Bunnings Ltd v Hastings District Council

 
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Decision No: [2011] NZEnvC 330

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge B P Dwyer

Environment Commissioner H A Mcconachy

Environment Commissioner D Bunting

ENV-2009-WLG-000 182

In The Matter of an appeal under section 120 of the Resource Management Act 1991

Between
Bunnings Limited
Appellant
and
Hastings District Council
Respondent
Counsel/ Appearances:

W S Loutit and T R Fischer for Bunnings Limited

M Casey QC and J M von Dadelszen for Hastings District Council

M B Lawson for CDL Land New Zealand Limited (s274 party)

J Graham for herself (section 274 party)

D E Vesty for Hawke's Bay Fruitgrowers Association (s 274 party)

A D Mardon for Pernel Orchard Limited (s 274 party)

Appeal under s120 Resource Management Act 1991 (right to appeal) from respondent's decision which declined appellant land use consent to establish a large scale retail operation on Heretunga Plains — land was in “Plains Zone” in District Plan which aimed to protect viable soils in the zone — whether court could take into account positive economic and social effects deriving from trade rivalry — definition of “trade competition” — whether adverse effects of removing land from production and impact on visual amenities were minor — availability of alternative sites.

The issues on appeal were: whether the Court had to disregard any benefits to the wider public from competing stores under s104(3) RMA (consideration of applications — trade effects; whether Bunnings had considered alternative sites; and whether the soils had productive potential.

Held: The requirement in s104(3)(a) (consideration of applications — trade competition) that the consent authority should not have regard to trade competition when considering an application did exclude consideration of positive effects that went beyond just effects arising from rivalrous conduct between trade competitors.

The term “trade competition” was not defined in the RMA but it related to matters that arose directly out of rivalrous behavior and did not extend to the wider effects on the market or environment. While the effect of increased competition was probably a direct effect of trade competition, the effects of greater consumer choice and increased employment fell into a wider category of people and communities. Greater consumer choice was a market effect in the sense of expanding the range of building supplies and related goods available in the area. Greater choice enabled people to provide for their wellbeing in accordance with s5 RMA (purpose). Excluding consideration of the positive effects of trade competition was inconsistent with the purpose of the RMA. However that benefit had to be assessed by the fact the new Mitre 10 would also contribute towards those issues.

It was clear Bunnings had made a genuine attempt to consider alternative sites that had not met its idiosyncratic requirements. However, its inability to find a site did not outweigh the thrust of the plan's policies and objectives.

Section 5(2)(a) RMA (sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations) and s5(2)(b) RMA (safeguarding the life-supporting capacity of soil) were not limited by the classification of the soil, which in the present case could be improved by the use of drainage that would increase the versatility and quality of the soils. The site had been highly productive in the past and the objectives and policies of the plan applied to the soils. Bunnings' proposal did nothing to sustain the potential of the site.

The proposal was of a nature and scale which was out of character with its surroundings and would compromise the current rural outlook and not minor. The landscape proposals were imprecise and failed to mitigate the effects of the proposal.

In terms of s104D(1)(b)(i) RMA (particular restrictions for non-complying activities? will not be contrary to the objectives and policies of the relevant plan) the proposal was contrary to the plan which aimed to prioritise the maintenance of the life supporting capacity of the unique resources of the Plains. There was no special aspect to the proposal that made it an exception to the plan provisions.

Appeal declined.

DECISION
Decision Issued;
  • A: Appeal declined.

  • B: Costs reserved.

Introduction
1

Bunnings Limited (Bunnings) appeals against a decision of Hastings District Council (the Council) declining an application by Bunnings for land use consent to construct a new building and ancillary structures to accommodate a Bunnings Warehouse building improvement centre and to operate the facility for that purpose. The appeal is made pursuant to si20 Resource Management Act 1991(RMA).

2

Bunnings proposes to establish its activity on two adjoining parcels of land situated at 1403 and 1411 Pakowhai Road (the site) approximately 5.5km from the Hastings Central Business District. The site contains just over 4 hectares. Additionally, some landscaping and drainage works associated with the site would be undertaken on an adjoining piece of land (1325 Pakowhai Road) which Bunnings had acquired or was to acquire from the Council. The site is in the Plains Zone of the Hastings District Plan (the District Plan) on the rural outskirts of Hastings City.

3

Bunnings’ proposal is to establish a large scale retail/trade supply operation providing home and garden products and building tools and materials. There would be three main components of the Bunnings Warehouse:

  • • A warehouse style retail operation which would sell a range of home, building, hardware and garden products;

  • • An outdoor nursery which would be partially covered and hold plants, pots, mulches, fertilizers and landscaping supplies;

  • • A timber trade sales area plus outdoor yard which would be a drive through facility containing bulk building supplies, packaged timber and the like.

4

Mr D A Kneebone (National Property and Development Manager for Bunnings) provided a breakdown of four areas relating to the various activities proposed to be undertaken on the site as follows:

(We note that this differs from the area estimated in the resource consent application of 14,121m 2 —nothing turns on that.)

Home improvement warehouse

6,056m 2

Outdoor nursery (including bagged goods canopy)

1,75lm 2

Timber trade sales

1,996m 2

Timber yard

2.311m 2

Total:

12,114m 2

5

Mr Kneebone described the building in these terms 1:

  • 45. The proposed building will be utilitarian in design and form, depicting the operation and character of the activities within the site. To this end, the building is to be constructed of vertical ‘cat eye' green colorbond cladding with translucent roof sheeting and will reach a maximum height of 10.295m at the peak of the apex over the main entry, with the majority of the building not exceeding a height of 9.5 m.

  • 46. Painted on to the sides of the building is the corporate signage scheme, as can be seen from the elevations associated with the proposed plans. There are no freestanding main message or advertising signs proposed as part of this activity. The only other signage will be directional signs on the site to assist motorists visiting and leaving the site.

6

In addition to the building described above, there are to be 231 sealed onsite car parking spaces provided, together with landscaping. Dunnings' activity will not take up all of the site and a balance area of approximately 7,710m 2 is to be left undeveloped. It is proposed that the business could operate between 7am to 7pm, seven days per week.

7

Bunnings’ proposal constitutes a non-complying activity under the District Plan and was publicly notified. Twenty five submissions were received (including four late submissions — one of which was not accepted). Eighteen submissions opposed the proposal, five supported it and two were neutral.

8

The parties to our proceedings were:

  • • Bunnings — which sought to overturn the Council decision and presented evidence from nine witnesses;

  • • The Council — which sought to have its decision upheld and presented evidence from seven witnesses;

  • • CDL Land New Zealand Limited (CDL) — a s274 party which supported the Council decision and presented evidence from two witnesses;

  • • Hawke's Bay Fruitgrowers Association (the Fruitgrowers Association) — a s274 party which supported the Council decision and presented evidence front Ms D E Vesty, the Association's Executive Officer;

  • • Ms J Graham — a s274 party who supported the Council decision and provided a submission to the court;

  • • Pernel Orchard Limited...

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