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High Court of New Zealand Decisions |
Last Updated: 30 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-712 [2014] NZHC 1481
UNDER
|
the Judicature Amendment Act 1972
|
IN THE MATTER
|
of an application to review a statutory decision to grant resource consent
on a non-notified basis under the Resource Management Act
1991
|
BETWEEN
|
WENDCO (NZ) LIMITED Applicant
|
AND
|
AUCKLAND COUNCIL First Respondent
WIRI LICENSING TRUST Second Respondent
|
Hearing:
|
9 June 2014
|
Appearances:
|
S J Mills QC and S J Maloney for Applicant
W S Loutit and K M Stubbing for First Respondent
G J Kohler QC and K T Glover for Second Respondent
|
Judgment:
|
27 June 2014
|
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 27 June 2014 at 5.15 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Lee Salmon Long, Auckland Simpson Grierson, Auckland Kemps Weir
Lawyers, Auckland
Counsel: S J Mills QC, Auckland
G J Kohler QC, Auckland
K T Glover, Auckland
WENDCO (NZ) LIMITED v AUCKLAND COUNCIL [2014] NZHC 1481 [27 June 2014]
Introduction
[1] The Applicant (“Wendy’s”) seeks judicial review
of a decision by the First Respondent (“Council”)
that it was not
required to notify Wendy’s of an application for resource
consent.
[2] The Second Respondent (“WLT”) made the application for
resource consent (“application”) to the Council
as consent authority
on 5 September 2013. It sought consent to construct a 3-unit retail building
and a drive-through restaurant,
and to establish ancillary carparking on a large
site (“site”) in Wiri, Auckland.
[3] On 25 October 2013 the Council decided that it was not required to
notify the application and granted the consent that was
sought.
[4] Wendy’s is a tenant on the site and its case is that the
decision not to notify it of the application was unlawful.
It seeks a
declaration to that effect and an order quashing the consent.
[5] It is for Wendy’s to establish a ground on which to review
the Council’s decision. As Wendy’s acknowledges,
on an application
for judicial review the issue for the Court is whether the decision maker, in
this case, the Council followed a
lawful process. It is not for the Court to
substitute its view of the merits.
[6] Wendy’s relies on several grounds of review but
particularly on what it contends was the inadequate information
before the
Council when it made the decision.
[7] For the reasons set out below, I do not consider that Wendy’s has established a ground of review. Even if I am wrong in this conclusion, I would decline to grant relief to Wendy’s. The prejudicial consequences of doing so would be far reaching, for WLT and for numerous third parties who have been caught up in this dispute through no fault of their own.
Parties
[8] Wendy’s operates the “Wendy’s Old Fashioned
Hamburgers” chain of restaurants. Wendy’s has had
a restaurant,
including a drive through facility, on the site since about 1999. Wendy’s
obtained its own resource consent
to establish its restaurant, and that consent
is of some relevance to the present proceeding.
[9] The Council was the “consent authority” for the
purposes of determining the application under the Resource Management
Act 1991
(“RMA”). The application fell to be determined under the
provisions of the RMA and Auckland Council
District Plan (Manukau Section)
2002 (“District Plan”).
[10] WLT is a statutory entity, first constituted in 1969 and now
constituted under the Sale and Supply of Alcohol Act 2012.
Its principal
purpose is the sale and supply of liquor within its district, with a portion of
the profits being distributed to local
community organisations. The site is
WLT’s largest and most valuable asset and generates most of its
income.1
Site
[11] The site is situated on the corner of Ronwood Avenue and Great South
Road and comprises 2.7316 hectares. For WLT’s
purposes the site is
divided into “areas”, a map of which is attached marked
“A”. Wendy’s occupies
area W (pursuant to a lease from WLT)
and Bank of New Zealand occupies area C.
[12] The works to which the Council has granted resource consent are to take place principally on areas A and B, and west of area B. This land or most of it was previously occupied by a Mobil petrol station. Mobil ceased business on the site in
2013. That decision affected the final form of the application.
[13] As I said above, the application was for consent to establish new buildings and carparks on the site, and for works consequential upon those activities. Wendy’s considers that the new buildings and activities on site, the increased traffic and car parking, and the modifications to what is referred to as “access B” will have adverse
consequences for its restaurant and patrons, including the operation of its
drive through facility.
[14] The attached plan shows the locations of “access A” and
“access B”. Access A is a point of exit
only. To date access B has
been a point of entrance point only, accessible to traffic travelling north
on Great South Road.
The Council has, however, granted consent to WLT to
make access B a point of entrance and exit.
[15] There are separate proceedings on foot between Wendy’s and WLT
as to whether the proposed works, or their effects,
will put WLT in breach of
the terms of Wendy’s lease. It is unnecessary for me to consider those
issues. I record, however,
that in April 2014 Wendy’s sought an interim
injunction seeking orders to ensure access over various parts of the site was
unaffected by construction work. The application was declined, although it
appears that the parties were able to agree on some
interim arrangements to
ameliorate the disruption.
[16] Counsel for Wendy’s summarised these concerns as
follows:2
(a) change the access point to Great South Road on “Lot B”
from an entrance only to an entry/exit point, with consequent
increased traffic
flow onto the road on Lot B;
(b) move the internal roading network located on Lot B, that in turn
connects to Great South Road, with the effect that it
now runs onto and along
Wendy’s leasehold (“Lot W”). Previously, and as required by
the earlier resource consent
Wendy’s obtained to establish its business on
the Lot W site, that traffic was directed along Lot B only and was separated
from Wendy’s leasehold by a berm; and
(c) changes the internal roading network over “Lot A” to
Great South Road from an unobstructed road to a route
that will be obstructed by
carparking and internal traffic circulation, including a new drive
through.
(footnotes omitted)
Background
[17] The background to WLT’s application for resource consent is as
follows.3
[18] In early 2011 WLT engaged property consultants to undertake a
“master planning exercise” for the site, as several
leases on the
site, including Mobil’s, were to terminate in 2012.
[19] In the first instance, WLT resolved to construct an 800 m2
“sleeve retail” development on, or to the west, of area B.
The proposal was expanded in mid 2013, when Mobil decided
to close its service
station. That decision led to negotiations between WLT and Restaurant Brands
Limited (“RBL”), with
a view to RBL establishing a
“Carl’s Jr” restaurant on the site. The application made
provision for that restaurant.
[20] WLT applied for the following consents under the District
Plan:
(a) consent to construct the proposed buildings. This was a
“controlled activity” under the District Plan; and
(b) consents for earthworks, modifications of access A and B, provision
of new parking spaces, vehicle crossings and signage.
These were
“restricted discretionary” activities under the District
Plan.
[21] The application was received and considered by Council planning and transport personnel. The Council then made a request for further information on
23 September 2013 (“s 92 request”). This request was followed by a meeting between representatives of WLT and the Council on 1 October 2013, to a revision of the proposal so as to delete a proposed vehicular entry at access A, and to WLT providing further information to the Council on 10 October 2013. The Council then
made a further request for information which WLT
provided.
3 See generally affidavits of A M Johnson sworn 5 May 2014, ABD 707; and S J Wilkinson, above n
1, ABD 716.
Statutory provisions
[22] With this information in hand, the Council decided that it was not
required to notify the application, either publicly
or by way of the
limited notification procedures of the RMA.
[23] It is common ground between the parties that public notification of
the application was not required. The issue is whether
the Council was required
to give limited notification to Wendy’s as an “affected
person”.4
[24] A person is an affected person if the adverse effects of the
proposed activity on them “are minor or more than
minor”.5
[25] It is common ground that s 95E(2) RMA may limit the adverse effects
to which regard may be had in making the notification
assessment.
[26] First, s 95E(2)(a) permits a consent authority to disregard an
adverse effect that would arise from a permitted activity
under a plan.
Existing activities and those that are permitted as of right under a plan make
up what is referred to as the “permitted
baseline”. The consent
authority may put adverse effects arising from these activities to one side in
carrying out the assessment
required under s 95E(1). In this case, cafes,
restaurants, takeaway food premises, entertainment facilities, and some land
modification
activities were amongst the permitted activities on the site.
Nothing turns on that matter directly, although I accept the
submission
for the Council that, as a result, WLT did not require resource consent for the
activity of the proposed Carl’s
Jr restaurant and drive
through.
[27] Secondly, and this is relevant to the present case, if consent is sought for a “restricted discretionary” activity, by s 95E(2)(b) the consent authority may only have regard to an adverse effect within the scope of matters that the plan allows it to
control or restrict.
4 Resource Management Act 1991, s 95B.
5 S 95E(1).
[28] Accordingly, when considering whether the Council followed a
proper process, it is necessary to bear in mind that
the statute limited the
adverse effects to which it might have regard.
Ground of review
[29] The grounds of review relied upon by Wendy’s
are:6
...
(a) the Council failed to obtain adequate information to
determine who might be affected within the meaning
of s 95E of the Act
and how those persons might be affected;
(b) the Council failed to consider Wendy’s position;
(c) the Council failed to consider the extent of the effects on
Wendy’s;
(d) the Council failed to consider the effect that the grant of the
WLT Consent would have on Wendy’s own resource
consent;
(e) the Council failed to consider the effect on Wendy’s of the
development work authorised by the grant of the WLT Consent
...
Inadequate information/failure to consider Wendy’s position/failure
to consider the extent of the effects on Wendy’s
[30] The evidence before me includes affidavits from the Council
officers involved in processing the application and
evidence from Wendy’s
and its advisers. The Council officers involved were:
(a) Ms Sheena Kwan, the “processing planner” for the application;
(b) Mr Baladevan Thambiah, an experienced traffic engineer who assessed the traffic issues raised by the application and who consulted Ms Liang of Auckland Transport. Mr Thambiah was the traffic engineer involved in processing Wendy’s own application for resource
consent when it first established its premises on the
site;
6 Synopsis of Submissions for the Applicant, above n 2, at [8].
(c) Ms Alice Iuli-Tay, team leader in Resource Consents at the
Council.
[31] Ms Kwan undertook a site visit on 22 October 2013 and Mr Thambiah
and Ms Iuli-Tay were familiar with the site. Each of these
staff members were
employed by the Manukau City Council prior to the amalgamation of the Auckland
territorial authorities. Manukau
City Council would have been the consent
authority for the application but for the amalgamation.
[32] The principal affidavit for Wendy’s is that of Ms Danielle Lendich, the company’s Chief Executive Officer.7 Wendy’s has also filed detailed affidavit evidence from Mr Nigel Williams, an experienced traffic engineer. Mr Williams’ evidence is to the effect that the works are likely to have adverse effects on the circulation of traffic within the site, and on access to and from the site, that are minor (or more than minor) for Wendy’s business, and that this should have been apparent
to the Council when it made its notification decision. It may be that Mr
Williams’ assessment of these adverse effects is correct.
The issue for
me, however, is whether the process the Council followed was lawful and not
whether its decision was correct on the
merits.
[33] WLT’s proposed modifications to access A and B and the
provision of new car parking spaces were:8
... non-residential activity that results in the construction or modification
of vehicle access points (or parking areas serving these
access points) onto the
primary road network, or within 50 metres of the projected road boundary of
intersections onto the urban
primary road network
and required restricted discretionary activity consent under r 8.10.3(b) of
the Plan.
The “urban primary road network” referred to is Great South
Road.
[34] The matters in respect of which the Council has discretion in
respect of such activities are:9
7 Affidavit of D Lendich in support of Application for Interim Relief sworn 24 March 2014, ABD 28.
8 Manukau Operative District Plan 2002, r 8.10.3(b).
9 Rule 8.12.2.1.
8.12.2.1 Matters for Discretion
Council reserves discretion over the following matters for restricted
discretionary activity resource consent applications for any
activity defined
within Table 8.10.3(b) involving access to a road within the primary road
network or within 50 metres of an intersection
with a primary road and may
impose conditions in respect of each.
(i) The location and design of access to a site, including pedestrian
access.
(ii) Any works within a road required to facilitate access to a site
or mitigate the adverse effects of an activity and safety
of the operation or
the roading network or any utility service.
(iii) The site layout as it relates to pedestrian and passenger
transport access, carparking and loading areas and internal circulation.
(iv) The scale, management and operation of an activity as it relates
to its traffic generation.
(v) The management or apportionment of internal parking and loading
spaces.
and
8.25.1.1 Matters for Discretion
Council reserves discretion over the following matters for the Plan for which
parking and access has been listed as a matter for control
for restricted
discretionary activity resource consent applications for any non-residential
activity and may impose conditions in
respect of each:
(i) The location and design of cycle, pedestrian and vehicular access
to a site.
(ii) The site layout as it relates to pedestrian paths,
carparking and loading areas and internal circulation.
(iii) The scale, management and operation of an activity as it relates
to its traffic, loading and parking generation.
(iv) The management and apportionment of use of parking and loading
spaces within a site.
(v) Any works agreements or contributions required to mitigate parking
and access effects on adjoining properties or roads.
[35] The Assessment Criteria in respect of these matters is contained in
sections
8.12.2.3 and 8.25.1.2 of the District Plan. This criteria encompasses the layout and design of access to and from the site and internal circulation within the site. I accept Wendy’s submission that the criteria was sufficiently broad to allow consideration of
the matters of access to and from the site and internal circulation of
traffic within the site, these being matters of particular
concern to
Wendy’s.
Information before the Council
[36] The Council had before it the following information when it
made the decision that notification was not required.
AEE/Traffic Impact Assessment
[37] First, it had an assessment of environmental effects
(“AEE”) prepared by
Barker & Associates Limited (“Barker & Associates”) and
dated 1 September 2013.
[38] This described the key features of the proposal, identified the
relevant rules in the District Plan to be applied, contained
its own
notification assessment and, given the issues that arise in this case, also
contained a consideration of matters relating
to traffic generation, access,
parking and loading.10
[39] The more detailed assessment of the traffic implications of the
proposal were contained in a traffic impact assessment (“TIA”)
by
Traffic Solutions Limited (“Traffic Solutions”) dated 29 August
2013. This TIA was prepared by Mr Ian Constable,
another very experienced
traffic engineer. In an affidavit sworn in support of WLT, Mr Constable
states that he has been
a specialist in traffic engineering for some 25
years. He also states that he visited the site on two occasions
prior
to preparing his report, and twice on 1 October 2013, that is prior to the
further report from Traffic Solutions to which I refer
below.
[40] In their TIA, Traffic Solutions said:11
Figure 5 shows how the traffic flows that the proposed redevelopment will
generate would likely be distributed at the various site accesses.
...
Such additional flows are negligible compared to existing traffic flows that
are already passing the site on the road network, particularly
when they are
distributed around the various access points that serve the site, on both road
frontages. In my opinion the redevelopment
will not have a noticeable
effect
10 Assessment of Environmental Effects dated 1 September 2013 at [8.2.2], ABD 216.
11 Traffic Impact Assessment dated 29 August 2013 at [5.3], ABD 244 and 245.
on traffic flow along either road, or on road capacity, or the operation of
any of the individual site accesses or intersections.
[41] The TIA concluded:12
It should be expected that the proposed activities will generate a greater
number of vehicle movements on and off the road network
than the existing
service station presently generates. However the increased traffic flows will be
small compared to the traffic
flows that already use the roads adjacent to the
site, particularly when the additional flows are distributed around the various
accesses. I consider that the redevelopment will have a negligible effect on
road and access capacity.
Changes to the vehicle access arrangement will largely be superficial. The
most significant change is that the left and through entry
movements into the
site will be catered for at the traffic signals adjacent to [access A]. The
redesign of [access A] will retain
the two exit lanes so that the capacity at
the exit will be preserved.
...
Overall I consider that the traffic effects of the proposed redevelopment
will be less than minor, and that consent could reasonably
be granted for it
from a traffic engineering perspective.
Section 92 request
[42] As I have said, the Council made a request for further information
pursuant to s 92 RMA on 23 September 2013. This request
followed Ms
Kwan’s review of the application and her consultation with Mr Thambiah and
Ms Liang. The matters that Mr Thambiah
and Ms Liang had raised with Ms Kwan in
response were the first 12 requests in the s 92 request.13 The
fourth request sought an assessment under the criteria contained in sections
8.12.2.3 and 8.25.1.2 of the District Plan.
[43] There was a meeting between the Council, Auckland Transport and WLT representatives on 1 October 2013. That meeting was attended by Ms Kwan, Ms Iuli-Tay, Mr Thambiah, Ms Liang, and representatives from Barker & Associates, Traffic Solutions and WLT.14 Ms Kwan’s recollection is that the parties discussed each item in the s 92 request and in particular the issues raised by Auckland
Transport regarding traffic and
transportation.
12 At [9], ABD 247.
13 Request for Further Information dated 23 September 2013, ABD 249.
14 Affidavit of S S J Kwan sworn 8 May 2014 at [22], ABD 376.
[44] WLT responded formally to the s 92 request on 10 October 2013,15 and provided further opinion from Traffic Solutions dated 9 October 2013.16 WLT said it would abandon its proposal to make access A a point of entry and addressed the various other transport and traffic issues raised in the s 92 request. Traffic Solutions
provided the requested assessment of how the criteria in rules 8.12.2.3 and
8.25.1.2 applied to what was proposed. TSL concluded that:17
Good on-site circulation will be provided. It is unlikely that any
congestion or conflict will occur on the road as a result of the
proposal.
...
and
Good circulation will be provided on the site. Aisle widths will be
sufficient to cater for the traffic flows expected.
[45] Ms Kwan forwarded WLT’s response to Mr Thambiah and Ms Liang. They raised further issues which Ms Kwan emailed to Barker & Associates on 14 October
2013. Barker & Associates provided their response and a revised site
plan in respect of access A on 15 October 2013. Mr Thambiah
suggested further
changes which were incorporated by Barker & Associates on 16 October
2013.
[46] On 17 October 2013, Mr Thambiah confirmed to Ms Kwan that he and
Auckland Transport were satisfied with all information submitted.
Mr Thambiah
also recommended that a “review condition” be included if consent
were granted. That condition was included
and is relevant on the matter of
discretion.
[47] Following that, the Council proceeded to determine the matter of
notification.
[48] The Council’s decision on notification reproduced parts of Mr
Thambiah’s and Auckland Transport’s assessment.
They had concluded
that the application was functional and appropriately designed in so far as
concerned traffic matters:18
... and that any adverse effects relating to the safety and efficiency of the
existing surrounding transportation network will be
less than
minor.
15 Letter Barker & Associates to Auckland Council dated 10 October 2013, ABD 253.
16 Letter Traffic Solutions Ltd to Barker & Associates dated 9 October 2013, ABD 261.
17 ABD 262.
18 Notification and Resource Consent Report dated 25 October 2013, ABD 580.
[49] They also said:
... The on road queuing and on site queuing is sufficient to accommodate
traffic waiting to enter the site without adversely impacting
on traffic or
pedestrians on the adjoining road network.
[50] Ms Kwan concurred with this assessment.
[51] There is some force in Wendy’s submission that information supplied by an applicant or on its behalf should not always be taken at face value. Wendy’s also referred to Discount Brands v Westfield (New Zealand) Limited.19 One of the issues that arose in that case was whether the Council was adequately informed, because much of the information before it was superficial and insufficiently detailed. In my view, this case is quite different to the Discount Brands case. This application, with detailed information supplied, was considered by experienced specialists at the
Council. They did not take that information at face value but made
enquiries on several occasions and required revisions to the
proposal that they
considered were necessary. It was only when they were satisfied with the
information provided that the notification
decision was made. Accordingly, I am
satisfied that the Council had sufficient information before it to assess the
adverse effects
of the proposal and to decide that they were less than
minor.
Effect on Wendy’s resource consent
[52] Wendy’s submits that the modifications proposed to access B are in conflict with provisions of Wendy’s resource consent, that the Council should have appreciated that and that, had it done so, it would have come to the view that notification was required. I accept the Council’s submission that the fact that the modification of access B and its surrounds alters the layout provided for in Wendy’s resource consent does not in itself constitute an adverse effect that is more than minor. I add that the modification works themselves do not take place on Wendy’s
leased premises but beyond its
boundary.
19 Discount Brands v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
Effect on Wendy’s of the development work
[53] Wendy’s also submits that the Council failed to have regard to
the adverse effects on Wendy’s of the construction
work. I do not
accept this submission. Construction effects are temporary and in the usual
course are not considered to be an
adverse effect for the purposes of s 95E
RMA.
[54] For the reasons given I do not consider any ground of review has
been made out.
Discretion
[55] As I said above, even if I considered a ground of review had been
made out, I would have declined to grant relief. That
is because to grant
relief would cause delay and the effect of such delay on WLT and third parties
would in my view be out of proportion
to any failure in process or its
consequences for Wendy’s. I am also satisfied that Wendy’s has
delayed in commencing
this proceeding.
[56] Wendy’s issued this proceeding on 20 March 2014. As at that
date:
(a) WLT had obtained building consent for the works. WTL applied for
building consent in November 2013 and the Council
granted that consent on
14 February 2014;20
(b) WLT had conducted a tender process for the construction work.
WLT
appointed Focus Construction Limited (“Focus”) as its contractor
on
19 February 2014, Focus took control of the site on 24 February 2014
and WLT’s board executed the construction contract on 7
March
2014;21 and
(c) WLT’s board had executed agreements to lease with TAB,
Super
Liquor, a Subway franchisee and RBL at its meeting on 7 March
2014.22
20 Affidavit of S J Wilkinson, above n 1, at [76], ABD 731.
21 At [74], [75] and [77], ABD 731 and 732.
22 At [90] and [92], ABD 734.
[57] I was informed from the Bar that construction has been halted
pending the outcome of this application. For the reasons
given, I am satisfied
that the works need to be completed as soon as possible. I mention the
following matters in particular.
[58] Mr Wilkinson’s evidence as to the financial implications
for WLT of prolonged delay is significant. He estimates
that WLT will lose
$60,000 in rental income and financing costs each month the development is
delayed and that a prolonged
delay may mean a loss of potential revenue of
$250,000 per annum.23
[59] A Super Liquor franchisee, New Zealand Liquor Merchants Limited (“NZLM”), is expecting to occupy part of the retail building by 31 July 2014. NZLM’s agreement has followed discussions with WLT over two years. At present, NZLM is a tenant elsewhere on the site. Its existing premises are unsatisfactory for several reasons, not least of which is that NZLM’s franchisor is requiring it to
upgrade.24
[60] A TAB franchisee in the area is expecting to take up its new unit by
the end of July 2014 and then to undertake a fit out.
The franchisee’s
existing lease expires in mid October 2014. For reasons which it is
unnecessary to address, NZRB is concerned
that any delay in completion may
affect its proposed relocation.25
[61] WLT also has an agreement to lease with Mr R Eliezer, a
“Subway” franchisee, for premises in the
new retail building. Mr
Eliezer’s evidence is that he has had agreement in principle on the lease
from October 2013, and that
he has incurred expenditure in the expectation that
construction will be completed by the end of July 2014, including the
preparation
of fit out plans.26
[62] Although there is no evidence from RBL, Mr Wilkinson’s
evidence includes
a letter from RBL’s solicitors dated 7 April 2014 in which they
say:27
23 At [85] and [87], ABD 733.
24 Affidavit of V K Garg sworn 7 April 2014, at [2], [4] – [6], ABD 603 and 604.
25 Affidavit of T M Jackson sworn 7 April 2014, at [3], [4] and [8], ABD 644 and 645.
26 Affidavit of E Eliezer sworn 8 April 2014, at [2] and [3], ABD 664.
27 Affidavit of S J Wilkinson, above n 1, ABD 888.
(a) RBL appointed the main contractor for its premises prior to Wendy’s commencing this proceeding. RBL’s proposed completion date was contingent on its contractor being able to commence work by 28 April
2014; and
(b) RBL has purchased materials and prefabricated parts of the building
which will need to be stored in the event of delay.
A delay may increase
professional costs, the costs of materials and labour, and prolong
construction due to winter weather.
Wendy’s delay
[63] Counsel for WLT submitted that Wendy’s is motivated by trade
competitor concerns and by the fact that it will lose
carparks inside the grass
berm that to date its customers and staff have enjoyed rent free. It is not
possible, and nor is it necessary,
to draw any inference as to Wendy’s
motivation. The case for expedition is so overwhelming that Wendy’s
motivations
make no difference to the result.
[64] I am satisfied, however, that Wendy’s might have commenced
this proceeding
much earlier than it did.
[65] On 27 June 2013 WLT sent an email to tenants, including
Wendy’s, which
advised that WLT had commenced work on two developments on the
site.28
Attached to the email were artist impressions of the site following development. These showed Mobil remaining, as was intended at that time. The important point, however, is that a plan attached to the email depicted the modifications to access B to which consent has now been given and to which Wendy’s now objects. In her affidavit, Danielle Lendich says that she did not open the plan, as she took it from the impressions that little would change. Be that as it may, Wendy’s had the means
of knowledge of the proposed modifications by the end of June
2013.29
[66] On 12 August 2013 WLT sent an email advising that Mobil would close
its service station at the end of 30 August 2013 and
that there would be
demolition
28 Affidavit of D L Lendich, above n 7, ABD 96.
29 At [30], ABD 33.
works on that part of the site thereafter. The email also referred to the
proposed sleeve retail and said the northern part of the
site would be
“developed for a potential tenant, with whom negotiations are
currently been finalised”.30 This led to an enquiry
from Wendy’s as to how many of the prospective tenants were “food
places” and “who
are they”.
[67] This email exchange was followed by a meeting on 10 October 2013 at which Mr Wilkinson informed Dianne Lendich (of Wendy’s) that Carl’s Jr was to become a tenant. After that meeting, Wendy’s instructed a planner, Mr Havill, to make “enquiries about resource consent for the development”. On 30 October 2013, Mr Havill emailed Danielle Lendich a copy of the consent, said that it was in respect of three retail units “plus Drive-Through” and that he had discussed the matter with the “Council planner and traffic engineer”. Mr Havill then described various aspects
of the consent.31
[68] Ms Lendich’s evidence is that she was “somewhat
surprised” to learn that consent had been granted without
prior
notification to Wendy’s but that she understood any changes to access
would be minor. Her evidence is that this changed
in February 2014, when she
learned that the access previously enjoyed over areas A and B had been damaged,
and when WLT’s contractors
erected fences that blocked access to some
areas. That led to correspondence between Wendy’s and WLT and their
solicitors
in February and March 2014.
[69] Ms Lendich states that Wendy’s then began to make
detailed enquiries, including obtaining a copy of the Council’s
file.
[70] However expeditiously Wendy’s may have acted after February 2014, by the end of October 2013 it and its planner, Mr Havill, had the resource consent that had been granted for the works on the site. Wendy’s inactivity prior to February 2014
did not stem from any conduct on WLT’s
part.
30 Affidavit of S J Wilkinson, above n 1, ABD 793.
31 Affidavit of D L Lendich, above n 7, at [21], ABD 32; and Email SFH Consultants to Wendco attaching consent dated 25 October 2013, ABD 105.
Review condition
[71] Lastly I refer to the “review” condition that the
Council imposed on the grant of consent, which provides:32
27. Pursuant to Section 128 of the Resource Management Act 1991, the
conditions of this consent may be reviewed by the Council
at the consent
holder’s costs:
a. At any time after 12 months and thereafter annually up to 36 months
following commencement of consent in order:
(i) To deal with any adverse effect on the environment which may
arise or potentially arise from the exercise of this
consent and which it is
appropriate to deal with at a later stage, in particular adverse traffic effects
on the primary road network
and Ronwood Avenue including
parking/loading/rubbish/traffic movements, impact on the intersection of the
access point with Ronwood
Avenue and on site management.
b. At any time, if it is found that the information made available to
Council in the application contained inaccuracies which materially
influenced
the decision and the effects of the exercise of the consent are such that it is
necessary to apply more appropriate conditions.
[72] This review condition will enable the Council to address any adverse
effect of
the nature Wendy’s foresees, if it should come to pass.
Result
[73] To conclude I dismiss this application. I am not persuaded that
Wendy’s has established a ground of review. If I
am wrong on that, I
would decline to grant relief in any event, given the consequences for third
parties and WLT.
[74] I expect the parties will be able to agree costs but they
may submit memoranda if they are unable to do so.
..................................................................
M Peters J
32 Email SFH Consultants to Wendco attaching consent, above n 36,
ABD 116.
“A”
NB: Location of Access A and Access B added by the Court.
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URL: http://www.nzlii.org/nz/cases/NZHC/2014/1481.html