Classic Developments NZ Ltd v Tauranga City Council

JurisdictionNew Zealand
JudgeVenning J
Judgment Date08 May 2020
Neutral Citation[2020] NZHC 945
CourtHigh Court
Docket NumberCIV-2019-470-000097
Date08 May 2020

UNDER the Judicial Review Procedure Act 2016

Between
Classic Developments NZ Ltd
Plaintiff
and
Tauranga City Council
First Defendant
Felton Developments Limited
Second Defendant

[2020] NZHC 945

Venning J

CIV-2019-470-000097

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TAURANGA MOANA ROHE

Judicial Review, Resource Management — application to judicially review decisions of the first defendant relating to the grant of a land use consent to the second defendant for a retail commercial development and to not notify the application — error of law — failure to provide adequate reasons — failure to consider relevant considerations — unreasonableness — illegality — whether an unimplemented consent could be taken into account as part of the existing environment — Judicial Review Procedure Act 2016 — Resource Management Act 1991

Appearances:

K Barry-Piceno for Plaintiff

M G Conway and T R Fischer for First Defendant

V J Hamm and T J Conder for Second Defendant

JUDGMENT OF Venning J

This judgment was delivered by me on 8 May 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date

Introduction
1

Classic Developments NZ Ltd (Classic) seeks to judicially review decisions of the Tauranga City Council (TCC) relating to the grant of a land use consent RC26847 for a retail commercial development applied for by Felton Developments Ltd (Felton).

2

Classic challenges both the decision to not notify Felton's application for the consent and also the substantive decision granting the consent.

The parties
3

Classic is a property developer with its head office in Tauranga. Classic and its affiliated companies purchase, develop and sell residential and commercial land. Classic has purchased and developed land in the Papamoa Medium Rise Plan area (PMRP) of the TCC's City Plan (TCC Plan).

4

Felton is also a residential, commercial and industrial developer. The decisions in issue relate to one of its developments on an area of land of approximately 1.274 ha within the PMRP which runs from the Sandhurst Drive interchange off State Highway 2 to 520 Gloucester Road (the site). Classic owns an area of land in the vicinity of the site and within an area known as the Coast Commercial Area. Classic's development includes a supermarket.

5

TCC is a territorial authority as defined by s 5(1) of the Local Government Act 2002.

Existing consent and former applications
6

The proposed development only takes up part of the site. In October 2014, Felton obtained resource consent RC24137 (the first consent) for a childcare and health centre on part of the site. The first consent was for a multi-staged project. Stage 1 consisted of the childcare centre and stage 2 consisted of the health centre. The area of land involved in the first consent was 4,258 m 2. In September 2015, the first consent was varied to increase the ground floor area of the childcare centre. The childcare centre has been built and is in operation. The health centre has not yet been established.

7

In early 2017, Felton applied for resource consent RC25777 to develop a mixed-use retail convenience shopping centre on the site, including a supermarket and 16 apartments (the second application). The second application was publicly notified on 15 May 2017. A number of submitters (including Classic) opposed it. A hearing was set for 26 and 27 April 2018. At Felton's request the hearing was vacated. The second application was subsequently withdrawn.

8

In early December 2018, Felton then made application for the resource consent in issue in this proceeding (the current application). The current application is for a retail convenience centre including the construction of a purpose-built building with a gross floor area totalling 1,100 m 2 to be divided into a number of separate tenancies. The development also requires consent for a number of associated activities such as signage, carparking, vehicle access, landscaping and ancillary earth works.

9

Felton's current application was treated as an application for a non-complying activity for the establishment of a business activity within the TCC's suburban residential zone under r 14B.8(e) and table 14B.1 of the TCC's Plan. 1

The decisions in issue
10

On 21 March 2019, the TCC resolved, pursuant to ss 95A and 95B of the Resource Management Act 1991 (RMA), that the application for resource consent made by Felton to establish a convenience centre at the site be processed without notification (the notification decision).

11

The notification decision followed a recommendation and assessment by Ms Ladyman, the Senior Environmental Planner employed by TCC. The notification decision was made by Mr Miles, the Manager, Environmental Planning. The decision recorded:

Having regard to the criteria in s 95A(3) public notification is not required. Notification is not precluded by any of the criteria in sections 95A( 5) or 95B(6) nor is the activity subject to a rule or national environmental standard that requires notification. The application does not relate to land that is the subject of a statutory acknowledgement, nor does it affect protected customary rights groups or customary marine title groups (s95B(3)) and there has been no request made by the applicant for the application to be publicly notified.

In relation to section 95A(8)(b) and 95B(8) of the RMA it has been determined that the establishment of the convenience centre will not have adverse effects on the environment that are more than minor and there are no affected persons. The effects of existing environment established by the childcare centre and health centre and the permitted baseline of 21 dwellings have been taken into account when assessing the effects of the convenience centre. … the proposed development will be serviceable and will avoid adverse effects on the transportation network. In relation to the residential amenity of the surrounding area, the separation distances and the landscaping provides mitigation to the visual effects of the building and car parking area by breaking up the built form. For these reasons notification of the application is not required.

12

The decision on the application itself was made on 11 June 2019 (the substantive decision). Again, it followed the recommendation by Ms Ladyman. Mr Miles made the substantive decision acting under delegated authority. The reasons for the decision recorded:

The activity is described in the application … entitled ‘Convenience Retail Development at Sandhurst Drive and Gloucester Road Papamoa’ dated December 2018 and further information received 15 & 19 February 2019 and 4 March 2019.

It has been determined that allowing this activity, subject to the conditions set out … will result in adverse effects that are no more than minor and avoid any unacceptable actual and potential effects on the environment. It has been assessed that the effects of the convenience centre are compatible with the suburban residential character and amenity and the consented Healthcare provides a baseline level of non-residential effects that have been disregarded. Although the built form is commercial in appearance, the combination of; landscaping, cladding materials, modulation of built form, restrictions of illumination on site and building setbacks mitigates the non-residential appearance of the development.

It has been assessed that the development provides convenience retail services which are not provided for within this catchment. The development being convenience in nature providing pop-in retail tenancies and healthcare activities are services that are used by the wider public and not exclusive private offices or large scale businesses. The convenience retail and health services provide a community support for day to day requirements. The restrictions on what tenancies can be established and the tenancy sizes assists in managing the effects of a non-residential development to an acceptable level.

The activity is considered to be consistent with the relevant provisions of the Tauranga City Plan and the Bay of Plenty Regional Policy Statement. Particular regard has been given to the outcomes sought under Tauranga City Plan objectives 14A.1.3, 14B.1.1, 14B.1.2 and 17A.5.2 the actions described under the associated policies 14A.1.3.1, 14B.1.1.1, 14B.1.2.1 and 17A.5.2.1. For these reasons it has been determined that granting this application will be consistent with purpose and principles of the Act as set out under Part 2. Conditions as appropriate under section 108AA of the Act shall ensure the activity proceeds as per the application documentation.

13

There then followed a series of conditions.

14

Classic became aware of the decisions on 9 August 2019. It issued these proceedings on 18 October 2019.

The challenge to the decision
15

Classic challenges the decisions on a number of grounds:

  • (a) First cause of action: errors of law — failure to provide adequate reasons;

  • (b) Second cause of action: illegality — failure to make a decision;

  • (c) Third cause of action: failure to consider relevant considerations and taking into account irrelevant considerations;

  • (d) Fourth cause of action: unreasonableness — the decision that adverse effects on the plaintiff were not minor or more than minor was unreasonable; and

  • (e) Fifth cause of action: illegality — the resource consent decision was illegal.

Approach to judicial review
16

The approach the Court should take to an application for judicial review of a decision to grant a resource consent was confirmed by the Court of Appeal in Pring v Wanganui District Council: 2

… It is well established that in judicial review the Court does not substitute its own factual conclusions for that of the consent authority. It merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no...

To continue reading

Request your trial
1 cases
  • Classic Developments NZ Ltd v Tauranga City Council
    • New Zealand
    • High Court
    • 8 May 2020
    ...HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE CIV-2019-470-000097 [2020] NZHC 945 UNDER the Judicial Review Procedure Act 2016 BETWEEN CLASSIC DEVELOPMENTS NZ LTD Plaintiff AND TAURANGA CITY COUNCIL First Defendant FELTON DEVELOPMENTS LIMITED Sec......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT