Management Plan was developed on 6 August 2010. It discussed the range of considerations that would need to be taken into account in the future management of the corridors. These included that:
(a)the routes would need to continue to meet the functions of an urban and rural arterial; and
(b)the through movement of traffic along Fred Taylor Drive needed to be maintained because there was no new access to new SH 16 at Westgate;
(c)the place function of the corridor needed to have a greater role compared with its traffic function;
(d)limited access controls would be handed over to Auckland Transport, which would determine where those control would be retained, removed or modified;
(e)limited access rules generally needed to be removed to provide access to developments along Fred Taylor Drive but would need to be retained adjacent to the motorway interchange at Westgate to ensure efficient and safe movements to and from the state highway network; and
(f)the design of intersections along Fred Taylor Drive may exclude driveway access and prevent right hand turns for safety and efficiency reasons but may not require limited access controls to achieve this.
Decisions on CDP applications
[102] On 26 August 2010, Commissioners appointed by Waitakere City granted consent for the CDPs for Precinct A and Precinct B, subject to the conditions in Part 3 of the CDP (CDP (Part 3)).
[103]In their decision, the Commissioners recorded that:
6. … our consideration is not of the general planning process for transferring the area from rural to urban, nor to determine what actual development will occur in the area. We are required to assess the proposed CDPs as an intermediate step between those two stages.
37. … we are satisfied that these applications are in respect of activities which will not cause adverse effects that will be more than minor on the environment both as it exists and as it is identified in the relevant planning document. That is because in broad terms the CDP applications provide a framework for the future consideration of individual resource consent applications and the effects arising from specific activities that will eventually enable a new town centre to be established at [Westgate].
[104] Referring to differences between NZRPG and submitters as to the appropriateness of staging conditions for Precinct A and B, the Commissioners observed that there was a danger in looking at the expected completion of development as a near future scenario, rather than recognising that developing an area of that size would take years.
[105] The Midgley interests appealed the decision granting the CDPs; others gave notice of their intention to become parties to the appeal.
Development of Isthmus paving hierarchy and palette
[106] In mid-2010, Waitakere City commissioned Bluebarn Consulting Ltd and Isthmus Group Ltd (Isthmus) to prepare designs for the new Town Centre for the purpose of construction and supporting and informing future resource consent applications by developers. In August 2010, Isthmus produced a revised paving
hierarchy plan (Version 4) which provided a paving hierarchy for footpaths in Precincts A and B of the new Town Centre. Version 4 envisaged stone kerbs of the highest quality along:
(a)both sides of Maki Street up to the intersection with Kedgley Road, and, from Kedgley Road, certain sections of Maki Street up to the intersection with Gunton Drive;
(b)both sides of Kuhuhu Lane;
(c)certain sections of Tawhia Drive and Kedgley Road.
[107] The plan showed concrete kerbs, the next level down in the paving hierarchy, on the footpaths on most, but not all, of the balance of footpaths in Precincts A and B.
[108] The plan did not include the footpaths on either side of Fred Taylor Drive. It did not apply to Original Westgate in Precinct E.
Works Development Agreements and Cost Sharing Agreements
[109] In October 2010, in anticipation of Waitakere City ceasing to exist and the new Auckland Council coming into being on 1 November 2010, Waitakere City, NZRPG Management and, in some cases, Cannuck entered into four separate works development agreements and two cost sharing agreements relating to the Westgate Town Centre.
[110] In WDA 1, WDA 4 and WDA 5, NZRPG Management agreed to construct, and Waitakere City agreed to pay for, Waitakere City works identified in the agreements. The agreements provided that, upon completion, the works would be owned by Waitakere City.
[111]The Waitakere City works included:
(a)earthworks, roading, stormwater and wastewater drainage (WDA 1);
(b)sections of Northside Drive West and its intersection with Fred Taylor Drive and Maki Street (WDA 4); and
(c)the town square and piazza and the town park (WDA 5).
[112] WDA 1, WDA 4 and WDA 5 each contained a clause on cost sharing under which NZRPG undertook to use its reasonable endeavours to identify costs savings in the Waitakere City works and which set out a formula for how costs savings would be shared.
[113] WDA 2 dealt with arrangements for the undergrounding of the overhead transmission lines that ran across the land where the Town Centre was to be developed. Under the agreement, Waitakere City and NZRPG agreed to pay Transpower’s costs of the undergrounding and to share the balance of the costs in specified proportions.
[114] It is common ground that NZRPG and Waitakere City also intended to negotiate and sign a further development agreement, WDA 3, which was likely to vary certain provisions of the IFA, particularly as they related to the transfer of land and cost sharing arrangements for the library and town square and piazza. However, work on that aspect of the Town Centre design was not sufficiently advanced to finalise WDA 3 at that time.
[115] Cost Sharing Agreement No 1 (CSA 1) set out more detailed arrangements relating to the development of the land that was subject to the IFA. In CSA 1, Waitakere City and NZRPG Management agreed to acquire land, apply for consents and undertake the design of specified works for which each was responsible as set out in the Demarcation Schedule in Schedule 2 of the agreement.
[116] Cost Sharing Agreement No 2 (CSA 2) set out the arrangements agreed by Waitakere City and Cannuck/NZRPG Management for the payment of consultancy costs incurred or to be incurred in giving effect to the IFA.
[117]Relevant aspects of these agreements are discussed more fully below.
Auckland Council comes into being; WDAs and CSAs re-executed
[118] On 1 November 2010, the Auckland Council came into being and Waitakere City ceased to exist.
[119] Not all of the WDAs and CSAs executed by Waitakere City had been approved in writing by the ATA before 31 October 2010, as required by the LG(TMR)A. Accordingly, on 29 November 2010, the Auckland Council, NZRPG and, as appropriate, Cannuck, re-executed WDA 1, WDA 2, WDA 4, WDA 5, CSA 1 and CSA
2. The texts of the re-executed agreements were the same as the agreements originally executed by Waitakere City, except for minor changes reflecting the amalgamation of Waitakere City into the Auckland Council.
[120] By contrast, the IFA was approved by the ATA, and the MSSAA and the Westgate Sign Licence Agreement had been executed before the LG(TMR)A was enacted. In accordance with the LG(TMR)A, therefore, the rights and obligations of Waitakere City under the IFA, the MSSAA and the Westgate Sign Licence Agreement became the rights and obligations of the Auckland Council.
Work gets under way in development of Town Centre
[121] Although the appeals against aspects of PC 15 had not been resolved, and the appeal against the decisions granting the CDPs for Precincts A and B had not been finally resolved, in October 2010, NZRPG commenced work on the development of the new Town Centre on the land it owned or leased and, as envisaged in the IFA, WDA 1, WDA 2, WDA 4, WDA 5, CSA 1 and CSA 2, on physical works for which Auckland Council had accepted responsibility but which NZRPG had contracted to undertake. However, responsibility for the widening of Fred Taylor Drive and the construction of Northside Drive remained with Auckland Council and became the responsibility of Auckland Transport.
Design work on Fred Taylor Drive widening
[122] As early as November 2010, Auckland Transport commissioned engineering designs from GHD for the widening of Fred Taylor Drive and the construction of the
three intersections as provided for in the IFA. Auckland Transport were reminded by Melanie McKelvie, an Auckland Council staff member who had previously worked for Waitakere City, of earlier design work commissioned by Waitakere City and of the need for a strong connection between Precincts A and E. Ms McKelvie advised that the design of the Fred Taylor Drive/Maki Street intersection would include changes in surface treatment and “barnes dance crossings”.19
Consent orders for CDPs, including detailed design conditions
[123] On 6 September 2011, the Environment Court made consent orders for the CDPs for Precincts A and B. The Consent Order included detailed design conditions that were to apply to activities undertaken pursuant to the CDPs (the CDP conditions).
[124] The CDP conditions for Precincts A and B stipulated some staging of development within the Precincts. They provided that roads and open spaces were to be constructed or developed prior to the occupation of buildings but that infrastructure was to be provided prior to or concurrently with the construction of buildings.
[125] Two of the conditions applicable to Precinct A referred to infrastructure works outside the Precinct. Condition 21 required applicants for resource consents giving effect to the CDP to assess the effects of further development within the Precinct on the surrounding traffic network if Northside Drive and improvements to Fred Taylor Drive “(Option 5)” were not constructed or were constructed with less capacity than currently designed. Condition 24 required such applicants for resource consents to ensure that pedestrian amenity across Fred Taylor Drive, and the integration of Precinct A with Precinct E, were appropriately provided for if Option 5 was not proceeded with. It is understood that Option 5 referred to plans for the widening of Fred Taylor Drive prepared by URS in August 2009.
19 See Auckland Transport “Barnes Dance crossing improvements” < The website explains that a “Barnes Dance”, also known as a “scramble crossing” or “exclusive pedestrian crossing”, is an intersection where all pedestrians can cross on all crossings simultaneously and all vehicles must stop.
[126] CDP (Part 3), as approved, included revised design conditions applying to both Precincts A and B. To ensure an appropriate balance between certainty of outcome and necessary flexibility, the design conditions were divided into three types:
(a)conditions in red script, which were specific urban design conditions that were expected to be strictly applied;
(b)conditions in green script, which related to design principles and were intended to set an aspirational design standard for development but could not be written (or applied) as hard and fast requirements; and
(c)conditions in blue script, which were urban design principles underpinning and reinforcing the purpose behind each of the subsequent conditions and which were “to be treated very much as high level guidance”.
[127]The conditions in CDP (Part 3) included:
(a)An Urban Framework Plan, in relation to which a green condition stated, “Development shall be in general accordance with the Urban Framework Plan.” The Urban Framework Plan showed the streets of the new Town Centre, with indicated locations for:
(i)outward facing buildings “to reinforce the emphasis on street activity”, on Maki Street, the northern side of Fred Taylor Drive, and other streets in Precinct A;
66 This assumes that, contrary to my findings above, there was a delay in those works for which the defendants were contractually liable.
as evidenced by the fact that a number of Original Westgate tenants relocated there when the new mall was tenanted.
[662] For these reasons, I am not persuaded that the plaintiffs’ losses would have amounted to the sums claimed, even if I had found that the defendants had breached their contractual obligations in the ways alleged by the plaintiffs.
Are the plaintiffs entitled to the losses claimed?
[663] Even if the plaintiffs had established all or any of the contractual breaches alleged against the plaintiffs, and even if they had established that there were losses as a consequences of those breaches, there would still be a question about whether the plaintiffs would be entitled to those losses.
[664] This question, which in many proceedings would have been a preliminary question for resolution before addressing the substantive merits of the proceeding, was treated by the parties as one of the final issues for consideration.
[665] The question arises principally because there were two major corporate restructurings of companies in the NZRPG Group, in 2012 and in 2017, in the period between execution of the IFA in May 2009 and the commencement of the current proceeding in March 2018. There is a question, therefore, whether any of the current plaintiffs can claim damages for breaches of the IFA and the related agreements
[666] The question is factually and legally complex, as illustrated most relevantly by the plaintiffs’ claims with respect to the form and function of Fred Taylor Drive:
(a)The plaintiffs’ claims in relation to Fred Taylor Drive are principally based on an asserted breach of the IFA. The losses claimed in relation to that breach are the diminution of value of land in the new Town Centre and in Original Westgate.
(b)The IFA was executed by Cannuck and NZRPG Management, as well as Waitakere City. At that time, Cannuck owned and leased most of the land in what was to be the new Town Centre. Cannuck did not own
land in Original Westgate. That land was owned by WPL. WPL was not a party to the IFA.
(c)In April 2012, Cannuck sold the Town Centre land to Calland Properties under the arrangements that NZRPG entered into following the GFC. In May 2013, Calland sold the Town Centre land to WTC (previously Mojave) for an agreed value.67 There is no evidence that Cannuck’s rights under the IFA were assigned to Calland or by Calland to WTC.
(d)In May 2013, NZRPG Management, which had changed its name to Westgate No 3 Ltd, assigned its rights under the IFA to WTC. However, because Westgate No 3 did not own land in the Town Centre, any rights WTC received under that assignment were not in relation to the ownership of the land.
(e)In July 2016, Cannuck was removed from the Companies Register. In August 2016, Westgate No 3 (the company that executed the IFA when called NZRPG Management) was removed from the Companies Register.
(f)In June 2017, WTC assigned its rights under the IFA to Westgate Town Centre Ltd (2017) Ltd (WTC 2017). WTC’s assignment of its interests in the IFA to WTC 2017 was expressed as being “without prejudice to the right of [WTC] to pursue Auckland Council in respect of any antecedent breach of the Infrastructure Funding Agreement.”
[667]As a result of these developments:
(a)the original NZRPG signatories of the IFA no longer exist;
67 On the same day, WTC sold the land in Zone 5 to Stride and later assigned its rights to the cruciform land to Stride.
(b)the only plaintiffs that can assert direct rights in relation to the IFA are WTC, the first plaintiff, and, perhaps, WTC 2017, the fourth plaintiff, depending on how the terms of the assignment are to be interpreted;
(c)there is a question as to whether WTC’s rights (and WTC 2017’s rights) under the IFA include Cannuck’s rights as land owner or are limited to the rights received from NZRPG Management, which never owned land in Original Westgate or the new Town Centre.
[668] Mr Gray’s observation that the defendants were never concerned about the particular entity they were dealing with fails to deal with two realities. First, companies are distinct legal entities and have distinct rights and obligations. Secondly, it is apparent from the history of NZRPG’s engagements over the Town Centre that a great deal of care was taken with respect to which NZRPG entities were entering into contracts with Waitakere City and then Auckland Council. The plaintiffs cannot then say that it is of no practical or legal consequence as to which of them has entitlements under the contracts with Waitakere City and Auckland Council.
[669] Given the length of this judgment already and the fact I do not need to decide the question in light of my findings on liability, I do not address in detail the various arguments made by the plaintiffs and defendants in relation to the plaintiffs’ claim to be entitled to the alleged losses. However, I record some general observations on the question.
[670] As a general proposition, a party is entitled to compensatory damages only for losses that party has suffered itself. It cannot recover damages for loss suffered by a third party.68 Accordingly, a party who has not suffered any such loss or a party who has suffered loss but who is not party to the contract breached may only recover damages for those losses in very limited circumstances. The two relevant exceptions to that general proposition in this case are under the principle of “transferred loss” and the statutory exceptions recognised in ss 11 and 12 of the Contract and Commercial
68 Napier Tool & Die Ltd v Oraka Technologies Ltd [2016] NZCA 554, [2017] 2 NZLR 611 at [1], citing The Albazero [1977] AC 744 (HL) at 845 and Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518 (HL) at 522 and 580.
Law Act 2017. The plaintiffs response to the defendants’ challenge to their entitlement to damages was based on the principle of transferred loss.
[671] The plaintiffs say that the principle of transferred loss, particularly as applied by the House of Lords in Alfred McAlpine Construction Ltd v Panatown Ltd, is applicable in the circumstances of this case.69 I refrain from exploring the parameters of that and related decisions. I note, however, that, as Lord Sumption observed in Lowick Rose LLP (in liquidation) v Swynson Ltd, it is an essential feature of the principle of transferred loss that the recognition of a right of a contracting party to recover a third party’s loss should be necessary to give effect to the transaction and to avoid a “legal black hole” in which in the anticipated course of events the only party entitled to recover would be different from the only party which could be treated as suffering the loss.70
[672] I accept that it is arguable that claims by WPL for losses allegedly suffered in relation to Original Westgate, if caused by a breach of the IFA, might fall into this category. However, I doubt that claims by WTC do. It would have been perfectly possible and usual for Cannuck’s rights in relation to the IFA to have been assigned to Calland and then to WTC. Such assignments of rights are standard in commercial property transactions. Had that happened, no legal black hole would have arisen, and therefore no claim under the principle of transferred loss would have been available.71
[673] I also doubt that NZRPG Management, the third plaintiff, has any rights in relation to losses attributable to a diminution in value of the land in the new Town Centre or Original Westgate. The current company called NZRPG Management did not exist at the time the IFA was executed. It is doubtful that the fact that a Recital in WDA 7 recognised that company as the successor to Westgate No 3 and Cannuck has any relevant contractual significance. WDA 7 was limited to the application of the Isthmus palette to the Black and Brown Roads. It had nothing to do with Fred Taylor Drive or the IFA. More importantly, Westgate No 3, then called NZRPG Management,
69 Alfred McAlpine Construction Ltd v Panatown Ltd, above n 68.
70 Lowick Rose LLP (in liquidation) v Swynson Ltd [2017] UKSC 32, [2018] AC 313 at [14] – [16] per Lord Sumption.
71 Alfred McAlpine Construction Ltd v Panatown Ltd, above n 68, at 577 – 578 per Lord Browne- Wilkinson.
assigned its rights under the IFA to WTC. Whatever rights the company currently called NZRPG Management may be exercising as the successor to Westgate No 3 and Cannuck, they are not rights in relation to the IFA.
[674] Nonetheless, given my earlier findings on liability, I do not consider it necessary or appropriate to make any findings on this question.
RESULT
[675] For all of the above reasons, I find that the plaintiffs have not made out any of the contractual breaches alleged against the defendants.
COSTS
[676]As the successful parties, the defendants are entitled to costs.
[677] I understand that the parties have already agreed that costs should be assessed on a Category C Band 3 basis. If that is so, the quantification of costs might be relatively straightforward, and I would hope that the parties might be able to agree.
[678]If there is any dispute, I make the following directions:
(a)The defendants are to file a memorandum on costs within 30 working days of the date of this judgment; and
(b)The plaintiffs are to file any memorandum in reply within a further 20 working days.
[679] If the parties wish to make oral submissions on costs, they are to advise the Court within 10 working days of the filing of the plaintiffs’ memorandum. Otherwise, I will deal with costs on the papers, unless I decide I require the assistance of counsel.
G J van Bohemen J
ANNEX 1: PLAN AND A PHOTOGRAPH OF WESTGATE SHOWING THE PRECINCTS AND ZONES OF THE TOWN CENTRE AND THE NAMES OF THE STREETS AS THEY NOW ARE
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ANNEX 2: ACRONYMS AND ABBREVIATIONS USED IN JUDGMENT
AEE Assessment of Environmental Effects ARC
Auckland Regional Council
ARGS
Auckland Regional Growth Strategy
ARPS
Auckland Regional Policy Statement
ATA
Auckland Transition Agency
Cannuck
Cannuck Holdings Ltd
CDP
Comprehensive Development Plan
CDP (Part 3)
Design conditions in Part 3 of CDP as approved
CSA
Cost Sharing Agreement
GFC
Global Financial Crisis
IFA
Infrastructure Funding Agreement
ITA
Integrated Transport Assessment
LGA 1974
Local Government Act 1974
LGA 2002
Local Government Act 2002
LG(A)AA 2004
Local Government (Auckland) Act 2004
LG(AC)A 2009:
Local Government (Auckland Council) Act 2009
LG(TMR)A Local Government (Tamaki Makaurau Reorganisation) Act 2009 MNUCP
Massey North Urban Concept Plan
MUL
Metropolitan Urban Limits
NOR
Notice of Requirement
NorSGA
Northern Strategic Growth Area programme
NWSA
Northern and Western Sectors Agreement
NZRPG
New Zealand Retail Property Group Ltd
Waka Kotahi
Waka Kotahi New Zealand Transport Agency
PC 15
Plan Change 15
PCG
Project Control Group
PLT
Project Leadership Team
RMA
Resource Management Act 1991
SH 16
State Highway 16
SH 18
State Highway 18
SKM
Sinclair Knight Merz
TDG
Traffic Design Group
Westgate MOU
Westgate Memorandum of Understanding
WCC
Waitakere City Council
WDA Works Development Agreement
WPL Westgate Properties Ltd
WTCL Westgate Town Centre Ltd
ANNEX 3: AGREEMENTS AND ARRANGEMENTS BETWEEN NZRPG COMPANIES AND WAITAKERE CITY/AUCKLAND COUNCIL
Agreement
Date
Parties
Subject matter
Westgate MOU
2 July 2004
IMF Westland Ltd (Note 1 below)
Waitakere City Council
Non-binding arrangement to work together in achieving shared goals for Westgate Town Centre
Maki Street South Acquisition
Agreement (MSSAA)
8 May 2009
Westgate Properties Ltd (WPL) (Note 2)
Waitakere City Council
Cannuck Holdings Ltd (Note 3)
NZRPG
Management Ltd (Note 1)
Waitakere City acquires roadway of Maki Street South and easement over adjacent footpaths
Various ancillary matters also addressed
Westgate Sign
Licence Agreement
2009
Waitakere City Council
WPL (Note 2)
Waitakere City grants WPL licence for Westgate Sign to occupy Maki Street South
Infrastructure Funding Agreement (IFA)
22 February
2010
Cannuck Holdings Ltd (Note 3)
NZRPG
Management Ltd (Note 1)
Waitakere City Council
Agreement for purchase of NZRPG land and for
construction by NZRPG of infrastructure on NZRPG land in accordance with Council
resolution 698/2009 and for infrastructure generally within Westgate Town Centre under which Waitakere City undertook to widen Fred
Taylor Drive and to construct Northside Drive West and various other works
Agreement
Date
Parties
Subject matter
Works Development Agreement No 1
(WDA 1)
29 November
201072
Auckland Council NZRPG
Management Ltd (Note 1)
Arrangements for NZRPG to construct, at Auckland Council’s cost, infrastructure works principally on former NZRPG land which was to transfer to Auckland Council
Works Development Agreement No 2
(WDA 2)
29 November
2010
Auckland Council NZRPG
Management Ltd (Note 1)
Cannuck Holdings Ltd (Note 3)
Allocation of responsibilities, including payment, relating to undergrounding of Transpower cables
Works Development Agreement No 4
(WDA 4)
29 November
2010
Auckland Council NZRPG
Management Ltd (Note 1)
Arrangements for NZRPG, at Auckland Council’s cost, to
construct ponds, open space
areas, Northside Drive West up to, but not including, the Bridge over SH 16, and Fred Taylor Drive where it
intersected with Northside Drive West.
Works Development Agreement No 5
(WDA 5)
29 November
2010
Auckland Council NZRPG
Management Ltd (Note 1)
Arrangements for NZRPG, at Auckland Council’s cost, to
construct town square, piazza and shared space, the town park and a riparian margin
Cost Sharing Agreement No 1
(CSA 1)
29 November
2010
Auckland Council NZRPG
Management Ltd (Note 1)
Cannuck Holdings Ltd (Note 3)
Allocated, as set out in Demarcation Schedule, responsibilities for land acquisition, design,
construction, and payment for works to be undertaken by
NZRPG and Auckland Council and assigned quality standards to those works
Cost Sharing Agreement No 2
29 November
2010
Auckland Council NZRPG
Management Ltd (Note 1)
Cannuck Holdings Ltd (Note 3)
Arrangements for payment of consultancy costs incurred in giving effect to the IFA
72 WDA 1, WDA 2, WDA 4, WDA 5 CSA 1 and CSA 2 were initially signed by Waitakere City Council in October 2010 but were re-executed by Auckland Council.
Agreement
Date
Parties
Subject matter
23 Fred Taylor Drive Agreement
March 2012
Cannuck Holdings Ltd (Note 3)
Auckland Council
Acquisition of land for the construction of Oranui Way
Works Development Agreement No 3
(WDA 3)
13 May 2013
Cannuck Holdings Ltd (Note 3)
Westgate No 3 Ltd (Note 1)
Westgate Town
Centre Ltd (Note 4)
Auckland Council
Amended IFA; set out arrangements regarding
location of Bus Interchange; paving finishes for Black and Brown roads in Precincts A
and B; Maki Street South upgrade works; and further negotiations on some of these.
Works Development Agreement No 7
(WDA 7)
13 February
2014
Auckland Council NZRPG
Management Ltd (Note 5)
Westgate Town
Centre Ltd (Note 4)
Arrangements for NZRPG to finish Black and Brown Roads in Precincts A and B in
accordance with the Isthmus Hierarchy, with Auckland Council paying the difference between achieving that
standard over the Westgate standard
Affected person consent form
13 May 2014
Mark Gunton Auckland Council
Consent to Fred Taylor Drive widening works
Partial Acquisition Agreement
9 July 2014
Auckland Council WPL (Note 2)
Council purchase of strips of land on the northern side of Fred Taylor Drive for widening of Fred Taylor Drive
Works Development Agreement No 6
(WDA 6)
10 November
2014
Auckland Council NZRPG
Management Ltd Note 5)
Westgate Town
Centre Ltd (Note 4)
Arrangements for NZRPG, at Auckland Council’s cost, to
construct Town Square, including shared space where Maki Street crossed the square, and the Piazza.
Works Development Agreement No 8
(WDA 8); also
called Pond 4 Construction Agreement
September 2015
Auckland Council NZRPG
Management Ltd Note 5)
Westgate Town
Centre Ltd (Note 4)
Arrangements for NZRPG, at Auckland Council’s cost, to
construct a stormwater pond near to development works being undertaken by NZRPG on its own account.
Agreement
Date
Parties
Subject matter
Works Development Agreement No 9
(WDA 9)
31 May 2017
Auckland Council NZRPG
Management Ltd (Note 5)
Westgate Town
Centre Ltd (Note 4)
Arrangements for NZRPG, at Auckland Council’s cost, to undertake Maki Street South upgrade works.
Notes on companies
1) IMF Westland Ltd. Company No 1101336. Incorporated 20 December 2000. Formerly Westland Property Services Ltd (20 December 2000 to 16 May 2001). Subsequently IMF New Zealand Ltd (28 October 2005 to 1 November 2007); then NZRPG Management Ltd (1 November 2007 to 1 June 2012); then Westgate No 3 Ltd (2 June 2012 to 17 August 2016). Assigned its rights under IFA to WTC in May 2013. Removed from register 17 August 2016.
2) Westgate Properties Ltd. Company No 606242. Incorporated 20 October 1993. Transferred assets to Westgate Properties (2017) Ltd on 30 June 2017.
3) Cannuck Holdings Ltd. Company No 1520319. Incorporated 1 June 2004. Sold interest in Westgate Town Centre land to Calland Properties Ltd in April 2012. Removed from register 15 July 2016.
4) Westgate Town Centre Ltd (WTC). Company No 1521247. Incorporated 1 June 2004. Formerly Mojave Holdings Ltd (1 June 2004 – 21 January) 2013. Acquired title to Westgate Town Centre land from Calland Properties Ltd in May 2013. Acquired interests of Westgate No 3 Ltd under IFA in May 2013. Sold Westgate Town Centre land to Westgate Town Centre (2017) Ltd on 30 June 2017.
5) NZRPG Management Ltd Company No 3828319. Incorporated 15 May 2012. Transferred assets to NZRPG Management (2017) Ltd on 30 June 2017.
ANNEX 4: MASSEY NORTH URBAN CONCEPT PLAN (MNUCP) AND MASSEY NORTH URBAN CONCEPT PLAN - ROAD NETWORK AND STREET TYPOLOGIES (CONCEPTUAL ROAD NETWORK PLAN)
309.04116
Scale = 1: 10000 @ A3
Proposed Plan Change 15
Massey North Urban Concept Plan - Conceptual Road Network
”'"'t"L°rc**)))*,[""°'! As amended in accordance with the Waitakere City Council's ' decisions 2007
ANNEX 5: RELEVANT PROVISIONS OF POLICY 11.44 OF PLAN CHANGE 15
Policy 11.44
The Massey North Town Centre Special Area shall be developed for urban activities which recognise the importance of the areas as a major town centre and its suitability for a range of sustainable urban development outcomes. This area should be developed in a way which achieves an integrated and compact town centre, providing for a broad range of mutually compatible activities and employment opportunities that are integrated with public transport, is surrounded by a supportive town centre periphery and provides a strong community focal point. This is to be achieved as follows:
(i)For all Precincts:
(a)Ensuring that development of precincts A, B, C, D and E does not compromise the aim (expressed above) of the overall Massey North Town Centre.
(b)Ensuring that development takes into account and does not compromise the [MNUCP];
(c)Ensuring that [CDPs] are substantially in accordance with the [MNUCP], …
(d)Ensuring that the expansion of the Massey North Town Centre is undertaken in a coherent, integrated and compact fashion;
(e)Ensuring that land use is sequenced and aligned with the delivery of transport services and infrastructure to achieve sustainability, efficiency, liveability, a competitive economy and a high quality of life underpinned by a quality environment and amenity.
(f)Provide flexibility to parking standards to enable the most efficient use of the scarce land resource, and encourage visitors to the town centre to use public transport or, where they choose to bring their vehicles to the town centre, to use communal parking areas.
(g)Activities and buildings should be designed and located so that they address the street and public spaces thereby contributing to amenity values and in particular pedestrian accessibility and safety.
…
(v) Having regard to the above, ensuring that development proceed in a manner that recognises the need for a comprehensive approach to future development within the Massey North area, including the achievement of high standards of urban design.
…
(ac) Ensuring that once state highway status has been removed from Fred Taylor Drive and the section of [SH 16] north of Don Buck Road to the edge of the Massey North Town Centre Special Area, that it is redesigned in a way which encourages pedestrian activity and movement and contributes to the integration of the Massey North Town Centre with a high degree of urban amenity, while ensuring that vehicle movements are facilitated.
(ad) Ensuring that the integration of the Westgate/Massey North town centre across Fred Taylor Drive is not compromised by heavy truck traffic travelling from the Massey North Special Employment Area by introducing engineering and traffic management mechanisms that direct truck traffic away from Fred Taylor Drive.
(ae)Protecting the safety of pedestrians passing between Precinct A and Precinct E, and the function of Fred Taylor Drive, by providing pedestrian linkages which encourage pedestrian activity across Fred Taylor Drive, between Precincts A and E Town Centre Mainstreets, when Precinct A is developed.
(ii)Town Centre Precinct Area A
The Town Centre Precinct Area A shall be developed as a compact, pedestrian oriented retail core with larger scale retail sales or retail services integrated with smaller retail tenancies and provision made for commercial (including offices), mixed use, community and residential development. It is expected that this Precinct will be developed in an integrated high quality, comprehensively designed town centre by:
(a)Requiring development to provide a high level of amenity values for pedestrians who are utilising the public realm.
(b)Utilising good urban design principles including, where relevant to the street typology, methods such as the development of verandah coverage on footpaths, zero setback of building along street frontages and minimum areas of glazing to ensure that blank wall facades are minimised along public streets.
…
(e) Nominating street frontages to the proposed streets and requiring all buildings to be designed in accordance with the street typologies.
…
(h) The design of the Town Centre Precinct Area A as a whole is focused upon having it integrate with the public transport facilities that service the town centre and the links within the City and across the Auckland Region.
…
(vi)Town Centre Precinct Area E
The Town Centre Precinct E shall:
(a)Integrate the existing Westgate Shopping Centre into an expanded Town Centre, with connections where possible across Fred Taylor Drive.
(b)Retain and allow limited expansion of retail sales or retail services in the Westgate Shopping Centre at the same time as the development of the Town Centre Core and other precincts.
…
ANNEX 6: BACKGROUND RECITALS AND CLAUSES 1, 4 TO 6 OF IFA
Background
A. [Cannuck] owns various parcels of land at Massey North, Waitakere City, which are located in the area of plan change 15 … . [Canuck is the single biggest owner of land within the PC 15 area. That ownership is comprised of …
B. PC 15 provides for the establishment of a new town centre at Massey North. The parties have a shared viscin for the urban form and design of the new town centre and intend to work together closely to achieve that shared vision.
C. The parties have discussed the infrastructure requirements for the future development of PC 15 and have reached agreement on a range of maters to facilitate the provision of that infrastructure on a timely and cost-effective basis so that the development of the town centre can proceed as soon as conveniently possible.
D. This agreement is concerned with infrastructure generally within PC 15 and arrangements between the parties in relation to infrastructure within the land held by [Cannuck] in fee simple and leasehold. A separate agreement will be entered into in respect of the land in which [Cannuck] has an interest as purchaser.
E. …
F. This agreement is entered into by [Waitakere City] pursuant to a resolution passed by the Council on 7 May 2009. A copy of that resolution (resolution 698/2009) and a copy of the plan referred to on that resolution as “asset set B” are attached at Schedule 2. Since that resolution the Council has acquired the land shown on the plan coloured orange and referred to as [Maki Street South] from a related part of [Cannuck] under and [sic] agreement dated 8 May 2009 [and] made provision for the approved expenditure in its LTCCP and approved the form of this agreement.
Terms of the Agreement
Nature of Agreement and Conditions
1. The parties are entering into this agreement with the intention to be bound by its terms but on the understanding that as implementation of this agreement and development of the new town centre evolves it is likely that new issues and/or issues of detail will arise which may require further negotiation and agreement. The parties agree to work together and to negotiate in good faith to find mutually agreed solutions and to incorporate any such agreements into this agreement by way of appropriate variation of agreement.
Council works
4. Waitakere City] will undertake or procure the following works and projects at [Waitakere City’s] expense:
a)The widening of [Fred Taylor Drive] between the intersection of State Highways 16 and 18 to the Don Buck Road Intersection. This work includes the reconstruction of relevant intersections between [Fred Taylor Drive] and [Maki Street], [Tawhia Drive] and [Te Oranui Way]. In this regard, [Cannuck]:
(i)acknowledges that [Waitakere City]’s ability to undertake this work is dependent on approval from [Waka Kotahi] so long as this part of [Fred Taylor Drive] remains part of the State Highway network. [Waitakere City] will endeavour to procure the consent of [Waka Kotahi] at the earliest possible date but accepts no responsibility in circumstances where the giving of that consent is delayed;
(ii)is aware that some land may be required to be taken from the [Fred Taylor Drive] frontage of the [Cannuck] land to enable this widening to occur. The dimensions of the land to be taken cannot be determined until final design of the road is completed. [Waitakere City] will use its best endeavours to ensure that the amount of land taken is minimised as far as is reasonably practical having regard to good road design;
(iii)agrees that the Council will acquire that part of the [Cannuck] land required for road widening under [the Public Works Act] and will compensate [Cannuck] for the land taken in accordance with [the Public Works Act].
b)The widening of [Fred Taylor Drive] and the construction of Northside Drive (marked A 18 and A 15 on the plan at Schedule 2). This work will also include the construction of storm water ponds 6 and 7 on the plan at Schedule 2. For the avoidance of doubt, [Waitakere City] has not presently committed to the construction of a bridge over the motorway (A 14 on the plan at Schedule 2) nor to the construction (or to the contribution to the cost of construction) of ramps connecting Northside Drive to the motorway, although some of the funding for this work has been identified in [Waitakere City’s] 2009-2019 long term council community plan (“LTCCP”).
c)The construction of the road marked A 16 and the storm water ponds marked 2 and 3 on the plan at Schedule 2, which will be the subject of a separate agreement between [Waitakere City] and the affected landowners (including [Cannuck]). …
d)The construction of the roads marked R2a, R2b, R8b, and the portion of the road marked R8a1 coloured yellow on the plan attached at Schedule 2.
e)The provision of adequate water supply capacity and wastewater services to the boundary of the [Cannuck] land.
f)The design (in consultation with NZRPG) and the construction of the town square and a library fronting the town square.
g)The acquisition of the land coloured green and described as “Indicative Ecological and Urban Open Space (“open space”) on the [MNUCP] … .
h)The construction of the storm water ponds marked 1 and 4 on the plan at Schedule 2.
5. [Waitakere City] will use its best endeavours to ensure that:
a)the work described in clauses 4(a) – (e) inclusive is completed prior to 30 June 2012 or such later date as the parties may agree;
b)the work described in clause 4(f) is completed contemporaneously with the development of buildings in [Zone 5];
c)the actions described in clause 4(g) and the work described in clause 4(h) is completed as soon as practicable after 30 June 2012.
6. [Cannuck] acknowledges that:
a)[Waitakere City’s] ability to undertake the work in clause 4(a) will require the approval of the [Waka Kotahi] because [Fred Taylor Drive] is presently part of the state highway network.
b)[Waitakere City’s] ability to complete the work described in clauses 4(b), (c) and (d) is dependent upon [Waitakere City] concluding agreements with the relevant land owners to acquire the land for the stated purposes and undertaking the works. [Waitakere City] will use its best endeavours to conclude agreements with land owners with a minimum of delay, using its powers under the Public Works Act 1981. Where it is appropriate and lawful for the Council to do so.
c)[Waitakere City] will be recovering all or part of the costs of the work referred to in clause 4 (including land purchase costs) and the cost of the work described in clause [16(a)] by way of development contributions either on a citywide or a local catchments basis, in accordance with [Waitakere City’s] development contributions policy.
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ANNEX 7: ASSET SET B PLAN ATTACHED TO WAITAKERE CITY RESOLUTION 698/2009 AND SET OUT AT SCHEDULE 2 OF THE IFA
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