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PROGRESSIVE ENTERPRISES V NORTH SHORE CITY COUNCIL HC AK CIV-2008-485-002584 [2009] NZHC 219 (25 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                       CIV-2008-485-002584


                      IN THE MATTER OF             the Resource Management Act 1991

                      AND

              
       IN THE MATTER OF             an appeal under s 299 of the Act

                      BETWEEN                      PROGRESSIVE
ENTERPRISES
                                                   Appellant

                      AND                          NORTH
SHORE CITY COUNCIL
                                                   Respondent


Hearing:              4 February 2009

Appearances:
C N Whata and J D K Gardner-Hopkins for Appellant
             W S Loutit and D K Hartley for Respondent
             D A Allan for
the National Trading Company of New Zealand
             Limited

Judgment:             25 February 2009 at 11.30 a.m.


       
                          JUDGMENT OF VENNING J




This judgment was delivered by me on 25 February 2009 at 11.30 am, pursuant to
Rule 11.5 of the
High Court Rules.


Registrar/Deputy Registrar

Date...............




Solicitors:           Russell McVeagh, Auckland
                      Simpson Grierson, Auckland
                      Ellis Gould, Auckland


PROGRESSIVE ENTERPRISES V NORTH SHORE
CITY COUNCIL HC AK CIV-2008-485-002584 25
February 2009

Introduction


[1]    For a number of years the National Trading Company
of New Zealand
Limited has sought resource consent to build and operate a Pak `N Save supermarket
at Wairau Road, North Shore City.
In 2002 the Environment Court upheld the North
Shore City Council's decision to decline the application for consent. The National
Trading Company then amended its proposal, including reducing the scale of the
proposed operation and applied again.       This time
the Council granted consent.
Progressive Enterprises took the matter on appeal to the Environment Court. The
Environment Court dismissed
the appeal. Progressive Enterprises now appeals to
this Court.


The basis of the appeal


[2]    An appeal to this Court from a
decision of the Environment Court only lies
on a point of law: s 299 Resource Management Act 1991. Progressive Enterprise's
notice
of appeal sought to identify a number of points of law. At the outset of the
hearing Mr Whata confirmed the issues of law for this
appeal had been refined to the
following:


       a)      Did the Environment Court have genuine regard to the traffic
        
      management provisions of the District Plan (traffic management
               policies) for the purpose of discharging the
duty imposed by
               s 104(1)(a) or (b) of the Resource Management Act 1991?


       b)      Did the Environment Court
discharge its duty to provide reasons in
               relation to the relevance and application of the traffic management
    
          policies?


       c)      Did the Environment Court erroneously disregard the precedent effect
               and impact
on the integrity of the District Plan of granting consent?

[3]    Points (a) and (b) both arise out of the appellant's submission
the
Environment Court failed to refer to certain provisions of the District Plan relating to
traffic management.


Preliminary point
­ the previous Environment Court decision


[4]    It is convenient to deal first with the appellant's reliance on the earlier
Environment
Court decision. At times the argument for Progressive Enterprises
seemed to be that, because the evidence about traffic movement
at the Wairau
Road/Tristram Avenue intersection in this case was broadly similar to the evidence
on that issue before the Environment
Court in 2002, the Environment Court should
have disallowed the most recent application, just as the Court had in 2002. Such an
approach
is fundamentally flawed. First, the granting (or refusal) of a resource
consent has no precedent effect in the strict legal sense.
A consent authority is not
formally bound by previous decisions of the same or another consent authority: Dye
v Auckland Regional Council  [2002] 1 NZLR 337.


[5]    Next, and more fundamentally, the proposal which the Environment Court
declined to give consent to in 2002 is not the same
proposal which the Council and
the Environment Court have given their consent to in the present case. That is made
clear by the decision
of the Environment Court itself. At paras [6] and [7] of the
decision the Environment Court recorded:

       [6]     This proposal,
in differing sizes and permutations, has produced a
       good deal of litigation extending back into the early 1990s. It is not
       necessary to review all of that, save to highlight that on the last occasion
       when it was before this Court ­ in 2001
­ the proposal was for a supermarket
       of 6259 mē. There was also to be a Fire Service building on the Wairau
       Road/Porana
Road corner of the block. The then proposed access included a
       rather problematic right-turn into the site off Wairau Road,
and onto and off
       Archers Road through an access point a little to the east of the existing
       Archers Road/Poland Road
intersection. Because of those issues and the
       amount of traffic it was projected to generate, the Court regarded the
    
  proposal as too large for the site and the surrounding road network (as it
       then existed) to cope with. For that reason the
Court upheld the Council's
       decision to decline the necessary consents and expressly did not embark
       upon an examination
of the proposal's possible effects on the amenity values
       of other North Shore centres. ...

       [7]     As will already
be apparent, the Council has a different stance on the
       current application, and supports its decision to grant the consents.
In brief,

       it believes that the proposal's (about 22%) smaller size and absence of the
       Fire Service development, and
improvements in the access to the roading
       network surrounding the site, have avoided or mitigated the adverse effects
   
   on traffic and existing centres to the extent that they no longer outweigh the
       positive effects.

[6]    The Environment
Court in the present case was well aware of the differences
between the previous proposal and the proposal before it. Of particular
significance
was the reduced scale of the operation for which consent was sought. In the previous
decision of the Environment Court
in 2002, the Court concluded its findings on
traffic and transportation effects with the following comment:

       [210] Despite
the advantage of the accessibility of the site, the scale of its
       adverse traffic and transportation effects are so great that
the foodmarket is
       too large for the site, in terms of the objectives, policies and other provisions
       of the district
plan. For those reasons it is our judgement that the proposal
       does not deserve resource consent.

       (emphasis added)

[7]    Mr Whata emphasised that the earlier decision the Environment Court had
found an additional 200 vehicles would be using part
of Wairau Road in peak
periods, and the evidence of the experts before the Environment Court in this case
was similar in that they
suggested a range of between 185 and 268 additional
vehicles would use the Wairau Road/Tristram Avenue intersection during the
weekday
peak of 5.00 p.m. ­ 6.00 p.m. But the earlier decision was not declined just
on the basis of the traffic movements at that one particular
intersection. What led to
the decision to decline the application in 2002 was the impact of traffic issues
generally, including at
intersections near the proposal, together with other
considerations arising out of the scale of the proposed operation and the absence
of
mitigation measures at the time.


[8]    The Environment Court in the present case accepted that the reduced size of
the proposal,
together with the other amendments, (including mitigation measures),
made the proposal before it quite a different proposition to
the previous one. The
altered proposal affected not only the impact of the proposal on the Wairau
Road/Tristram Avenue intersection, but also on the roading network surrounding
the
site generally.

[9]      Nor is there anything in Progressive Enterprises' reliance on the fact that
various objectives and
policies in the District Plan were expressly referred to in the
first decision, but not in the recent decision. The Environment Court
in the present
case was a differently constituted Court. The issues before it were different. It
approached the matter in a different
way to the previous Court, noting:

         [10]    Obviously we cannot hope to mention all of that material in a
         decision
of acceptable length.

         ...

         [12]    In dealing with the live issues, we have attempted to avoid repetition
   
     by grouping the points to be discussed with the relevant District Plan
         provisions and assessment criteria.

[10]  
  It is also significant that before the hearing in the present case the experts had
caucused. There was agreement between the expert
witnesses on a large number of
relevant facts. By contrast, the Environment Court had to deal with a lot more live
issues in its
2002 decision. The decision in this case must be read and considered in
its own context. The ultimate issue for this Court is whether
the Environment Court
fell into error in relation to the points of law raised.


[11]     For the above reasons the differences between
the 2002 Environment Court
decision and the decision under appeal are of little assistance to the appellant, or this
Court.


Did
the Environment Court have genuine regard to the traffic management
provisions of the District Plan?


[12]     Sections 104(1)(b)(iv)
and 290 of the Act require the consent authority and,
on appeal, the Environment Court to have regard to any relevant provisions
of the
District Plan. The nature of a District Plan was succinctly stated by the Chief Justice
in Discount Brands Limited v Westfield
(New Zealand) Limited  [2005] 2 NZLR 597:

         [10]      The district plan is key to the Act's purpose of enabling "people and
         communities to provide for their
social, economic, and cultural well being".
         It is arrived at through a participatory process, including through appeal to
         the Environment Court. The district plan has legislative status. People and
         communities can order their lives under
it with some assurance. A local
         authority is required by s 84 of the Act to observe and enforce the

       observance
of the policy statement or plan adopted by it. A district plan is a
       frame within which resource consent has to be assessed.

[13]   A District Plan must state objectives, policies to implement the objectives
and rules (if any) to implement the policies:
s 75. Mr Whata identified a number of
objectives and policies of the District Plan that he submitted were relevant, but
which were
not expressly referred to in the decision of the Environment Court.
Those provisions are set out in the attached schedule.


[14]
  While counsel for the Council and the National Trading Company
acknowledged that the provisions identified by Mr Whata in the schedule
were not
expressly referred to by the Environment Court, they submit that it is apparent from
the Environment Court's decision that
the Court had regard to the relevant
provisions of the District Plan in arriving at its decision as was required by s
104(1)(b)(iv).


[15]   The requirement for the Environment Court to have regard to the relevant
provision is a requirement to give genuine attention
and thought to the matters
identified in s 104, but it need not necessarily accept those provisions. To "have
regard to" does not
require the Court to "give effect to": Foodstuffs (South Island)
Limited v Christchurch City Council  [1999] NZRMA 481, 487.


[16]   The cases referred to by Mr Whata dealing with different statutory provisions
such as New Zealand Fishing Association
v Ministry of Agriculture & Fishers  [1988]
1 NZLR 544; Leiataua v Minister of Immigration [2004] BCL 155; and Lee v
Deportation Review Tribunal  [1999] NZAR 481 are of little assistance on this point.
Nor does the decision of the Whangamata Marine Society Inc v Attorney-General
 [2007] 1 NZLR 252 particularly advance Progressive Enterprises' case as the
passages counsel referred to from that case [38], [56] and [57] are largely
directed at
the role of the Environment Court or hearing committee in relation to the assessment
of the evidence before it. The Environment
Court in the present case identified the
potential effects of allowing the proposed activity. It then evaluated the effects, and
determined whether or not they warranted rejecting the application for consent or if
special conditions needed to be imposed. The
approach outlined by the Court in
Whangamata was essentially followed by the Environment Court in the present case.

[17]   It is
settled that the Environment Court is not required to expressly set out
and construe all allegedly relevant provisions of the planning
documents to satisfy
the requirement that it give genuine attention and thought to them. A thematic
approach is acceptable: Auckland
Regional Council v Living Earth Limited  [2008]
NZCA 349 at  [45]; Rodney District Council v Gould  [2006] NZRMA 217 at [32].


[18]   The District Plan was part of the material before the Environment Court in
this case. As the Court noted, the bundle
of planning documents agreed by the
planning witnesses occupied two large folders and a folio of plans.


[19]   The Environment
Court expressly recorded that although it had the material,
including all relevant planning documents, it proposed to adopt the approach
of
citing only those extracts of documents that "strike us as exemplifying the issues and
themes we regard as decisive" and in doing
so adopted a thematic approach.


[20]   Against that background, I turn to the issues which remain. First, were the
provisions identified
by Progressive Enterprises relevant and second, did the
Environment Court fail to give genuine attention and thought to the issues
addressed
by those various provisions?


[21]   As noted, the requirement is for the Court to have genuine regard to the
relevant
provisions of the District Plan. Relevance must always be informed by the
matters in issue. On a very broad approach it could be
argued that any consent
application for a new operation that involves the movement of people will involve
traffic considerations.
  But that does not necessarily mean that on every such
application the Environment Court is required to consider each and every
objective
and policy in the traffic section of the District Plan. There are, for example, amongst
the objectives and policies identified
by Mr Whata a number that are so general as to
be of marginal or little direct relevance to this application. A number of the other
provisions referred to by Mr Whata need to be informed by consideration of the rules
(or in this case the criteria by which the application
was to be assessed) which are the
means of implementing the policies (and through that, achieving the stated
objectives). For example,
policies 12.3.1.2 and 12.3.1.3 are, as Mr Allan submitted,

high level goals with respect to the provision of private vehicle travel
and public
transportation through the city. They are expressed at a very general level.


[22]   Policy 12.3.1.6 is relevant to all
busy roads, but like policies 12.3.1.2 and
12.3.1.3 it is given practical effect to by the more detailed analysis required by the
assessment criteria in the Plan.


[23]   Policy 12.3.1.7 is a broad level policy directed at infrastructure development
rather than
individual applications for resource consent.        At best it is of very
marginal relevance.


[24]   As a means of achieving the
above policies, method 12.3.1 (second bullet)
cannot stand alone. It must be read with the other provisions of the District Plan
including those which allow the establishment of a supermarket as a discretionary
activity. Also, on its face, it requires consideration
of and management of adverse
effects on traffic. This is done through assessment criteria. Explanation 12.3.1 adds
nothing to the
analysis.


[25]   Policy 12.3.2.5 is more properly directed at land use issues. I accept Mr
Allan's submission that it is given
effect to by zoning. It is of limited relevance to
the current application.


[26]   Then there are the matters set out in Part 15
of the Plan dealing with
businesses.   Objective 15.3.2 is again very general and is informed by policy
15.3.2.1 that follows.  
  It requires consideration of the transport network and
passenger transport services. But that objective and policy must be considered
in
context of the Plan as a whole, which provides that a supermarket on this site has
discretionary activity status. The explanation
at 15.3.2, and expected environmental
result at 15.3.2 are directed at the mitigation of adverse effects, and to ensure that the
cost of any roading upgrade that may be required is met by the developer. Again, the
consideration of those issues is focused by
reference to the assessment criteria.


[27]   In summary, some of the objectives and policies that the appellant says the
Court
failed to have genuine regard to are of extremely limited or marginal

relevance, particularly 12.3.1.7 and 12.3.2.5.          The Environment Court was not
required to refer to every objective and policy of marginal relevance:                  Rodney
District Council v Gould (supra).


[28]   To the extent that the remaining objectives and policies (as informed by
methods and explanations) were relevant, it is
necessary to consider the process
followed by the Environment Court in dealing with the application to determine
whether it gave
them genuine attention.


[29]   The Environment Court had regard to the issues of traffic management and
traffic effects generally,
in the context of its assessment of the proposal as a
discretionary activity. The first express provision noted by the Court was
15.3.3
Retail Activities. That provision identifies the objective of enabling a wide range of
retail activities and business centres
in certain conditions.                 Policy 15.3.3.4
implements that objective:

       4.      By recognising the potential demand
for some retail activity to
               establish in business zones outside the existing and proposed
               business
centres and requiring this development, (in ... General 9 ...
               zones) unless otherwise exempted, to be subject to a
thorough
               evaluation, particularly in terms of the effects of the activity on:

               ·   the roading network
in which the activity is located; ...

               ·   the overall accessibility to the range of business and community
     
             facilities in the city; and

               ·   the pedestrian amenity in the vicinity of the proposed retail
     
             activity.

[30]   The methods following the policy record that the policy is to be implemented
by rules. In referring
to them, the Environment Court noted the following passage
from the explanation and reasons section at para [19] of the decision:

       Some retail activity, ... can include high traffic generating activities that have
       the potential for adverse effects
on the efficient functioning and management
       of the street network. For this reason proposals for large developments, and

      for activities which cumulatively have the effect of a large development,
       outside the existing and proposed centres,
will need to demonstrate that their
       effects on the traffic and roading environment are avoided or mitigated. The
       assessment
criteria provided in Section 15.7.4.1 for both Limited
       Discretionary and Discretionary activities aim to limit these effects.

[31]   Clause 15.7.4.1 lists the assessment criteria for high traffic generating
activities identified as limited discretionary
or discretionary activities as:


       a)      The extent to which any adverse effects of the activity on efficiency,
        
      safety and operational aspects of the adjacent and local road network,
               and in particular, the avoidance of adverse
traffic effects on residential
               amenity, are able to be avoided, remedied or mitigated.


       b)      The extent
to which the activity has adverse effects on private and
               public transport patterns, and in particular, the extent
to which the
               proposal


                ­   Results in an increase (or reduction) in overall traffic distances



               ­   Encourages the use or maintains the integrity of the public
                    transportation network.


   
   c)      Criteria listed under clause 12.5.1.3 of the Transportation Section of
               the Plan.


[32]   Clause 12.5.1.3
provides assessment criteria for limited discretionary
activities. At para [21] of its decision the Environment Court recorded that
the
traffic engineers and planners agreed that, with the exception of one portion, the
assessment criteria in 12.5.1.3 were met.
The exception was:

       In relation to congestion and intersection performance, effects on streets and
       intersections within the area for a distance of one kilometre should be
       avoided, remedied
or mitigated, given both present day conditions, and
       future traffic volume projections. Possible mitigation measures include
       feasible network improvements.

[33]   The Court recorded that the area of dispute was in relation to the impact of
the proposal
on the traffic at the Wairau Road/Tristram Avenue intersection.


[34]   The Court then went on to discuss traffic issues under various
heads: Written
approvals ­ traffic; Traffic ­ adjacent and local road network; Traffic ­ private

and public transport patterns;
      Traffic ­ intersection performance;         Traffic ­
findings.


[35]   Mr Whata emphasised that traffic was an important
theme. The Environment
Court acknowledged this in its detailed consideration of the issue under the headings
referred to (encompassing
some 35 paragraphs of the decision). It concluded in its
section Traffic ­ findings:

       [54]     We turn back to the District
Plan provisions with respect to traffic
       and the assessment criteria listed in 15.7.4.1. We have found that there are
    
  no adverse effects on residential amenity and the potential traffic safety
       effects have been remedied by the proposed changes
to the Archers Road
       and Wairau Road entrances. We have found that the effects on private and
       public transport patterns
are neutral.

       [55]    The traffic engineers and planners were satisfied that the criteria
       listed in clause 12.5.1.3
are all satisfied with the exception of the
       performance of the Wairau / Tristram intersection and interchange. Given
    
  the written approval from the NZ Transport Agency we cannot have regard
       to any potential adverse traffic effect on it as
the manager of the Wairau /
       Tristram interchange. We have found that there is a minor effect on the
       performance of
the Wairau / Tristram /Hillside intersection.

       [56]     Overall we find that the traffic effects of the proposal are not

      significant to the extent that they should count against the proposal.

[36]   Mr Whata also submitted that the Environment
Court failed to evaluate the
significance of the evidence of impact on traffic, particularly in relation to the
Wairau Road/Tristram
Avenue intersection by reference to the policies. However,
by giving consideration to that assessment criteria in the context of
the specific
proposal, the Environment Court effectively gave consideration to the relevant high
level objectives and policies discussed
above.         Express reference to the traffic
management objectives and policies was not needed in the circumstances.


[37]  
In relation to this particular proposal which, by zoning was a discretionary
activity, the high level objectives and policies in
the Plan, particularly relating to
traffic management, had to be given practical effect to and were able to be
considered against
the assessment criteria provided for.


[38]   It may be that in some cases, the failure to refer to the broad objectives and
policies
may be determinative when lower level rules or assessment criteria do not

address the particular issues, but that is not the situation
in this case. The themes to
be drawn from the objectives and policies referred to by the appellant are embodied
in the assessment
criteria which implement them. By its consideration and analysis
of the assessment criteria in relation to traffic issues generally,
the Environment
Court addressed and gave attention to the relevant objectives and policies of the Plan
in relation to traffic.


[39]    The Environment Court itself recognised this. In the concluding parts of the
Judgment it said:

        [92]   ... this is
a site which, when its positive and (alleged) adverse effects
        are measured against the provisions and criteria in the planning
documents ...
        would clearly accommodate the proposed supermarket in a way that would
        promote the purpose of the Act.

        (emphasis added)

[40]    Mr
Loutit approached the matter in a different way. He submitted that in any
event the Environment Court had, in substance, effectively
dealt with the provisions
Progressive Enterprises says were not given genuine attention in its decision.


[41]    In relation to
12.3.1.2, the Environment Court considered traffic safety issues
before concluding there was "no compelling evidence that the proportionately
small
increase in traffic volumes as a result of the [proposal] will significantly increase the
crash rate". The Environment Court
thus dealt with the issues identified in policy
12.3.1.2. It is not for this Court to review the merits of that decision.


[42]
   Policy 12.3.1.3 requires that a balance be maintained between changes in
activities and the transportation system from the sub-regional
through to the local
level. There needs to be a match between the trip generating capacity of the plan of
activities and the trip
generating capacity of the transportation system.                  The
Environment Court discussed this issue generally under the
heading of Traffic ­
private and public transport patterns before concluding:

        [37]     Given that almost all shoppers will
travel by private motor vehicle,
        the evidence we heard about the likely impact on total travel was not
        conclusive
either way. But the stronger indication was that providing a Pak
        `N Save in the southern North Shore should result in an
overall reduction in
        travel distances. ...

       [38]    We find that the proposal is neutral with respect to the impact
on
       private and public transport patterns.

[43]   Policy 12.3.1.6 is designed to protect all busy roads, together with State
Highways, from the adverse effects of adjacent activities and developments,
including those which are high generators of pedestrian
or vehicle traffic, or may
have adverse effects on the safety of motorists. As noted above, the issue of safety
was considered by
the Environment Court. In relation to the issue of protection of
busy roads and State Highways, the Court noted that NZ Transport
Agency
(formerly Transit New Zealand) had given its written consent to the proposal in
which it expressed itself "comfortable that
any traffic effects of the Application on
the State Highway network (including the Wairau/Tristram interchange) can be
adequately
managed or controlled ...". Similarly the Council as manager of the local
roading network agreed that the effects of traffic generated
by the proposal could be
adequately managed. Later in the decision when summarising its consideration of
adverse effects generally,
the Environment Court noted:

       [69]    ... the immediately surrounding roading network can cope with [the
       proposal],
and the functioning of the Wairau/Tristram intersection will not
       be made markedly worse, even on the worst-case model. Depending
on
       decisions about planning and funding priorities (which are for the Council to
       make, perhaps in conjunction with
the NZTA) improvements could be made
       to the intersection. In any event, there are a number of possible routes
       between
the site and the surrounding catchments, enhancing its accessibility.

I agree with Mr Loutit's submission that the Environment Court
gave genuine
attention to the issues raised by policy 12.3.1.6.


[44]   Policy 12.3.1.7 is a policy directed at increasing the person
carrying capacity
of congested corridors and to provide viable alternatives to motorcars. Again in para
[34] the Environment Court
noted that:

       [34]    ... the short point is, as the witnesses all agree, that supermarket
       shopping and public transport
simply do not interface in any meaningful
       way. ... Put another way, any supermarket, wherever located, could arguably
   
   be out of sympathy with, if not actually contrary to, those sorts of Plan
       provisions.

[45]   In light of this statement it cannot be said that the Environment
Court has
failed to have regard to the policy identified in 12.3.1.7. Progressive Enterprises

might disagree with the Court's response
to it, but that is a challenge to the merits of
the decision which it is not open to the appellant on an appeal to this Court.


[46]   Method 12.3.1 and the accompanying explanation 12.3.1 relied on by the
appellant are directed at ensuring that activities
which are high generators of
pedestrian or vehicle traffic are not established along heavily trafficked roads unless
pedestrian and
vehicle movements can be accommodated without disrupting their
safe and effective operation. The explanation also refers to the need
to place greater
emphasis on managing demand for travel on congested corridors, rather than catering
to them. These issues were considered
by the Environment Court. As noted, safety
was considered and dealt with. As to the efficient operation of the roading network,
the
evidence before the Environment Court was that during the weekday peak of 5 to
6 p.m. there would be additional traffic movements
of between 185 and 268 vehicles
per hour, with the average delay for traffic passing through the Tristram/Wairau
intersection predicted
to increase by between six to 11 seconds (20 percent over
existing conditions). The passage referred to above at para [69] of the
decision
shows that the Court acknowledged there would be an effect on the highly trafficked
roads, and in particular the Wairau/Tristram
Avenue intersection, but considered that
such effect as there may be, even on a worst-case basis, was not such that the
proposal
should be declined. Further, at paras [33] to [38], the Environment Court
considered private and public transportation patterns before
concluding, as noted
above, that the proposal was neutral in relation to those patterns. Finally, later in its
decision the Court
had regard to the roading network as a whole:

       [89]    ... The roading network is a resource that the proposal will take

      advantage of, enabling a number of route choices and efficient access to and
       from the site without imposing significant
adverse effects.

[47]   In short the Environment Court essentially concluded that while there may be
an increase in vehicle movements
impacting on the Wairau Road/Tristram Avenue
intersection, the adverse effect of the increase in traffic on the performance of the
intersection (measured against its current operating conditions) was not such so as to
effectively disrupt the efficient operation
of the intersection. Again Progressive
Enterprises' challenge under this head is essentially a challenge to the factual
findings
of the Environment Court on the merits.

[48]   To the extent policy 12.3.2.5 is relevant at all, the Environment Court's
consideration
of the private and public transport patterns in paras [33] to [38]
addressed it.


[49]   Objective 15.3.2 is to manage the effects
of business activity so as to
maintain a transportation network capable of effectively serving business activities,
the needs of
the through traffic and the wider transport traffic needs of the city. The
Environment Court acknowledged that the Wairau Road/Tristram
Avenue
intersection posed a problem and would continue to do so until a long-term solution
was found. However, they agreed with Mr
Harries that:

       [51]     ... the significance of the effect should be considered in the context
       of an already busy intersection
and the plan provisions.

The Environment Court also noted that the scale and duration of the traffic effects
were somewhat limited,
before concluding:

       [53]    ... this effect is small in magnitude, limited in duration and minor
       when considered in
the context of the traffic situation on the surrounding
       road network.

[50]   The Court was thus satisfied that even with
the addition of the increased
traffic generated by the proposal the transportation network was capable of
effectively serving business activities, the
needs of through traffic and the wider
transport and traffic needs of the city. The issues underlying objective 15.3.2 were
addressed
by the Environment Court.


[51]   Policy 15.3.2.1 is directed at ensuring that high traffic generating activities
are located in
areas which are best served by the transport network and by passenger
transport services, and which promote multi-purpose rather
than single purpose
vehicle trips. This policy was addressed by the Court's consideration of private and
public transport issues
at paras [33] to [38], its conclusions that the proposal was
neutral with respect to the impact on private and public transport patterns,
would
enable a number of route choices and allow for efficient access to and from the site.


[52]   I accept Mr Loutit's submission
that the objects of the general explanation to
15.3.2 and the expected environmental result were also addressed by the

Environment
Court. First, by the Court's acceptance that there had been effective
mitigation of certain effects with the realignment of the Archers
Road entrance, and
the prevention of right turns onto the site from Wairau Road. Second, insofar as the
Wairau Road/Tristram Avenue
intersection was concerned, as previously noted the
Court was satisfied the immediately surrounding roading network could cope with
the increased traffic, and that the Wairau/Tristram intersection would not be made
markedly worse even on a worst-case scenario.
Third, by the Court noting the
proposed mitigation measures and stating that improvements to the Wairau
Road/Tristram Avenue intersection
could be made depending on planning and
funding priorities.


[53]   It follows that I agree with the submission for the Council
that the
Environment Court had regard to, and addressed the objectives and policies
identified by the appellant, even though the
specific objectives and policies were not
expressly referred to.


The duty to provide reasons


[54]   The second issue raised by
the appellant, was whether the Environment Court
had discharged its duty to provide reasons in relation to the relevance and application
of the traffic management policies.      This is effectively answered by the above
discussion.


[55]   The Environment Court is
under a duty to give reasons for its decision, but
the reasons may be succinct and some cases will be evident without express
reference:
Murphy v Rodney District Council  [2004] 3 NZLR 421 at [25]. The
Environment Court did not expressly identify the objectives and policies identified
by the appellant and set out in
the schedule, but as discussed above, in the course of
its decision the Environment Court considered the issues raised by those objectives
and policies and expressly set out its reasons for its findings on those issues.


[56]   Section 113(1)(ab) does not add anything
to the requirement the Environment
Court give genuine attention and thought to the matters in s 104, or the principle that
reasons
are required.

[57]   I conclude that the Court satisfied the obligation on it to give reasons.


The evidence of Mr Harries


[58]
  During the course of submissions Mr Whata submitted that only Mr Harries,
the expert called by Progressive Enterprises, gave direct
evidence about the impact
of the proposal on the objectives and policies in issue. The Environment Court was
aware of Mr Harries'
evidence. It was not required to accept his views on that
particular issue. By the process it adopted, the Environment Court came
to its own
conclusion.


Materiality


[59]   In any event, given the matters addressed by the Environment Court under
the various
traffic headings and its reasoning and conclusions in relation to those
issues, I am unable to accept the submission for the appellant
that the failure of the
Environment Court to refer to the various objectives, policies, methods and
explanatory notes might have
led to a different conclusion in this case.


[60]   Any error of law must materially affect the result of the decision before the
Court should grant relief: Royal Forest and Bird Society Inc v W A Habgood Ltd
 (1987) 12 NZTPA 76, 81-82; Countdown Properties (Northlands) Ltd v Dunedin
City Council  [1994] NZRMA 145, 153.


[61]   Given the Court's conclusions on the evidence before it that:


       ·   the adverse effect of the proposal on the
Wairau/Tristram intersection and
           interchange was small in magnitude, limited in duration and minor when
           considered
in the context of the traffic situation on the surrounding road
           network;


       ·   the immediately surrounding roading
network could cope with the
           proposal;

       ·   the functioning of the Wairau/Tristram intersection would not be made
           markedly worse even on a worst case model; and


       ·   depending on decisions about planning and funding priorities,
which were
           for the Council to make perhaps in conjunction with NZTA (both of
           whom consented to the proposal)
improvements could be made to the
           intersection


then it is difficult to see how those conclusions could be altered or
affected by
reference to the broad level general provisions identified by the appellant.


[62]   It follows that I accept the submissions
for the respondent Council and
National Trading Company that express reference to the "traffic management
policies" as identified
by the appellant, would not have altered the conclusions
reached by the Environment Court after consideration of the evidence and
the
matters referred to it in the course of its decision.


The precedent effect ­ impact on the integrity of the District Plan


[63]   The issue of the precedent effect of approving the proposal on plan integrity
was considered by the Environment Court at
paras [80] to [87].


[64]   The Environment Court concluded its decision would not have a precedent
effect because in the case of
a discretionary activity the proposal is to be measured
against the criteria set out in the plan, and decisions will be judged on
that basis.


[65]   The appellant submits the Environment Court's reasoning was "discordant"
with leading authorities on potential
precedent effect.


[66]   Precedent effect is a legitimate consideration under s 104(1)(b)(iv). It can be
a relevant consideration,
even in the context of a discretionary activity: Norwood
Lodge v Upper Hutt City Council CA37/06 4 July 2006 at [16] and Manos v
Waitakere City Council  [1996] NZRMA 145.

[67]   The appellant's complaint in relation to precedent is that although the
Environment Court in this case addressed the issue,
it misconstrued it. In particular
the appellant submits that the Environment Court was wrong in failing to
acknowledge that its finding
of an increase in traffic delay and queue lengths of up to
20 percent in peak hours on an intersection operating at capacity was
small in
magnitude, and might provide a threshold or pass mark against which future
applications for consent would be measured. However,
with respect, it is simplistic
and an error of approach for the appellant to submit that the effect of the decision is
that it could
create a precedent that a 20 percent increase in delay in traffic at a
particular intersection will be acceptable in the future.


[68]   The finding that in this case a 20 percent increase in the delay for a one hour
peak period was small in magnitude, limited
in duration and minor in context does
not create a precedent. A short example illustrates the point. If, in the future there is
a
proposal for another supermarket in the same general area that would lead to a 20
percent increase in delays at the Wairau/Tristram
Ave intersection, that adverse
effect would be a 20 percent increase cumulative on the existing traffic flows
following the grant
of the proposal in this case. The Environment Court would be
required to consider the impact of that cumulative adverse effect. There
could be no
precedent requiring consent to be granted based on the decision in the present case.


[69]   Even if there was a proposal
at a completely different site which led to a 20
percent increase in delay at peak periods at a different intersection, the particular
proposal would have to be considered in the context of the specific adverse effect,
i.e. including for example how long the additional
delay in that case was. Context is
crucial.   The Environment Court decision is not so much that the 20 percent
increased delay was
acceptable, but rather that the effect, in context, was small in
magnitude and limited in duration so that it could be regarded as
minor.


[70]   It is not the fact that this was a decision on an application for a discretionary
activity that means it cannot have
a precedent effect, rather, it is that the outcome of
any future application will necessarily depend on the evidence before the Court
at
that time, assessed against the relevant assessment criteria. On that basis, it cannot

be said the Environment Court's decision
will compromise the District Plan's
strategy.


[71]     The Environment Court addressed the issue of precedent effect and
concluded
that it did not apply in this case. It cannot be said to be wrong in coming
to that conclusion, and certainly not on the basis argued
for by the appellant.


Result


[72]     For the above reasons the appeal is dismissed.


Costs


[73]     The respondents are entitled
to costs. Costs on a 2B basis plus disbursements
as fixed by the Registrar, would be appropriate in the event counsel are unable
to
agree or there is no other arrangement.



                                              __________________________
         
                                    Venning J

                                 SCHEDULE


Policy 12.3.1.2:   To encourage the most
efficient and safe use of transportation
                   infrastructure within the city.


Policy 12.3.1.3    To maintain a balance
between changes in activities and the
                   transportation system from the sub-regional through to the
            
      local level, so that there is a reasonable match between the trip
                   generating capacity of the pattern of
activities and trip carrying
                   capacity of the transportation system.


Policy 12.3.1.6:   To protect all busy roads,
together with State Highways, from
                   the adverse effects of adjacent activities and developments,
             
     including those which are high generators of pedestrian or
                   vehicle traffic or may have adverse effects on the safety of
     
             motorists.


Policy 12.3.1.7:   To increase the person carrying capacity of congested corridors
                   and
to provide viable alternatives to the motor car.


Method 12.3.1      By ensuring that activities which are high generators of
(2nd
bullet):      pedestrian or vehicle traffic are not established or expanded
                   along heavily trafficked roads, unless
pedestrian and vehicle
                   movements to and from the site can be accommodated without
                   disrupting
the safe and efficient operation of the road.


Explanation        ... The underlying theme of the above policies is to place
12.3.1:
           greater emphasis on the management of demand for travel on
                   congested corridors, rather than necessarily
catering for that
                   demand by the provision of additional vehicle capacity. ...


Policy 12.3.2.5    To consider
land use issues and to evolve an urban form more
                   supportive of the provision of effective passenger transport
                   services.

Objective 15.3.2     To manage the effects of business activity so as to maintain a
             
       transportation network capable of effectively serving business
                     activities, the needs of through traffic,
and the wider transport
                     and traffic needs of the city.


Policy 15.3.2.1      By ensuring that high traffic
generating activities locate in
                     areas which are best served by the transport network and by
               
     passenger transport services, and which promote multi-purpose
                     rather than single purpose vehicle trips.


Explanation 15.3.2   ... Where development of business activities meets the
                     provisions of the Plan, but will
result in localised effects on
                     adjacent roads by overloading lane provisions or intersection
              
      design, the development will not be permitted unless
                     mitigation works are undertaken or the costs of upgrading
are
                     met by the developer ...


Expected             That the costs of any localised road upgrading required
as a
environmental        result of new development are met by the developer ...
Result 15.3.2:



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