Pohutukawa Coast v Auckland Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeEnvironment Judge
Judgment Date10 May 2013
Neutral Citation[2013] NZEnvC 104
Docket Number(ENV-2011-AKL-000125) (ENV-2011-AKL-000122)

[2013] NZEnvC 104



Environment Judge Harland

Environment Commissioner JR Mills

Environment Commissioner ACE Leijnen




In the Matter of an appeal under Clause 14(1) of Schedule 1 of the Resource Management Act 1991 in respect to proposed Plan Change 30A to the Auckland District (Manukau Section) Plan

Pohutukawa Coast

Community Association

Progressive Enterprises Limited
Auckland Council

Ms Carruthers and Ms Kelly for Progressive Enterprises Limited

Mr Kirkpatrick for Pohutukawa Coast Community Association

Ms Dickey and Mr Allen for Auckland Council

Appeals in respect of proposed private plan change to the Auckland District (Manukau Section) Plan — Progressive Enterprises Ltd wished to build a medium sized supermarket near the small coastal settlements of Beachlands, Maraetai and Pine Harbour — it initiated the private plan change to re-zone rural land as a new stand-alone business zone — Council approved the plan change — whether there was already adequate capacity to provide for the community's current and future retail, business and community needs — whether sustainability of existing commercial area would be compromised — whether the plan change gave effect to the Auckland Regional Policy Statement — whether the proposed objectives and policies implemented the policies and objectives of the District Plan — whether the proposed rules were the most appropriate for achieving the objectives

At issue was whether: (1) there was adequate capacity within the existing Beachlands commercial area to provide for the community's current and future retail, business and community needs; (2) sustainability of the existing commercial area would be compromised should the BVBC proceed; (3) the PC30A gave effect to the Auckland Regional Policy Statement (“ARPS”); (4) the proposed objectives and policies implemented the policies and objectives of the District Plan; and (5) whether the proposed rules were the most appropriate for achieving the objectives.

Held: (1) The three experts addressing retail/economic matters agreed on the likely growth projections for the area. Although they did not consider the timing of the growth to be a material issue, there was some evidence to suggest that the residential opportunities in the area were not being taken up as quickly as people had expected. Therefore with anticipated business opportunity likely to be less than any national average, and a slow uptake of residential development, the amount of land required to meet this demand was less certain. It was not possible to be satisfied that the evidence established there was an immediate need for a Business Area in part of the BVBC. However provision ought to be made for it. The evidence did not establish there was an immediate need for any other retail apart from a supermarket.

It was common ground that changes would need to be made to the land area and configuration of the existing centre to address future growth. The degree of change that would be required would not be small or simple and would impact on the surrounding residential area both in terms of zoned opportunity and environmental effects. There was insufficient land available to accommodate a supermarket of the kind contemplated by Progressive without under taking a time-consuming planning exercise. There was also the very real prospect that such an exercise would involve the need to amalgamate titles which would be costly, inefficient and not desirable nor sensible when considering the alternative proposed.

While there was some ability to further develop new business capacity at Beachlands and Pine Harbour, there was limited potential for it to be developed in an integrated manner, as was proposed by PC30A. It was necessary for provision to be made for additional business-zoned land given the increased residential opportunity. If provision for further development was not made, this would not amount to sustainably managing the anticipated growth in the area, and would be contrary to the objectives and policies of the DP and the ARPS.

(2) There was no direct link between the PCCA's appeal and possible trade competitors. While a local 4-Square might struggle and close, this was a trade competition effect that could not be taken into account. The approach to s74(3) RMA (matters to be considered by territorial authority) was set out in Bunnings Ltd v Hastings District Council) where it was said that the term trade competition equated to matters arising directly out of rivalrous behaviour occurring between those involved in commerce. It was clear that indirect trade competition effects that might be experienced by property owners whose premises might be left vacant if businesses were to relocate to the BVBC, could not be taken into account.

Taking the evidence into account, if PC30A was approved and as part of the development a large number of existing businesses or community services were to relocate to the BVBC before the enabled population increased, this would have a significant adverse effect on the Beachlands community as it currently existed. Because of the combination of services available at the Beachlands Centre, they provided a focal point for at least some of the community. If there were to be a large number of empty shops that were unable to be re-tenanted relatively promptly, then this could affect the community investment in infrastructure at the Beachlands Centre and the social/community function they provided. This result would be an adverse effect beyond trade competition. The significance of this finding had to be considered in the overall balancing exercise when considering whether or not PC30A should be approved.

(3) PC30A gave effect to the ARPS, as it would provide for the future consolidation and containment of commercial services for the growing community in a location with good vehicle and public transport access. As a supermarket was essentially the anchor for the BVBC, and this was a motor vehicle generating activity, the location provided the best opportunity for public transport access to be enabled for most of the community. PC30A would relieve pressure on travel outside the area to access services, and would support a consolidated community base as far was practical given the nature of these particular settlements. While the process which had led to this plan change might not have followed that anticipated by the ARPS, that outcome now achieved the ends sought.

The existing zoning provisions applying to the adjoining land provided a defensible long term limit to the urban area, as required by the ARPS policies

(4) The provisions of the DP needed to be considered as a whole. There were potential environmental issues associated with expanding the Beachlands Centre and it was not possible to be satisfied that there was sufficient capacity to meet the needs of the growing community in the long term. The opportunity for business growth had to be be planned for. The DP directives required a balance to be achieved by consolidating the existing business land resource and addressing other initiatives for meeting business growth, including providing opportunities for local employment. The proposed objectives and policies in PC30A articulated what was intended and explained in the plan change and fit into the overall DP framework.

(5) A plan change could not rely on the interpretation provided by one proponent as being the only way the development of the land might be enabled. However the concept plan which was the primary tool used in this plan change was far more prescriptive than a list of bulk and location standards. This was designed to lead to an integrated centre in support of the objectives of the DP and those specifically set out in PC30A.

One of the reasons given to justify the centre was that it would provide for local employment opportunities. However there was no reason to believe that the activities enable by the plan change would necessarily establish at the BVBC. The purpose of the plan change was to enable relevant activities, and in accordance with higher order objectives and policies the Council should provide this opportunity. The DP enabled a substantial growth in the area for which some sustainable business opportunities should be provided. The rules did provide the means for implementing these objectives and policies.

There was one issue which remained a concern, which was the development of the BVBC other than the supermarket in the first stage. The evidence established an immediate market for a fuller service supermarket and a supermarket would generate demand which was likely to be the catalyst for other development. If other development was required to be provided to essentially “sleeve” the supermarket and Main Street that was ahead of demand and was not supported by growth, then the risk identified as retail flight was real. To meet this very real concern, the basic infrastructure which enabled the important parts of the Concept Plan to be achieved with the development of the supermarket should be changed. The requirement to build the Main Street buildings should be delayed until population growth justified it.

The RMA did not require a site-specific plan change to include an assessment of alternatives. PC30A was the most appropriate way to achieve the community's needs, both now and in the future. This took into account that the Beachlands Centre did not have the capacity to provide for the future business needs of the community, particularly given the increased residential opportunity enabled by two other plan changes, and potentially adverse effects could arise if this were to occur.

If the PC30A was approved in its current form, there could be significant adverse effects on the community function associated with the...

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