Laidlaw College Inc. v Auckland Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJudge M Harland,Environment Judge
Judgment Date01 Sep 2011
Neutral Citation[2011] NZEnvC 278

[2011] NZEnvC 278

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge M Harland

Environment Commissioner K Edmonds

Environment Commissioner H McConachy

In The Matter of an appea1 under Section [120J of the Resource Management Act 1991

Between
Laidlaw College Inc (ENV-2011-AKL-000049)
New Zealand Retail Property Group(NZRPG)(ENV-2011-AKL-000051)
Magsons Hardware Ltd(ENV-2011-AKL-000052)
Canam Corporate Holdings Ltd & The Whitby Trust(ENV-2011-AKL-000053)
New Zealand Transport Agency(ENV-2011-AKL-000058)
Appellants
and
Auckland Council (formerly Waitakere City Council)
Respondent

and

Magson's Hardware Ltd
Applicant
Appearances:

Mr Brownhill for Magsons Hardware Ltd

Mr Braggins and Ms Obushenkova for New Zealand Retail Property Group

Mr Lanning and Ms Hartley for New Zealand Transport Agency

Mr Casey, QC and Ms Davidson for Auckland Council

Appeal from respondent's decision to grant consent for construction of Mitre 10 Mega retail store combined with commercial office space — non-complying activity under the relevant District Plan — whether adverse traffic effects minor or contrary to objectives of District Plan under s104D Resource Management Act 1991 (particular restrictions for non-complying activities) — whether opposition should be considered against background of trade competition — effect of creation of new Auckland Council and role of Auckland Transport.

Held:

Section 104(3)(a) RMA (consideration of applications — must not have regard to trade competition) required the Court to have no regard to trade competition. Although this issue was raised, it was not pursued by Magsons.

The area to be considered in terms of adverse traffic effects was not simply the area around the site, but depending on the potential for flow on effects, a wider consideration of the network might be appropriate. Given the close and important relationship of the intersection by the site to the surrounding roading network, this would be considered in assessing traffic effects.

In assessing the traffic effects, the fact that an office development could be built on the site as of right would be taken into account. While it would take some time for the offices to be fully occupied and adverse traffic effects could not be predicted, it was a question of the degree to which such adverse effects could be taken into account as part of the permitted baseline. It would be unrealistic to look at this site (a Greenfields site surrounded by urban development) without contemplating the potential future urban use of it, even if that occurred in stages. The office development would generate adverse traffic effects from Monday to Friday, but those effects were likely to be incremental.

There was a large degree of uncertainty over whether the proposed mitigation measures could be implemented and whether they would be effective. The additional mitigation proposed by Magsons required the consent of Auckland Transport and not the Council. The Local Government (Auckland Council) Act 2009 was careful to separate the functions of Auckland Transport from the Council and it would therefore be wrong to delegate decision-making on the certification of traffic considerations to the Council. The Council could not provide assurances as to the views Auckland Transport might reach on this issue.

It was not appropriate to make the approval of Auckland Transport a condition precedent to the development proceeding. While that had been done in Westfield (New Zealand) Ltd v Hamilton City Council, this was a different factual situation as there was no agreement that the proposed mitigation would be effective, because Auckland Transport had not been able to properly assess the extent of the mitigation. While Magsons had not been prejudiced the local government reorganization, there had been some confusion about who to approach prior to hearing.

Overall, the adverse traffic effects were more than minor under s104D RMA, mainly due to the uncertainty over whether the mitigation proposed would be feasible, effective or allowed. An office development would generate adverse traffic effects on weekdays but those effects were likely to be incremental as the space was occupied and there would be more than minor adverse traffic effects on Saturday's at peak periods.

The development was not contrary to the objectives and policies of the District Plan under s104D(1)(b) RMA. The plan encouraged the establishment of retail activities in a way that minimised trip vehicle lengths and numbers and supported major town centers as key transport destination points. It was also consistent with the Auckland Regional Policy Statement as it supported the aim of providing a mixed-use environment.

Final consideration of appeals deferred to allow Magson's to advance details of traffic mitigation with Auckland Transport and NZTA.

A. Final consideration of the appeals is deferred to allow Magsons to advance the details of the proposed traffic mitigation with Aucldand Transport and NZTA for the reasons outlined in this decision.

B. A judicial telephone conference is to be convened in one month's time to review progress.

INTERIM DECISION OF THE ENVIRONMENT COURT

REASONS FOR DECISION

Introduction
1

Magsons Hardware Ltd (“Magsons”) wants to build what may be the biggest store in New Zealand, a Mitre 10 Mega on the comer of Lincoln Road just off the motorway. As part of the development Magsons also proposes commercial office

2

The Waitakere City Council (“the Council”) granted consent to the proposal subject to conditions on 22 January 2010. Magsons appealed some of the conditions, and the New Zealand Transport Agency (“NZTA”) and New Zealand Retail Property Group (“NZRPG”) appealed the granting of consent, seeking that it be declined. Settlement was reached with three neighbouring landowners, Laidlaw College, Canam Corporate Holdings Limited and the Whitby Trust, who had also appealed the Council's decision, and the Court had consent memoranda in front of it to give effect to those settlements if it is minded to grant consent.

3

Broadly speaking the main issues in contention related to the traffic effects arising from the proposal and whether or not the proposal was contrary to, or inconsistent with, the policies and objectives of the relevant planning instruments. The focus of the appeal by NZTA was (not surprisingly) on the traffic issue, with the NZRPG appeal concentrating on the planning issues. The NZRPG case included an argument that if consent was granted it would create an undesirable precedent affecting the integrity of the District Plan and lead to inappropriate use of industrial/commercial land. The approach taken by NZRPG invoked the response from Magsons that we should consider NZRPG's case against the backdrop of trade competition, given its commercial interest in providing large-format retail opportunities at its shopping centre/s. The Council took a neutral position on the appeals, but provided information particularly on the proposals for the road network in the vicinity of the site.

4

The facts required to be considered under the legal criteria overlap, even though the analysis and evaluation of them is distinct and different tests apply. To avoid repetition of the facts, we intend to deal with them as topics under the headings of “traffic” and “planning”, with the detailed issues and arguments specified and decided under each topic. Before doing so, an outline of certain background matters is required in order to give a context to them. The background matters include describing the site and its surrounding environment, summarising the details of the proposal and outlining the statutory and planning framework that applies. There is also a preliminary issue concerning the weight that should be given to NZRPG's case as Magsons contended it was a trade competitor.

Background
The site and its surrounding environment.
5

The site upon which the development is proposed comprises 5.3 hectares. Previously it was owned by Collards' Vineyard, with the land being used predominantly for the growing of grapes. The bulk of the land is now bare, but it is largely surrounded by industrial-type development. The site borders Central Park Drive to the north and Lincoln Road to the west. Lincoln Road is a regional arterial route which has recently been identified as an intensive corridor under the Auckland Regional Policy Statement — Plan Change 6 (“ARPS Plan Change 6”). Lincoln Road joins onto the north-western motorway not too far from the site and is the gateway to Henderson, an important suburban centre in west Auckland. The site is a very desirable one with its exposure to the high volumes of vehicle traffic travelling along Lincoln Road, and the motorway.

6

The site has been subdivided into four lots, but this proposal only concerns Lots 2 and 4. Lot 2 is the proposed development site comprising 3.15 hectares, and Lot 4 is the anticipated principal access road through the site, the entrance to which is from Central Park Drive. This road could in the future link into a proposed road extending from Paramount Drive and Universal Drive should it be designated, but this is uncertain and we give it no weight in our consideration. Lots 1 and 2 will remain and undeveloped and may be sold at a future date.

7

The proposed Mitre 10 building is set back from Central Park Drive, with a Hirepool and the Mobil service station in front of it, and Lincoln Road behind Lot 1 that will have other development on it. There are still pockets of viticulture or horticultural land uses and undeveloped land close to the motorway, 1 but the area is now dominated by business uses with a mix of warehouse storage, small manufacturing companies, specialist activities and industrial type retail services, health services, educational services, office and light industrial use. Examples of the

types of activities undertaken nearby include an automotive business (Partmaster), an electrical...

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