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Wendco (NZ) Limited v Auckland Council [2014] NZHC 1481 (27 June 2014)

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

  1. ... The principal effects of concern to Wendy’s are changes approved in the WLT Consent which:

(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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