WENDCO (NZ) LIMITED v AUCKLAND COUNCIL [2015] NZCA 617 [18 December 2015]

IN THE COURT OF APPEAL OF NEW ZEALAND

CA379/2014

[2015] NZCA 617

BETWEEN

WENDCO (NZ) LIMITED

Appellant

AND

AUCKLAND COUNCIL

First Respondent

WIRI LICENSING TRUST

Second Respondent

Hearing:

10 September 2015

Court:

Wild, Fogarty and Mallon JJ

Counsel:

R J Hollyman and S J Maloney for Appellant

W S Loutit for First Respondent

G J Kohler QC and K T Glover for Second Respondent

Judgment:

18 December 2015 at 10 am

JUDGMENT OF THE COURT

A The appeal is allowed. Relief is granted in the terms set out at [91] of the

judgment.

B The first respondent is ordered to pay the appellant’s costs for a complex

appeal on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1] This appeal concerns an application for judicial review in which the

appellant, Wendco (NZ) Ltd (Wendy’s), sought an order quashing a resource consent

issued by the Auckland Council (the Council) to the Wiri Licensing Trust (the Trust)

for its site at 639 Great South Road, Manukau. Peters J dismissed the application in

the High Court at Auckland in a decision dated 27 June 2014.1

[2] The area in question is a large commercial site. Commercial buildings are

permitted activities for the purposes of the Resource Management Act 1991 (RMA).

The need for a resource management consent was because planned redevelopment of

this site entailed modification of two vehicle access points onto the primary road

network (Great South Road). Such modification and associated provision of new

parking spaces serving these access points required a “restricted discretionary

activity” consent under r 8.10.3(b) (“Access and Traffic Generation”) of the

Manukau Operative District Plan 2002 (the District Plan). The relevant activity

under this rule is as follows:

Any 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.

[3] Business activities on the site were changing. A Mobil service station was

going and a new fast food business was coming, together with a three-unit retail

building.

Position prior to the consent

[4] Prior to the business activities on the site changing, Wendy’s was adjacent to

a vehicle entry point off Great South Road, which ran along Lot B on the plan

attached to the judgment. The other access onto Great South Road was exit only.

[5] After the consent, Lot B changed from an entrance only to an entry and exit

thoroughfare, with consequent increased flow of traffic onto the road from Lot B,

and incoming traffic along Lot W, Wendy’s’ leasehold land. This was achieved by

1 Wendco (NZ) Ltd v Auckland Council [2014] NZHC 1481 [HC decision].

providing that the inbound traffic had a thoroughfare within Wendy’s leasehold title,

and at the expense of a berm and some onsite parking for Wendy’s customers. New

parking was located on the other side of the accessway, in front of exiting traffic.

The exiting access was now left-hand only, enforced by a traffic barrier across the

centre line of Great South Road.

[6] In addition, carparks that had been separated by a berm, giving Wendy’s’

customers sanctuary from the incoming traffic, were moved so that they abutted the

main thoroughfare. Wendy’s claims that these changes have adversely affected its

business.

[7] Wendy’s was not given a copy of the application for resource consent.

[8] Prior to that application, Wendy’s’ customers enjoyed an ingress vehicle

access from Great South Road and an exit access controlled by traffic lights, with

left and right turns available.

[9] Wendy’s argues that modifying these access points, and the concomitant

alterations to site circulation and parking should have been examined for any adverse

effects on Wendy’s’ use of the site.

[10] Wendy’s has other complaints but, for the purposes of analysis, it is sufficient

to use the changes to the traffic entering from Great South Road and going across

Wendy’s’ land, and the parking changes, to test whether or not there was a

reviewable failure of the Council to consider notifying Wendy’s of the Trust’s

resource consent application.

Requirements of the District Plan

[11] Rule 8.10.3 is part of chapter 8 of the District Plan, which deals with

transportation. In the District Plan activities are set out in a table and are described

as “permitted”, “discretionary”, and “non-complying” activities, among other

categories. The activity referred to at [2] above is shown in the table as a “restricted

discretionary activity” (r 8.10.3(b)). In relation to a restricted discretionary activity,

the rules then set out the matters over which the Council has restricted the exercise

of its discretion. They also set out “assessment criteria” to which the Council is to

have regard when considering a resource consent for the restricted discretionary

activity.

[12] In this case the relevant matters for discretion and the assessment criteria are

set out under r 8.12.2. That rule is headed “Activity Requiring Restricted

Discretionary Consent to Access the Primary Road Network”. Under that heading is

r 8.12.2.1, “Matters for Discretion”, and r 8.12.2.3, “Assessment Criteria”.

[13] Under r 8.12.2.1, “Matters for Discretion”, r 8.12.2.1(iii) reads:

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.

…

(iii) The site layout as it relates to pedestrian and passenger transport

access, carparking and loading areas and internal circulation.

[14] Under “Assessment Criteria”, r 8.12.2.3(e) provides:

When assessing an application for a restricted discretionary activity to obtain

or modify access to a primary road or to a road within 50 metres of an

intersection with a primary road, the Council will have regard to the

following assessment criteria.

…

(e) Internal Conflicts on Site

Whether the internal circulation and carparking layout and exits and

entries are designed to avoid traffic conflict that may result in

congestion on the adjoining roads.

[15] In short, the Council requires a consent for an activity that modifies access to

a primary road. One of the matters over which it reserves discretion in relation to

that activity is internal circulation on the site. It will have regard, when assessing the

resource consent application, to whether the internal circulation will cause

congestion on the adjoining road.

[16] The purpose of these criteria, and their application, is to ensure that the

internal circulation of traffic does not adversely affect traffic on the primary road

network. If there was no control over internal traffic circulation, there could be

disruption to the primary road network, such as queues of vehicles on Great South

Road trying to get on to the site. Consideration of the restricted discretionary

activities on the site is restricted to the matters described in the rules.2

[17] Consideration of the assessment criteria, particularly the provisions set out

above, will naturally be directed to effects on the operation of the roading network.

Therefore, even if the Council is persuaded that Wendy’s is adversely affected by the

amended access to and from Great South Road, the onsite roading and the parking

proposals, the Council can nonetheless grant consent without conditions.

[18] Site layouts, however, are not usually inevitable. No one before us suggested

that the site layout sought in the application was the only possible solution for

meeting the criteria in r 8.12.2.3. Given it is possible that more than one site layout

can satisfy these criteria, the consent authority has a discretion to approve one option

over the other, consistent with discharging its duty under s 87A(3)(a) of the RMA .

[19] Therefore, when assessing the particular application for consent to restricted

discretionary activity, the Council can recognise that there may be occupiers and

other users of the site who will be adversely affected by the proposal placed before

them.

[20] Chapter 8 of the District Plan covers a range of other activities. Where these

activities are classified as restricted discretionary activities, the rules follow the same

format: rules set out the matters over which the Council has reserved discretion and

rules that set out the assessment criteria in relation to that activity. Included amongst

the other restricted activities are activities that change parking in ways that do not

comply with other rules (r 8.23.1). In relation to such activities, matters for

discretion are set out at r 8.25.1.1 and the assessment criteria is set out at r 8.25.1.2.

2 Resource Management Act 1991, s 87A(3)(a).

[21] Although some of the information obtained by the Council in this case

referred to r 8.25.1, this did not form part of its decision. We agree with the

respondents that r 8.25.1 was not relevant because r 8.23.1 was not engaged by the

resource consent application. Rule 8.10.3(b) (activity) was, and in turn r 8.12.2.1

(matters for discretion) and r 8.12.2.3 (assessment criteria) were.

[22] The Trust did not have to publicly notify the application. That is common

ground.

[23] The question is whether the Council should have considered whether

Wendy’s qualified to be given notification by application of ss 95B(1) and (2) and

95E(1) and (2)(b) of the RMA, which provide:

95B Limited notification of consent application

(1) If a consent authority does not publicly notify an application for a

resource consent for an activity, it must decide (under sections 95E

to 95G) whether there is any affected person, affected protected

customary rights group, or affected customary marine title group in

relation to the activity.

(2) The consent authority must give limited notification of the

application to any affected person unless a rule or national

environmental standard precludes limited notification of the

application.

…

95E Consent authority decides if person is affected person

(1) A consent authority must decide that a person is an affected person,

in relation to an activity, if the activity’s adverse effects on the

person are minor or more than minor (but are not less than minor).

(2) The consent authority, in making its decision,—

…

(b) in the case of a controlled or restricted discretionary activity,

must disregard an adverse effect of the activity on the person

that does not relate to a matter for which a rule or national

environmental standard reserves control or restricts

discretion;

…

(Emphasis added.)

Analysis by Auckland Council

[24] Consistent with its duty in s 95B(1), the Council staff set about examining

whether there was any need for public or limited notification. In the course of its

deliberations, the Council staff did not identify the need for either.

[25] The Council’s reasoning on notification appears in the combined Notification

and Resource Consent Report dated 25 October 2013. The report has a section

headed “Public Notification Assessment (Sections 95A, 95C–95D)”. This part of the

report has an analysis of adverse traffic and transportation effects. That analysis is

confined to an assessment of the additional traffic generation on Great South Road

and Ronwood Avenue respectively, concluding:

Any effects on traffic or pedestrian safety or the operation of the adjoining

local road network will be less than minor as the turning movements will not

compromise safe and efficient movements for pedestrians and/or vehicles.

The traffic-generating characteristics of the proposed activity including any

need to accommodate large vehicles, and the existing and likely future traffic

patterns within the adjoining roads was considered and the adverse effects

will be less than minor.

[26] It also concluded:

The modification made to mid-block vehicle crossing and northern-most

vehicle crossing is minor and will not result in significant change to traffic

flow pattern. There will be no impact on the sight distances. The

northern-most vehicle crossing is located at the signalised intersection of

Great South Road with the access to the Countdown Supermarket to the east.

The mid-block vehicle crossing will be left in and left out only. The turning

traffic could safely enter and exit the site without obstructing other traffic on

the road due to the prohibition of right turns from this access point. 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.

[27] That led to the further conclusion:

Overall, I concur with the findings of the Traffic Engineer in that the

proposed traffic and transportation in association with the application is

functional and appropriately designed for the proposed activity and any

adverse effects relating to the safety and efficiency of the existing

surrounding transportation network will be less than minor. The increased

traffic from the increased business activity considered to be minor is

adequately catered for within the existing transport network in the area.

[28] The analysis moves on to what is headed “Limited Notification Assessments

(Sections 95B, 95E–95G)”. It provides:

No person is considered adversely affected by the activity because: [and lists

12 bullet points, one of which is relevant to Wendy’s situation.]

• Any adverse effects on traffic or pedestrian safety or on the

operation of the adjoining local road network will be less than minor

as modification to the turning movements will not compromise safe

and efficient movements for pedestrians and/or vehicles.

This consideration seems to come closest to a consideration of whether there would

be any adverse effects of the proposed new traffic circulation and parking at

Wendy’s. There was no question raised, however, as to whether the new access and

parking arrangements, put in place to protect the primary road network, would

incidentally have an adverse effect on Wendy’s, let alone a minor or more than minor

effect.

[29] The Council staff’s reasoning was focused on adverse effects on traffic or

pedestrian safety or operation of the adjoining local road network. It did not

entertain simultaneous adverse effects on users of the site. It seems to presume

implicitly that the only adverse effects that are relevant under s 95B are traffic effects

on Great South Road. Wendy’s submits that it is adversely affected in more than a

minor way by the modification, particularly by the modification to the mid-site

access onto Great South Road.

The decision of the High Court

[30] Peters J’s relevant reasoning as to the law is contained in the following

paragraphs of her judgment:

[24] A person is an affected person if the adverse effects of the proposed

activity on them “are minor or more than minor”.

[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.

(Footnote omitted.)

[31] In rejecting the application for review, Peters J relied particularly on the

Council’s assessment of the quality of traffic:

[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:

… and that any adverse effects relating to the safety and efficiency

of the existing surrounding transportation network will be less than

minor.

[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.

(Footnote omitted.)

[32] The Judge’s conclusion on whether the Council needed to notify Wendy’s

was dealt with as part of her assessment of whether the Council had sufficient

information to assess the adverse effects. She set out reasons why she was satisfied

the Council did have sufficient information and concluded “[a]ccordingly, 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”.3 The Judge

also incorporated this as part of her consideration of the effect of the proposal on

Wendy’s own resource consent conditions, saying:4

… 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

3 Wendco (NZ) Ltd v Auckland Council, above n 1, at [51].

4 At [52].

consent does not in itself constitute an adverse effect that is more than minor.

I add that modification works themselves do not take place on Wendy’s

premises but beyond its boundary.

The claimed adverse effects on Wendy’s

[33] In the proceedings before the High Court, the contended adverse effects on

Wendy’s were set out in the affidavits of Ms Danielle Lendich, the Chief Executive

Officer, and a traffic expert, Mr Nigel Williams. Mr Williams summarised the traffic

effects of the proposal as being:

(a) queuing or congestion, obstructing the manoeuvring of vehicles in the

vicinity of the main entry/exit route;

(b) vehicles leaving Wendy’s carpark and drive-through lane being

obstructed by a departure queue;

(c) vehicles leaving Wendy’s carpark and drive-through lane being

obstructed by a queue on the approach;

(d) vehicles obstructing entry from Great South Road;

(e) departure queues obstructing entry and exit from adjacent 90-degree

parking spaces;

(f) pedestrians not having safe access to the Wendy’s site;

(g) drive-through queues extending out into the main carpark on the WLT

site; and

(h) the route to the single line crossing on Lot A (towards a different

egress point) being difficult to discern and potentially obstructed.

[34] In relation to Wendy’s, this meant:

(a) Wendy’s’ land (Lot W) changed from an area of limited vehicular

access, used principally by Wendy’s’ customers, to a main

thoroughfare for all vehicles entering or exiting the site through the

middle access from Great South Road;

(b) this significantly changed thoroughfare-directed traffic through

Wendy’s’ leasehold premises; and

(c) customers exiting Wendy’s’ drive-through were now required to exit

directly into this flow of traffic entering from Great South Road.

[35] This was said to seriously downgrade the convenience, safety and efficiency

of the access and on-site circulation provisions in relation to the Wendy’s site, and of

the wider site (owned by the Trust).

[36] To understand these points it is important to keep in mind that Wendy’s is the

closest business to the central access point and the resource consent application, and

now the consent, places the lane for inbound traffic that is to be a thoroughfare on

and across the front part of the leasehold title of Wendy’s, bringing passing traffic

much closer to the Wendy’s Restaurant.

Analysis of the standard “relate to”

[37] It is plain from the Council’s notification analysis that their staff considered

the adequacy of the two-way thoroughfare connecting the mid-block access to Great

South Road. This task entailed considering whether or not the new thoroughfare

crossing Wendy’s’ land would impede the quality of traffic movements in and out of

the middle accessway to Great South Road, among other considerations. The

Council did not consider whether the new thoroughfare would cause adverse effects

to Wendy’s, as distinct from adverse effects on the functioning of Great South Road.

[38] Subsection (2)(b) of s 95E functions as a qualification of the mandatory

consideration required by subs (1). It is a “must disregard” rule. Section 95E(2)(b)

requires the Council to disregard an adverse effect of the activity on the person

(Wendy’s) “that does not relate to a matter for which a rule or national environmental

standard reserves control or restricts discretion”. In other words, as Peters J put it, it

is only an adverse effect “within the scope of matters that the plan allows it to

control or restrict” that is relevant in considering whether the activity’s adverse

effects on the person are minor or more than minor and so must be notified under

s 95B of the Act.5

[39] The Judge’s assessment of that test was limited. She was satisfied the

adverse effects of “the proposal” were less than minor. However, the issue under

s 95E is whether the activity’s adverse effects on the person are minor or more than

minor. Further, she regarded the access modifications of the proposal insofar as it

altered what was provided in Wendy’s’ own resource consent as an adverse effect

that was not “more than minor”. However, the factthe modifications differed from

Wendy’s own resource consent was only one of Wendy’s concerns, and not one of its

principal ones. The Judge did not address whether the Council was required to

consider Wendy’s’ concerns as summarised above at [34] and [35], whether it did in

fact consider those concerns, and whether it was open to the Council to conclude that

those effects were “minor or more than minor”.

[40] The respondents submit on appeal that the Council was not required to

consider those concerns. This is because they say the focus must be on r 8.10.3(b) as

the primary rule. They submit that rr 8.12.2.1 to 8.12.2.3 must be interpreted in that

light. They say that the Council is concerned with the matters in rr 8.12.2.1 to

8.12.2.3 only as they impact on the primary road. We do not agree.

[41] The respondents’ construction falls away once effect is given to the phrase

“on the person” as it appears in s 95E. If the respondents were right, there would

never be any consideration by the Council of effects on any person (except the public

generally as road users) as distinct from effects on the operation of the primary road.

The relevant link is that the adverse effects on the person must relate to a matter for

which a rule or national environment standard reserves control or restricts discretion.

That is why there is an injunction in s 95E(2)(b) that requires the Council to

disregard an adverse effect that does not so relate. This reasoning can be compared

with the submission to this Court by the first respondent:

The Council should not be concerned with specific tenancy arrangements

where the internal layout and car parking areas within the property can be

5 HC decision, above n 1, at [27].

accessed from any of the five access points into the land at 639 Great South

Road. The key consideration was whether there would be acceptable

impacts on the traffic or pedestrians in terms of the adjoining primary road

network.

[42] The latter part of that submission is correct as to the ultimate question but

s 95E addresses the preliminary issue who should be heard on the question what

steps should be taken to avoid congestion of the adjoining primary road network.

[43] We consider that, if there are adverse effects to Wendy’s by reason of the

circulation of vehicular traffic over its land, and internal circulation and parking,

which is designed “to avoid traffic conflict” that may result in congestion on the

adjoining roads,6 those adverse effects on Wendy’s will necessarily connect or,

“relate to”, matters addressed in r 8.10.3(b) and r 8.12.2.3(e).7

[44] It is common ground, quite properly, that the District Plan, r 8.10.3(b)

(“Access and Traffic Generation”) is designed to protect the quality of the primary

road network and, in context, the function of Great South Road. If not carefully

planned, access to the site off Great South Road and exiting from the site onto Great

South Road and internal circulation within the site could have an adverse effect on

the flow of traffic on Great South Road. For example, it could generate congestion

at the points of exit and ingress causing queues on Great South Road. These are

risks of adverse effects to the road network. Once it is appreciated that the design of

the internal road, including the thoroughfare across Wendy’s, is in order to prevent

adverse effects on the function of the Great South Road, then it can be appreciated

that the benefit of internal thoroughfares and parking, to avoid congestion, to protect

the Great South Road, can also cause an adverse effect on Wendy’s. In that sense,

the adverse effect on the person of the activity is related to matters over which the

Council reserves discretion under rr 8.10.3(b) and 8.12.2.3(e).

[45] To understand the concept of “relate to”, it is important to keep in mind the

mischief that this provision is addressing. That in turn is informed by the previous

section, s 95D, which requires the Council to disregard trade competition and the

effects of trade competition. One of the reforms under the RMA when it was

6 See [14] above.

7 See [2] and [14] above.

enacted in 1991 was to enable anyone to make submissions in opposition to planning

consents, whether or not they were personally adversely affected.8 Trade

competitors took full advantage of this power. Persons with an interest in the

environment generally but having no direct relationship to the activity being

proposed were able to make submissions in opposition.

[46] The sections we are considering, ss 95B and 95E, were inserted into the RMA

by the Resource Management (Simplifying and Streamlining) Amendment Act 2009.

The same Act introduced a similar “related to” test in respect of limiting submissions

that competitors could make. Section 308B of the RMA provides:

308B Limit on making submissions

(1) Subsection (2) applies when person A wants to make a submission

under section 96 about an application by person B.

(2) Person A may make the submission only if directly affected by an

effect of the activity to which the application relates, that—

(a) adversely affects the environment; and

(b) does not relate to trade competition or the effects of trade

competition.

(3) Failure to comply with the limits on submissions set in section 149E

or 149O or clause 6(4) or 29(1B) of Schedule 1 is a contravention of

this Part.

[47] The same 2009 Act also introduced new provisions on proposals of national

significance, in pt 6AA. That part of the Act again addresses persons who are trade

competitors of the applicant, and s 149E(5) provides:

149E EPA to receive submissions on matter if public notice of

direction has been given

…

(5) If the person is a trade competitor of the applicant, the person may

make a submission only if directly affected by an effect of the

activity to which the matter relates, and the effect—

(a) adversely affects the environment; and

8 The Resource Management Act did not carry forward restrictions on objection in the Town and

Country Planning Act 1977, s 2(3), which limited objectors essentially to Councils, any “person

affected” and any body or person representing some relevant aspect of the public interest.

(b) does not relate to trade competition or the effects of trade

competition.

(Emphasis added.)

[48] In both provisions the word “relate” is used in the sense of “connect”.

[49] It is also important to keep in mind that an activity or set of activities may

generate simultaneously positive and adverse effects. “Effect” is defined in s 3 of

the RMA as follows:

3 Meaning of effect

In this Act, unless the context otherwise requires, the term effect includes—

(a) any positive or adverse effect; and

(b) any temporary or permanent effect; and

(c) any past, present, or future effect; and

(d) any cumulative effect which arises over time or in combination with

other effects—

regardless of the scale, intensity, duration, or frequency of the effect, and

also includes—

(e) any potential effect of high probability; and

(f) any potential effect of low probability which has a high potential

impact.

[50] Indeed, it is commonplace, if not almost inevitable, that a consent condition

will have both beneficial and adverse effects.

[51] So Wendy’s can say of this new two-way accessway that the incoming traffic

being directed across its land may be very good for maintaining the quality of flow

of traffic on Great South Road and in that sense beneficial, but it imposes on

Wendy’s a cost (that is, an adverse effect). Both these beneficial and adverse effects

are a consequence of, and so related to, the standards for site circulation, parking and

other relevant standards for which the District Plan reserves control or restricts

discretion.

[52] The record of the Council demonstrates that no one asked the relevant

question, which is whether the site circulation and parking detail might cause an

adverse effect on the business of Wendy’s. Plainly, the Council staff knew that the

new two-way thoroughfare crossed in part Wendy’s’ title: the boundary of Wendy’s

land is shown on the plan of the site, and the inbound traffic arrow is shown on the

inside of the boundary.

[53] The staff also knew the new traffic plan was inconsistent with Wendy’s’

current consent. But they did not examine whether these were adverse effects on

Wendy’s “related to” protecting the primary road network and avoiding congestion,9

as they considered their sole task was to examine any adverse effects on the road

network.

[54] To reason this way was an error of law, failing to apply ss 95B and 95E,

leading to a breach of s 95E(1). The Council did not inquire as to whether any

person would suffer adverse effects, let alone whether those effects would be minor

or more than minor, because the Council considered the only relevant effects could

be those to Great South Road. It proceeded on the basis there could be no adversely

“affected person” by the design of the internal circulation and parking, designed to

protect the local road network.

The private dispute between Wendy’s and the Trust

[55] One of the submissions made on behalf of the respondents was that parties

affected by activities requiring consent will not always be entitled to be notified of

the activity. It is only in those matters over which the Council has reserved

discretion. In such cases there are other mechanisms to which the affected party will

potentially have resort. One mechanism is submissions to the Council on its

transport plan. A more direct mechanism potentially available here is through

contract.

9 See [43] above.

[56] In particular, Wendy’s has a lease with the Trust. The terms of that lease

include, for example, provision providing rights of lessees to cross other lessees’

land. Wendy’s in fact brought a claim against the Trust. That claim has been settled.

[57] Whatever the position under the contract, it is the regulatory rules that must

be considered. The adverse effect analysis required by the statute does not require

any enquiry into the contractual relationships of persons who may or may not be

adversely affected by the granting of a resource consent under the statute. No

requirement of that sort can be found in the statute. The task of consent authorities

would be very difficult if they had to examine the private relationships of potentially

affected persons with other persons, including with the applicant.

[58] We also note that, while private and public regulation are separate matters,

where a person might be affected by an application, but has a relationship with the

applicant, it is open to the applicant to give informal notice to that person and obtain

a written consent from them prior to lodging the application. That then obviates the

need for the Council to do an adverse effects analysis in respect of that person.

Relief

[59] Relief by way of judicial review is always discretionary. Peters J introduced

her discussion on whether she would have granted relief had a ground been made out

with this paragraph:

[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.

[60] As the above paragraph indicates, she considered that Wendy’s’ delay in and

of itself was such that relief should be declined. We will return to that. She also

relied on a review condition that the Council imposed on the grant of consent as

justifying no relief.10

10

HC decision, above n 1, at [71]–[72].

[61] The Council’s submission is that any defects in its decision were not material.

Secondly, that even if the Council had addressed in more detail the particular effects

on Wendy’s, the Council would have reached the same conclusion. That is, the

effects would have been less than minor and Wendy’s would not be considered an

affected party. The Council notes that Wendy’s was seeking partial relief under s

5(4) of the Judicature Amendment Act 1972 (the JAA) for orders quashing those

parts of the resource consent that affected Wendy’s (parts relating to access, the road

network and traffic flows).

[62] The Trust relies on the reasoning of Peters J. It relies on two propositions:

that the error was at the low end of the scale and that Wendy’s had delayed.

[63] The Council submits that if the Court found an error in the Council’s

decision, relief should be refused as an exercise of discretion, relying on

Panckhurst J in Just One Life Ltd v Queenstown Lakes District Council, who said:11

[50] Hence the modern approach is to take a broad-based view of the

features of the case in determining whether relief should be granted. Put

another way the tendency is to look at substance rather than form. The

nature of the statutory requirement, the degree of non-compliance and the

effect of non-compliance are all highly relevant.

[64] As a statement of principle, we prefer the dictum by this Court in the same

case where O’Regan J for the Court, which allowed the appeal, said: 12

[39] But a discretionary withholding of relief is not the normal outcome

of a successful attack on a reviewable decision. If some form of relief could

have a practical value then it ought to be granted. This litigation has been

concerned with the possibility of a declaration. The issue is not confined to

whether or not a declaration ought to be made but to whether no form of

declaration could have any practical utility. It might well be that a

declaration that the impugned consents were issued unlawfully, without

elaboration, would provide the appellant’s apt vindication and the

respondent’s more general concerns.

[65] This statement of the law is supported by numerous earlier authorities, many

of which are cited by Graham Taylor in Judicial Review, where he describes the

“default position”, which is to grant relief.13

Taylor says:14

11

Just One Life Ltd v Queenstown Lakes District Council [2003] 2 NZLR 411 (HC). 12

Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA).

The scope for exercising a discretion to refuse a remedy is “very narrow”,

“exceptional”,15

“narrow [or] exceptional”16

“there must be extremely strong

reasons to decline to grant relief”,17

it is rare to refuse relief,18

…

[66] Taylor explains the reason for the policy as:19

Reversion to the “default position” represents the recognition that judicial

review as the means of controlling unlawful action by public authorities is an

important part of the rule of law. This public interest20

in itself justifies the

“default position”.

[67] In the exercise of judicial review, however, the courts do not ordinarily

undertake the task given by Parliament to another body, as distinct from identifying

errors in the conduct of that task by another body.

[68] We think there are only two available arguments that might possibly justify

departing from the default position here. They are the two points relied upon by

Peters J:21

(a) The failure of Wendy’s’ directors to open one of the attachments in the

email sent in June 2013; and to act upon receipt of the consent in

October 2013.

(b) The review provision inserted in the decision.

[69] We start with the delay issue. Ms Lendich deposes that she did examine the

email she received from the second respondent on 27 June 2013. The email

contained mock-ups of the retail development, which showed the Mobil service

station as still being there. Ms Lendich acknowledges the email also contained a

plan in a file called “Wit BNZX included.PDF”, but states she did not notice it at the

time and would have thought the plan would be consistent with the mock-ups.

13

Graham Taylor Judicial Review: A New Zealand Perspective (3rd ed, LexisNexis, Wellington,

2014). 14

At [5.29]. 15

See Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 129 at [60]. 16

Director of Maritime New Zealand v Survey Nelson Ltd [2011] NZSC 61 at [4]. 17

Air Nelson v Minister of Transport, above n 15, at [60]. 18

GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [67]. 19

Taylor, above n 14, at [5.29]. 20

Goodship v Minister of Fisheries [2001] NZAR 274 (HC); Taylor v Attorney-General [2013]

NZHC 1659. 21

HC decision, above n 1, at [64]–[72].

Having examined the plan subsequently, she notes the plan does not accurately

reflect the mock-up pictures provided. In particular, the accessway over Lot B

remained unchanged in the mock-up pictures but the attached plan changed the one-

way entrance on Lot B into a two-way entrance/exit, removed the berm and added

carparks in the middle of the accessway. She says:

With the mock ups that showed no changes to any accessways or berms and

nothing advising such changes … I simply took it there would be no changes

to the accessways, berms and entrances/exits.

[70] The second key factor with respect to timing was the decommissioning of the

Mobil service station, which Wendy’s was told about in August, and that commenced

on 1 September 2013. It is argued that by that point, it must have been apparent to

Wendy’s that there would be changes to the site.

[71] The third key date was, at the latest, October 2013, when Wendy’s instructed

its planner, Mr Havill, and in particular 30 October, when it obtained a copy of the

Council’s decision regarding the resource consent.

[72] For the significance of delay, the Trust relied heavily on the Court of Appeal

decision in Turner v Allison.22

This case can be distinguished immediately on the

facts, as it was a case of gross delay. In Turner v Allison the Town and Country

Planning Appeal Board had granted a specified departure from the Operative District

Scheme of the Waimairi Council to allow a shopping centre, which included a

supermarket, to be built. It was sited on the intersection of Clyde Road, Memorial

Avenue and Fendalton Road in Christchurch. Memorial Avenue is the main route

from the city centre to the airport — the shopping centre would therefore be in plain

public view. The specified departure dated from 4 September 1969. Work started on

the site very shortly thereafter, commencing on 14 October with the demolition of a

house and earthworks. The respondents, however, did nothing until

24 January 1970, when they served on the Turners their proceeding for certiorari,

which they had filed on 22 January, seeking to challenge the grant of the specified

departure. This gross delay while demolition and construction was being undertaken

obviously to implement a planning consent is far removed from the suggestion here

22

Turner v Allison [1971] NZLR 833 (CA).

that Wendy’s’ advisors should have opened a second attachment to an email from the

Trust (which was not consistent with the first attachment, the mock-ups), and so

discovered the scope of the likely adverse effects on their property much earlier.

[73] Peters J accepted the evidence of Ms Lendich, that she did not open the

second attachment (the plan) as the impression she gained from the email was that

little would change. The Judge went on: 23

Be that as it may, Wendy’s had the means of knowledge of the proposed

modifications by the end of June 2013.

(Footnote omitted.)

[74] The Judge then also relied on advice given to Wendy’s in August that Mobil

would close its service station and there would be demolition works on the site.

[75] Peters J then recorded email exchanges from October 2013:

[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.

[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.

(Footnote omitted.)

[76] The resource consent was granted on 25 October 2013. It was sent by the

Trust to Wendy’s’ planner, Mr Havill. Mr Havill sent it on to Ms Lendich on

30 October as an attachment to an email. The email said, inter alia:

23

HC decision, above n 1, at [65].

The varied crossings were for modifying the petrol station crossings. See

second bullet point on page 2. Councils traffic engineer said there would be

no impact on the sites operation.

[77] Wendy’s first became aware that Mobil would be leaving on around

12 August 2013. That was a substantial change to the site. Wendy’s was advised in

an email of that date from Mr Wilkinson, the general manager of the Trust, that

Mobil would be leaving, but Mr Wilkinson gave no indication of impending changes

to the site. On the contrary, his words remained reassuring:

… I have been advised by Mobil that their exit from the site will be seamless

with little impact on current tenants, and I am also confident that the further

re development of the Mobil site will be the same.

[78] Wendy’s immediately sought information from the Trust about access and

whether it would be maintained through the decommissioning process and who the

new tenants would be. Mr Wilkinson responded that the Trust would be working to

ensure “as little disruption as possible to existing tenants”.

[79] On about 10 October 2013, Wendy’s first learned the new development

would include a “Carl’s Jr” restaurant. At this point Wendy’s decided it did need to

make some enquiries about the consent and did so through the planner, Mr Havill.

[80] Ms Lendich did not study the three site plans attached to the consent, the first

of which shows the existing carparks to be relocated (two sets of nine) opposite

Wendy’s and the second two of which show the two-way inbound traffic crossing

across Wendy’s’ land. The gist of Ms Lendich’s affidavit is that she was not put on

notice by her planner, Mr Havill, as to this consequence. It would appear from

Mr Havill’s email that he was relying on discussions with the Council’s planner and

traffic engineer, rather than on a personal scrutiny of the new site plans.

[81] Ms Lendich learned of the changes on 25 February 2014 and immediately

started correspondence with the Trust and its solicitors. She had been alerted by the

installation of fencing in the early hours.

[82] The letter from Wendy’s’ lawyers of 25 February to the Trust was written on

the morning Wendy’s advised them. The lawyers relied on the rights held by

Wendy’s under its lease. The significance of this letter of 25 February is that it

corroborates Ms Lendich’s narrative of events. It eliminates the notion that Wendy’s

ever sat on its rights. It is the equivalent to the plaintiffs in Turner v Allison

immediately taking action in October 1969 on seeing demolition and construction

work taking place on the site, rather than, in that case, doing nothing until 24 January

1970.

[83] We differ, with respect, from Peters J’s reliance on Ms Lendich’s ability to

find out the proposed modification by the end of June and then in August when

Wendy’s’ counsel learned that Mobil was closing.24

In a judicial review of

administrative action, we think it is important not to impose on the parties a standard

of care or diligence that is not imposed in the statutory process under review. The

RMA does not expect persons potentially adversely affected to monitor closely the

progress of any application for resource consent and to be proactive as to whether

they will be adversely affected. Rather, the obligation is cast on the consent

authority, here the Council, to notify such persons if adversely affected in more than

a minor way. Nor can lack of notice by the consent authority be resolved by

examining the merits of good communications as between the landlord and the

tenant. Again, that is not the statutory concern. For these reasons, we do not agree

that Wendy’s should be deprived of relief by its delay.

[84] Second, Peters J also relied on the review condition in the Council consent:

[71] Lastly I refer to the “review” condition that the Council imposed on

the grant of consent, which provides:

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

24

See [73]–[74] above.

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.

(Footnote omitted.)

[85] This review process does not expressly provide for notice to complainants or

other persons adversely affected so that they can be heard during the review. It does

not provide for a hearing. The question is one of review of the status quo, that being

the decision of the Council. The scheme and purpose of the legislation is that parties

who may be adversely affected in a more than minor way have an audience before

the decision is made, not in a review after it is made. The resource consent process

is also subject to rights of appeal. The review is not.

[86] The review condition is not a sufficient substitute for the default position of

holding the Council to the statutory process set by Parliament to identify persons

adversely affected prior to conducting the hearing as to the merits of an application

for resource consent.

[87] Where administrative actions affected by legal error have led to outcomes,

the Court will naturally take into account the practical effect of granting a remedy.

Recognising this, counsel for Wendy’s seeks limited relief: setting aside those parts

of the resource consent dealing with traffic flows onto and on the site, the parking

and roading plan, and the two entrance/exit points onto Great South Road.

[88] Wendy’s’ pleading had sought, in the alternative, amendment of the resource

consent by replacing the approved site layout with a plan attached to the pleading.

The plan is not attached to this judgment because of its informal character. But,

essentially, it recommends moving the incoming traffic off Lot W, Wendy’s’ land,

and making adjustments to the design of the kerbs at this middle access entry point,

and protecting the end parking alongside the outgoing thoroughfare of traffic by

raising traffic islands. Granting this alternative relief would require the Court to

reach a judgment that the effects are more than minor. Wendy’s did not pursue this

alternative relief, recognising that it is for the Council to make the decision the

statute has entrusted to the consent authority.25

The same point applies to the Trust’s

submission that the Court should decline relief because the effects on Wendy’s were

less than minor.

[89] Rather, the proper remedy is to require the Council to discharge its statutory

obligations and so correct the error of law, preserving the status quo in the meantime.

Result

[90] The application for review succeeds on proof of error of law.

[91] The relief granted is:

(a) A declaration that the Council’s determination that there were no

persons adversely affected by the proposal, the subject of the

application for consent, was affected by errors of law, in the

application of ss 95B and 95E of the RMA.

(b) An order under s 4(2) of the JAA setting aside that part of the resource

consent issued by the Auckland Council to the Wiri Licensing Trust

for its site on 639 Great South Road, Manukau that defines the

ingress, egress, circulation, and parking on the site.

(c) A direction, pursuant to s 4(5C) of the JAA, that, pending giving

effect to this judgment, the current two accesses off Great South Road

will remain in operation; the internal circulation will remain the same,

as will the parking.

25

Judicature Amendment Act 1972, s 4(5) and (5A).

(d) The Council is directed to reconsider the application of s 95B(1) and

(2) and s 95E(1) and (2) of the RMA, pursuant to s 4(5) of the JAA.

(e) The Council shall release to the parties to this litigation its decisions

under s 95B(1) and 95E(1). The decision should be released with

reasons.

(f) If the decision is that Wendy’s and/or others have or will suffer

adverse effects that are more than minor, then: There is a direction

pursuant to s 4(5) of the JAA that the first defendant reconsider its

decisions regarding the resource consent insofar as they relate to site

layout and traffic issues and make new determinations (by different

officers) on those issues, such reconsiderations to proceed on the basis

that the plaintiff has received notification under ss 95B(2) and 95E(1)

of the RMA; hearing Wendy’s and/or others.

(g) If the decision is that Wendy’s and/or others have not suffered any

adverse effects, or that they have suffered adverse effects that are not

more than minor, then the Council may reconfirm the decision

quashed, being a direction made by this Court pursuant to s 4(5B) of

the JAA, or the Council may reconsider the application.

Costs

[92] This appeal is classified as a complex appeal. The appellant is entitled to

costs from the first respondent on a band A basis with usual disbursements. We

leave to the parties the question whether the appellant should obtain costs from the

second respondent or the second respondent should contribute to the first

respondent’s costs. If the parties cannot agree, the Court will receive submissions.

Solicitors: LeeSalmonLong, Auckland for Appellant Simpson Grierson, Auckland for First Respondent Kemps Weir, Auckland for Second Respondent