Laidlaw College Inc. v Auckland Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeM Harland,K Edmonds,H McConachy
Judgment Date01 September 2011
Neutral Citation[2011] NZEnvC 278
Date01 September 2011

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

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)
Auckland Council (formerly Waitakere City Council)


Magson's Hardware Ltd

[2011] NZEnvC 278


Environment Judge M Harland

Environment Commissioner K Edmonds

Environment Commissioner H McConachy


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.


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

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.




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


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.


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.


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.

The site and its surrounding environment.

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.


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.


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 retail sales business (Cory Electrical), mechanics, building and hardware supply businesses (Carters, Heritage Tiles, Repco, Humes, Dulux), hire equipment businesses, office developments and vehicle sales yards. The buildings in the vicinity are typically of small to medium size, comprising either two levels or are high-studded one level warehouse-type buildings. The impression we gained on our site visit is that the area is clearly “in transition” with activities meeting the directions for this zone

Slightly south of the site and on the west and opposite side of Lincoln Road is the Lincoln North Shopping Centre. The existing Mitre 10 Mega which this proposal seeks to replace, is situated across Universal Drive some 650m north of the proposal and next to a supermarket.

The proposal

Mr Kumar, a director and shareholder in Magsons outlined for us the background to the development of business. Over the last 20 or so years he and his family have worked hard to establish a very successful business with the Mitre 10 franchise, such that his family interests now include a number of Mitre 10 stores at Botany, Henderson and Westgate shopping centre.


The proposal is for a large warehouse-type building, to accommodate mixed retail/office development, with a total floor area of 26,821m 2, including office space on the ground floor and mezzanine levels and a further 8000m 2 of commercial office space on the rooftop. 2 The Mitre 10 Mega is intended to serve both trade and retail customers for which 686 car parks will be provided.


The existing Mitre 10 Mega owned by Magsons just down the road is said to be too small for further development. In particular Magsons wishes to increase the trade component of its business, which is not able to occur at the current site given its layout. Magsons also wants more retail space for the display of larger items. Overall, Magsons believes there is sufficient market demand to justify almost doubling the floor area of its business. It emphasised that this would provide another choice for the

market, and would provide potential economic benefits associated with the employment of about 200 general retail workers, 3 although this figure may include those currently employed at the existing Mitre 10 Mega which will be closed

The commercial office space was initially proposed to be completed after the development of the Mitre 10 Mega store, but Magsons have now agreed to complete the entire development, including offices, before the commencement of trading, should consent be granted. Such a condition could not extend to requiring the office space to be occupied before the commencement of trading, as that would depend on the state of the market and other factors beyond Magson's control.


Leaving aside the scale of the proposal, the nature of it would not necessarily be out of character with the mixture of light industrial and business activities conducted nearby.

Statutory and planning framework.

The proposal requires consent as a non-complying activity in the Lincoln Working Environment zone of the District Plan because of the scale of the retail activity involved. The provisions of ARPS-Plan Change 6 as it relates to the Lincoln Road corridor are also relevant.


As the proposal is a non-complying activity, we must consider whether it meets the threshold test outlined in sl04D of the Resource Management...

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