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Auckland Council v Wendco (NZ) Limited [2016] NZSCTrans 19; [2016] NZSC Trans 19 (8 November 2016)

Last Updated: 11 January 2017

IN THE SUPREME COURT OF NEW ZEALAND SC 14/2016


BETWEEN
AUCKLAND COUNCIL

Appellant

AND

WENDCO (NZ) LIMITED

First Respondent

WIRI LICENSING TRUST

Second Respondent

Hearing:
8 November 2016

Coram:

William Young J Glazebrook J Arnold J O’Regan J
Ellen France J

Appearances:

W S Loutit and C J Brown for the Appellant

R J Hollyman and T P Mullins for the

First Respondent

G J Kohler QC and K T Glover for the

Second Respondent

CIVIL APPEAL

MR LOUTIT:

May it please the Court, Loutit and Mr Brown for the appellant Council.

WILLIAM YOUNG J:

Thank you, Mr Loutit.

MR HOLLYMAN:

May it please the Court, Hollyman with Mr Mullins for the first respondent.

WILLIAM YOUNG J:

Thank you, Mr Hollyman. Mr Loutit. I’m sorry, Mr Kohler.

MR KOHLER QC:

If Your Honours please, Kohler and Glover for the second respondent.

WILLIAM YOUNG J:

I couldn’t wait to get on with it.

MR KOHLER QC:

I can see that, Sir, very encouraging.

MR LOUTIT:

Thank you, Your Honour. With your leave, I have prepared some brief notes which are a road map of the argument I wish to present to you. They are a summary. I do understand my friends don’t have any objection to me handing these up to you and it will assist, I hope, for you to understand the case for the Council.

Thank you. So what I’d like to do if I may is firstly just summarise what I see as the key issue and then the Council’s position on the key issue, and then if I may give you a little bit of context about the application that’s before you and then, as I say, it really comes down to two issues, the first of which is an interpretation of the notification provision, 95E in the Act, and the second

issue is in relation to the interpretation of the district plan, and that would be

the structure I’d like to follow today, if I may.

So in terms of the narrow issue before you on appeal, it is my submission that it is summarised in my paragraph 1 there which in essence is that the matter that is of concern to the parties is whether certain onsite effects in relation to vehicle flows and parking should, as a matter of law, be taken into account when the Council decided who were affected persons in relation to this particular application.

That issue is obviously quite narrow and the answer to that, in my submission, paragraph 2 of my notes, boils down to two issues, the first of which is the interpretation of the words “relate to” in section 95E(2) of the Resource Management Act 1991 and the second relates to the interpretation of the district plan and its particular provisions.

In relation to the first issue, the interpretation of section 95E, that is an important issue from the Council’s perspective, but I want to make this point now that it’s a nationally important issue because potentially if the Court of Appeal decision stands the narrow interpretation that was intended by Parliament in relation to this provision will be extended beyond what was originally intended and will mean that in certain circumstances when we’re dealing with restricted discretionary activity consents, effects that were not intended to be had regard to by Parliament potentially can be, and so that’s of quite significance to the Council.

The second issue is in relation to particular interpretation of the district plan. That district plan is soon to be replaced by the Unitary Plan and so it is not of much import at a national level or even a district level as the first issue but obviously important in the context of this case.

So going to note 5, in relation to the first issue, the Court of Appeal, in my submission, held that vehicle flow and parking effects on Wendy’s itself did qualify to be considered, and if I could turn you to the judgment itself, which is

in the case on appeal, volume A, Key Documents, and it’s at tab 8, and the two particular paragraphs I wish to draw your attention to, just to set this issue up, paragraphs 52 and 54 on page 68 of the Case on Appeal, and in relation to paragraph 52 Justice Fogarty from the Court of Appeal said, “The record of the Council demonstrates that no one asked the relevant question, which is whether the site circulation and parking detail might cause an adverse effect on the business of Wendy’s. Plainly, the Council staff knew that the new two-way thoroughfare crossed into part Wendy’s title: the boundary of Wendy’s land is shown on the plan of the site, and the inbound traffic arrow is shown on the inside boundary.” And, in my submission, the fundamental misunderstanding of the way in which the Act and the district plan worked is in that first sentence of paragraph 52, because the essence of the Council’s case is that that is not the fundamental question. The fundamental question was constrained by the law, by section 95E, and was also constrained by the district plan, and so that’s the heart of the Council’s case in a summary form, that in essence the Act and the district plan excluded consideration of the adverse effects on Wendy’s. So that’s the essence of the first issue.

The way in which, just again to summarise, and I’ll go into this in more detail in a moment, but the way in which the Court of Appeal got there on the law was to use the particular words of section 95E, “relate to”, and it basically said any effect that relates to the matter of discretion is relevant, and the whole intent of restricted discretionary activities is exactly the opposite. It is to restrict consideration to just certain effects and the statute is clear, and I’ll develop this argument further but I just wanted to summarise the fundamental of the argument.

The Court of Appeal took a very expansive approach of those words “relate to” and in that aspect it misguided itself, in paragraph 52, as to what were the relevant effects to be taken into account. The Act and the district plan expressly excluded the effects on Wendy’s in terms of internal traffic and carparking and manoeuvring issues.

The case I will develop before you is that the Act in particular is very, it is very constraining. It delimits when we are dealing with restricted discretionary activities the effects to be considered and it’s very deliberate in that and you can’t use the words “relate to” to bring in a whole lot of other effects that are incidental to the particular activity in question.

The second point is a much more narrow point, as I’ve already said, which relates to the interpretation of the district plan. The particular findings again which are of interest are paragraphs 15 and 16 of the judgment where in fact in this context I say the Court of Appeal got it right. It interpreted the district plan correctly, it interpreted it in a way that said the only issues that this district plan is interested in are internal effects as they relate to the primary road network. They are not interested in internal effects per se, the district plan has carefully been crafted to exclude consideration of those external effects except if they would have an impact on the primary road network and so at paragraph 15 and 16 the Court of Appeal got that right.

My friend says you need to, and I’ll again develop this, but this is just this summary, my friend says that the criteria and the matters of discretion in the district plan broaden that analysis out and enable us to look at any effect on Wendy’s in terms of those parking and traffic issues, internal parking and traffic issues and I say the plan is clear and that is not the case.

The other issue that my friend raises is one of an assessment criteria 8.25 which is in another part of the district plan and I say is of no relevance in the context of this particular application at all and again I say the Court of Appeal got that right and that is in paragraph 21 of the judgment where we agree with respondents that rule 8.25 was not relevant because 8.23 which is the rule that would have otherwise engaged it was not engaged in this, consent was not required under that particular rule. So that’s the summary of where I want to head.

Before I go into the details of those arguments I thought it might be useful for you to have a little bit of context of what it is we are dealing with in terms of

this application and probably the easiest way to do that is just to show you a plan and the one I chose, of which there are many in the different documents before you but I chose one from volume C, part 2 which is a sort of combination of, I suppose that’s orange, at page 634, which hopefully is a foldout plan. Now if I could just briefly talk to that. At the top, well the north point or at the top of the page you'll see the first of the accessways, that was originally in and out but the proposal after the Council questioned it became just exit only. Just slightly below that you'll see the new proposal for the Carl’s Junior in a grey, sorry in a brown colour in my colouring. Then there was also some retail associated with this new development and that is that slither of building down on the western side of the site. The next access point is sort of half way down what we see of Great South Road and that was an entry and exit and then you'll see the Wendy’s and that’s already an existing facility and then you'll see the Bank of New Zealand.

WILLIAM YOUNG J:

Well what's actually happened in terms of what's there now?

MR LOUTIT:

So what's there now, the internal traffic arrangement that you see in particular in relation to the in and out, the middle accessway has been reconfigured and originally – I might be able to find a plan that might show the existing carpark layout but for the purposes of where I want to go, there were some changes to that internal parking layout. There was a berm that almost protected the Wendy’s area from any traffic in terms of the service station that was previously there, that’s been removed and there's been a reconfiguration of car parking and the like.

WILLIAM YOUNG J:

So as built?

MR LOUTIT:

So this is as proposed and as built.

WILLIAM YOUNG J:

Yes but what about as built, what's the current position?

MR LOUTIT:

I think this is the current position as I understand it Sir.

O’REGAN J:

So the consent has been implemented and everything’s finished?

MR LOUTIT:

Absolutely.

ELLEN FRANCE J:

So Carl’s is built?

MR LOUTIT:

Yes.

WILLIAM YOUNG J:

So what it’s in issue now, apart from costs?

MR LOUTIT:

The matter, if you look at the relief that was granted in the Court of Appeal, there was, if I am unsuccessful today, the matter goes back to the Council to reconsider just how the parking layout is physically there in terms of the interface between Carl’s Junior and Wendy’s. So that my friend would seek that that be revisited by the Council and that some perhaps different lines be painted on the carpark or different berms be put in place or carparks be moved or whatever the outcome of that might be. That’s as I understand what's being sought.

WILLIAM YOUNG J:

So just how did it work? So after the consent was granted in the High Court proceedings, was the development completed?

MR LOUTIT:

Yes, I mean it was, I haven't got the timeline. I have got the timeline but I

haven't got it in my head exactly.

WILLIAM YOUNG J:

I don’t think it was referred to in the chronology. Oh yes it does,

December 2014.

MR LOUTIT:

So throughout the course of us litigating this matter, it has been built and completed and is operational.

WILLIAM YOUNG J:

And were there undertakings in lieu of sort of a stay or injunctions or –

MR LOUTIT:

That’s right there was an injunction sought but it was declined in the High Court. So the applicant went ahead and built the facility and why I wanted to go –

WILLIAM YOUNG J:

So if you lose the case you may have to reconfigure the parking and circulation?

MR LOUTIT:

That’s right or the applicant may have to do that after the Council has reconsidered and I the reason I wanted to make the context clear and I’ve got this in my notes over the page, is that –

GLAZEBROOK J:

Where’s the in? You said they were both in and out.

MR LOUTIT:

No the northern one is out only.

GLAZEBROOK J:

Oh so the middle one is in and out, it’s just got “out” on it, that’s all.

MR LOUTIT:

Yes, yes. The reason I wanted to make the context clear was, and perhaps the reason that the injunction failed, was that the buildings and the activity were permitted, you know, the activity was something that could go there as of right, so there was always going to be a fast food joint there of some type because it was a permitted activity.

ELLEN FRANCE J:

Just so I’m clear, if you look at volume D of the case on appeal, so that’s the small one and the photographs that you’ve got there, they don’t have page numbers but if you go about three in, that one there, is that showing that middle access point and the in and out?

MR LOUTIT:

Yes it is, yes it is, yes. So you can see there on that photograph the existing Wendy’s and you can see the carparking arrangement and the arrows on the road showing the exit and the entry.

ARNOLD J:

And just to sort of complete this, is the best photo or picture of the old layout the one in part 5 at 988 or is there a better one?

MR LOUTIT:

Yes, yes that’s a good demonstration of –

WILLIAM YOUNG J:

Sorry, what page is this?

ARNOLD J:

988. It’s in volume C, part 5.

MR LOUTIT:

So, and focusing in on that again, that’s an excellent photograph, thank you, Sir, you can see that the axis that’s the in and out in the middle of the site, in this, is at an angle and it comes into the service station.

GLAZEBROOK J:

That’s the berm there, is it?

MR LOUTIT:

Yes, that’s the berm I was talking about, the grass berm, that... So that’s an

excellent before and after of what we have there now.

ELLEN FRANCE J:

So the two points of access of Ronwood Avenue, they haven’t changed?

MR LOUTIT:

No. And the – my argument is that the district plan is only interested –

ELLEN FRANCE J:

In the other.

MR LOUTIT:

– in the axis that is on the primary network. It’s not interested, and I’ll develop this further, it’s not interested in those local roads.

And at paragraph 15 in my notes, I think what explains why we’re down to just the layout of the carpark is the fact that the activity for takeaway food premises was a permitted activity. The building itself, or the building themselves, complied with all of the bulk, height and location controls of the district plan. There were some controlled activity matters required in relation to design and controlled activity – I don’t know whether – how much you remember of the Resource Management Act but controlled activities, permitted. You don’t have to get consent. Controlled activities have to be granted, and so it’s really just a tinkering with the design. So it was inevitable

in this context that there was going to be this type of activity, so it really just boiled down to these two access ways.

WILLIAM YOUNG J:

But how significant is the access dispute? I mean how hard is it for Carl’s Junior to or for the Trust perhaps to reconfigure the parking arrangements and circulation arrangements in a way that complies with its obligations under the plan?

MR LOUTIT:

Well, my argument is that there are no obligations in that regard and I’ll

obviously develop that further with you.

WILLIAM YOUNG J:

Right. But it must have obligations to provide parking, for instance?

MR LOUTIT:

Absolutely, Sir, and this application, as it was put to the Council, complied, and this is an important point for when we get to the district plan, complied with all of those requirements around numbers of carparks, dimensions of the carparks, the turning circles for the carparks, all of the different rules that control those internal carpark matters, so there was no consent required in regard to those matters.

WILLIAM YOUNG J:

But if the Trust was required to meet Wendy’s complaints, would it still be able

to comply with its obligations under the plan?

MR LOUTIT:

Yes. There would be a way in which to comply with the different requirements of the district plan and the traffic engineers and the Council would need to get together and work that out, but I can’t see any fundamental –

ARNOLD J:

Just while we’re on this, something that slightly puzzles me, the point is made that Wendy’s has a resource consent and it has, you know, if you look at the consent, there’s a plan and a layout and all the rest of it. What’s the impact of what the Council does on that, on Wendy’s resource consent? Does it...

MR LOUTIT:

We argued this at the lower Courts. I’m not sure it’s a matter that’s been drawn to this Court’s attention. But my submission on this is that in essence when you implement a resource consent it becomes the physical environment that’s physically there, and then subsequent resource consents can come along and change that if required, and so my friend in the lower Courts argued, well, there’s compliance issues with our resource consent, and the Council’s response to that was no there isn't, you became part, the physical environment was there and someone can subsequently come along and seek resource consent to change that. There are of course issues around who owns the property and those sorts of issues because whilst you can a resource consent for anyone’s property, you have property matters that you would need to clear off to actually be able to implement that part of the consent. That didn’t arise in this context. Wendy’s could do what they needed to do through this resource consent because it was on the land that they leased.

WILLIAM YOUNG J:

So the implementation of the resource consent doesn’t result in Wendy’s

being outside the terms of their own resource consent?

MR LOUTIT:

In my submission no, my friend may take a different view of this but no and certainly it’s not something the Council would seek to enforce for the reasons I’ve just outlined to you. Of course the Council is the enforcement agency in this context.

So that probably turns me, as I said, to the two issues that I think are the pivotal matters in resolving this matter before you. The first is the interpretation of section 95(e)(ii)(b) and this term “relate to” that the Court of Appeal placed so much emphasis on in terms of broadening the matters that the Council could take into account. My submission is that throughout the Court of Appeal’s judgment there is a broadening and an improper interpretation that those words relate to and I thought it might be assistance to you and I put them in the notes, the three provisions in the Resource Management Act that might be of assistance to you in resolving this because I think it almost can be resolved by straight statutory interpretation. The first of which the 87A(3)(a) and that section sets up what is a restricted discretionary activity. So it defines it for us so that we all understand what that means and in relation to restricted discretionary activities, it clearly says that the Council has the power to decline a consent or grant it and to impose conditions on the consent but only in relation to matters that it’s restricted its discretion over in the district plan.

So in this context I say to you that this Council and this district plan, which of course went through a public process, restricted its discretion in this context to only internal effects that relate to the primary road network.

The next section which is the grant or refuse. So if you're looking at a restricted discretionary activity what can you – what do you take into account, what can't you take into account and again what I foresee is clear, when concerning an application for resource consent for a restricted discretionary activity a consent authority must consider only those matters over which it has restricted the exercise of its discretion. And so again I say in this context the Council was only able to control and grant consent and impose conditions in relation to the rule that was before it and that was a rule that only allowed it to deal with matters of internal circulation as it affected the primary road network.

But in the notification provisions in the Act, and this is where the words that the Court of Appeal focussed in and came from. In that regard it says, “It must disregard an adverse effect on the activity on the person that does not

relate to a matter for which the rule or national environment standard or restricts discretion.” So I say to you when you read those three provisions in totality, those words “relate to” must be properly and narrowly interpreted to just those matters that discretion has been reserved to. The words “relate to” can't be used to broaden out and take into account the incidental effect such as those on Wendy’s in terms of internal parking and parking and manoeuvring. It’s a package and it has to be read together and, in my submission, the Court of Appeal departed from, with respect to that judgment, departed from the clear intent of Parliament. And on a very practical level this needs to be seen as a package because there would be little point notifying something on the basis of these related effects when quite clearly under 104C when you grant it you can’t consider those effects. So it would create false hope, and there’s a couple of authorities. I don’t think I need authority for this proposition because it seems quite self-evident, but the decision of Bayley v Manukau City Council [1999] 1 NZLR 568 (CA), [1998] NZRMA 513 in the Court of Appeal and the subsequent decision of Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 in relation to the ports both confirmed this, that there would be little point notifying something on the basis of effects that can never be dealt with when you go to grant the consent.

And it’s almost that simple but because I do think it’s as clear as that in terms of the statute so I do think that the Court of Appeal misinterpreted those words “relate to”, allowed a consideration of effects on Wendy’s that had nothing to do with the primary road network. In some ways intuitively that always feels right. They are neighbours. Why shouldn’t you take those effects into account? But the district plan was clear in this context that it was only those effects as they relate to the primary road network.

But just to, I suppose, I’m at paragraph 21 of my notes, in terms of why my interpretation and why my argument before you I think should be the one to be preferred, I’ve got a number of reasons for that in addition to just the clear statutory interpretation, now the first of which is I think the consequence of this decision and actually why I’m here in the unusual position of Council being the

appellant is because it will lead potentially to many more cases being notified, because those words “relate to” that Justice Fogarty interpreted to broaden the inquiry out to anything incidental will mean that the Council will have to apply that and will have to cast its mind to whatever those incidental effects are and decide whether they are also less than minor and therefore, if they’re not, that would lead to notification.

That is clearly contrary, first of all, to the intention of the 2009 amendments to the Act which took away the presumption in favour of notification and tried to streamline the Act and all of these provisions were brought in at this time to make it very clear that if the district plan restricts its discretion to certain effects then that’s it, that’s the end of the matter. You cannot broaden your inquiry out.

The second bullet point from a council’s perspective and a practical level is that this “relate to” and any incidental effects is going to be very uncertain for it in terms of processing consents for the future, because how does it know where the bookends are? How does it know how far you have to go in relation to these incidental effects? How do we understand what that means at a practical level on a day-to-day operation of trying to process, you know, the some 12,000 resource consents that this Council focuses, well, processes a year?

The next point is the third bullet point. It allows effects to be considered that the district plan particularly excludes. So if you take Justice Fogarty’s judgment to its nth degree, it does undermine the district plan, which has gone through a public process and allows, despite the plan saying we cannot take these effects into account, it says, well, despite that you have to actually try and do an analysis of some incidental or “related to” effects. Again, where does the line stop? Where are the bookends of that analysis?

And then, finally, my fourth bullet point was in relation to a particular comment of Justice Fogarty in the Court of Appeal where at paragraph 41 he seemed to think that there was – well, I’ll read it. “The respondents’ construction falls

away once effect is given to the phrase ‘on the person’ as it appears in 95E. If the respondents were right there would never be any consideration by the Council of effects on any person except the public generally as road users, as distinct from effects on the operation of the primary road. The relevant link is that the adverse effects on the person must relate to a matter for which a rule or national environmental standard reserves control of discretion. That is why there is an injunction in 95E(2)(b) that requires the Council to disregard an adverse that does not so relate. This reasoning can be compared with the submission to this Court by the first respondent.” And the point that Justice Fogarty appeared to make here was that he seemed to struggle with the concept that in some cases there would not be an actual person, a person that you could identify that was affected by resource consent and my submission to you is that that’s exactly the intention of this, in this context what we are worried about is the road user. You can't identify any particular person in that regard but the purpose of the rule is to protect the road users on the primary network.

WILLIAM YOUNG J:

So who does address the interests of the road users? The City Council?

MR LOUTIT:

Yes and traffic engineers can analyse these matters to the nth degree and that was what happened in this case, there were extensive traffic analysis from both the applicant and the Council in terms of whether or not this layout would cause congestion on that primary road network. But I don’t think they're at the heart of this. I think in my submission the heart of this is actually just the three sections in the Act which on the face are quite clear in my submission and you can't broaden and use those words “relate to” to take the analysis beyond what is clearly articulated in the district plan in terms of restriction of discretion and so that’s the essence of my argument in relation to that first statutory interpretation point.

So then we get to the issue of where I do agree with the Court of Appeal in term of their interpretation in the district plan and I make the point at note 22

that my friend hasn’t spent a lot of time on the first argument that I’ve just presented to you in his written submissions. His focus is actually on this very point around the interpretation of the district plan and in order to get an understanding of what the district plan means, my submission to you is that you need to start with the rule that requires consent in the first place and I think it might be of assistance if we could use the – and turn to those particular provisions and included in our appellant’s bundle of authorities, tab 9.

WILLIAM YOUNG J:

But there isn't an 8.10.3 is there?

MR LOUTIT:

Yes, yes, well I hope there is.

O’REGAN J:

Page 24.

MR LOUTIT:

24 and 25.

WILLIAM YOUNG J:

Oh see sorry I was looking for the heading sorry, 25.

MR LOUTIT:

And there's a table there. And you'll see the top one which is, “ny non-residential activity” which we clearly have here, “that results in the construction or modification of vehicle access points or parking areas serving these access points onto the primary road network or within 50 metres of the protected road boundary of the intersection onto the urban primary road network and just to make it clear, there's no dispute that Great South Road is the primary road network, it’s a major arterial in the ex-Manukau City.

The short point on this argument is essentially that you can't then use the matters for discretion in the assessment criteria to broaden out from the rule that’s requiring the consent in the first place.

WILLIAM YOUNG J:

Sorry I’m sort of just tracking this down. What are the tables I should look at?

What's the particular reference?

GLAZEBROOK J:

Page 25, it’s the first one there.

WILLIAM YOUNG J:

Right “Property Access and Egress”?

GLAZEBROOK J:

Yes and then it’s the first box in that table in the middle of the page.

MR LOUTIT:

So that starts with any non-residential activity that – we’ll just make sure we’re all in the same place. And while we’re on that table, one of the arguments that I’ll develop with you is that if you go down one, two, three, the fourth box or the fifth box, you'll see there that this is the counter of that, that if you're not a primary road network and you want to do what we’re talking about, it’s a permitted activity and I’ll get to the import of that in just a moment but I thought first let’s go through the provisions. So that in my submission to you is the starting point. The rule defines what we’re looking at and this is the reason why we have to get consent in the particular context.

If you then turn over to page 36, and you'll see a heading at the bottom “Activity requiring restricted discretionary consent to access the primary road network.” So these are the provisions that relate to that rule and you'll see there, “Council reserves its discretion over the following matters” and there's cross-reference there back to 8.10.3 (b) where I just took you.

WILLIAM YOUNG J:

Sorry I’ve lost you again.

MR LOUTIT:

Oh sorry Sir I’m going too fast, 36, sorry. And if you go to the top of the next page, there are some matters that if you looked at this in isolation could be taken to be broadening out the enquiry to all circulation and all car parking and all pedestrian access and all the matters that might be relevant and that’s essentially my friend’s argument that these matters for discretion, so these are the matters that are restricted, are so broad that the effects on Wendy’s in terms of internal circulation can be taken into account in relation to these matters of discretion. The difference between us, as I say that you need to read these matters for discretion in the context of the rule that required consent in the first place which was only in relation to accessways.

ARNOLD J:

Well you look at (iii) in that list and it talks about pedestrian and passenger transport access, is that to a site? For example in (i) it says, “Access to a site, (ii) Access to a site”, do we read those words into (iii)?

MR LOUTIT:

Yes I think you probably do, because of course it’s not the next door site that’s being looked at and when you're applying for resource consent it’s the site itself, the subject of the application in terms of these matters but that’s not the point. I mean I think that is a relevant point but it’s not the point I’m trying to make.

ARNOLD J:

Well the interesting thing then is you have, “Site layout as it relates to pedestrian and passenger transport access to a site, car parking, loading areas and internal circulation”, so you read a qualification into those to the effect that as long as they have an impact, if they have an impact on access to a site.

MR LOUTIT:

On the primary network, primary road network, because we go back to that rule.

ARNOLD J:

Primary road network, yes.

MR LOUTIT:

Yes, so you need to read that in that context of the rule that requires consent in the first place and I’ll turn you in a moment to where the rules are that govern the control of the internal issues that my friend is worrying about because there's another set of rules that do that which I think can give you comfort that the district plan doesn’t forget those effects, they are absolutely relevant and it has a whole lot of rules that control them and that’s that 8.23 and 8.25 but I’ll get to that part of it just in a moment.

But in terms of the reservation of discretion, I say it’s very clear that in the context of the district plan you start I the rule and that rule is only focused in on the primary road network, and you need to read everything else in that context.

GLAZEBROOK J:

And what you’d say, presumably, is if the Council started to try and put conditions on a consent that didn’t have anything to do with the primary road network on the basis that, of the one to five, the person, the consent applicant, could quite rightly complain about that.

MR LOUTIT:

Absolutely. In fact, we’d be taking into account in a relevant matter and we

would be subject to a challenge from the other side.

WILLIAM YOUNG J:

So if you put in, Council put in a requirement for wheelchair access to, used this rule to put in requirements for wheelchair access to shops, which no doubt is provided for elsewhere.

MR LOUTIT:

So in the context of this rule, that would be unlawful, but there are rules that control that elsewhere in the district plan. They’re not – I’m not saying there’s a gap here. There are just – there are other rules at 8.23 which we’ll get to in

8.25 that control the number of carparks, the pedestrian access, the dimensions of all of – you know, all those things that you would ordinarily expect a district plan to look at. This rule is focused just on that primary network, and that’s –

ELLEN FRANCE J:

Where do – I was just going to ask where do you draw the line in the sense of, say, egress into from the primary road if you’ve got a lot of obstruction from the site you’re going into, so this is part of, say, Mr Williams’ argument for Wendy’s that you end up with a whole lot of queuing.

MR LOUTIT:

Yes.

ELLEN FRANCE J:

If that then affects people coming in off Great South Road, is that something

that’s within the rule?

MR LOUTIT:

100 per cent. So –

WILLIAM YOUNG J:

But it’s not an effect on Wendy’s?

MR LOUTIT:

Correct. It’s an effect on the primary road network. What...

ELLEN FRANCE J:

Yes, I understand that. I’m just trying to see the interrelationship between the

two because Mr Williams, I think –

MR LOUTIT:

I understand that.

ELLEN FRANCE J:

– is, it’s one of the criticisms he makes is that there isn’t sufficient

consideration given to that impact.

MR LOUTIT:

I understand that’s – and if I have to take you there, I have to go through the reports and show you that, in fact, there was sufficient regard had on that particular issue.

ELLEN FRANCE J:

Yes, I’m thinking about it more in terms of what you say needs to be taken into

account.

MR LOUTIT:

So in terms of what needs to be taken into account, I readily agree, the whole purpose of this, as a result of there being internal traffic issues that cause queuing onto the primary road network, that would be a relevant matter, 100 per cent, but that is different from an effect on Wendy’s per se, which is where my friend wants to take you and say all effects on Wendy’s are relevant in this context.

ARNOLD J:

Well, if it is relevant, as you accept, that traffic coming onto this thing is a

proper consideration, doesn’t that mean that then one would talk to the people

who are causing the traffic, in other words Wendy’s or whoever it is that is the enterprise doing business that is affecting the traffic flow? Why wouldn’t you notify them and talk to them about the traffic flows?

MR LOUTIT:

So the way in which the Council processed this application was it said, “We’ve done that analysis. We don’t think there is any impact on the primary road network and therefore that is the end of the matter. We do not therefore need to go and talk to Wendy’s.”

WILLIAM YOUNG J:

But it’s essentially because the Council says it’s not an effect on W endy’s. Wendy’s is only entitled to be consulted on something that has an adverse impact on it, not because it has some information to provide as to a matter which is relevant beyond the table for the Council.

MR LOUTIT:

That’s right, and then I say in this context those effects have been deliberately excluded from consideration by the district plan.

WILLIAM YOUNG J:

So its ability to contribute to the –

ARNOLD J:

So that seems to me, Justice Young’s proposition seems to me that it’s a slightly odd one, with respect, that if the business has relevant information you’ve got no obligation to talk to them about it or to notify them about it. You can make your own assessment based on whatever information you have.

MR LOUTIT:

So remember, before I answer the question directly, I just want to remember back to the 2009 amendments which were to streamline these processes and these provisions that I took you through earlier were very deliberate in doing

that, in the sense that they enabled Councils to restrict itself to look at only certain effects.

ARNOLD J:

Yes I understand that but we’re just talking about accessing relevant

information, information that the Council accepts is relevant.

MR LOUTIT:

Yes Sir and so the, and again if I need to give you some comfort in this, I can actually go through the documentation that the Council had before it that is in the volumes of material before you and that might take me a little bit of time to do.

WILLIAM YOUNG J:

Can I just put, it would be open to Wendy’s to – if it were of the view that the decision as to absence of impact of primary road network was wrong, it could challenge the resource consent on that basis, it might have quite a high hurdle, it might have to show it was unreasonable.

MR LOUTIT:

Unreasonable in a –

WILLIAM YOUNG J:

But it could engage directly with that conclusion and –

MR LOUTIT:

And that isn't something that was pleaded, so we aren’t dealing with the traditional that the decision was so unreasonable that no local authority could have done it. There was, in my submission, extensive evidence before that from qualified traffic engineers both from the applicant and the Council’s independent officers that looked at it and said, “We’re satisfied that the primary road network is not affected” and it’s a function of the fact that that’s a busy and what we’re talking about in terms of traffic demand and generation is quite miniscule in that context. That’s the essence of where the officers got to

but my friend wants to take you to the next step and say that the district plan enables the consideration of effects on Wendy’s itself and I say that’s not the case and to give you comfort because intuitively I understand where you're coming from, it seems wrong, it doesn’t mean that those internal effects are not taken care of. They are taken care of in the district plan, it’s just that and I’ll take you there in a moment but the broad point is that there are a whole lot of requirements around numbers of carparks, how the turning circles work, you know, all those different dimensional requirements. They're somewhere else in the plan at 8.23 and on and none of them were engaged because this application complied with them, so there was no consent –

ARNOLD J:

Yes well I understand that, I mean for the moment I’m not particularly interested in the impact on Wendy’s, I’m more interested in the way in which the Council gets its information about traffic generation from Wendy’s and all that sort of thing and you say, as I understand it, well it can do all of that without having to talk to Wendy’s about it.

WILLIAM YOUNG J:

Without having to notify them under the Resource Management Act.

MR LOUTIT:

So the way in which they do that are there are traffic surveys and counts and qualified traffic engineers and again if you want me to take to where all that information is in the bundle.

ARNOLD J:

No, no I mean I think I do understand it I’m just looking at a point of principle

really.

MR LOUTIT:

Yes.

ARNOLD J:

It just seemed to be slightly odd that one would’ve thought that the business that’s generating the traffic that is having a potential affect would be the local person to speak to.

MR LOUTIT:

And I think that’s in essence why I’ve struggled to convey my point of view at the lowers Courts because I think intuitively everyone says exactly that and we’ve got almost a mindset of pre-2019, you know, presumption in favour of notification, the decision of this Court in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 but we’re in a different world now and the Act and I’m going to repeat myself now, it does make it quite clear you can restrict yourself to certain effects and that’s what's happened here and that district plan has gone through a public process, it has gone through.

ELLEN FRANCE J:

But here you accept that if it causes queuing on the primary road network that is relevant.

MR LOUTIT:

Yes.

ELLEN FRANCE J:

But in order to reach that decision you don’t go beyond your own internal

enquiries.

MR LOUTIT:

That’s correct.

WILLIAM YOUNG J:

Well you can.

MR LOUTIT:

Well yes absolutely, it doesn’t preclude this but the Council obviously in this context felt that it had more than enough information to make that decision and again my friend’s not challenging in his statement of claim that the normal reasonableness, you know, traditional review reasonableness, it’s not a decision that is so unreasonable that the local authority could not have made it. It had sufficient information before it.

O’REGAN J:

So do you say that it could have notified Wendy’s?

MR LOUTIT:

Yes.

O’REGAN J:

Or would that have exposed it to a judicial review application by the applicant

saying you shouldn’t have?

MR LOUTIT:

Potentially and that has happened.

WILLIAM YOUNG J:

But it didn’t have to notify, it could have gone to Wendy’s and just informally

and said, “We’re considering this, what do you reckon about it?”

MR LOUTIT:

It could have done that.

WILLIAM YOUNG J:

So I think you have to be careful whether it’s statutory notification or just

consulting with someone.

MR LOUTIT:

And remember there are two forms of notification in this context, there's public notification which is to everyone and then there's limited notification to people

and there's no allegation that it should’ve been publicly notified. This is all about limited notification and that’s why I’ve taken you just to those particular provisions.

O’REGAN J:

So you're saying that Council has a choice about notifying, it can notify someone even though it says this is an activity which our discretion is restricted, it only relates to the primary road but we will ask someone who happens to have a restaurant near the primary road to see what they think about the traffic.

WILLIAM YOUNG J:

That’s not notification is it?

GLAZEBROOK J:

That’s gathering information.

WILLIAM YOUNG J:

That’s gathering information. Consultation.

GLAZEBROOK J:

Well it mightn’t even be consultation, it might be gathering information because you might want to know how many customers they have at certain times in order to get your information for the traffic engineers because if they're only there at night or only there at certain times that might have major relevance in terms of the primary road, I don’t know.

MR LOUTIT:

Although that would be revealed by just simple traffic surveys which see the ins and outs in terms of traffic demand but a couple of answers to that, if using this fact scenario the Council had decided to notify on the basis of effects on Wendy’s, that would’ve been reviewable error in my submission because the plan had restricted its discretion only to those matters relating to the primary road network and that isn't an effect.

O’REGAN J:

So you're saying it didn’t have a choice in fact?

MR LOUTIT:

The only choice is in relation to special circumstances which is an exception that applies and again I don’t think you’re pleading – no, because there's some interesting statutory interpretation matters around that particular provision which are yet to be heard properly by a Court but there's no pleading in relation to special circumstances and their allegation that it should’ve been notified on that basis and it’s obviously not relevant in this context but there is that exception, that failsafe if in a particular, well this is an unusual situation we should be notifying, there is that provision potentially in the Act that allows notification to occur but not in this case.

So just to finish, I think I’m nearly there, just so you can see the other side of the ledger which is the effects on the car parking, if you could turn to page 49 of the district plan, which again is just in that tab 8, you'll see there the types of things that I’ve been talking, around parking and vehicle circulation rules and this is where you find the provisions around number of carparks and allocation of space, fractional spaces, joint parking areas, all those different matters and there's some assessment criteria as you work through those. I’m not going to take you through them in any detail but you can go through and look at those and then my friend particularly relies on 8.25 at page 61 and he says based on that provision because it does refer to access, he says that these matters for discretion broaden out the enquiry to effects on Wendy’s. My response to that is that these provisions and these matters for discretion are just simply not relevant, they're not engaged by this application because those matters for discretion relate to these latter rules at 8.23 and 8.24 and they're in a different part of the district plan, they're there for –

ARNOLD J:

But wouldn’t the, this process of approving the redevelopment and so on, and the entrances and exits, wouldn’t the Council have to have in mind its requirements for the internal layout, internal parking and all that sort of thing?

MR LOUTIT:

Yes. So that’s – absolutely. So what it does is go through and say, well, are there enough carparks? Is the circulation appropriate in that context? Are the carparks the right size? Are there disabled carparks? And this is where all these rules kick in. In this case, because the applicant hadn’t complied with all of those rules, these provisions were not engaged, and again I come back to that, you start with the rule, the thing that requires consent in the first place. Not the assessment criteria and not the matters for control. You always start with the rule, and all of the rules in relation to all those matters that would have affected Wendy’s were complied with, and so I say that’s the end of the matter. These are just not engaged in this context.

ELLEN FRANCE J:

So why does some of the documentation look at rule 8.25? Is that just a

question of timing or...

MR LOUTIT:

That’s a very good question. I think the officers tend to, particularly when you’re dealing with specialists like traffic engineers, tend to just throw a whole lot of things in a basket and say, “Well, we’re assessing everything,” and, of course, they would’ve had to have assessed the application against these, all these different requirements. The reporting perhaps should not have even referred to 8.25 because it wasn’t engaged, in my submission, but it did, but I don’t see any great moment in that, because the matters for consent were clearly articulated in the report and at the beginning. And there was no requirement to engage any of these rules because they were complied with.

O’REGAN J:

So can you just explain to me again why 8.25 isn’t engaged? Are you saying

because 8.23 frames what can be dealt with under 8.25?

MR LOUTIT:

Yes. You always start with the rule that’s requiring consent. So in relation to the primary network, that’s another rule, and then you read the subsequent provisions in that context. This –

O’REGAN J:

Right, but the 8.23 rules cross-refers to 8.24 but not to 8.25, doesn’t it?

GLAZEBROOK J:

Or do you say it’s just a permitted activity because it’s an activity which

constructs, modifies or utilises parking in compliance with rule 8.24?

MR LOUTIT:

Yes.

GLAZEBROOK J:

So that – so 8.25 isn’t engaged because, that’s page 49, parking, loading and internal circulation, is that the point?

MR LOUTIT:

Yes, it is and again even if 8.25 was engaged it wouldn’t broaden out because the rule that requires consent that we’re all dealing with here was only in relation to the primary road network. You can’t use assessment criteria and matters for discretion to broaden out the inquiry. It is the rule’s the key to all of this, and that was only concerned with the primary road network.

GLAZEBROOK J:

So you’d say 8.25 would only relate where you actually have a restricted

activity under 8.23?

MR LOUTIT:

Yes.

GLAZEBROOK J:

Is that...

MR LOUTIT:

That’s the essence of the argument.

GLAZEBROOK J:

It’s the essence of it? Because if it’s permitted, you can’t – the Council then can’t come in and say, “Oh, I know it’s permitted but I want you to do X, Y and Z.”

MR LOUTIT:

Yes.

GLAZEBROOK J:

And those are conditions of a consent that you actually don’t need because it’s a permitted activity?

MR LOUTIT:

Yes. And as I said earlier, actually, interestingly, in this context, if you’re not on a primary road network that we – of the 8.10.3 (b), isn’t actually engaged. So if you’re not on a primary, you don’t actually have to get consent for this particular activity. It wouldn’t have even been engaged in this context and there would be –

GLAZEBROOK J:

You mean the whole activity, yes?

MR LOUTIT:

Yes. And so there would be no opportunity to look at this issue whatsoever, which I think is quite telling the context of this district plan.

GLAZEBROOK J:

If you could say that the effect on the primary road network is going to have a major effect on my business, what do you say then?

MR LOUTIT:

So assuming there is an effect on the primary roading network?

GLAZEBROOK J:

Well, that’s the point about it, isn’t it?

MR LOUTIT:

That’s the assumption of the question. Of course, there would have to then be, they would have to make some decisions about who should then be notified.

GLAZEBROOK J:

But then how do you know without having asked in the first place, I suppose is

the point that’s concerning.

MR LOUTIT:

Yes and so again it’s based on the application documentation with extensive traffic surveys and information around that and then the Council comes in with its own independent traffic engineers and reviews that and in this context it was satisfied that the information before it was sufficient to make a decision that the effects were less than minor, that’s the short answer.

WILLIAM YOUNG J:

So an impact on the primary roading and there wouldn’t be such consequences for the primary roading network as would have a particular adverse impact on Wendy’s, is that the sort of line of argument you're thinking about?

MR LOUTIT:

See I would look at it slightly differently and I’d say the focus of the Council

was in essence on whether the primary network was affected.

WILLIAM YOUNG J:

I mean I suppose you can think of silly cases where it would have such a terrible impact and no one would go down the Main South Road ever again and therefore Wendy’s would lose all its trade. Now I mean so in that situation perhaps it would be entitled to notification.

MR LOUTIT:

Yes or even if there was an impact on the primary roading network because if there was a snarl up in the carpark which caused –

WILLIAM YOUNG J:

That no one will ever go in.

MR LOUTIT:

Couldn’t get in.

WILLIAM YOUNG J:

Because there's always such an awful tail.

MR LOUTIT:

Yeah they couldn’t get into the facility because the carpark internally was so blocked up that it caused blockage on the primary network. That would obviously be an effect that would be of concern but in this context the traffic engineers, as I said, we’re talking Great South Road, a huge volume of traffic, the demand of these two facilities was such that it was just in the officer’s view inconsequential in that context and didn’t cause that queuing that we’re discussing.

O’REGAN J:

But that’s slightly reverse engineering isn't it? You're saying it so obviously should get consent that we shouldn’t notify anyone, rather than saying well let’s find out a bit more about it by asking the people who might know.

MR LOUTIT:

And again that’s that intuitive answer to this but in 2009 the presumption in favour of notification was taken away, the Act was deliberately, as I took you through those three provisions, enabled Councils to exclude particular effects. The district plan then did that and whilst we might all have an intuitive answer that well maybe we should’ve got more information, that’s not what the Act

provides for in my submission. The Council is entitled to do what it did in this context and it did it.

ARNOLD J:

I suppose one trouble is, I mean it does enable the Council on the basis of its own assessment to say well you don’t think there's any impact on you, even though that assessment may ultimately be a very flawed one, but on your theory that’s the way it works and if anyone wants to challenge that they have to take some form of judicial review proceeding.

MR LOUTIT:

In the context of these proceedings the allegation isn't the analysis undertaken by the applicant and the Council was so unreasonable that no local authority could've made that –

ARNOLD J:

No, no I understand that but that’s the logic of your argument, that the Council is left to go ahead effectively and make its own assessment and if anyone wants to have it on later, that’s what they have to do. So it does seem to narrow on one view of it.

MR LOUTIT:

Yes and I say to you that’s absolutely deliberate, that’s what the Act in 2009

was intended to do.

ARNOLD J:

Comes close to removing it actually when you think about it. I mean if the Council can always make its own assessment on the basis of its own information, it can always say well we’re satisfied that there isn't an impact if that’s what its reports say.

MR LOUTIT:

And in recent times there have been decisions of the lower Courts where plaintiffs have come in and said, “Your decision was so unreasonable based

on the information that you had that you couldn’t have made it.” Justice Toogood made a decision, Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council [2015] NZHC 3405, [2015] NZRMA 113 just recently where the information just was not sufficient and that in fact was the other way round where someone was challenging the decision to notify, whereas all the officers were saying –

WILLIAM YOUNG J:

But the decision not to notify always involves in a sense the pre-emptive assessment of whether someone is affected, without telling them.

MR LOUTIT:

Yes, yes and the Act provides for that and was strengthened in 2009 to reduce the number of notifications.

O’REGAN J:

Well to reduce the number of public notifications.

MR LOUTIT:

Yes.

O’REGAN J:

So this isn't really about that is it?

MR LOUTIT:

No but –

O’REGAN J:

It actually specifically authorised these limited notifications, didn’t it?

MR LOUTIT:

Yes.

WILLIAM YOUNG J:

Well have you sort of ground to a halt Mr Loutit?

MR LOUTIT:

Subject to your questions, that’s what I want to traverse. I thank you for

hearing me.

WILLIAM YOUNG J:

All right, thank you Mr Loutit. Mr Kohler we should hear from you I think.

MR KOHLER QC:

Your Honours, I of course act for Wiri, the second respondent but in fact we support the Council’s appeal and as you probably all know Wiri is the landowner. Perhaps just so we are clear about what the physical realities onsite are. I wonder if we just go back to that little volume D for a moment. There's a couple of things I’ll take you to on that. At page 989 of volume D, you'll see what the document is, it’s an affidavit, it’s an updating affidavit. So this is one sworn after the High Court hearing but before the hearing in the Court of Appeal and Mr Johnson is the chairperson of the Wiri Licensing Trust and what he does is he that exhibits the photographs that update the onsite situation. So just so Your Honours are quite clear about what that is, if we turn to the first of the photographs, that’s 991, we’re of course in this case concerned with two entranceways onto Great South Road, there's the northern entranceway which is not this photograph and this is the one that’s obviously to the south of the northern one. So this is the one that’s closest to Wendy’s.

GLAZEBROOK J:

It’s the middle one we had on the plan is it?

MR KOHLER QC:

It’s the middle one yes. So this is how it is now and you'll see in the evidence, reference to the construction of some strip retail outlets which was part of the development. You'll see those at the back there, you can just see a bit of the TAB sign and the Subway food sign and so on. So right to the back of that, past the cars, that’s the new, I think it’s five or six shops that have been constructed and then we see on the right-hand side the Carl’s Junior sign and

the Carl’s Junior premises. That is on the site that’s formerly occupied by Mobil Oil and so that’s the development and the entranceway that is in issue or the first of the entranceways that’s in issue is the one that we see in white onto Great South Road. The next page over you have another picture and we see Wendy’s is the brick building on the left-hand side.

Now in a moment I may take you to one of the plans that you were looking at before, just to show you where the lease boundaries are because the Wendy’s lease that they have, the line runs parallel to basically the brick building but nowhere near where we see the carpark of the person at the driver’s door just standing there, that’s actually on what was formerly Mobil Oil land and some of the evidence and some of the –

GLAZEBROOK J:

So the lease runs though, whereabouts did you say?

MR KOHLER QC:

Well I can't show you it on this, I was going to take you –

GLAZEBROOK J:

Well is this the person you were talking about?

MR KOHLER QC:

Yes, yes. So they're not on Wendco land.

GLAZEBROOK J:

Right but it’s somewhere in the middle is it?

MR KOHLER QC:

It’s somewhere in the middle.

O’REGAN J:

Where there are two cars parked next to a sign saying “entry”.

MR KOHLER QC:

That would be just on –

O’REGAN J:

It’s to the right of that is it still?

MR KOHLER QC:

Yes, just to the right of that. Now there's much debate and quite a bit of evidence about Wendy’s complaints about people using this, where I think it’s a lady standing by her car, and the evidence about that was that Wendco did try, as it were we would say appropriate, that is by painting their colours on them or same with their carparks, in fact they weren’t the Wendco lease, when they were offered to rent them they didn’t want them. But that’s that part of the site.

If we move to the next photograph your now seeing it from Great South Road again, just looking back a bit. Next photograph is of the same entry and exit. Similarly the next photograph. We then have, if we move on in the bundle to page 1006, it’s a little hard to find but 1005 is easy. So if Your Honours if I could take you to 1006. You'll now see the northern, what we call the northern exit-way and that’s just an exit, not an entrance. That is the one behind Carl’s Junior so it’s to the north and that’s how it has been constructed, that’s how it was consented.

WILLIAM YOUNG J:

So it’s controlled by lights and a give way sign.

MR KOHLER QC:

Controlled lights, yes. And the next photograph, 1007 is similarly the same entry/exit. Just while I’ve got you on this particular bundle of documents, I think we have in here, yes we do, the – just pause for a moment. Yes could I take you to page 996. Now the judicial review proceedings that Your Honours are concerned with was not the only litigation between Wiri and Wendco and wasn’t the initial litigation and the injunction you’ve heard mention of wasn’t in

the judicial review proceedings at all. The injunction that had been sought was in the proceedings that we see at page 996. So if I could just quickly take you, because these feature in my submissions. This is the second amended statement of claim and in these proceedings Wendy’s sued Wiri and asserted, quite correctly, that its rights onsite were leasehold rights pursuant to its lease and if we go to page 998, paragraph 13 for example, down to 15, the focus of these proceedings was on the accessways that we’re talking about now over the property, the entry and exits and the rights to pass and so on and it was Wendy’s allegation in these proceedings that the redevelopment by Wiri of its site breached the Wendco lease rights and there are various courses of action. You'll see there's reference to interference with the north-east entranceway. That’s in paragraph 15, that’s the northern one and then at about paragraph 34 you'll see the heading “Interference with the middle accessway”, so we’re talking about the same accessways and the allegation we see the first cause of action is at page 1002 and the first of the causes of action is that there is the allegation that it is a breach of the rights of access pursuant to the lease. So you get clause 46.3 which cites that quite correctly the lease term, we don’t need to dwell on that. Over the page at page 1003, the second cause of action was breach of the covenant of quiet enjoyment and the third cause of action is a derogation from grant.

As I said these predated the judicial review proceedings by quite some time and it was in those proceedings that Wendco, Wendy’s sought injunctive relief and there was, I think we had a couple of hearings on it because there were a couple of goes at it. In the end they did not get injunctive relief, these proceedings, the one that I’ve just taken you to have been discontinued by Wendco and part of what I’m saying in our submissions is that we really are dealing onsite with contractual rights, so subject to these proceedings and these proceedings have been discontinued. Now my friends in a memorandum say well discontinued by settlement and that’s probably technically right but my point is they're discontinued. There is no live assertion that in respect of Wendco’s rights onsite, be it to access, be it to parking, be it to any of its rights, that Wiri’s in ongoing breach.

Now if I could, Your Honours, just take you to now the – so we get an idea of the site itself, if I use the plan that’s at, I think, Your Honour’s were at before, it’s at volume C of the exhibits. The plan 634 that Your Honours were at before, 634. That’s volume C, Your Honour, page 452 to 655.

GLAZEBROOK J:

C Part 2.

MR KOHLER QC:

It’s the yellow volume. 2B, Part 2. Do Your Honours have page 634? Now this shows, if we – by dotted line you may see the Wendy’s building shown, drawn, and then on the outside of that you’ve got the dotted line which identifies its leasehold area. Now, as I mentioned before, it also had rights of access and so on to pass, as did all the other onsite co-owners have rights of access passing over each other’s land and so on to come and go, but its area of exclusive occupation, you’ll see a dotted line there which marries up with the in-out entranceway, the middle entranceway, and the carparks that I was talking about where I had the driver standing by the open door, you’ll see those drawn there in a line just above the dotted line of the Wendy’s property.

I think, Your Honour, one of Your Honours raised the issue of well, what would happen, practically speaking, you’re talking about practicalities, in the event that orders were made. The current situation is that what the Court has done, and it seems to me in these proceedings, or it’s my submission in these proceedings, that we’ve got to maintain focus that this is a case about judicial review. This is not an Environment Court substance hearing of any sort. This is about judicial review and the proposition by Wendco’s and the finding of the Court of Appeal was a judicial review finding which was that the Council had made a reviewable error, an error of law, because they had posed the wrong question. I’ll come back to that specific question in a moment, but it’s my submission that it’s very easy to stray over and slip over into a substantive examination and consideration of parking issues and the like, and I do invite you to, as it were, stick to our knitting which was let’s focus on what, and I’ll take you to the pleadings in a moment, let’s focus on what this case is about.

It’s judicial review and the Court of Appeal has found that the mistake in question was – it’s identified by my friend in para 52, the record of the Council, it’s in my written submission 1.1, the record of the Council demonstrates that no one asked the relevant question which is whether the site circulation and parking deal might cause an adverse effect on the business of Wendco’s.

So that’s the core of this case, in my submission, and the appeal here involves the Council, with the support of Wiri, saying the Court of Appeal erred in finding that that was the relevant question and the Council officers addressed the relevant question. Yes, they have. In terms of the exchanges Your Honours were having with my learned friend a moment ago, yes, the Council officers have decision-making power to decide who’s an affected person. The Act gives that to them. If you think for a moment, one can easily postulate a situation where, say, well, maybe the Environmental Defence Society would have had something interesting to say about this or maybe Professor Smith may have had something interesting to say about something else. That’s not what the legislation says. The legislation is designed to avoid the mischief, in my submission, of a bureaucracy that ties things up so tightly that we lose by reasons of lack of efficiency and economy, predictability and all the other things. So it gives to the Council officer the decision to make about who’s an affected person and that’s what they did here. The only reason the Court of Appeal could find against that is by finding that the Council didn’t ask themselves the right question. You're not challenging the decision per se, you're not sitting, in my submission, in judgement on the merits of the Council officers’ decision, it’s only reviewable if you're satisfied that they asked themselves that wrong question and that’s why we’ve both emphasised the core finding of the Court of Appeal which was might it cause an adverse effect on the business of Wendy’s and what the Council are saying and what I say is that is exactly what section 95E says you're not to do but section 95E is quite specific.

O’REGAN J:

Just coming back to what the status quo is, if the Court of Appeal decision stands, the Council officers have to reconsider whether to notify Wendy’s is that right?

MR KOHLER QC:

Yes.

O’REGAN J:

But the actual resource consent that came out of the non-notification process is not affected at the moment or is it affected?

MR KOHLER QC:

No part of the Court of Appeal’s decision was that everything stays in place, the matter goes back to the Council. Different officers of the Council have got to reconsider the decision and then the decision may be that no notification is required. Still the Council had the decision making responsibility. So the decision may be no notifications required.

O’REGAN J:

But that hasn’t been done yet.

MR KOHLER QC:

No that hasn’t been done.

WILLIAM YOUNG J:

Well at the moment the resource consent is invalid isn't it?

MR KOHLER QC:

No, they’ve covered that, Your Honours in – I’ll just take you to what they said

about that, it’s in –

ELLEN FRANCE J:

Well don’t they set aside in part under paragraph 91 of the judgment, 91B?

MR KOHLER QC:

I’ll just quickly – there's a number of orders they make. It’s page 77 of the key document bundle. So yes they move from – they declare firstly that there's the error of law, then they set it aside, then they say a direction, it will stay in place. So the physical reality stays in place.

WILLIAM YOUNG J:

Yes but that’s only in the meantime.

MR KOHLER QC:

That’s in the meantime. Then the Council is to reconsider whether anyone is an affected party. So it still remains the decision maker of course and the reasons are to be provided and then if a decision is Wendy’s or others will suffer adverse affect more than minor, this is director, then it flows on that it’s got to make those considerations.

WILLIAM YOUNG J:

So you’re at risk as to whether the circulation and parking of the resource consent may be modified?

MR KOHLER QC:

Yes, yes ultimately.

WILLIAM YOUNG J:

And is it correct that you could, if necessary, meet Wendy’s concerns in a way

that still met your obligations under the plan?

MR KOHLER QC:

It’s very difficult to answer that Sir and in terms of practicality, if you start changing the construction around the significant drainage issues for example, so you may have to dig up drains, it’s impossible for me to tell you how difficult or expensive that would be without knowing what the plan was. So there was no evidence about what the plan would be and if Wendco’s business interest should be taken into account, then presumably every other tenant onsite’s

business interests need to be taken into account in a like way and who knows where that’s going to lead because you may have conflicting business interests because what’s good for Wendco in terms of people being directed into its patch, if I could call it that.

WILLIAM YOUNG J:

It wouldn’t be so good for Carl’s Burgers.

MR KOHLER QC:

May not be so good for Carl’s Burgers exactly.

O’REGAN J:

Or Subway.

MR KOHLER QC:

Or someone exactly.

O’REGAN J:

Well Subway is in the other –

MR KOHLER QC:

Or Subway or there's a Chinese takeaway as well. So it’s part of what I’ll be putting to you is it’s why the Courts shouldn’t be getting involved in this sort of micromanagement situation and why those sort of factors the Council should not be expected to take into account. Council officers, as I put in my submission, aren’t accountants, they aren’t business assessors. How on earth are they supposed to assess likely business consequences as a result of decisions such as this? They’re simply not empowered to do that which I submit points us in a pretty clear direction. So in terms of the question that was put to me, what consequences might be suffered to Wiri, it’s very hard to say.

COURT ADJOURNS: 11.30 AM COURT RESUMES: 11.46 AM

MR KOHLER QC:

Your Honours, I can assure you I’m not going to read right through my submissions. I can very quickly flick through them, but I will just take you if I could, just to the start, where I’ve got the summary of my argument. I’ve identified in paragraph 1.1 the critical finding of the Court of Appeal as to the relevant question that ought to have been asked but wasn’t by the requisite Council officer and its our submission that had the Council officer asked that question in determining who was an affected party, they would have made an error of law. So it would be Wiri rather than Wendco who would have been in any Court proceedings.

I should just add to something I said before the break when I spoke of the injunction and said to you that that was in relation to the other proceedings, I should clarify that and say on the other proceedings, by that I mean the lease, if I could call them the lease proceedings, the derogation from grant and the like proceedings, there were, I think it was, two applications for injunction, what was called an urgent-urgent one and then an urgent one, and the applicant was unsuccessful on those applications but they did file an application for an injunction on the judicial review proceedings but that was never proceeded with because a fixture came up and we went straight into a fixture. That’s just to clarify.

At 1.5 of the outline, and by addressing it now I can skip it later, I’m submitting that the Council officers would have erred if they had regard to Wendy’s business interests because, and I’ve given you four basic bullet points, that is what section 95E(2)(b) of the Resource Management Act says, and I’ll be taking you to that section because in my submission, I’m putting more emphasis on it than my learned friend has perhaps for the Council, it really is in the wording of the section. It’s what section 104 says and, (c) what is relevant to a discretion in respect of modifying the crossing point, per rules 8.10 to 12, is the effect on the primary roading network, and in (d) I say if it were not for the fact Great South Road is a primary road, the crossing point modification would have been permitted as of right.

Now in my submission if one reflects on that for the moment, it really does guide the way because Ronwood Road is not a primary roading network. There is a couple of entrances onto Ronwood Road. Let’s put aside the

15 metres thing. I haven’t done a calculation of 15 metres. But the point is this, if there was a modification to Ronwood Road, and there’s an infinite variety of sites, of course, around Auckland and businesses and so on, you can amend the entranceways as of right. It’s not a restrictive discretion. Why on earth would the business interests of those people not be as telling or as deserving of regard if they were relevant? I say you can’t reconcile the Court of Appeal’s decision with that fact, the fact that it’s a permitted activity for a non-primary road. It just doesn’t make any sense.

And Your Honours will see in the authorities reference to, in the Resource Management area, the permitted baseline proposition which is you’ve always got to have regard to what is permitted as of right.

I’ll quickly – I won’t take you through the factual background unless Your Honours wish me to. I don’t think there’s anything of great moment in that.

Section 3, Submissions. 3.4 I’ll just pause for a moment on. This is, Your Honours perhaps will indulge me for a second just to deal with some very basic things. Resource Management Act takes a staggered approach to control of development activities. They can be permitted, ie, the Council is not involved at all in deciding whether an activity can take place, and permitted activities may have conditions attached, controlled activities and restricted discretionary activities which means there are defined matters which the Council can take into account when determining whether or not to grant consent. So it’s not, but it’s not a carte blanche, “We can consider anything,” situation.

I will turn now, if I may, if you would follow me, to paragraph 3.12, where I identify what the challenge is, and again, in my submission, there’s a matter of discipline in judicial review proceedings. What is the challenge to?

The challenge is to the decision to issue resource consent 42806, I’ve referred

to the statement of claim, specifically to the notification determination of the

25th of October 2013. So that was the decision by the Council officer not to give notification to Wendco or anyone else. So they determined there was no affected party. So they’re exercising a statutory right and power and the only way that that can be impinged, I mean, unless you go down the unreasonable track which hasn’t been pursued, it is if they pose the wrong question, which is what the Court of Appeal found. So I’ve said in 3.13 what the critical and specific challenge in the statement of claim is to and that’s what it is.

Now I’ve set out over the next page, page 10, paragraphs 3.16 and 3.17, what the reserved decision was relating. I’ve said in 3.1, or submitted in 3.17 the point I made a moment ago if it had to change to being the secondary road it would be permitted as of right, and in 3.18 it’s my submission that the Resource Management Act is not intended to give the Council the power to micro-manage development and to suggest different ways of doing things.

Now I might take you to it in a little while but in the Court of Appeal’s judgment there is a section where Their Honours, the judgment – actually I will just quickly jump to it now. It’s in the key volume bundle under tab 8. Yes, it’s probably – this is part of the rationale of the judgment. If I take you to tab 8, key volume bundle, page 57.

GLAZEBROOK J:

Sorry, can you just – I seem to have buried mine so – it’s alright, I’ve got it

now.

MR KOHLER QC:

It’s the blue one, Your Honour. There are a number of propositions in the judgment, perhaps I’ll run through them all while I’ve got the judgment here, that I say don’t, in my respectful submission, don’t quite hang together.

Paragraph 18, the judgment reads, “Site layouts, however, are not usually

inevitable,” and that’s self-evidently true. There are always a multiplicity of

ways of doing things, an unlimited number of ways of doing things in reality. “No one before us suggested that the site layout sought in the application was the only possible solution for meeting the criteria,” and that’s – you can’t. It’s something you cannot establish. The next proposition is that given it is possible that more than one site layout can satisfy these criteria, the consent authority had a discretion to approve one option over the other, consistent with discharging its duty under section 87 of the Resource Management Act. Therefore, when assessing the particular application for consent to restrict a discretionary activity, the Council can recognise there maybe occupiers and others who will be adversely affected by the proposal placed before them. Now in my submission that line of logic does not make sense. What it’s saying is because there's a number of different options as to how you might achieve something, the consent authority can choose one over the other, what I submit is really a beauty contest and that’s what the consent authority should not be doing and can't be expected to do. It’s not a beauty contest where the Council says, “We think you can develop your site better.” It might think that but that’s not what its role is. Its role is to say yes this is a permitted activity or this is a controlled activity or this is a restricted discretionary one and taking into account our factors we can do A, B and C but what it cannot do in my submission is to, as it were, embark on a beauty contest and say well there could be other better ways of managing your site. That’s not the function of the territorial authority in my submission and in my submission you can't move from the inevitable truth that there are a multiplicity of ways of solving something to the proposition that you get at the end of paragraph 18 and 19 which drives you to suggesting that other people may have things to say about it. And just over the page at paragraph – well no I’ll leave that and I’ll come back to it.

Could I just at the moment address rules 8.23 to 8.25 in the operative district plan. I know my learned friend for the Council dealt with them but I’d just like you to take them and just spend a little bit more time on them. They are in the appellant’s bundle of authorities at tab 9 and the section I want to take you is the 8.23 section that my friend had some engagement with you on. That’s the onsite parking and the first point to note of course is that the Court of Appeal

agreed with the Council and Wiri’s proposition that these rules were not engaged but it’s probably useful for Your Honour just to see what these rules are providing for because one can understand that Wendco would have concerns with how things were managed on its site with berms and parking bays and where people can park and how they can turn and so on and that’s dealt with in part by contractual provisions which is pursuant to their memorandum of lease which was the subject of other proceedings but also regulated very definitely and specifically by what's in the district plan and so if we look at 8.23 we have the following table assesses activities in the base of the vehicle, parking and vehicle circulation design and so on and then you have the little code at the top, P equals permitted activity, which means you don’t have to get consent which means if the Council then said well we’re going to require you to serve Wendco with this or anyone else, that would be an error of law because Wiri could say this is a permitted activity, you might think there's a better way of doing it, you might think Wendy’s might have something to say about it. You cannot stop us from doing a permitted activity.

So you start with if it’s a permitted activity it’s fine and then you’ve got the code that says D equals discretionary activity and the table that my friend took you to, we’re in the first column, sorry the first row of that table, under “Activity”, “Any activity which constructs, modifies or utilises parking loading areas designed in compliance with rule 8.24 is P a permitted activity.” Now what happened in this case is that it was compliant with 8.24, so the Wiri plan onsite was an 8.24 compliant, therefore it’s a permitted activity. But I’d invite you just to quickly flick through 8.24, just to see how demanding 8.24 is. It’s not a laissez-faire provision by any means and you'll see at page 50, 8.24.1, “Obligations on owner. All parking areas shall be provided, shall be close to ensure ready use, and so on. Number of parking spaces to be provided, that’s prescribed. There’s provision about diminution of land available. Allocation of the parking, so you’ve got to allocate it reasonably. The owner, it’s an obligation. Yard space may be used. Assessing parking requirements. Fractional spaces. Estimating. Joint parking areas.

Over the page, providing a number of parking spaces fewer than required under rule 8.24. Well, that’s not engaged here, but then we’ve got assessment criteria for it at page 53. Extensive assessment criteria.

Page 54, we’re still on parking. Provision of loading spaces. Page 55, provision of fewer loading bays than required under rule 8.24.3, and you’ve got specific provisions, what councils can do, can require you of, and 8.24.5 design of parking and circulation areas. So this is the design. It goes into vehicle dimensions. It goes into reverse manoeuvring. It goes into vehicle queuing. It goes into garage dimensions over the page.

O’REGAN J:

Why is this relevant to what we’ve got to deal with?

MR KOHLER QC:

Because, in my submission, much of what the Court of Appeal was persuaded to go into, really they got drawn into what I would submit are matters of substance rather than process under judicial review.

O’REGAN J:

But why does that require us to go through a rule that they weren’t referring

to?

MR KOHLER QC:

Because my friend is – cross-appeal, or not cross-appeal but supported the judgment on the ground that he’s assessing the Court of Appeal erred in not finding rule 8.25 as being relevant to an assessment of rules 8.10 and 12. So my friend is saying the Court of Appeal –

O’REGAN J:

But you’re arguing at the moment about the judicial review of the Council not

notifying –

MR KOHLER QC:

8.10, 8.12, yes.

O’REGAN J:

Yes. So I just don’t see why this rule has any relevance to that, apart from the

general point that it deals with parking in a lot of detail.

MR KOHLER QC:

Because my friends are suggesting that when the Court of Appeal found that rule 8.25 was not engaged, my friend is going to submit to Your Honours that the Court of Appeal was in error in that finding and that somehow it does become engaged or does become relevant, and 8.25 is a rule that follows the

8.23.8 – 8.23 is a gateway to rule 8.25. You –

GLAZEBROOK J:

Well, are you saying you’re going to say more than we’ve already had from

Mr Loutit in, I might say, admirable summary form?

MR KOHLER QC:

Well, given Your Honour’s question I’ll move on, though could I just finally, if I might, take you to a part of 8.25, but I don’t know if my friend did draw your attention to it. It’s just at page 61. So I’ll content myself with saying 8.25 – 4 – is very prescriptive, very detailed, and deals with the sort of things that Mr Williams in his evidence, for example, is referring to. I’m saying look at

8.24, that’s where that’s taken care of. The rest of it’s primary road network. But 8.25, could I just draw to your attention, just the heading, it’s probably all I need to do, where we’ve got the 8.25.1, it’s in bold, and what that part, 8.25, which is what my friend refers to, 8.25, that is relating to, as its heading says, any non-residential activity, well, this is non-residential, requiring controlled, restricted discretionary or discretionary consent. So the point of that is if it’s a permitted activity per 8.23 you don’t go to 8.25. It is, as the Court of Appeal found, not engaged.

I’ll move on now to how the Court of Appeal erred, at page 11 of my submissions, paragraph 3.24. I’ve identified that section where they talked about the business interests and again, at para 52, we’ve got the relevant question which is whether the circulation might affect the business, and it’s our submission that that would have been an incorrect question to ask.

One thing that I would like to take you to in a bit more detail, my friend did, is to section 95E itself. It’s under the appellant’s bundle of authorities under tab 1.

ARNOLD J:

Sorry section 95 what?

MR KOHLER QC:

Section 95E Sir, it’s at tab 1, it’s page 198 of the copy and in the bundle of authorities there's also Hansard’s notes of the introduction of this section, the Resource Management Simplifying and Streamlining Amendment Act 2009 and that’s the Act that introduced this section and I say this section really is probably the ultimate answer to this case but the Minister’s comments on introducing it a largely along the lines of we need for reasons of efficiency, practicality, predictability and so on, we need to streamline this process, we can't have things held up in the way in which they have historically. And

95E –

WILLIAM YOUNG J:

So where’s that said?

MR KOHLER QC:

Where’s that said, in the –

WILLIAM YOUNG J:

Where does the Minister say that?

MR KOHLER QC:

I’ll just quickly look at it Sir, it’s –

WILLIAM YOUNG J:

Sorry is it in your bundle of authorities?

MR KOHLER QC:

It’s in Hansard which –

GLAZEBROOK J:

It’s not tab 3 is it?

MR KOHLER QC:

Tab 3.

GLAZEBROOK J:

Sorry no that’s the Select Committee reports.

MR KOHLER QC:

Oh it’s at tab 8. Tab 8, we’ve got the volume of Hansard at the front page, then this first page in we’ve got page 6133 at the bottom right-hand corner you have the reference to the Resource Management Simplifying and Streamlining Amendment Bill. Over the page you have the introduction by the Hon Dr Nick Smith, the Minister of the Environment who first thanks the submitters – thanks the committee which considered the 840 submissions recording that it was a very complex area of law, tight timeframe and what he describes as a huge number of submissions. I think the third paragraph down, and this is the passage that I think I’m addressing Justice Young on, “This government was elected on a platform of reducing unnecessary bureaucracy and specifically on a programme to streamline and simplify the Resource Management Act, our focus has been on reducing the costs, reducing the delays and reducing the uncertainties of the Act without compromising its underlying environmental integrity. The Bill is about addressing the vexatious, frivolous, anti-competitive objections that could add

tens of thousands. We to consign to history the notion that it takes longer to get a resource consent for a piece of infrastructure than it takes to actually build it.”

GLAZEBROOK J:

This isn't the infrastructure bit though is it?

MR KOHLER QC:

Oh it’s not so much infrastructure but we’re talking about a development and yes, “I don’t think there's a member of this house who would not know of a resource consent horror story in his or her electorate, the government wants to give council officers much more discretion when the effects of a resource consent are minor.” And I say those words describe very well precisely what the objective of the section that I’m just going to take you to Sir.

GLAZEBROOK J:

Well it’s not really addressing it explicitly is it?

MR KOHLER QC:

Well it’s the comments that introduce the very Act that we’re dealing with Your

Honour.

GLAZEBROOK J:

I would’ve thought the first reading might’ve been –

MR KOHLER QC:

“The government wants to give council officers much more discretion when the effects...”

GLAZEBROOK J:

But this isn't about discretion, this is whether something has to be notified or not so I think there's probably a better quote for you than that but possibly the first reading.

MR KOHLER QC:

I suppose in a way it’s contrary to – one could say in fact what the section does is restrict, it depends how you pose it I suppose, because what the section is doing is restricting the extent of notification that can be given. Is it convenient for me to take you back to section 95E?

WILLIAM YOUNG J:

Sure.

MR KOHLER QC:

It’s under tab 1 of course. 95E(2) and in my submission this is the very core of the case, the consent authority making its decision, you’ve got to read A first because the two section obviously get red together, “First may disregard an adverse effect of an activity on the person if a rule or national environmental standard permits an activity with that effect.” So it can disregard those things and B is the critical one here, “In the case of a controlled or restricted discretionary activity and we’re dealing with a restricted discretionary activity, must” and we all know as lawyers “must” means, “must” is saying is that parliament is saying to councils, you cannot, it’s not a question of you may not but you cannot, “Must disregard an adverse effect of the activity on the person that does not relate to a matter for which a rule or national environmental standard reserves, controls or restricts discretion.”

Now I think my friends have focused on the words “does not relate” and I support what my friend has said for the Council on those words but I invite you to consider the other words in the section “particularly for which” because what it’s saying is you must disregard an adverse effect of an activity. So in this case you must disregard the effect on Wendy’s business, must disregard it, not can, must, if it does not relate to a matter, now it’s not any matter, the next word is not “where”, the next word is “for which”, and for which means for which a rule restricts discretion. So it’s driving you to, the words “for which” drive you to the reason or purpose in my submission. So you look at the rule and the words “for which” mean you’ve got to ask the question what is the reason, purpose or focus of this rule and it is only that reason, purpose or focus that you can then, the Council officer can then just take into account and

they are prohibited from taking into account anything but that in my submission. So I say the answer really is in the words of the section itself.

And if we then go to the rule itself, which is, I think we’ve got, yes rule 8.12 which we’ll find at page 36. I’m sorry to take you back to the appellant’s bundle but that’s where we find 8.12 and what you have is a rule which says that its affect is on the primary roading network. Now what's the point of having the words “primary roading network” in the rule? The point of it is that that’s the thing, that’s the which, that’s the “for which” point, that’s the focus, the purpose and 8.10.3, clause 8.10.3, if we go to page 25 of the bundle under the activity column, it’s restricted discretionary, you'll see it’s in the middle of the page, this is the core part of it, the table, it’s the first line of it, it is, “Any non-residential activity results in the construction and modification of vehicle access points onto the primary roading network or within 50 metres of the urban primary roading network restricted discretionary.” So if you ask the question, if you then apply section 95E to that and say what is 95E telling us as a council to do, it is telling us that we cannot, must not take into account anything save for something which qualifies as a for which and in my submission if a council then does what the Court of Appeal has held that it should do, it gives concern to Wendco or anyone else’s business interests and there's a whole lot of other tenants onsite, then it would be doing exactly what section 95E said it cannot do. I think that’s probably how I would like to finish, unless Your Honours have any questions.

WILLIAM YOUNG J:

Thank you, Mr Kohler. Mr Hollyman.

MR HOLLYMAN:

Thank you, Your Honours. One of the first things I think I should clear out of the way is the question of the effect of the Amendment Bill in 2009. I have a slight concerned that the Court may have the impression that the 2009 amendments brought in this question of restricted discretion or that the phrase in 95E, which is at the heart of this hearing, that that phrase is new in 2009 and it’s not. The only change that was made to limited notification in 2009 is

that the question of minor, or more than minor, was put in. Notification was changed, in terms of limited notification, the prior provision said you must set aside effects which do not relate to a matter for discretion, same phrase was used, but the qualification was added in in 2009 that it had to be minor or more than minor for you to have a right to limited notification.

And the report from the, back from the Select Committee, and my friend, I’m not going to take the Court to it right now but the report back from the Select Committee, which there are some excerpts from that under tab 3 in the appellant’s authorities, is incomplete and does not include the section which deals with notification, and I’ll just read this part about limited notification to the Court. I have copies available if you’d like to see it but this is on page 35, the bottom of page 35 of the Select Committee report. It’s under the heading, “Public notification restricted,” and then there’s a discussion about how public notification is restricted.

WILLIAM YOUNG J:

It might be of help if handed up, I think.

MR HOLLYMAN:

Very good, Sir. If we could just – now I’m on the second page of this reproduction at the bottom of the left-hand side, which is – there’s – Your Honours will see the heading there, “Public notification restricted,” and down the bottom, the last two lines, “In relation to limited notification some submitters expressed concern at the raised threshold of more than minor effects for determining who is an affected person,” and that was in the Bill as introduced. We are also concerned that as introduced clause 68 could discourage the participation of parties who might genuinely be affected by a proposal. We therefore recommend that the point at which a person is considered to be an affected party be set higher than the current test,” which was there was no minimum threshold, “but lower than that proposed in the Bill,” and that resulted in what was then in the draft as 95B and comes through as 95E.

WILLIAM YOUNG J:

So what – was 95E what was recommended by the Select Committee or not?

MR HOLLYMAN:

It’s attached there, Sir, so it was 95B. If you turn over to the next page, it’s

page 87 at the bottom right, you’ll see 95B, “Limited notification of consent

...you'll see 95B “Limited notification of consent application” and so you must, first a subclause, you must decide were there any affected persons, second one you must give limited notification unless the rule precludes it, sub 3, must give limited notification, that relates to an affected order holder which is a specific category under the statute and it’s nothing to do with us here and then if you drop down to 95D on the next page, you'll see the consent authority has the right to decide, that’s about effects on – I apologise that’s the public notification more than minor and 95E on the right-hand side, is the origin, that’s the one that came into law.

WILLIAM YOUNG J:

Okay, so what's the point you're making?

MR HOLLYMAN:

So the only point Sir is I had some concerns that there seemed to be a suggestion that this was all new in the 2009 amendments. The only change that the 2009 amendments put in was a threshold of minor or more than minor for the purpose of limited notification.

WILLIAM YOUNG J:

What about 95E?

MR HOLLYMAN:

That was there before Sir.

WILLIAM YOUNG J:

Was there already a 95E?

MR HOLLYMAN:

There was the equivalent. So the particular one that we’re concerned with is

95E(2)(b) in the current statue.

WILLIAM YOUNG J:

Yes.

MR HOLLYMAN:

And in the old statute, immediately prior, that was 94B(2)(b).

GLAZEBROOK J:

Can you just go through that.

MR HOLLYMAN:

I’ll say that again I’m sorry.

GLAZEBROOK J:

Oh no I got the – it’s just the section number, the old section number.

MR HOLLYMAN:

The old section number immediately prior was 94B(2)(b) and that had a very slight change in the wording at the end but I don’t think anything turns on that. So I just didn’t want the Court to have the impression, I’m sorry it’s taken so long to explain that, that this was some new world of disregarding effects that relate to a matter for discretion, that was there before. Restricted discretionary activities have been around for some time.

WILLIAM YOUNG J:

I’m just taking a note of it, what was the old section number, section 95B?

MR HOLLYMAN:

94B.

WILLIAM YOUNG J:

Section 94B.

MR HOLLYMAN:

Sub (2), sub (b) was the equivalent of the current on that’s at the heart,

95E(2)(b).

GLAZEBROOK J:

And when was that brought in? Was that brought in when the whole of the district plan issue, I mean not that it matters?

MR HOLLYMAN:

So the particular one, the particular form that I’m talking about came in 2003.

GLAZEBROOK J:

Thank you.

MR HOLLYMAN:

And it had very minor amendment in 2005 which as far as – I’m just reading the history. I have a reprint which I only have one copy of but of the Act immediately prior and so the note here says that that dates from 2003.

So the concept of disregarding effects that do not relate to a matter for discretion has been around for quite some time and it makes sense, as my friends have been emphasising, if we can't do anything about it, what's the point in hearing from you if you're affecting by something else? So the question is what can we do something about, that’s at the heart of this. What can we do anything about? We can do something about the matters for discretion.

Now my friends have spent quite some time in the statutory provision and the question at the heart of this appeal in my submission is what are the matters for discretion? And really when these questions come back to questions of the rule of law, of simple statutory edits in the same way that this Court recognised in the Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 decision. Section

77B which is, if I can just ask Your Honours to turn that up briefly. It’s in my

friend’s bundle under tab 1, section 77B provides under sub (3) and (4), sub (3) says, “Subsection (4) applies if the local authority makes a rule in its plan or proposed plan classifying an activity as restricted discretionary. The local authority in our sub (4) must specify in the rule the matters over which it has restricted its discretion in relation to the activity.”

Now I say it’s a pretty simple trip from there. We have, in the district plan, if we turn up the relevant rule, it says, and so this is under tab 9, we know that we’re under rule 8.12.2, there’s no dispute about that, parking for a moment the question about 8.25.

At 8.12.2, 8.12.2.1 at the bottom of page 36, it says, “Matters for discretion”. Now if the Council wants to know what the matters for discretion are, this is where they are. Council reserves over the following matters for restricted discretionary activity consent for any activity defined within 8.10.3 (b) involving access to a road within the primary road network, and so forth, that’s a repetition of the table, and may impose conditions in respect of each.

WILLIAM YOUNG J:

But isn’t this, I mean that can equally be read as referable to for the purpose

of protecting the access to and egress from the primary road network.

MR HOLLYMAN:

Sir, in my submission that, first of all, it misreads the rule in this because the rule says these are the matters for discretion. Now it may be that that is the purpose and it may be that the way the Council assesses it deals largely, and I say largely because there are other matters in the assessment criteria which are not directed to the primary road network, but it may be that that is largely its concern, but that is a matter for its assessment. These are the matters – this is the limits of its authority, how it approaches the exercise –

WILLIAM YOUNG J:

You could read each of these as subject to the implied limitation, subject to its impact on the primary road network.

MR HOLLYMAN:

Sir, I’m – I don’t accept that proposition. The –

WILLIAM YOUNG J:

You don’t think it’s even possible to read it that way as opposed to whether we should read it that way, because it’s quite a – it’s a bit of a red flag to a bull to me.

MR HOLLYMAN:

Sir, I accept it’s always possible to read qualifications in. I won’t take that point obviously. But the management or apportionment of internal parking and loading spaces.

GLAZEBROOK J:

But if the Council tried to impose conditions that were in addition to the conditions it already has in the extensive parking conditions, I would have thought somebody would say, “Well, show me how that relates to the primary road network,” and I would have thought they would have had a relatively good argument on that because if the Council can’t do that then it must be a permitted activity, the parking itself, assuming it meets all of those conditions that we’ve been taken to.

MR HOLLYMAN:

Well, we’re not in a parking issue here. We have – the question is, is this a matter where we have access onto the primary road network and we’re changing that access. Now why is the Council then reserving to its discretion, to itself, the discretion over the site layout as it relates to internal circulation?

WILLIAM YOUNG J:

Because that might affect the way in which the primary road network is affected or not affected by the development.

MR HOLLYMAN:

Absolutely, Sir, but it also covers questions of internal circulation and the –

O’REGAN J:

But if it did, it would do that in relation to development of ordinary roads as well, wouldn’t it? Why would it worry about internal circulation next to a primary road but not next to an ordinary road?

MR HOLLYMAN:

Because the concern about internal circulation is elevated in relation to a

primary road. It’s simply because it’s a different situation.

O’REGAN J:

Because there could be a traffic jam on the primary road, not because of the internal area.

MR HOLLYMAN:

There’s – I can see that, Sir, absolutely, but it’s not that the matters for discretion are so limited. That comes into how the Council assesses it. So the Council assessment criteria which then explain how it approaches

8.12.2 start then at 8.12.2.3 on page 37, and so I accept that there are, inevitably, sight distance, it’s very clearly going to be about cars approaching the crossing, (b), effect on intersections, absolutely it’s one of our concerns.

But then we get sub (c), effect on the operation of the roading network. The first consideration here, whether turning traffic can safely exit and enter the site without obstructing other traffic on the road network or creating a traffic hazard. They're starting to look at the effects on the site. Whether the on road or onsite queuing space –

O’REGAN J:

It’s only looking at them to the extent they affect the primary road network, not to the extent they affect a restaurant located on the site.

MR HOLLYMAN:

Well so let me postulate, so the exact situation that we have here involves the

– well if I can ask Your Honours to turn up my submissions because attached

to my submissions are two blown up diagrams which show the changes in the layout. So the very last two pages and the second to last here shows the layout beforehand and so the – you'll see some labels that have been put on here. This is originally from page 988, the reference is at the top of the page and you'll see the access point is the entrance, that was what the entrance was off Great South Road, it was an entrance only, it was not also an exit at the time and the traffic was directed away from the Wendy’s by that berm which sticks out into that middle lot. Now this was part of the resource consent and I’ll come back to that question of Wendy’s resource consent. The cars, in order to come in through Wendy’s, you'll see where the drive through entrance, there's a label with an arrow there. In order to come into the Wendy’s the traffic came off Great South Road, they could go to the right to the service station or to come into the Wendy’s they had to go around the end of that traffic berm and then to come into the entrance to the drive through. Now it’s quite clear from the Council’s original consent that there were concerns about the traffic coming off Great South Road having trouble with the traffic queuing out of the drive through which occurs at peak times.

O’REGAN J:

But that’s still got nothing to do with Wendy’s interests though, it’s only got to

the primary road mapping.

MR HOLLYMAN:

Well it affects Wendy’s interests in – let me come back to that Sir because

there's a confusion I say in my friends’ submissions.

O’REGAN J:

Whether or not traffic queues on Great South Road is not Wendy’s concern.

MR HOLLYMAN:

No Wendy’s concern is the onsite layout and so Wendy’s, if it had been notified, would’ve been in a position, even on my friend’s argument I say, to make submissions to the Council to say that’s not right, there's a better layout which will protect Great South Road.

O’REGAN J:

Yes but that’s not the point, the only question is, is it a complying layout, not is

it a better one.

MR HOLLYMAN:

Well it’s not a complying layout I say because in order to be – well we don’t know whether it’s complying at the notification point. We’ve got two points of decision making. We’ve got a first decision as to whether or not someone should be notified and the question is are there effects which relate to the matter for discretion and I say that the effects, because there's a changed site layout which you can see on the next page which has an effect on Wendy’s because of the cars pulling up into the drive through.

O’REGAN J:

Yes but it doesn’t affect the road network though.

MR HOLLYMAN:

But that’s not the test under 95E Sir. The test under 95E is what effects relate to a matter for discretion and that’s different, even on my friend’s argument, from the effects on the primary road network. So the matter for discretion, even on my friend’s argument and this is what the Court of Appeal found, is the site layout and it may be the – let’s accept the qualification that it’s the site layout as it impacts on the primary road network. Now the change to the site layout has an effect on Wendy’s. Now Wendy’s may not like it. Let’s assume they just don’t like it, well they can't make it – it’s a worthless submission to be making to the Council on my friend’s argument because the Council can only take into account the effects on the primary road network but Wendy’s must be able to say here’s a better layout that better accommodates the primary road network in terms of providing information to the Council –

O’REGAN J:

Well it doesn’t matter whether it’s better or worse, the only question is does it

comply with the rule or not.

MR HOLLYMAN:

Well it does matter Sir because it’s a matter for the Council’s discretion and so

the Council cannot –

O’REGAN J:

But the Council has exercised the discretion and said it doesn’t affect the primary road layout, it’s got nothing to do with Wendy’s whether that’s right or not.

MR HOLLYMAN:

That’s the final answer, Sir, that’s the second stage decision. The first stage

decision is who should be part of this decision.

O’REGAN J:

But Wendy’s interest in the primary road network is no greater than anybody else’s interest. It’s the same interest as anyone who lives in Auckland who wants to see no traffic jams.

MR HOLLYMAN:

Well Sir the, in order to, this is a question of participation and whether or not Wendy’s is entitled to be heard on the changes in layout and if they, even if they are restricted to saying these changes in the site layout have an effect, how they affect the primary road network, Wendy’s is still entitled, in my submission to make a submission on that to the Council and entitled to be heard on that.

O’REGAN J:

But just stating that doesn’t make it right. I mean you keep stating it but you haven’t told us why that’s right.

MR HOLLYMAN:

Well it’s right because those are the words of the statute, and the words of the

district plan. So let me come back to the district plan because –

WILLIAM YOUNG J:

You would say the matters upon which discretion has been reserved, are all the details of the site layout, and not the, to quote rule 10.3(b), are the overall effects on the road network and the vehicle traffic environment?

MR HOLLYMAN:

Well and the vehicle traffic environment and that includes, so if you see the first row in the activity table is construction or modification of vehicle access points, or parking areas serving these access points, onto the primary road network or within 50 metres.

WILLIAM YOUNG J:

But is it, does your argument come down to a preference for, the matters reserved for discretion include the details of the parking and circulation layout, whereas the appellant says the matter reserved for discretion is the overall affects of those arrangements on the primary traffic network? Primary road network.

MR HOLLYMAN:

I suppose in a word, yes, because the matters for discretion, for example, the site layout, is the site layout as it relates to pedestrian and passenger transport access, carparking and loading areas, and internal circulation.

WILLIAM YOUNG J:

It doesn’t make much sense to disconnect all those matters from the impact, from the purpose for which the discretion has been reserved, does it?

MR HOLLYMAN:

Sir the, one of the critical problems I say with the Council’s submission is the assessment criteria include impact on utility services, which is criteria (h) at page 39 .

GLAZEBROOK J:

Sorry, what page are you?

MR HOLLYMAN:

Page 39. (h) says, “Impact on utility services. Whether the design will have

any effect on utility services including stormwater and overland flowpaths.”

WILLIAM YOUNG J:

But look at all the bullet points.

MR HOLLYMAN:

Sir, those bullet points are repeated in, across the plan and –

WILLIAM YOUNG J:

But they’re all road traffic network points.

MR HOLLYMAN:

That’s, will also have regard to the following. So those are other factors which can also be taken into account.

WILLIAM YOUNG J:

But doesn’t it suggest, in looking at impact on utility services the consideration is addressed to how such impacts will impact in turn on the primary roading network. It’s susceptible to that reading, isn’t it?

MR HOLLYMAN:

Sir, whether the access design will have any effect on utility services in my submission that, the words should mean what they say, they say any effect on utility services including stormwater, that’s not an effect on the primary road network.

ARNOLD J:

I was a bit puzzled that in assessing the above that’s a reference to all the

criteria, not –

MR HOLLYMAN:

Yes Sir, I read it that way, and I have, and that’s also, I say, that phraseology

in those core bullet points actually are repeated in other parts of the plan.

I don’t see them at all as relating to (h) only, they’re general, and certainly the way they’re phrased –

WILLIAM YOUNG J:

Well they’re set out, I suppose it might be taking a, putting too much emphasis

on the margins, but the margins suggest it’s to do with (h).

MR HOLLYMAN:

I accept that Sir, and really I’m just answering Justice Arnold’s point. I accept

that –

WILLIAM YOUNG J:

Whereas the explanation and reasons which apply to everything are set back on an earlier margin.

GLAZEBROOK J:

Although it doesn’t actually make sense to apply –

ARNOLD J:

It doesn’t make sense –

GLAZEBROOK J:

Because the existing and likely future design of the adjoining roads and access arrangement s can’t really have anything whatsoever to do with utility services.

MR HOLLYMAN:

No, Your Honours, in my submission the key is that the introductory words there are “will also have regard”, those are further additional matters for consideration when deciding what do to about matters for discretion.

WILLIAM YOUNG J:

Okay but we’re not really worried about utility services, or are we?

MR HOLLYMAN:

Well, they’re not engaged here, Sir, but the proposition is that this is only about effects on the primary road network and dispute that proposition. For that proposition to be correct, we have to read in qualifications at the start of the rule in relation to each of the matters for discretion and we have to ignore items such as (h) which talk about stormwater, and we also have to say that these are exclusive.

GLAZEBROOK J:

Well, you might have to ignore the stormwater but how do you say you’ve got it just at large because you come within – because it does say at the beginning of the rule that it’s only related to what has been reserved for discretion which is relating to the construction and modification of vehicle access points and parking areas or within 50 metres of that?

MR HOLLYMAN:

Yes.

GLAZEBROOK J:

So why would that give the Council open slather to impose a whole pile of conditions that have nothing to do with that? And I understand the point about utility services but that may be just something that does make sense in any event because if you’re actually going to override all of the stormwater that’s not going to have a terribly good effect on the primary access road either.

MR HOLLYMAN:

No, that’s right, that’s right, and the Council has –

WILLIAM YOUNG J:

You wouldn’t want stormwater directed to flow right over the primary roading

network sort of like a great stream.

MR HOLLYMAN:

Sir, I accept that. The...

GLAZEBROOK J:

Or even if it’s going to flow all over the – within 50 metres of it in the parking area so they’re not able to be utilised, that’s likely to affect the primary roading network as well.

MR HOLLYMAN:

So my point here is that these are the matters for discretion. The site layout is only reserved as a matter for discretion insofar as it relates to those matters set out on page 37 and it’s Roman (iii), “The site layout as it relates to pedestrian and passenger transport access,” so we have pedestrian access to the site as a matter for discretion.

GLAZEBROOK J:

But they couldn’t say, could they, “Well, we’re worried about the primary road network which is the access ways and other sides but actually we weren’t really very keen on the parking areas that came off the other road so we want five more parks there, please,” relying on the site layout as it respects to pedestrian and passenger Transport Act. They’re carparking and loading areas and internal circulation.

MR HOLLYMAN:

I understand Your Honour’s concern. The fact of the matter is that the Council can only impose conditions in relation to the matters for discretion. That’s the first answer.

GLAZEBROOK J:

But you say these are standalone from the primary road access so what’s to stop the Council in my example saying, “We’d actually like five more carparks over here at the back of the site”?

MR HOLLYMAN:

So that’s not a matter which it can then properly take into account in

exercising its discretion.

GLAZEBROOK J:

All right, so what can it take into account then?

MR HOLLYMAN:

So the first – now the answer to that comes back to section 104 and then

104C of the statute. So in my friend’s bundle at tab 1 is 104C, but in my bundle is section 104. It’s at tab 10 of my bundle. So if I can start with 104 which is in tab 10 of my bundle, “When considering an application for resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to,” (a) actual and potential effects on the environment of allowing the activity, (b) any relevant provisions of...

GLAZEBROOK J:

Sorry, I think I’ve lost where you are.

MR HOLLYMAN:

Sorry, I’m in section 104, which is under tab 10 of my bundle. The bundle is for the first respondent.

GLAZEBROOK J:

Tab 10 of your bundle.

MR HOLLYMAN:

10, yes. Now this, you need to read 104 and 104C together, capital C. We’ll start with 104. When considering an application for resource consent, the consent authority must, subject to Part 2, have regard to, “(a) actual and potential effects on the environment, (b) any relevant provisions of,” and we can ignore (i) through (v), “(vi) a plan or proposed plan; and (c), “Any other matter the consent authority considers relevant and reasonably necessary to determine the application.” And then it goes on, I’ll just highlight a couple of other parts of this provision, subsection (3) says that, “The consent authority must not have regard to trade competition” and then under (5), “The consent authority may grant resource consent on the basis that there's various types of activity regardless of what the application was expressed to be for” and so

forth. Now this is expressed as a general provision that comes at the start of a series of sections which cover specific types of resource consent.

Now 104C which is in my friend’s authorities under tab 1, it’s the one that specifically applies to restricted discretionary activities. It says, “When considering an application for resource consent for a restricted discretionary activity a consent authority must consider only those matter over which a discretion is restricted or it has restricted its discretion and so that’s a reminder that we can only consider the matters for discretion and then under sub (2) it says we may grant or refuse the application and then sub (3), “If you grant the application you can only impose conditions over those matters for which the discretion is restricted. So 104C says your authority your power is restricted to the matters for discretion and 104 says when considering that application you can have regard to any actual and potential affects, relevant provisions of the plan and those are the ones we’ve been looking at and any other matter you consider relevant and reasonably necessary to determine the application.

So that’s where the status of the assessment criteria are that certainly the ones that are listed in the plan are mandatory relevant considerations in the language of judicial review. The council will have regard to these matters. What can we do something about? It’s the matters for discretion. What do we have to take into account when we’re deciding what to do? The assessment criteria but section 104 also tells us that the consent authority can take into account matters that it considers relevant and reasonably necessary to determine the application. So I say the assessment criteria, even if we ignored the ones which don’t support my friend’s interpretation, the assessment criteria are not exclusive.

WILLIAM YOUNG J:

So what's the status of the explanation or reasons that appear on page 25? Material interpretation I guess.

MR HOLLYMAN:

Yes, so this comes into the very thorny question of what the status of the plan is and there is a sort of bifurcation in the approach that rules that are true rules under a plan have the effect of regulations but other ones have a lesser status as a sort of form of tertiary legislation.

WILLIAM YOUNG J:

Is this not like a explanatory note in a statute?

MR HOLLYMAN:

I accept that, yes, I would have thought so. So the explanation and reasons does refer and I don’t dispute this, there is a reference to the primary road network, the effects on the primary road network are there but this one goes on to say, “So this is the provision of access from roads to adjoining properties, road works and other activities which result in physical changes to land within the road zone have the potential to generate adverse effects in areas.” Now we get to the areas here, traffic safety, the operation of the road network, transportation system and the ability to develop land adjacent to the roads. And his brings me onto what in my submission is one of the fundamental points of issue here that, if I can put it bluntly, the driveway has two sides and my friend’s submission is that really the side of the driveway that’s on the land is not something that it can really take into account. It’s only concerned with effects on the primary road network.

WILLIAM YOUNG J:

But if the driveway’s too narrow then that would have impacts, it might well have an impact on the primary road network.

MR HOLLYMAN:

Absolutely, Sir, but the question is also, well, what about the people who are getting in and out of that property?

WILLIAM YOUNG J:

Well, might that not be a question to be addressed elsewhere in the plan by the general standards that apply to carparking and circulation arrangements?

MR HOLLYMAN:

So we have an example before Your Honours where this is no other provision of the plan which says anything about how people on the property are affected by this change and narrowing of – or by the change to entrance/exit.

WILLIAM YOUNG J:

So doesn’t 8.24, doesn’t that provide for it?

MR HOLLYMAN:

That provides as a permitted activity but there’s no other ability for people on

the property here to have their – the effects on there.

WILLIAM YOUNG J:

But if it’s permitted then isn’t that tough luck?

MR HOLLYMAN:

If it’s permitted, that’s tough luck in terms of that rule, Sir, but the purport of the plan is that you must comply with the most onerous requirements that are imposed under any particular section of the plan, so that if this section says once you are doing something out of the ordinary and you’re modifying your access point that comes onto the primary road network, I can look at the site layout as it relates to passenger access and internal circulation.

GLAZEBROOK J:

I don’t quite understand how you restrict it, though. What do you say is read into that because you are reading something into that, because you said, “No, you can’t look at the carparks at the back of the” – so you must be reading something into it because if you don’t then site layout includes the carparks at the back of the site. So what are you – and you took us to the sections and that didn’t help me much in terms of what you say the restriction is.

MR HOLLYMAN:

The restriction is to those, I apologise, Your Honour, if it is the fact that the –

it’s the site layout as it relates to carparking, if that is...

GLAZEBROOK J:

Well, you say those are separate discretions that are left but then you say, “Well, no, just because there’s a discretion relating to carparking they can’t say, ‘Oh, well, we want some more carparks at the back of the site,’” so you must be reading something into that.

MR HOLLYMAN:

No, Your Honour, I’m not reading something into the matters for discretion. I was inferring that why would you be making that decision? You would have to be making that decision based on some consideration which might not be regarded and reasonably necessary. You would have to justify your reasons for taking that into account.

GLAZEBROOK J:

Well, you might have all sorts of reasons for it. You might have said, “Well, it’s actually blocking the whole of the access off this road and there’s a bottleneck on the non-primary road network and if you want a concession here we want you to fix that up. It has a bad environmental effect because all of the fumes are travelling with all of the idling cars sitting waiting to get out on the road,” or whatever it might be.

MR HOLLYMAN:

Well, if it’s a matter of another bottleneck on the site, the congestion on adjoining roads is one of the assessment criteria and so the Council would, in that sort of example –

GLAZEBROOK J:

Well, these are parallel roads, aren’t they, so it doesn’t have anything to do with Great South Road, does it?

MR HOLLYMAN:

But it – and it’s not necessarily limited to Great South Road because it talks

about “roads” all through this. So whether the –

GLAZEBROOK J:

Well, what – so you say there’s no limit on that as long as they can be rationally connected to an environmental effect?

MR HOLLYMAN:

The Council is entitled to take into account various matters under the assessment criteria, both here and under the statutory provisions. So as long as they can say that it’s – as long as they have a proper basis for it then yes, those are the matters for the discretion, are, includes internal circulation.

ARNOLD J:

Just one thing, just while we’re on all of this, just for the sake of completeness, it’s worth looking at the explanation given on page 61 under 8.24.8 because it simply makes the point that poorly designed carparks and internal circulation can lead to parking not being utilised and adverse effects on the operation of the adjoining road network. So it acknowledges that there are two different types of effect that generally speaking the plan’s concerned about.

MR HOLLYMAN:

Yes.

ARNOLD J:

So the argument against you is that in 8.12 it’s actually only concerned with

the second element and not with the first.

MR HOLLYMAN:

I’m sorry Sir, which second?

ARNOLD J:

The argument against you is that 8.12 is only concerned with the second element identified in 8.24 and not the first, in another words poorly designed carparks and internal circulation leading to parking not being utilised is neither here nor there unless there's an adverse effect on the operation of the adjoining road network. That’s the nature of the argument as I understand it.

MR HOLLYMAN:

Yes now the nature of that argument and the nature of most of this argument is fast forwarding to the Council’s final determination and the question that is before the Court is the question of the decision on notification. Now I say that there must be no confusion between effects on persons and the effects on the primary road network because to do so robs section 95E of all meaning. On my friend’s submission it seems to me that there's very little chance of anyone ever needing to be notified under this rule.

GLAZEBROOK J:

Well it depends what the rule is, doesn’t it, if the restriction is in relation to carparking onsite, then you could well have had – so that effectively – I mean it’s just because of this particular rule that’s related to what might be seen as a public road and a public issue but if it’s something that’s reserved within the site then there could well be people affected couldn’t there?

O’REGAN J:

But isn't it intended? If you have a restriction to something that only affects the public road network, it might be intended that there shouldn’t be any notification.

MR HOLLYMAN:

Now let me take that point Sir. It is within the Council’s power under the statute to provide that there be no notification of particular provisions and there are examples of that, including in this plan. The council specifically has left notification open, that’s 8.12.2.2. So it would’ve been entirely open for the

Council in consultation on this to say well we’re just going to decide this, you can trust us, we’ll sort it out.

O’REGAN J:

No but they didn’t do that, we’ve got to interpret what's in front of us, not what might have been in front of us.

GLAZEBROOK J:

But there may be times when it does have an effect on someone, mightn’t there, even in this? The council couldn’t rule that out to start with, could it?

MR HOLLYMAN:

Well it could have, let’s put it that way but I say –

GLAZEBROOK J:

Well a council acting rationally I wouldn’t have thought could say well there will be no case where an effect on the primary road network won't have an adverse affect on someone.

MR HOLLYMAN:

I’m making a slightly different point Your Honour, that it was possible in the plan, which does go through a public consultation process, but it’s possible in the plan to say even if you're affected we don’t have to consult you. There’s provision for that in the statute.

O’REGAN J:

But that all presupposes you are affected and the Council says you're not.

MR HOLLYMAN:

Well that’s a different question with respect Sir. The point that’s been put to

me –

GLAZEBROOK J:

Well I’m not sure that your point makes much sense because you say they could've excluded it even if you were affected and then you say well no one

would be affected and therefore you should make sure that people do get a say.

MR HOLLYMAN:

Well no I’m saying that the logic of my friend’s proposition is that no one would be affected ever by this and if that were to be followed through then you – or if the Council was to make these decisions on its own –

O’REGAN J:

Well they could be. I mean if this change was going to lead to a major traffic jam on Great South Road and the Council was saying well that’s the outcome, it might’ve affected Wendy’s then and then Wendy’s would’ve been notified.

MR HOLLYMAN:

Sir I don’t want to make my friend’s submission for him but I understand that to be what he’s saying.

GLAZEBROOK J:

Well I think he did conceded that there will be times when somebody may be affected.

WILLIAM YOUNG J:

If a roading – if a circulation layout had been proposed which would result in queues that would most of the time block access to Wendy’s well then Wendy’s would be affected, wouldn’t it?

MR HOLLYMAN:

Right now let’s – if we hold that point for a moment. There is a prospect that Wendy’s could be affected by the proposal. The question is, is there an effect on Wendy’s that is minor or more than minor from the proposal, even though we’re worried about primary road network, in this scenario we’re accepting that there is a possibility of affecting Wendy’s.

WILLIAM YOUNG J:

Which has to be assessed as to whether it meets the notification threshold.

MR HOLLYMAN:

Correct, as to whether it’s minor or more than minor.

WILLIAM YOUNG J:

Yes.

MR HOLLYMAN:

Now this is where the question of participation comes in because the question

is whether Wendy’s is entitled to participate and make submissions on –

WILLIAM YOUNG J:

But Wendy’s doesn’t want to argue about the effect on the primary roading network as I understand it, it wants to argue that it’s been affected.

MR HOLLYMAN:

It wants to argue Sir that the change in the layout which has in turn an impact on the primary road network should be different, sorry the change in layout affects it.

WILLIAM YOUNG J:

Yes I know but it’s not saying we’re worried there's going to be a horrible

queue along the road which means no one can get into our drive-through.

MR HOLLYMAN:

Well with respect they are Sir.

WILLIAM YOUNG J:

Well I didn’t think they were saying that.

MR HOLLYMAN:

Because there's traffic conflicts onsite and traffic conflicts on the drive through which have the potential to back up onto the primary road network and that’s the point at which –

WILLIAM YOUNG J:

But that’s not really the argument that the Court of Appeal accepted. The Court of Appeal accepted – seem to operate on the presumption that yes there aren’t affects on the primary road network which haven't been addressed by the layout but that other layouts would’ve been possible and possibly preferable from the point of view of Wendy’s and therefore Wendy’s was affected.

MR HOLLYMAN:

Well the effect on Wendy’s must relate to the changes in the matters for

discretion.

WILLIAM YOUNG J:

Yes so can we sort of – I didn’t understand Wendy’s to say that the conclusion

– that the Council’s conclusion that there was no adverse impact on the primary roading network was wrong or was irrational. I didn’t understand that to be the focus of the –

MR HOLLYMAN:

The claim has been based on failure to notify because there inadequate –

WILLIAM YOUNG J:

Yes I understand that.

MR HOLLYMAN:

That’s right Sir.

WILLIAM YOUNG J:

But the impact was what you might call a local impact on Wendy’s rather than an indirect one resulting in the disruption of the traffic on the Great South Road.

MR HOLLYMAN:

Well I think that sort of goes to the determination of the final question.

WILLIAM YOUNG J:

Yes that’s what I’m saying.

MR HOLLYMAN:

Yes and so Wendy’s would be, even on my friend’s submission I say, should be heard and entitled to make submissions on whether the changes in layout do have an effect on the primary network.

O’REGAN J:

So do you say everybody serviced by this carpark has to be heard?

MR HOLLYMAN:

Only if the changes in the matters for discretion has an adverse affect on them that is minor or more than minor.

O’REGAN J:

But if it causes a queue on the primary road and stops people going into the development that must be so mustn’t it?

MR HOLLYMAN:

Absolutely Sir and there's nothing –

O’REGAN J:

So you're saying everyone in the retail strip, the Bank of New Zealand, all of those people had to be notified. What about people in the next block who might be affected by it?

MR HOLLYMAN:

Sir if the changes and the matters for discretion, so the internal circulation have an effect on one of these other retailers, and there's about six or eight, then they must be –

WILLIAM YOUNG J:

You're at cross purposes. You're being asked – one is impact on Wendy’s relating to matters that are internal to the site. Their parking isn't as good as it used to be, they’ve lost the berm et cetera. Okay that’s one set of issues, let’s put a circle around that. The other I think very theoretical argument is that there are going to be queues on the road and people won't be able to get into Wendy’s and it’s going to lose – be adversely affected in that way, all right. Now for myself I can imagine a situation perhaps slightly farfetched where a circulation plan would create such disruption to the traffic on the Great South Road that people wouldn’t be able to get into Wendy’s and if that were a plausible hypothesis then Wendy’s might be entitled to be notified but I don’t understand Wendy’s to be complaining of adverse impacts associated with that, as I understand Wendy’s complaints they are of the kind that were addressed by the Court of Appeal. So if we can sort of deal with local affects and disruption of the roading network effects separately.

MR HOLLYMAN:

Now I’m happy to address those, I’m just conscious of the time.

WILLIAM YOUNG J:

Okay, well perhaps we’ll deal with them at 2.15.

COURT ADJOURNS: 1.04 PM COURT RESUMES: 2.16 PM

WILLIAM YOUNG J:

Okay, thank you, Mr Hollyman.

MR HOLLYMAN:

Thank you, Sir. So just in terms of the questions I was asked before the break, I’d like to deal with those, I think, if I may, by first of all talking about rule 8.25 and that should hopefully then make clear where –

GLAZEBROOK J:

The what, sorry?

MR HOLLYMAN:

The rule 8.26.

GLAZEBROOK J:

Thank you.

MR HOLLYMAN:

And that should hopefully then make clear where I come in and perhaps we can discuss those points again at that point.

Now rule 8.25, I deal with this in my submissions starting at paragraph 77. I don’t propose to take Your Honours to those at this stage.

Rule 8.25, as Your Honours have seen, is headed, “General Assessment Criteria,” and if I can ask Your Honours to pick up my bundle of authorities there are a couple of excerpts from the plan under the last tab, which is tab 15. So there’s the first page here talks about the structure of the plan and that’s really to situate chapter 5. There’s a page out of chapter 5 which comes up next. Chapter 5 is general procedures and rules.

And so this, the next couple of pages here are from 5.2 and deal with the different kinds of activities, and so you’ll see 5.2.1 Permitted Activities. Controlled Activities. And then down the bottom 5.2.3 Restricted Discretionary and Discretionary Activities. Now these are lumped in together. So, “These activities, due to their scale, location, intensity or operational

characteristics, need assessment to determine whether they are appropriate,”

and so forth.

Now in the second paragraph it says, “Any application for a discretionary activity will be assessed against the relevant objectives, policies and rules of the Plan, and against the general and specific assessment criteria for discretionary activities contained within the appropriate implementation chapter,” and then it goes on to say for some discretionary activities Council has restricted its discretion, and there hereafter referred to as restricted discretionary activities. “The matters to which the Council has restricted the exercise of its discretion are specified in the relevant rules of each implementation chapter,” and so on.

Now the two points I’d like the Court to take from this. One is there is a reference here to both general and specific assessment criteria, and you can see in other parts of the plan, and I don’t propose to put them before the Court, but there are divisions where there are general criteria and then specific criteria, and the general criteria apply to all. The other point is, of course, that the Council has in this part of the plan reflected the statutory edict to specify the matters for discretion.

Now if I can ask Your Honours now to turn up the chapter 8 which is in the tab 9 of my friend’s bundle. Just starting at the first couple of pages, we’ve got the contents.

GLAZEBROOK J:

Couple of pages of?

MR HOLLYMAN:

Of chapter 8, so at the very start of tab 9 of my friend’s bundle. Now really this is just to give Your Honours a sense of how this is structured, you can see section 1 is Transportation General. There’s some general matters, Objectives, Policies and Methods, Strategy and so forth. Over the page,

8.10 Rules – Activities, and this is the one that we’ve seen in some detail.

This sets out in a table the various activities for the road zones and access.

8.11 Development and Performance Standards. 8.12 is then Matters for Decision: Restricted Discretionary Activities, and that’s the one that we’ve been looking at. 8.13 then covers general discretionary activities, and then there’s a heading, Section 2 – Parking and Loading, and we have similar construct: Introduction; Resource Management Issues; Objectives; Policies and Methods; Parking Strategy; so forth. 8.23 we have Rules – Activities. It sets out an activity table. 8.24 Rules – Development and Performance Standards, and then 8.25 General Assessment Criteria, and then 8.26

Financial Contributions, and then 8.27 is actually the schedule, setting out, and then 8.28 is Diagrams and then the appendix covers the primary networks.

Now the general assessment criteria, main thrust of my submissions, general assessment criteria, in 8.25 are general assessment criteria intended to cover restricted discretionary activities in the whole of this chapter. They’ve been separated out and put down at 8.25. now my friends argue that 8.25 applies only to parking. Now parking, and I’ll take Your Honours through the detail, but parking is dealt with in its own parts under 8.24, so that 8.25 is left sitting out as general assessment criteria. It’s not tied to a particular activity or a particular row in any activity table. It’s expressed to be general and in my submission it is general.

WILLIAM YOUNG J:

I think his primary submission was that, if you look at 8.23.1, the first column, this is for the purposes of this family of rules a permitted use, because this is an activity which modifies or utilises parking and loading areas in compliance with rule 8.24.

MR HOLLYMAN:

Yes, Sir, but that does not answer – his point was trying to respond to my argument that 8.25 applies because it applies to all restricted discretionary activities under this chapter.

WILLIAM YOUNG J:

Whether it reaches back to 8.10.

MR HOLLYMAN:

That’s exactly what – and I say it does.

WILLIAM YOUNG J:

That’s your argument. His argument is that it doesn’t, it only reaches back to

8.23 and, in particular, the second and third columns, the second and third rows of the table.

MR HOLLYMAN:

Yes, absolutely, and it couldn’t affect the first one. That’s a permitted activity. Now the restricted discretionary activities, just while we’re at that table on page 49, which Your Honours –

GLAZEBROOK J:

Well, parking is listed as a matter of control in 8.23.

MR HOLLYMAN:

Yes.

GLAZEBROOK J:

Where’s access listed as a matter of control? Do you say 8.10?

MR HOLLYMAN:

That’s correct, so 8.10 is all about access and 8.23 is all about parking, and the restricted discretionary activities which are in the table under 8.23, those restricted discretionary activities have their own assessment criteria which is specified in 8.24, so that the structure is activity table under 8.10, restricted

discretionary activities under 8.12 and they have assessment criteria set out there, we’ve looked at those. Then there is a table at 8.23, there are two restricted discretionary activities and their assessment is covered at 8.24.4.3.

WILLIAM YOUNG J:

Just going back, access is addressed in 8.24 isn't it? For instance 8.24.8.1 on page 60.

MR HOLLYMAN:

I’m sorry Sir, page 60. Mhm.

WILLIAM YOUNG J:

So I mean there's nothing in 8.25 that’s inconsistent with it applying to the

8.24.

MR HOLLYMAN:

No Sir, I say it applies to all of those restricted discretionary activities.

WILLIAM YOUNG J:

Yes but there's nothing in 8.25 which necessarily can't apply to 8.2.3 rows 2 and 3.

MR HOLLYMAN:

Mhm, no I accept that. I say that 8.25, if we can turn to that at page 61, it’s for any non-residential activity requiring restricted discretionary consent within the plan for which parking and access. So we have parts of – broadly speaking I accept that access is listed in some of these but as long as parking or access are listed as matters for control and matters for discretion, then 8.25 should apply.

WILLIAM YOUNG J:

So the whole thing, then, then 8.10.3 is a bit of a – it’s unnecessary because it’s all covered in 8.25.

MR HOLLYMAN:

Well I suppose in a sense it might be Sir but that is the structure that the plan has adopted because it specifies –

GLAZEBROOK J:

Well that’s every – I’ve just had a look and just about every activity just about

repeats what's in there. So why does that give you anything wider than under

8.12?

MR HOLLYMAN:

Because the general assessment criteria, so when you look at the assessment criteria –

GLAZEBROOK J:

Well surely when you're looking at general assessment criteria you have to be looking at it in the context of the particular thing you're looking at. You can't widen it. So even if it’s not related to parking and related to accessway, it has to be related to the primary roading network, doesn’t it?

MR HOLLYMAN:

Well no Ma’am.

GLAZEBROOK J:

Because under each section they’ve got those criteria you can't then say well just because you're a primary roading network that opens absolutely everything else up because if it’s a restricted activity it can't possibly open up parking in general and you’ve accepted that.

MR HOLLYMAN:

Well can I come back to that because I’m concerned that I’ve confused Your Honour on that point but 8. – sorry let me address Your Honour’s point. The question of whether or not each of these particular activities requires consent is then determined – what is determined is the matters for discretion, so the Council’s jurisdiction, it’s authority is over the matters for discretion.

Now if we turn back to 8.12.2 which is on page 36, “Council reserves discretion over the following matters for any activity defined in table 8.10.3 involving access”, the moment you involve access, these matters are available to the Council, those are the matters for its discretion.

ARNOLD J:

I notice in 8.25.1.2, the assessment criteria (i) refers back to 8.12.2.

MR HOLLYMAN:

Yes and the four bullet points at the bottom of the page are again the ones

that have repeated endlessly. The short point, it’s not a perfect plan.

WILLIAM YOUNG J:

Where’s the reference back to 8.12?

ARNOLD J:

It’s on page 62, 8.25.1.2(i), the last one.

MR HOLLYMAN:

So whereas the other rules with assessment criteria and matters for discretion talks specifically about which part of which table they’ve come from, this one just says “any non-residential activity.”

WILLIAM YOUNG J:

But it’s a bit odd that you’ve got a set of assessment criteria for 8.2.2 and then another set of assessment criteria, probably pretty similar, I haven't analysed it, for 8.2.5.

MR HOLLYMAN:

There's absolutely overlap Sir, absolutely and it is odd but it is the structure

that has been adopted in this plan and presumably it’s –

GLAZEBROOK J:

Well what do you take from that?

MR HOLLYMAN:

Well what I take from it Your Honour is that the Council is concerned to ensure that all of these things were available to it, clearly available to it when assessing anything in this chapter, any restricted discretionary activity or indeed any general discretionary activity in this chapter. These are the things that we want to first of all be able to control, the matters for discretion and these are things that we want to make clear that we’re going to take into account.

GLAZEBROOK J:

So 8.2.5 is saying we’ve got these specific assessment criteria for each particular activity and then actually what we can do is assess absolutely everything else because if you’ve got – if you're under a discretionary restricted activity in relation to one thing, we can then look at absolutely everything else, even though it hasn’t been reserved as part of the discretion.

MR HOLLYMAN:

Well now, so these things say, 8.25.1.1 has matters for discretion.

GLAZEBROOK J:

Sorry you'll have to go –

MR HOLLYMAN:

So 8.25, itself provides and they're overlapping matters for discretion.

WILLIAM YOUNG J:

The issue as I see it and I may be wrong, is does this apply only in relation to

8.23.1, the second and third rows?

MR HOLLYMAN:

Mhm, yes.

WILLIAM YOUNG J:

In which case this is a blind alley.

MR HOLLYMAN:

Mhm.

WILLIAM YOUNG J:

Or does it apply to any matter in respect of which access may have been reserved but which is dealt with elsewhere in this chapter?

MR HOLLYMAN:

Yes, and only just one gloss on that last point, otherwise I accept your proposition, where its dealt with elsewhere in this chapter includes both for parking and for access because – so 8.23 and at the risk of repeating myself,

8.23 on page 49 has an activity table. Two of those activities require a discretionary consent. They have their own assessment criteria set out, so the first one is over on page 52. Page 52 is if there are parking spaces fewer than that required under 8.24.1 which is the third row in the activity table back on page 49, there are matters for discretion and assessment criteria.

ELLEN FRANCE J:

But am I right, on your approach 8.25 would also apply?

MR HOLLYMAN:

Yes, yes, yes that’s right. I accept that there seems to be some doubling up

and it’s repetitive but in my submission that’s the proper of the plan, is that –

GLAZEBROOK J:

So if there's an issue on parking, they can have conditions in respect of cycle and pedestrian access.

MR HOLLYMAN:

Mhm.

GLAZEBROOK J:

And works generation, that’s the proposition.

MR HOLLYMAN:

Yes.

GLAZEBROOK J:

As soon as you get a restricted discretionary activity, that opens up everything.

MR HOLLYMAN:

Yes, well it opens up the matters for discretion because you are restricted to the matters for discretion that you have to specify and then the assessment criteria tell you what you can do. Now on my friend’s submission, 8.25, applies only to 8.23 but it has that same double up issue where it seems to double up on what's already in those same restricted discretionary activities. In my submission it’s not expressed with any limitation at all.

WILLIAM YOUNG J:

Doesn’t it – can't it be read sensibly as addressing the basis upon which applications in respect of the second and third columns in 8.23 are to be addressed?

MR HOLLYMAN:

Well Sir, the –

WILLIAM YOUNG J:

I mean is there a proper – I mean leaving aside that it’s not your argument, is there anything in the text which just doesn’t fit that at all?

MR HOLLYMAN:

Yes Sir.

WILLIAM YOUNG J:

What?

MR HOLLYMAN:

So the first is that those two rows in 8.23, so the table at 8.23, each of those two – the two bottom rows both require restricted discretionary activities.

WILLIAM YOUNG J:

Yes.

MR HOLLYMAN:

Now the bottom row talks about any activity where the parking and loading spaces does not comply with 8.24.1 and 24.3 and if you turn over to page 52, you have the related – this is the equivalent of 8.12.2 “Providing a number of parking spaces fewer than that required, here are the matters for discretion.” Notification over the page, we have assessment criteria. Now we haven't made it to 8.25 yet. The introduction to this part on page 52, the matters for discretion at 8.24.2.1 specifically refers to rule 8.24.1. So then there's a full set of assessment criteria on page 53 and then on page 55 we have the same pattern.

GLAZEBROOK J:

Why if it’s access would you care whether they're located to be attractive and

convenient to the intended user as an assessment criteria?

MR HOLLYMAN:

Well I’m second guessing the Council Your Honour but –

GLAZEBROOK J:

So it’s nothing to do with parking, it’s only access, 8.25.1.2(b) says, “Parking spaces are located so as to be attractive and convenient to the intended user.”

MR HOLLYMAN:

Mhm, so these are all matters which the Council says it’s going to take into

account.

GLAZEBROOK J:

Well it’s an assessment criteria for access, what on earth has it got to do with

access?

MR HOLLYMAN:

It’s an assessment criteria in relation to matters for discretion which have been reserved if access is put in issue. So if access comes in issue, the matters for discretion as we’ve seen –

GLAZEBROOK J:

Well access comes in issue so you can say oh look those five carparks down the back of the complex on whatever the road is aren’t very attractive to the intended user so because you want to change the accessway you’ve got to fix up those carparks at the back in order to make sure that they are attractive to the intended user.

MR HOLLYMAN:

That’s what the plan says, Your Honour.

GLAZEBROOK J:

Well we have to look at in some sensible way, don’t way?

MR HOLLYMAN:

Well in a sensible way those – following what the words say, that is what the words say.

GLAZEBROOK J:

Well in a sensible way in practice, so to say that the Council have, by this plan, said if you squeak in through a restricted discretionary activity we can make you do things that have absolutely nothing whatsoever to do with that restricted activity, even though we couldn’t make you do them otherwise because 8.24 has been totally complied with.

MR HOLLYMAN:

That’s the logic of it because if you have –

GLAZEBROOK J:

Well it might be the logic of what you're suggesting it is but what's the sense of it?

MR HOLLYMAN:

The sense of it is that if you are go into such a restricted discretionary activity as we’ve been looking at, the Council has restricted its discretion, its reserved discretion over these aspects. If it was a general discretionary activity it would have – it could've taken anything into account but a restricted discretion –

GLAZEBROOK J:

But you're saying that’s what it does, the effect of this is it can take anything

into account.

MR HOLLYMAN:

No Ma’am, for example it can't doing anything about the height and shape of buildings, that’s not something which falls within the matters for discretion.

GLAZEBROOK J:

Well it can take anything into account in relation to transportation you're saying, even though it’s restricted it only o those narrow things in terms of having – not complied with 8.24 or having an effect on a primary road.

MR HOLLYMAN:

What it has restricted its discretion to are the mattes for discretion which are

set out, I don’t mind whether we look at it at 8.25 or at 8.12.2.1.

GLAZEBROOK J:

Well what I’m really asking you is what is the policy justification you say for that? So you're saying that is what they’ve done, that’s the wording, what is the policy justification?

MR HOLLYMAN:

The policy justification is as soon as you're not doing something which is permitted, as soon as you are doing something which requires restricted discretionary consent, then the Council can look at particular aspects of the activity and here that is the site layout as it relates to pedestrian and passenger transport access. So that is what can I the Council –

GLAZEBROOK J:

Well if it’s not going to do that, how then does it know who to notify? Are you saying if it could possibly do any one of these things and they might have an effect on someone, it has to notify them?

MR HOLLYMAN:

Yes.

GLAZEBROOK J:

Because then it would have to notify the whole complex wouldn’t it?

MR HOLLYMAN:

Yes. That is the effect of the statutes.

GLAZEBROOK J:

And that’s your submission, that it has to notify the whole complex?

MR HOLLYMAN:

Well, subject to the threshold that the effects have to be minor or more than minor.

GLAZEBROOK J:

Well you say you can’t know that until you know what the effects are going to be, do you? And if the Council has no intention of putting any of these restrictions in place.

MR HOLLYMAN:

No, that – well, there’s two questions there, Your Honour. The first question is, “Who do I have to notify?” and the second question is, “What am I going to do in due course?” So if I’m looking at the site layout – so I’m – the access point, the access and layout to that access is changing. I, Council, say, “All right, well, so it’s a restricted discretion. What can I do something about? I can do something about the site layout as it relates to passenger and transport access, carparking and internal circulation. I can’t do anything about the height of the building. So if I’m sitting there and saying, “Well, the Carl’s Junior to the north of Wendy’s is going to be 20 storeys high and it’s going to cast a big shadow over Wendy’s, that is an effect that is not related to a matter for discretion because I, the Council, cannot do anything about that.”

GLAZEBROOK J:

That’s not what I’m asking you. What I’m saying is if it’s going to – if you can do something with site layout, how do you know whether it’s an effect, that it’s more than minor, if in fact nothing’s – you have no intention of doing any of these things? So when you’re notifying, you have to say does it – well, it’s really does the effect of what’s proposed have an effect that’s more than minor on someone?

MR HOLLYMAN:

And that is what –

GLAZEBROOK J:

The fact that you are allowed, as a council, to do other things that you have no intention of doing, when do you say you have to take that possibility into account?

MR HOLLYMAN:

You have to look at the proposal and you say, “All right, this site, what are the

adverse effects of the proposal on these various people?”

GLAZEBROOK J:

Sorry, now what does that mean?

MRHOLD

So what is the proposal? What are the adverse effects of the proposal on persons around? So it has, it just simply, the section says, “What are the adverse effects on a person?” That’s the first step. So what are the adverse effects on Wendy’s and yes, what are the adverse effects on the BNZ and what are the adverse effects on Super Liquor? And then you have to say, “Well, which ones relate to a matter for discretion and which ones do not?” And if the effect, so this was the point of my example, if the effect of a

20-storey building –

GLAZEBROOK J:

No, no, I understand the point of your example but –

MR HOLLYMAN:

Okay, so then I say –

GLAZEBROOK J:

– but what I want to know is, let’s get it back away from that.

MR HOLLYMAN:

All right, sorry. Okay. So then I say, “What are the effects of this change in site layout as it relates to internal circulation?” So what are the effects of the internal circulation changes on Wendy’s, and the effects here are, well, they’re changes. It directs traffic onto Wendy’s land. It affects the drive-through. It affects Wendy’s resource consent. Are those effects minor or more than minor, and if they are then I must give limited notice to Wendy’s.

GLAZEBROOK J:

And so where – and you say that you get the site layout from 8.25, is that right?

MR HOLLYMAN:

Site layout as it relates to internal circulation is under 8.12.2.1 and site layout is also under 8.25.

GLAZEBROOK J:

So 8.25 doesn’t add anything to your argument on 8.12?

MR HOLLYMAN:

Not to the argument about site layout, no. One of the key reasons I rely on it is because, well, I understand that my friend says, accepts that if it does apply then his argument must fall away because the assessment criteria go well beyond the primary road network, and the – and so it’s clear that the Council in exercising the discretion takes into account all of these other factors.

GLAZEBROOK J:

So you’re effectively adopting the Court of Appeal approach that if it relates to site layout then an adverse effect on Wendy’s business, which is a purely commercial effect, counts?

MR HOLLYMAN:

I accept that with two changes. The site layout, it has to be the site layout in

terms of the matters for discretion and the site layout is....

GLAZEBROOK J:

But you say that’s very wide?

MR HOLLYMAN:

It’s quite wide but it clearly doesn’t cover everything. It says as it relates to passenger, transport – pedestrian and passenger transport access, carparking, loading areas and internal circulation, but internal circulation is the one. The second is that it doesn’t have to be a commercial effect and much of Wendy’s complaint, and there is evidence directed to this, is about traffic conflicts onsite and congestion arising from the traffic coming directly off Great South Road and straight across the front entrance to the drive-through

and also, and there also have to be safety concerns about people crossing across that area. That used to be under our, under the old resource consent, that was specifically designed as a safe harbour and the Council required that to be established to protect people from the traffic coming off Great South Road.

O’REGAN J:

So do you say the Court of Appeal was wrong to define it as the effect on

Wendy’s business?

MR HOLLYMAN:

Yes, yes.

WILLIAM YOUNG J:

I find clause 8.25 rather confusing. It refers to any non-residential activity requiring controlled, restricted discretionary or discretionary consent but in fact the only operative provisions of 8.25 relate to restricted discretionary activities.

MR HOLLYMAN:

Your Honour’s quite right.

GLAZEBROOK J:

Although the assessment criteria are wider, I think.

MR HOLLYMAN:

Your Honour’s quite right although the...

WILLIAM YOUNG J:

But it just says, “Council reserves discretion.”

MR HOLLYMAN:

Yes. Her Honour, Justice Glazebrook, is pointing out that on top of the next page the assessment criteria are much more broadly expressed.

GLAZEBROOK J:

What you would say is the matters for discretion are additional restricted discretionary matters that have been reserved.

WILLIAM YOUNG J:

What controlled or discretionary activities are there where parking and access have been listed as a matter of control?

MR HOLLYMAN:

It may take a moment to answer that, Your Honour. There are two actual discretionary activities on page 24 but what I don’t have at my fingertips is the extent to which...

GLAZEBROOK J:

8.11 has got a controlled activities in it.

WILLIAM YOUNG J:

Okay, and then the second thing –

MR HOLLYMAN:

So –

WILLIAM YOUNG J:

Sorry, carry on.

MR HOLLYMAN:

Sorry, Your Honour. So yes, on page 26, 8.11.4, it’s got rapid transport systems although it doesn’t have parking or access listed as matters for control because matters for control is a matter for controlled activities, so, sorry, I may have led you up the garden path there. Those aren’t – there is no restriction of their discretion and the general discretionary activity, everything, they can control anything to do with the....

WILLIAM YOUNG J:

But it’s just all I’m trying to see is what the heading relates to because it’s not that obvious to me, and then the second thing is clause 8.24 is expressed and structured really awkwardly but all, anything that, as far as I can see, anything that is not within the first row in 8.23.1 will in fact be within one or other of the next two rows, all of which are then –

MR HOLLYMAN:

You’re on page 49, Your Honour.

WILLIAM YOUNG J:

I’m on page 49. And then...

MR HOLLYMAN:

Yes.

WILLIAM YOUNG J:

They – so I don’t think there can be a non-compliance with rule 8.24 which

doesn’t fall into one of the next two columns.

MR HOLLYMAN:

That’s correct.

WILLIAM YOUNG J:

And then each of them in respect of each of those categories of, I suppose, activities, there are specific matters reserved for discretion and assessment criteria.

MR HOLLYMAN:

Yes.

WILLIAM YOUNG J:

So the whole thing is it looks at belt and braces. I mean...

MR HOLLYMAN:

Yes. It certainly is, Sir. 8.25, in one sense you could have done without it but I say the fact that it’s there, it’s indicated in that earlier rule at 5.2.3 that they are going to do the structure. Perhaps it’s an attempt to avoid over-duplication although there seems to be over-duplication in any event because there’s cross-referencing and duplication between these various criteria matters for discretion.

WILLIAM YOUNG J:

But you could still read it, I suppose, and make a little bit of sense of it by saying that it applies to restricted discretionary activities specified in rule – in the second and third rows.

MR HOLLYMAN:

Well, except, Sir, that’s its introduction is not restricted in any way whereas in each other case the introduction to the matters for discretion is, it’s identified where it comes from.

WILLIAM YOUNG J:

Well, it is rather odd.

MR HOLLYMAN:

Now the Council did take 8.25 into account in this instance and I would like to take the Court just through some of the detail of that. There’s about four or five references.

O’REGAN J:

Does it matter whether they did or not?

MR HOLLYMAN:

Well, it matters in this sense, Sir, that –

O’REGAN J:

I mean, it’s up to us to decide what the clause means, not what the Council

officers thought it meant.

MR HOLLYMAN:

No. Sir, at the same time, my friend says that 8.25 doesn’t come within cooee of this and it’s utterly out there. It’s just a – it’s a nothing and it shouldn’t have been.

O’REGAN J:

Well, are you saying we should follow a decision of a council officer?

MR HOLLYMAN:

No, Sir, not at all, but I’m saying –

O’REGAN J:

Well, what’s the point of taking us to them then?

MR HOLLYMAN:

The point is to demonstrate that the Council says that it’s limiting itself to the primary road network but it doesn’t. It actually itself believed that this rule applied, and so it specifically sought information on this. And my friend has waved the spectre of some sort of flood-gates argument there’s going to be millions and millions of applications which have to be notified if, for example,

8.25 had to be taken into account. But the Council did and does take it into account.

Now I’ll be relatively quick through this because the...

GLAZEBROOK J:

What volume are we in?

MR HOLLYMAN:

So we’re in volume C1 which is the bright yellow one, and at page 435, at the very end, towards the end.

ARNOLD J:

What was the page?

MR HOLLYMAN:

435.

ARNOLD J:

Thank you.

MR HOLLYMAN:

So this is an email, just an internal email from the Council, saying, from the Council’s traffic controller, traffic assessment person, to Sheena Kwan who is dealing internally with the report, and he says, “Please request to provide assessment under 8.12.2.3,” so the assessment criteria that we’ve been looking at, “and 8.25.1.2 for modification to access and parking having access onto the primary road,” and that results – so this is after the proposal has initially come in, and that results in the letter that goes out from the Council that’s at page 440.

Now you’ll see the heading there, “Access,” in the middle of this page, “The introduction of the entry lane at the intersection has the potential to cause adverse effects within the adjacent primary road network and internal conflicts within the site.” We’re not just concerned about the primary road network. Now this is under the heading of “Access”. I don’t propose to take the Court through every line but over at the top of the next page, “Please provide an assessment under 8.12.2.3 and 8.25.1.2 for modification to access and parking having access onto the primary road.” So it’s entirely consistent with my reading that I’ve been putting to Your Honours, submitting to Your Honours, that 8.25 does come into play. And then just to complete that point, parking is addressed at the top of page 442.

WILLIAM YOUNG J:

Sorry, page?

MR HOLLYMAN:

Page 442, just the next page, and I just wanted to note the heading. So the request is under the heading of “access” and it talks about access onto the primary road. Now the response is in the next volume, C2, which is the sort of orange coloured volume, at 488. Sorry, at 495. Now this response letter, if you just drop down to the bottom of the page –

GLAZEBROOK J:

Sorry –

WILLIAM YOUNG J:

Sorry, I’m missing this.

GLAZEBROOK J:

When you say the next volume, you mean part 2 of volume C?

MR HOLLYMAN:

Sorry, C2, part 2 of volume C sorry. It’s an orange one. Page 495. Now 495 is the response letter and you’ll see again towards the bottom of that page heading “access” and then paragraph 4, “An assessment against clauses

8.12.2.3 and 8.25.1.2... is attached.” And says, “Given these assessment criteria are largely qualitative from a traffic perspective, the assessment has been carried out by Ian Constable.” Now Mr Constable’s report, if Your Honour’s turn page to page 488, now Mr Constable’s report, at the bottom of this page, “Item 4. Assessments of the proposed modified northern and central accesses against the criteria in 8.12.2.3 and 8.25.1.2, are provided in the following two tables.” Now again here on the next page we have two tables. The first box, assessment against 8.12.2.3, and then assessment against 8.25.1.2 and really it comes down to saying there’ll be good circulation onsite, but I don’t propose to take Your Honours through the detail of that but it is – no suggestion or response well 8.25 doesn’t apply.

We’re compliant with the parking requirements. It just says yep, here we are, there’s going to be good onsite circulation.

ELLEN FRANCE J:

The Court of Appeal says at paragraph 21 that although some of the information obtained by the Council referred to 8.25.1, this did not form part of its decision. Do you accept that, that it didn’t form part of a decision?

MR HOLLYMAN:

Well that’s one of those questions. It’s not referred to in the notification decision itself in the reasons. But it forms part of the material that they obtained, that they specifically requested, and I’ll take Your Honours in a moment just to a couple of the Council affidavits. There’s no suggestion that it was disregarded or put to one side because it was considered not to be relevant. The Council refers to having got this information, had a meeting about it.

O’REGAN J:

So do you accept it or not?

MR HOLLYMAN:

Not as a conclusion no. But I say that with that qualification, that I can’t point

to anything in the decision itself. The reasons do not refer specifically to it.

WILLIAM YOUNG J:

Where’s the non-notification decision?

MR LOUTIT:

609 Sir.

WILLIAM YOUNG J:

This is at 609?

MR LOUTIT:

Yes.

MR HOLLYMAN:

And so that 609 forms part of the internal Council report.

WILLIAM YOUNG J:

What about the fourth bullet point at the bottom? Does that encompass perhaps the 8.25 consideration?

GLAZEBROOK J:

I was wondering that.

MR HOLLYMAN:

Or if I can ask Your Honours to turn back to 604 which is still within the same report, there’s quite a discussion of the site layout. 604, in the middle. There’s three paragraphs under the heading, “Site Layout,” and the second and third paragraphs, “The location and design of entry points, loading bays, parking areas, accessways and landscaping areas are designed and provided on a common and functional basis to ensure compatibility with the existing business activities and buildings.” “Furthermore, following discussions at a meeting,” that is following the section 92 request, “the site layout has been amended to foster and highlight pedestrian-focus environment and to improve pedestrian interaction.” All right, I wasn’t proposing to take Your Honours through a sort of line-by-line of these, of the report. For completeness, the actual decision is at 619. I don’t propose to take Your Honours to it but that’s just where it is.

And if I can ask Your Honours to turn up the evidence that’s the light-green volume, under tab 10, tab 10 of that light-green volume is the affidavit from the Council’s traffic engineer, and at page 100, paragraph 22, he refers to the

1 October meeting that’s just been mentioned and he says, “I recall discussing the matters raised in the section 92 letter particularly regarding the issues surrounding the two access points, the needs for improvements to the Ronwood Avenue access point, parking, loading and drive-through facilities for Carl’s Junior restaurant.” Now the Ronwood Avenue access point is arguably outside the scope of the restricted discretionary activity and might fall

within Your Honour, Justice Glazebrook’s, example about the five carparks down the back that we don’t like the look of.

GLAZEBROOK J:

Yes, although you would say that’s all opened up by 8.25, wouldn’t you?

MR HOLLYMAN:

I do, I do. That’s the matters for discretion are restricted –

GLAZEBROOK J:

So the answer to my question wasn’t “no” earlier. It was actually, “Yes, they can because it’s open.”

MR HOLLYMAN:

I apologise. I must have misunderstood you. But the – and I suppose it just comes back to my point about but they haven’t restricted discretion over height, for example, is a different –

GLAZEBROOK J:

Although it probably does come down at that stage to say if the Council isn’t intending to do – because the difficulty with notification is, at that stage, the Council won’t know what it’s – if discretion is totally open on a number of those matters but there is – because certainly these people weren’t proposing changes to Ronwood Avenue.

MR HOLLYMAN:

No.

GLAZEBROOK J:

They were proposing changes to the two accessways on Great South Road. So I suppose my second part of my question was directed to, well, just because the Council can do something on Ronwood Avenue does it have to – I don’t know who was by Ronwood Avenue. The TAB. That was certainly down that way, wasn’t it?

MR HOLLYMAN:

Mmm, the Super Liquor, yes.

GLAZEBROOK J:

Or Super Liquor. Do they have to notify Super Liquor just because they might do that or might not?

MR HOLLYMAN:

Well, we don’t want to confuse what the Council might do with what the

proposal is because –

GLAZEBROOK J:

Well, no, but – well, that’s what I’m trying to tease out really. But do you say they only notify the people that are affected by the particular proposal, and if down the track the Council say, well, we will allow that proposal but subject to these other changes, what do they have to do, do they have to notify then if those other charges they’re proposing might then adversely affect people?

MR HOLLYMAN:

As a matter of logic I’d have to say yes –

GLAZEBROOK J:

Do you see the difficulty?

MR HOLLYMAN:

I do see the difficulty but the point is the statute requires the Council to make two separate decisions. The first is, who do I have to notify, and then later hat am I going to, am I going to grant or decline on what conditions. Now at the outset it’s, well, what are the adverse affects of the activity. Now if, after a point the Council is looking at it and someone within the Council says, hey, this is a great opportunity to fix up that other big problem, then I’d have to say as a matter of logic, and as a matter of natural justice, they’re going to have to talk, then say, well actually, if that’s coming into play then we’re going to have to notify the people who are adversely affected in a more than minor way by

that. But that’s as a result of the Council deciding that it wants to do something, not at that initial stage of what’s the proposal.

WILLIAM YOUNG J:

What did Justice Peters say about 8.25. She thought it was engaged, that it

didn’t matter.

ARNOLD J:

Just before we leave that planning thing, it’s interesting there’s a lot of

evidence from 102 on about planning –

GLAZEBROOK J:

102, sorry, where are we?

ARNOLD J:

That evidence we were looking at.

GLAZEBROOK J:

Oh the evidence book, sorry.

ARNOLD J:

I’m just nothing that there’s quite a lot of evidence that the, he expresses the view that these changes will benefit Wendy’s customers.

MR HOLLYMAN:

Yes, yes.

ARNOLD J:

That should have been irrelevant, shouldn’t it?

MR HOLLYMAN:

Well on my friend’s argument it would be irrelevant and, so paragraph 26 in particular he says, “I did not have any concerns regarding internal traffic flows because these would be automatically adjusted and the layout changes are completed. Low speed traffic –

GLAZEBROOK J:

Sorry, whereabouts are you?

MR HOLLYMAN:

I’m at paragraph 26, and then sort of continued on. There’s quite a lot of discussion about the onsite layout and so forth and these are all matters which is now said the Council doesn’t take into account at all. Instead of these, the Council officers saying, well, when it came to that decision I just put that to one side because it’s not relevant, I only cared about the effect on the primary road network. On the contrary the Council defended its decision not to notify on the basis that these arrangements wouldn’t have detrimental effects on Wendy’s.

WILLIAM YOUNG J:

So what did the Judge say about that? The Court of Appeal didn’t have to

engage with it because they said 8.25 was irrelevant.

MR HOLLYMAN:

So at 34, on page 41, paragraph 34, page 41 of the light blue volume, the first volume A. “The matters in respect of which the Council has discretion in respect of such activities are,” and then Her Honour has reproduced both the matters for discretion under 8.12.2.1, and the matters of discretion under

8.25.1.1, and then she says, Her Honour says at 35, “This criteria encompasses the layout and design of access to and from the site and internal circulation within the site. I accept Wendy’s submission that the criteria was sufficiently broad to allow consideration of access to and from the site and internal circulation of traffic within the site, these being matters of particular concern to Wendy’s.”

WILLIAM YOUNG J:

So –

GLAZEBROOK J:

Did she make a final –

WILLIAM YOUNG J:

She presumably has to make a finding at some stage as to whether the conclusion that the Council reached was unreasonable.

MR HOLLYMAN:

The –

WILLIAM YOUNG J:

Was it contended that the Council’s conclusion on this was unreasonable?

MR HOLLYMAN:

Yes, it was contended that the, there was insufficient information on which the Council could make, for the Council to make the decision and it should have gone back for further information, and it was contended that the Council’s decision on non-notification was an error of law as a result.

WILLIAM YOUNG J:

So what did the Judge say about that?

GLAZEBROOK J:

Yes, I’m just trying to find it.

MR LOUTIT:

Paragraph 51.

WILLIAM YOUNG J:

Okay, so it’s a sort of a finding of fact that there was a pretty – a rather conclusory finding of fact that the information was sufficient?

MR HOLLYMAN:

Yes, although there was the error then at the last sentence of 52 that modification works themselves do not take place on Wendy’s leased premises but beyond its boundary. Now that’s only true to a point because one of the matters here is that the result of this resource consent is that the traffic is there’s been a modification of the use of Wendy’s land.

WILLIAM YOUNG J:

But the Licensing Trust hasn’t done anything on Wendy’s land, has it?

MR HOLLYMAN:

The, what the effect – not specifically, but what’s done is changed – so that entranceway, the removal of that berm , means that the in and out traffic, certainly the inbound lane, now drives straight onto Wendy’s land where it didn’t used to.

WILLIAM YOUNG J:

But the berm was on what was Mobil’s land.

MR HOLLYMAN:

The berm was, yes. The berm was, yes, but the purpose of the berm in the Council’s earlier resource consent was to create a safe harbour and keep traffic away from the drive-through and now that traffic comes straight through, past the entrance to the drive-through, past the entrance to the restaurant, and now it’s a two-way in and out. So it’s now used as a cut-through for people to avoid the lights on the corner.

WILLIAM YOUNG J:

So the case, if you’re right about 8.25 then the decision that’s effectively under

challenge is conveyed in the last two or three sentences of para 51?

MR HOLLYMAN:

Yes. Now, jumped around a bit. If I can come back to the traffic engineer’s evidence...

GLAZEBROOK J:

Are safety concerns of adverse effects on Wendy’s?

MR HOLLYMAN:

If they’re Wendy’s customers they are.

GLAZEBROOK J:

And, ie, that it goes past their drive-through now?

MR HOLLYMAN:

Yes. Well, I would have thought –

GLAZEBROOK J:

I mean, there’d be certainly an adverse effect on whoever got bowled over because of that.

MR HOLLYMAN:

Well, it must be in the sense that, you know, that certainly Wendy’s customers are going to be discouraged because there’s cars whizzing past the front door all the time.

Now the review condition, a fair bit is made out of the fact that the Council imposed a review condition saying – well, now let me, let’s start with the review condition itself. I’ll come back to this evidence volume, but the review condition is in the orange volume, which is volume C, part 2, and it’s in the decision itself which is at 619, and the review condition is at 628.

At 628, paragraph 27, “The conditions of this consent may be reviewed by the Council,” and then under little a, roman (i), “To deal with any adverse effect on the environment which may arise or potentially arise from the exercise of this consent,” in particular adverse traffic effects on the primary road network, impact on the intersection access point, and onsite management. Right? So we’ve got the primary road network but the last few words of that are onsite management, and a fair amount was made of this in the evidence, and I’ll come back to Mr Thambiah in a moment, but in Mr Constable’s evidence, which is the last in the evidence volume, the blue – sorry, the –

GLAZEBROOK J:

Can I just check that they wouldn’t be able to do that unless 8.25 has the

meaning you say, would they, because –

MR HOLLYMAN:

Yes.

GLAZEBROOK J:

– if they are only allowed – if they’re not allowed to look at parking, loading, rubbish and traffic movements or on, onsite management except to the extent that it affects the primary road network?

MR HOLLYMAN:

So on the Council’s argument before Your Honours, this review condition is ultra vires, whether it’s 8.25 –

GLAZEBROOK J:

Well, it may not be if you can say that that does relate in some way, which it

could do but...

MR HOLLYMAN:

All right, yes, with that qualification –

GLAZEBROOK J:

But it would be limited on their analysis and on your analysis it would – well for a start they were able to take those things into account in any event in their decision and so, of course you’d have a review condition in there if something changed in terms of what they thought.

MR HOLLYMAN:

Yes, and so I say this is entirely consistent with my argument that whether it’s under 8.12 or 8.25 they were entitled to say things about the onsite circulation. And now Mr Constable, who was the Licensing Trust traffic engineer, talks about this at page 207 of the green volume, it’s a few pages from the end. So he quotes at paragraph 48 the review condition, which I’ve just referred Your Honours to, and then he talks about at 49 he simply emphasises the points, “Recalling discussions with Council officers prior to the consent being granted I believe that the main reason for this condition is to address potential

safety concerns of the access of Ronwood,” and so forth, “However, the wording of the condition also covers other traffic matters such as the operation of all site accesses, onsite vehicle movement, parking and servicing, which would encompass the scenarios raised in the third affidavit,” that’s the third affidavit of Wendco’s traffic engineer, talking about various problems that would arise.

Now I was going to leave that, leave the evidence now about what the Council actually did. Now there is again this question of Wendy’s own resource consent. I don’t propose to take Your Honours through it in detail. The references are in my written submissions. The point about Wendy’s resource consent is that that resource consent covered not just Wendy’s land but also the adjacent land. The Council consent makes it quite clear that the layout there is required as part of its consent.

WILLIAM YOUNG J:

But it’s still, it’s Wendy’s problem if it can’t access the adjoining land though,

isn’t it?

MR HOLLYMAN:

Well, Sir, yes and no –

WILLIAM YOUNG J:

No one else’s.

MR HOLLYMAN:

The point I’m trying to make is that the, a resource consent attaches and

binds the land that it applies to, that’s under section 130 –

WILLIAM YOUNG J:

Well it doesn’t bind.

MR HOLLYMAN:

It attaches to the land.

WILLIAM YOUNG J:

Yes, but you don’t have to carry –

MR HOLLYMAN:

You cannot use the land other in accordance with the resource consent.

WILLIAM YOUNG J:

Sorry?

MR HOLLYMAN:

You cannot use the land –

WILLIAM YOUNG J:

Yes you can.

MR HOLLYMAN:

– other than in accordance with a consent.

WILLIAM YOUNG J:

Of course you can, you can use it for any permitted use.

MR HOLLYMAN:

Yes. But then that’s either permitted by the actual resource consent –

WILLIAM YOUNG J:

Yes but –

MR HOLLYMAN:

– or by some other provision in the plan.

WILLIAM YOUNG J:

Yes, but sorry, the fact that the resource consent may have covered the Licensing Trust’s land, doesn’t mean anything if Wendy’s can't get access to the Licensing Trust’s land to provide the parking or whatever.

MR HOLLYMAN:

When you say “access” Sir, I’m, sorry...

WILLIAM YOUNG J:

Sorry?

MR HOLLYMAN:

When you say Wendy’s can’t get access, this is land adjacent to Wendy’s

land.

WILLIAM YOUNG J:

Yes, I know, but sorry, if the problem is that Wendy’s wants parking on land belonging to the Licensing Trust, the fact that it’s got a resource consent that means its business is subject to such parking being available, doesn’t mean that it’s got a right against the Licensing Trust to demand those carparks.

MR HOLLYMAN:

No Sir, and I don’t say that.

WILLIAM YOUNG J:

Okay, well so that land can be used for any purpose –

MR HOLLYMAN:

It can be subsequently developed, that’s right, and we’re not in disagreement on that point. No the point which I wanted to make is that that is one of the factors which means that Wendy’s is adversely affected by this. Because Wendy’s is a resource consent holder of a consent which applies to that adjacent land –

WILLIAM YOUNG J:

But isn’t this sort of, anything that the Licensing Trust, sorry. The Licensing Trust can do whatever it likes with its land subject to any binding obligations in favour of Wendy’s.

MR HOLLYMAN:

Mmm.

WILLIAM YOUNG J:

It’s perfectly entitled to say Wendy’s stop parking there, we’re not going to do anything with the land, but you’re not –

GLAZEBROOK J:

Or we’re going to lease the carparks to somebody else. Carl’s Junior can use all of the carpark.

WILLIAM YOUNG J:

So I can’t see why it’s – why that should be an effect that has to be taken into account.

MR HOLLYMAN:

No, Sir. It is part of the reason that Wendy’s is affected by the proposal because the change changed one of the safety conditions imposed by the Council in relation to Wendy’s resource consent.

WILLIAM YOUNG J:

So what’s Wendy’s doing now?

MR HOLLYMAN:

Sorry, Sir, well, Wendy’s is putting up with the situation. The traffic comes onto Wendy’s land as a result of this change. The Council says it’s not going to prosecute Wendy’s for not complying with this requirement but I say it’s – underlying that resource consent is this is a concern for the safety of Wendy’s customers and so forth, and so when you are considering this proposal in terms of how it affects Wendy’s, that’s one of the ways that Wendy’s is affected by the proposal.

WILLIAM YOUNG J:

But then that would be very simple for the Licensing Trust simply to say, “Well, we cancel your licence to use the land. You’re out of here,” and then in two weeks’ time we’re going to apply for a consent. I mean, that’s a sort of an ephemeral issue.

MR HOLLYMAN:

Well, that comes back to the private law arrangement, Sir, but I’m talking

about –

WILLIAM YOUNG J:

But you don’t have a private law claim.

MR HOLLYMAN:

No, Sir.

WILLIAM YOUNG J:

I mean, if you did you wouldn’t be here.

MR HOLLYMAN:

Well, Sir, the private law claim was resolved except insofar as the judicial review, issues arose in relation to the judicial review.

WILLIAM YOUNG J:

Yes, I’m sorry, but there’s – on the material we’ve got, there’s nothing for us to

– no reason why we shouldn’t conclude that the Licensing Trust could have said, “Right, you don’t step over the lease line. If any of your customers parks there we’ll tow them away,” and two weeks later we’ve put in the consent, so the status quo’s been changed.

MR HOLLYMAN:

Well, except that the public law rights and obligations enshrined in the resource, and “enshrined” is probably too strong a word, but encompassed in the resource consent are rights held by Wendy’s, and so while the – it’s

probably a slightly artificial example, Your Honour, because the question of access across the land is integral and that’s part of the lease, so the fact that the – they might be able to do that if there was, say, if it was not a leasehold, if we just each owned the piece of land outright, the fact that Wendy’s has had access across that land and the fact that the Council imposed conditions on that consent arising out of concerns about circulation and so forth and safety of Wendy’s customers, that’s all – that’s what I say is what the Council should have been taking into account.

WILLIAM YOUNG J:

Well, they think they did.

MR HOLLYMAN:

Well, no, Sir, the Council’s –

WILLIAM YOUNG J:

Although perhaps not very well.

MR HOLLYMAN:

The – no. Well, perhaps that’s the answer.

WILLIAM YOUNG J:

Well, didn’t you take us to a passage where the traffic engineer said that he had taken into account safety of pedestrians and whether it was a good thing or a bad thing for Wendy’s?

MR HOLLYMAN:

Ex post there’s a lot of rationalisation about that, that’s right, but in terms of taking into account Wendy’s resource consent specifically the Council evidence is that they didn’t take into account the – sorry, Sir.

WILLIAM YOUNG J:

Well, let’s – sorry, but didn’t, leaving aside the resource consent label, isn’t there evidence that they did take into account the underlying issues as to safety?

MR HOLLYMAN:

Not specifically in relation to Wendy’s.

GLAZEBROOK J:

But I thought they’d – I thought at least in the...

MR HOLLYMAN:

The affidavit evidence –

GLAZEBROOK J:

In the notification decision itself there was something about safety, I thought.

Limited notification, yes. At 609, “Adverse effects on pedestrian safety.”

MR HOLLYMAN:

Yes, I’m sorry, I thought Your Honour was asking specifically about Wendy’s

customers.

GLAZEBROOK J:

Not where – well, I mean, I presume that encompassed that.

MR HOLLYMAN:

At a general level, absolutely, it says that.

GLAZEBROOK J:

You were talking about the ex post facto affidavits which...

MR HOLLYMAN:

Yes.

GLAZEBROOK J:

But these are effectively contemporary documents, aren’t they, the

notification?

MR HOLLYMAN:

Well, certainly the notification decision is, that’s right.

WILLIAM YOUNG J:

But wasn’t it addressed to some extent in the material which was available before notification, the notification decision was made?

MR HOLLYMAN:

The resource consent?

WILLIAM YOUNG J:

This issue of – I’m not so interested in the resource consent as a label. I’m more interested in what you might call the points of substance that underlie it.

MR HOLLYMAN:

I understand.

WILLIAM YOUNG J:

But they were addressed, weren’t they, in the traffic engineer’s reports?

MR HOLLYMAN:

Not specifically as relates to Wendy’s, no.

GLAZEBROOK J:

Well sort of. At 8604 they do make, they say enhance the pedestrian environment.

MR HOLLYMAN:

Well that’s the only reason for my qualification is that it’s specifically in relation to Wendy’s but I accept that pedestrian generally yes, onsite circulation generally yes.

Now this leads me back to the question of the purpose of notification which does run right back to the right to be heard on matters which adversely affect your interests. It’s a matter which this Court spent some time on in the Discount Brands decision and it’s not, it’s quite clear from that decision it’s not a matter likely to be put to one side. In the interests of timing, because I know Your Honours will be familiar with the decision, I won’t go through it in any detail, I won’t take Your Honours specifically to it, but in no particular order the points to be taken from it is that a decision not to notify is significant, the consequences are serious. It shuts a party out of the system and out of access to the specialist tribunal and out of, and there are no appeal rights because you haven't been involved. And that runs right through the decision and particularly the decision of Justice Keith, the Chief Justice, Justice Blanchard, and Justice Tipping, and of course Justice Keith refers to the Bill of Rights Act there because section 27 is engaged. So the fundamental point is that persons who are adversely affected by decisions should be heard in relation to decisions that affect them. There’s a salutary warning in at least two of the judgments, which is really summed up by saying you don’t know what you don’t know, and one of the purposes of notification is to give people a chance to test the information, it improves decision-making, and touches back on the point which the Court discussed this morning about obtaining information. Wendy’s itself would have had information which bore on the Council’s decision. The better quality decision-making and it’s what the, what this Court described as the participatory and democratic process of the RMA, and there’s comments in various decisions that the whole thrust of the RMA is directed towards participation.

Now natural justice in turn is, of course, an important component of the rule of law and this sort of matter was covered in some detail in the decision of the Court of Appeal in the Combined Beneficiaries Union Inc v Auckland City

COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 case, and it’s been the subject of comment by the Supreme Court of the United Kingdom recently in Osborne v The Parole Board [2013] UKSC 61.. So it’s an important part of the rule of law. It’s really also part of my, where I started this that the rule of law says you should be able to work out what the statute means and quite readily here the statute talks about matters for discretion and they’re quite readily identifiable in the plan.

Now I do have, as I said probably five or 10 minutes ago, the affect on Wendy’s is that the traffic now comes onto Wendy’s land and this resource consent –

WILLIAM YOUNG J:

But that must be permissible under the lease arrangements?

MR HOLLYMAN:

Only to the extent Sir that it is an accessway and one of the issues in the lease argument is whether or not accessways could be moved.

WILLIAM YOUNG J:

Yes, but I mean, sorry, if it were not permissible under the lease

arrangements Wendy’s could stop it.

MR HOLLYMAN:

Well, Sir, Wendy’s is entitled to move access ways on its land.

Certainly that’s the approach that the Trust took.

WILLIAM YOUNG J:

Is, sorry?

MR HOLLYMAN:

Is entitled to move access ways. And so there has to be a question, well, where does this leave Wendy’s in terms of this traffic that’s coming onto its land? Is it prevented by the resource consent from putting carparks where the

traffic currently flows? It hasn’t been consulted, hasn’t been involved in this process in any way, and yet it appears that it may be bound and precluded from putting carparks along the front of its restaurant because they would be in the way. They would be in the way of the traffic.

WILLIAM YOUNG J:

Well, if it’s entitled to do that, it’s entitled to do that, isn’t it?

MR HOLLYMAN:

Well –

WILLIAM YOUNG J:

I mean, that’s not really our problem, is it?

O’REGAN J:

It’s up to you to have the fight with the landlord.

MR HOLLYMAN:

Well, Sir, yes, at that point. But really that emphasises, in my submission, that the point is that Wendy’s, it’s an extraordinary submission that Wendy’s is not adversely affected when the change to the internal circulation puts traffic directly onto its land which wasn’t there before.

Now unless Your Honours have any further questions, I don’t propose to...

WILLIAM YOUNG J:

No, thank you, Mr Hollyman. Mr Loutit.

MR LOUTIT:

In essence, Your Honours, my friend’s case stands or falls on his interpretation of the district plan and whether those matters of discretion that he took you to, whether they be in 8.12 or 8.25 or 8.23 or anywhere else, are relevant.

WILLIAM YOUNG J:

Whether they can be applied disconnected, in a way that’s disconnected from the impact on the primary roading network. So that’s sort of issue 1.

MR LOUTIT:

That’s right, and my submission is, and I think it is quite simple, that none of those matters of control or assessment criteria are engaged or are relevant or come into play unless you need a resource consent under a rule. The rule that requires resource consent in this context is 8.10.3 (b), which is only interested in the primary road network.

If that rule wasn’t there, we wouldn’t be looking at any of these matters of control and we wouldn’t be looking at any of these assessment criteria. It’s because you need a resource consent under that rule that my friend then –

O’REGAN J:

Sorry, under which rule? 8.10.2?

MR LOUTIT:

10.3 (b). The table. The 8.10.3 (b) that talks about the primary road network.

WILLIAM YOUNG J:

I mean, I really am puzzled by 8.25 because it seems on any view of it it just overlaps what’s already there in terms of 8.10 and also the 8.24 provisions. Is there anything else that relates to – that it could apply to other than –

MR LOUTIT:

To be honest, I haven’t gone through the plan and looked at that and the

reason I haven’t –

GLAZEBROOK J:

Most of them do overlap. I’ve had a quick look through it. It overlaps just about all of them although they’re worded slightly differently, inconveniently and irritatingly, and some of them have got added bits to them.

MR LOUTIT:

Which in some ways is an absurdity in terms of my friend’s argument because with restricted discretionary activities, I took you through the provisions, they’re intended to be restricted. None of these provisions, if we didn’t require that first resource consent at 8.10.3 (b), in terms of the primary road network, none of these matters for discretion would be engaged and it’s telling that he starts you not with the rule at 8.10.3 (b) that requires consent, he starts you at the matters of discretion. But that’s only half the story. It’s a chicken and egg or cart and horse type scenario and you’ve got to start with the rule and then the matters –

GLAZEBROOK J:

What about the argument, I think it was the only argument made by your friend, that once you do get into that rule the Council can look at other things because you’ve got yourself in there anyway and the Council then has reserved the self, the right, which it seems actually to be taking advantage of when it’s talking about Ronwood Avenue and various other things in the consent document itself, to have open slather, at least in respect of those things that are noted.

MR LOUTIT:

Yes, so my submission to you is that is not the intention of the district plan in that regard.

GLAZEBROOK J:

Well it could be the wording, couldn’t it, so it could say that 8.25 says that if you, basically if you want a concession, in terms of the primary roading network, then we can then at that stage look at pedestrian safety and matters of that kind, which is not silly, because you’re changing the accessways and we don’t want to be just restricted to what might happen to the primary road network. We want to make sure when you change the accessways that you’re not going to be bowling over little children.

MR LOUTIT:

Yes, and I’m going to repeat myself what I said this morning was that in terms of those, and I know the President made a sort of, it’s called the local effects, or primary road effects, I thought that was a good classification. My submission is that in terms of those local effects there are more than sufficient provisions in all of those rules that require carparking and pedestrian access and all those, and I am repeating myself and I apologise for that.

GLAZEBROOK J:

So there are rules that specifically relate to pedestrian access that would have to be complied with?

MR LOUTIT:

So –

GLAZEBROOK J:

So when they’re looking at – so your submission would be when they were looking at pedestrian access they were looking at whether those rules were adequately complied with, were they, rather than 8.25 as such? Is that sort of the submission?

MR LOUTIT:

Yes, that’s the essence of it.

ARNOLD J:

But these are the requirements of 8.24 you were talking about that had to be –

MR LOUTIT:

Well 8.23, 8.24, and I haven't gone through the rest. I mean there’s appendices, there’s tracking circles. If you go through the provisions in their totality. I have to confess I haven't gone through, like a planner would, and that’s not our job here, with respect. I mean we are here to interpret the key provisions and the key provision, I say, is 8.10.3 (b).

WILLIAM YOUNG J:

So what’s the specific provision in relation to that, that restricts the matters in

respect to which discretion is to be exercised?

MR LOUTIT:

8.10.3 (b). Are you asking me about 8.10.3 (b)?

WILLIAM YOUNG J:

Yes. it’s sort of expressed slightly awkwardly isn’t it?

MR LOUTIT:

It’s not perfect drafting. I have to really, I don’t think I’ve ever seen a district plan that is perfectly drafted. But I say you look at this in totality, you start with this rule. The matters for discretion do not even come into play unless you breach a rule, that’s the first thing. That’s the most important aspect of this. We just wouldn’t be looking at those matters of control if it were not for the fact that this rule is breached. You then look at the matters for control in the context of this rule, which is about the primary road network, and that’s the essence and the heart of my submission to you. You can't use all the other matters of discretion to broaden out the enquiry into everything.

WILLIAM YOUNG J:

There is no explicit provision saying for 3.10, 8.10.3 (b), the following matters are reserved for discretion in relation to the first –

MR LOUTIT:

In the modern, the next generation of plans, because that has been pointed out, they are much more explicit in each occasion as to what are the matters of discretion. This is a first generation plan, we’ve learned a lot since these were drafted. But my point still comes back to the fundamental of this. None of those matters of discretion are engaged unless you breach the rule. You just wouldn’t be looking at them. So you need to read the rule and the matters of discretion together, and that gives you the understanding of what it is that we’re reserving our control over, and in this context it’s the, and my

submission here is that it’s the primary road network. The ironic thing is, the Council actually did look at 8.25 and a few other provisions in its reporting, but when you go to the decision, until Your Honour Justice Glazebrook pointed out to me that one of those could potentially be interpreted, one of the reasons at the bottom of 609 could potentially be interpreted to be a wider, almost 8.25-type consideration. I had interpreted those as a cluster and there’s three of them, and there’s one over the page as well, and I had interpreted them as a cluster to be about the primary road network so –

WILLIAM YOUNG J:

What about 604, and the site layout?

MR LOUTIT:

Yes, it does appear to be a –

ARNOLD J:

That’s under the public notification assessment.

MR LOUTIT:

But I’m looking at the, sorry, I’m looking at the reasons for the – this is the actual decision at 609.

WILLIAM YOUNG J:

Yes, yes, but sorry, so I’ve really quite forgot where one thing starts and

another ends. What’s 604 dealing with?

GLAZEBROOK J:

Public notification.

MR LOUTIT:

Yes.

WILLIAM YOUNG J:

I see.

MR LOUTIT:

So this is a report that deals with notification generally.

WILLIAM YOUNG J:

I see, sorry, sorry, so then it starts at 609 as the...

ARNOLD J:

Limited, yes.

MR LOUTIT:

Yes, and that’s the limited notification, because if you recall you’ve got this first thing is it going to be publicly notified, it goes out to the world, then you look at the immediately adjacent people and say, “Well, is anyone affected more than a minor way,” and then they get limited notification if they are so there’s two steps to this. This is the decision in relation to limited notification and I had, up until Your Honour had raised the issue that the second of the three bullet points that raised matters in relation to traffic and parking, I had always read that as the three of them read together were all just focused solely on the primary road network, so were –

WILLIAM YOUNG J:

Well, except, I mean, I know it’s in two parts but it’s one document and it’s

expressed very summarily so it might be intended to be referred back.

MR LOUTIT:

And that’s the way, as a matter of practice, these things work. They’re – the reports go up, in fact, on public notification, limited notification and grant, and they’re often made if we decide, if the Council officers decide to non-notify, the decision to grant is made at the same time as well. It’s just an efficiency of in reality.

WILLIAM YOUNG J:

Well, what should we do if we think we’re to conclude that one way or another the appropriateness of the site layout was a matter which the Council’s

entitled to take into account on notification, which it did, apparently, and which the High Court Judge thought was okay but in a very conclusory section of a reason. So what do we do if we’re with your learned friend on the point that layout was something on which the Council could engage as to whether it was a good or a bad layout as opposed to whether it affected the road network, because this is really almost like the fag-end of the case because it was hardly dealt with by the High Court Judge, not engaged with by the Court of Appeal and –

GLAZEBROOK J:

And on this analysis actually considered.

MR LOUTIT:

Yes, yes, and obviously you’ll weigh that up and decide whether, based on the fact that it was considered, is there sufficient, does it need to be sent back to the Council, because I think that’s where it has to go if you find potentially that the district plan did allow wider consideration of these effects.

GLAZEBROOK J:

What would we have to – because I’m just actually now thinking about this because would we have to decide that we did think there was a possibility that the effect was more than minor because it is something that the Council considered, or whatever it is, I get confused with that wording, but do we have to decide the Council was wrong, do we have to decide they may have been wrong, because they have – the Council considered it, in fact.

MR LOUTIT:

It did, and so –

GLAZEBROOK J:

And decided pedestrian safety wasn’t an issue.

MR LOUTIT:

You...

GLAZEBROOK J:

In fact, was enhanced or...

MR LOUTIT:

So if you decide the district plan did require a wider analysis than what I’m

saying, which is the local effects were –

GLAZEBROOK J:

Yes, but if they did undertake that wider analysis and decided that any effects were non-notifiable, what do we do about that?

MR LOUTIT:

In a typical judicial review context you obviously don’t decide the merits of that

decision or otherwise. You have to decide whether it’s reasonable or not to –

WILLIAM YOUNG J:

Well, what we’d have to do is we’d have to treat this as a notional appeal from that part of the reasons of Justice Peters in which she dismissed this contention.

MR LOUTIT:

Yes.

GLAZEBROOK J:

Yes. So then we’ve – but wouldn’t we have to then look to see whether, well, like she did, whether there was material upon which you could come to that view and there seems to be quite a lot of material?

MR LOUTIT:

Yes.

WILLIAM YOUNG J:

Except rather grumpily we wouldn’t have granted leave if we thought it was

going to come down to this.

MR LOUTIT:

But just remembering back the reason I sought leave on behalf of the Council, but 94C –

WILLIAM YOUNG J:

No, no, no, that point’s almost gone by default, I think.

MR LOUTIT:

Yes, that’s an important –

WILLIAM YOUNG J:

So that was an important issue and I accept that.

MR LOUTIT:

That is a very important issue, the district plan –

WILLIAM YOUNG J:

But we can’t sort of just get half way through the case, we have to finish it.

MR LOUTIT:

So I guess you find that my friend was right in terms of the district plan interpretation, you then have to go through the material and decide whether there was sufficient information in a judicial review sense, not a bear it sense, and if you do that and that’s the end of the matter if you decide there was sufficient information or it gets reverted back to the Council.

WILLIAM YOUNG J:

Thank you Mr Loutit. Is there anything else you want to say?

MR LOUTIT:

No thank you Sir.

WILLIAM YOUNG J:

Thank you counsel. It’s quite a difficult and elusive case and we’re much

assisted by the arguments.

MR HOLLYMAN:

I wonder if I might be heard just briefly on that last point that was raised?

WILLIAM YOUNG J:

Yes, certainly, if you want to come forward.

MR HOLLYMAN:

Only to the extent to say that as Discount Brands emphasised, a gateway decision like this, the Court applies a much higher standard than the usual sort of unreasonableness judicial review standards, because of its importance in the, and I leave that point with Your Honours.

GLAZEBROOK J:

Although the real question is whether it was right in terms of the nature of the adverse effects, isn’t it, or do you say because it didn’t look at it, I think one of your arguments was it didn’t look at it specifically in relation to Wendy’s then...

MR HOLLYMAN:

And so there are, yes, so it’s pleaded as, it really becomes a –

GLAZEBROOK J:

The gateway decision isn’t whether you notify or not, because if you’re right on 8.25 then they had to consider on a wider basis whether they notified, which they seem to have done.

MR HOLLYMAN:

Well it does, it is, it’s not that pure gateway in the sense of adequacy which was the initial decision in Discount Brands but it is a gateway in the sense of it shuts the party out of the process and so it’s got that higher obligations there. I won’t say any more than that.

MR LOUTIT:

Unfortunately that’s forced my hand on something, which I was planning to not

address, but now I probably need to. In the Coro Mainstreet (Inc) v Thames-

Coromandel District Council [2013] NZCA 665, [2014] NZRMA 73 decision, which is in my casebook, which is at tab 6 of my bundle of authorities. This is important because it puts Discount Brands into context of the 2009 legislation and I just draw Your Honours’ attention to paragraphs 39 to 41 of that judgment. And we’ve –

O’REGAN J:

They’ve just left it for argument.

MR LOUTIT:

Well we’ve skirted around this one for a number of occasions, and I’m not

sure this is the case to have the argument about whether the 2009...

O’REGAN J:

Certainly not after replies have finished.

MR LOUTIT:

But I just draw your attention to that, there’s some caution on reliance on

Discount Brands, and I’ll take it no further. Thank you very much.

WILLIAM YOUNG J:

Thank you. We’ll take time to consider our judgment and deliver it in writing in

due course.

COURT ADJOURNS: 3.48 PM


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