Archive | Environment Court

Waiheke marina applicant enters liquidation

The failed applicant for a marina at Matiatia on Waiheke Island, Waiheke Marinas Ltd, went into liquidation on 6 January, but the appointment of John Whittfield as liquidator still hadn’t made it on to the Companies Office online file 6 days later.

Graham Guthrie, who drove the 5-year marina battle that ended in rejection in December, is the company’s sole director & shareholder.

The company proposed a 160-berth marina in 2011, immediately north of the wharf in the northern corner of Matiatia Bay. In December 2014, the marina proposal was reduced to 112 berths and other elements were reshaped. The parking element was reduced from 55 to 39 spaces last year.

The application was referred directly to the Environment Court, bypassing the Auckland Council hearing process, and the hearing began before Principal Environment Judge Laurie Newhook & commissioners Anne Leijnen & Russell Howie in October 2014.

The application was strongly opposed by Direction Matiatia.

Earlier stories:
18 December 2015: Court refuses consent for Matiatia marina
16 April 2015: Court says Waiheke marina application now “out of scope” without parking
13 October 2014: Council switches from opposing Matiatia marina
9 August 2013: Council committee votes to refer Waiheke marina application directly to court
1 August 2011: 160-berth marina proposed for Matiatia
3 March 2006: Council sets timetable for Matiatia design competition (an earlier idea for the bay)

Attribution: Public notice.

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Court refuses consent for Matiatia marina

The Environment Court has refused consent for the proposed Matiatia marina at Waiheke Island.

The court has also taken the unusual step of writing a foreword to its decision, asking the many people involved in the battle for & against the development to consider a wider picture.

In the conclusion to the decision, Principal Environment Judge Laurie Newhook wrote: “We must record that the applicant has striven to tailor its draft conditions of consent to mitigate effects as far as possible and address the many concerns of parties opposing; but in a way that huge effort has ironically illustrated the difficulties of mitigating large structures on water and on or near the foreshore and ultimately the inappropriateness of the proposal.”

The original application was for 160 berths, 17 pile moorings, and 55 car parking spaces. Last December, the marina proposal was reduced to 112 berths and other elements were reshaped. The parking element was reduced to 39 spaces this year.

  • I’ll write a full story over the weekend.

Earlier stories:
16 April 2015: Court says Waiheke marina application now “out of scope” without parking
13 October 2014: Council switches from opposing Matiatia marina
9 August 2013: Council committee votes to refer Waiheke marina application directly to court
1 August 2011: 160-berth marina proposed for Matiatia
3 March 2006: Council sets timetable for Matiatia design competition (an earlier idea for the bay)

Attribution: Judgment.

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Propbd on Q Th28May15 – Subdivision tick, highway PPP, north-west transport review, parking strategy, Metro Glass result

Council withdraws opposition to Rosedale subdivision
NZTA to seek PPP proposals for Puhoi highway stage
Auckland Transport to review north-west needs
Auckland Transport adopts parking strategy
Metro Glass just ahead of forecast

Today’s roundup of items in Propbd on Q includes some which will be expanded and a couple which tell you enough.

Council withdraws opposition to Rosedale subdivision

The Environment Court has granted consent for the 50-unit Grove Estate residential development at 269 Rosedale Rd, Albany, after the council resolutions team withdrew its opposition 2 days before the court hearing.

Development consultant Peter Chevin said the result came after 2 years of application processing and $450,000 of costs to the applicant for what was intended to be an affordable housing project.

After his third win in the Environment Court after subdivision proposals were turned down at council hearings, Mr Chevin asked: “Clearly we are bringing developments together that Auckland needs and the court believes are legal. Why then should it take $450,000 and 2 years to be granted consent?”
Earlier story, 29 September 2013: Estate agent buys into intensive development company ahead of consent rejection

NZTA to seek PPP proposals for Puhoi highway stage

Transport Minister Simon Bridges said yesterday Cabinet had approved using a public-private partnership for the next stage of the Puhoi-Warkworth Highway.

The NZ Transport Agency will invite private sector companies to put forward proposals for financing, designing & constructing the highway, with a view to awarding a public-private partnership contract in October 2016.

“The private sector will have the opportunity to bring innovative design, operation & risk management to deliver the project more effectively than traditional procurement methods.

“If, however, the private sector can’t offer value for money, NZTA would instead revert to a more traditional procurement model. Construction without a public-private partnership would likely begin around 2 years later than under a PPP.”

The Puhoi-Warkworth project is the first section of the Ara Tuhono – Puhoi-Wellsford road of national significance.

Auckland Transport to review north-west needs

Auckland Transport said yesterday it was undertaking a review into medium- to long-term public transport connections in north-west Auckland, including rail from Swanson to Huapai.

AT Metro general manager Mark Lambert said the review would take into account population growth & development, including special housing areas, and the resulting demand on transport infrastructure.

Auckland Transport adopts parking strategy

Auckland Transport adopted a parking strategy yesterday, which it says will mean a consistent approach for the first time for parking around the whole region.

The document allows for a case-by-case approach to parking, taking into account local issues and the views of local boards & the community. The council-controlled organisation said consultation with the community would continue as parking measures are introduced.

Auckland Transport released its parking discussion document for consultation in May last year, held 22 workshops and received 5500 submissions – half from central Auckland or from cbd fringe suburbs such as Parnell, Ponsonby & Newton, a quarter about the overall management of demand parking, 18% about parking on residential streets and on park-&-rides and 11% about parking on arterial roads.

The final strategy, dozen policies and submissions document are on the Auckland transport website.

Link: Parking strategy & submissions document

Metro Glass just ahead of forecast

Metro Performance Glass Ltd has made slightly more profit than forecast in its first 8 months since listing on the NZX, on sales that were slightly lower.

The company said yesterday it earned $9.6 million (forecast $9.4 million) net after tax on $115 million of sales (forecast $117.8 million). It said construction industry capacity constraints led to delays in the conversion of consents to revenue.

One achievement for future performance is that the company completed the consolidation of its 5 separate Auckland sites into one purpose-built site at Highbrook.

Attribution: Company, ministerial, Auckland Transport releases, court decision.

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Hobsonville village development case halts

Combined applications for a comprehensive development plan in the Hobsonville village and a resource consent specifically for a Countdown supermarket wobbled their way to a halt in the Environment Court yesterday.

The halt to proceedings is on applications referred directly to the court, intended to speed up the process.

Countdown owner Progressive Enterprises Ltd has argued for more than 2 years against the need for or sense of the comprehensive development plan, which would cover more than the supermarket land.

Submissions from Progressive’s counsel, Allison Arthur-Young, and for Auckland Council, Brianna Parkinson, don’t demonstrate why the comprehensive development plan is needed on top of a specific resource consent and other district plan changes introduced by the former Waitakere City Council to convert this & nearby areas across the top of the Waitemata Harbour to urban uses.

The old council introduced the changes in 2005, including one to enable a village centre to be established in Hobsonville – a short distance from the airbase now being developed as a large residential subdivision. This centre would be anchored by a supermarket & core retail, surrounded by a mix of uses and residential development.

Environment Judge Jane Borthwick was so dissatisfied with the case before her that she stopped proceedings on Tuesday – the second day of the hearing – to enable her & her 2 commissioners, Dr Alex Sutherland & Kathryn Edmonds, to read copious quantities of documents. Judge Borthwick said she spent 18 hours doing that in preparation for a return to the courtroom on Thursday morning.

Come Thursday, the judge spent 90 minutes outlining the 3 broad failings she saw with the case, including remarking on documents which were supposedly evidence but failed the court tests for evidence. After a break for counsel to get instructions, Ms Arthur-Young withdrew the application for a comprehensive development plan but asked for the resource consent application for stage 1 of the supermarket site to be put on hold for a fortnight while the company assessed its next course.

Meanwhile, Ms Parkinson sought a costs award to the council on the withdrawn application, saying Progressive hadn’t had to apply for the development plan but had chosen to. Judge Borthwick had reservations about that, saying there would have been negotiations to which the court wasn’t privy, and she reserved costs.

Judge Borthwick said the first issue the court & parties needed to sort out was what applications could be decided, the second was general about procedure and what was evidence in a court, and third was the comprehensive development plan structure.

The court’s view was that it should decide the plan application first, then move on to the consent. The result of the plan application withdrawal and request to put the consent application briefly on hold is further delay in an urbanisation programme that’s already taken 7 years, without any development at the Hobsonville village.

Despite the court’s concerns about process – and a debate over the legality of the comprehensive development plan – Ms Arthur-Young said in her submission that almost all opposition to Progressive’s proposal had evaporated.

What was left was a council intent on imposing urban design conditions. The comprehensive development plan, technically sought by Progressive, covers more than its site, thus imposing conditions on neighbouring landowners who aren’t party to this case.

Among conditions the council wants is one to obtain certainty that Progressive will develop the whole of its proposed development within the 5-year consent timeframe.

This case deals with important issues relating to urbanisation in Auckland, on the eve of the council’s release of its draft unitary plan, which is intended to set new conditions for implementing development over the whole region. I’ll deal with this & some other planning applications in a series of further stories over the weekend.


Attribution: Company release, story written by Bob Dey for the Bob Dey Property Report.

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Court declares Foodstuffs submission on Tawa rival in breach of new RMA provision

Published 29 July 2011

Progressive Enterprises Ltd scored a victory over supermarket competitor Foodstuffs this week in their never-ending trade war.

Progressive’s victory, using trade competition provisions in the amended Resource Management Act, was the sweeter because the company was being forced out of a central Tawa site which Foodstuffs Properties (Wellington) Ltd had bought after Progressive had run a supermarket there for more than 30 years.

Progressive went to the south end of town to build a new Countdown, and Foodstuffs argued this was against the council’s centres policy, put in place to protect the Tawa town centre – and, of course, the old Countdown site where Foodstuffs will open a new supermarket shortly.

Principal Environment Judge Craig Thompson delivered the Environment Court decision on Tuesday on Progressive’s application for a declaration that Foodstuffs was in breach. That application succeeded, but Progressive’s application for an enforcement order – forcing Foodstuffs to withdraw its submission to the Wellington City Council hearing – was declined.

Progressive applied for a declaration that Foodstuffs was in breach of the Resource Management Act by making a submission to the Wellington City Council opposing Progressive’s application for consent for a supermarket at 3 Main Rd, Tawa, known as Takapu Island.

Progressive & predecessors have had a Woolworths supermarket on the Tawa site since the 1970s, but in 2009 Foodstuffs bought the property. The lease expires on 30 November this year, with no right of renewal, so Progressive entered a conditional contract to buy a site at the southern end of Tawa with access off Takapu Rd, and lodged its consent application for a Countdown supermarket with the council on 28 April.

As with opposition raised in the supermarket wars elsewhere, this one was based on the council’s centres policy. In a similar action over Foodstuffs (Auckland) Ltd’s ultimately successful application to build a supermarket on Wairau Rd, Progressive argued it shouldn’t be allowed because of the then-North Shore City Council’s centres policy, with the future of the nearby Northcote town centre (where Progressive owned the supermarket) at stake.

Foodstuffs (Wellington) said the Tawa centre was struggling to retain economic activity, so the centres policy restricted supermarket sizes in more remote places like 3 Main Rd.

In the Tawa breach case before the Environment Court, Judge Thompson said in his decision it would make no sense to confine the power to do something about opposition brought on the basis of trade competition until the case was concluded.

He said the Resource Management Act was amended precisely to stop developments being bogged down in endless litigation motivated by nothing more than the wish to stifle the opening of a rival store.

Foodstuffs (Wellington) argued it wasn’t a trade competitor because it owned sites but didn’t engage in retail trading, instead leasing premises to franchisees. A franchised Foodstuffs supermarket will open on the former Progressive site shortly.

Judge Thompson said this was the first time the new trade competition provisions of the amended act had been brought into play. The court found Foodstuffs was in breach of those provisions, but decided not to force the company to withdraw its submission: “Foodstuffs will know very well what the import of the declaration is. The council will no doubt have the declaration brought to its attention and it, too, will understand its consequences perfectly well.”

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Attribution: Judgment, story written by Bob Dey for the Bob Dey Property Report.

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Specialist courts centre opens

Published 12 August 2010

Level 2 of the specialist courts & tribunals centre in the Gen-i Tower – on the corner of Federal & Wyndham Sts, round the back of the Auckland District Court – became fully operational on Wednesday.


The Gen-i refit & subsequent move by the specialist courts is part of the Ministry of Justice’s strategy to implement ways for the courts to deliver better, cost-effective justice services in Auckland.


The Employment & Environment Courts are both in the new centre, which has 2 primary courtrooms. Court 1 is one of the largest in Auckland, fully equipped with video-conferencing & digital evidence recording. The other is a multi-purpose courtroom for smaller hearings, judicial conferences & mediations.


Want to comment? Go to the forum.


Attribution: Ministerial release, story written by Bob Dey for the Bob Dey Property Report.

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Judge rejects costs case over trade competition after Progressive gets Warkworth consent & plan change

Published 7 July 2010

Progressive Enterprises Ltd went back to the Environment Court on Monday to chase competitors for costs for raising the price of getting the resource consent for its new Countdown store to be built in Warkworth, but came away empty-handed.

Progressive’s application was the first direct referral of a resource consent application to the court, bypassing the local council, and got there in a joint hearing with a Rodney District Council proposal for a plan change.

Before getting to the Environment Court process, Progressive made an application to the High Court for a judicial review of the plan change’s validity, based on communication between the council & the company’s opponents before the plan change was notified.

However, airing of that complaint was snuffed out when the opportunity for direct referral arose. Progressive was hoping to raise the trade-competitor point again in its costs application today, but Judge Jeff Smith wasn’t interested in hearing it, especially after the hearing broke for settlement talks after half an hour and the parties returned with an agreement for costs to lie where they fell.

The court had granted the consent and approved the plan change on 15 June after opposition fell away. Foodstuffs (Auckland) Ltd & Perrendale Developments Ltd had fought the consent & provisions in a plan change for the Warkworth town centre which made Progressive’s proposed Countdown supermarket a restricted discretionary activity.

Foodstuffs has a supermarket nearby, which it’s applied to upgrade, and Perrendale (Neil Barr) has a site on the western side of State Highway 1 which it’s about to develop.

While Progressive’s counsel, Chris Whata, was keen to pursue the costs argument on the basis that such a long & costly process wouldn’t have been necessary without the trade competition factor, Judge Smith told him: “You have a consent which can’t be appealed.”

Despite giving no ground on the trade competition point, saying Progressive had elected to abandon the previous process so the court couldn’t go back to it, and had also reached agreement for the court process to be settled, Judge Smith did acknowledge the factor – which new Resource Management Act amendments specifically outlaw: “I am hopeful that there will be a change in attitude by the supermarkets, given the change in legislation. One is hopeful, like the petrol companies, we might see a change in attitude in future.”

Earlier stories:

16 June 2010: First Environment Court direct referral settled just before hearing

26 May 2010: Perrendale launches leasing campaign for remaining Stockyard Falls spaces

27 January 2010: Commissioner refuses Progressive’s stand-alone application to bowl 2 trees on Warkworth supermarket site

13 November 2009: Progressive seeks consent for Warkworth supermarket

30 October 2009: Progressive seeks proof of council’s pre-notification talks, asks court to overturn Warkworth plan change

16 October 2009: Foodstuffs lodges consent application for Warkworth New World facelift

11 September 2009: Commissioners accommodate all sides in rejigged Warkworth plan change

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Attribution: Court hearing, story written by Bob Dey for the Bob Dey Property Report.

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Judge gives Queenstown council double rebuke but makes low costs award

Published 26 March 2010

Environment Judge John Jackson has ordered the Queenstown Lakes District Council to pay Remarkables Park Ltd some of its costs after 10 years of wrangling over the district plan financial contributions regime.


But the award is for far less than the sum the development company claimed, which was for only two-thirds of what it said the fight had cost it in fees, largely because it would be the ratepayers in general who must pay – effectively an admission from the judge that councils can get away with a slap on the wrist for bad behaviour instead of facing an appropriate penalty.


Remarkables Park Ltd (brothers Alastair, John & Neville Porter) said the company’s challenge to the financial contributions regime involved many negotiations, mediations, prehearing conferences & 4 Environment Court procedural decisions, and the council largely withdrew its proposed financial contributions provisions.


The company then applied for costs of $160,627.56 against the council in December 2009, saying that constituted two-thirds of its claimable consultant & legal fees, a sum greater than normal because the council changed its mind on key issues over the years and failed to take heed of Environment Court decisions along the way.


Judge Jackson ordered the council to pay $53,000.


Alastair Porter said while the company’s costs would have been about $500,000, including amounts it couldn’t claim.


“In addition, substantial costs would have been incurred by other developers who were initially involved. We also expect that the overall cost to the council would have been very high, given the original drafting of these extensive financial contributions by consultants and then involvement with their lawyers &planners in multiple fixtures.”


Mr Porter said he wouldn’t be surprised if the total cost to Queenstown for this saga exceeded $750,000: “Few developers, as evidenced by this case, can afford to pursue ‘public good’ issues when they are up against a council that’s using the ratepayers’ money to fund its litigation.”


Mr Porter said the best outcome for the Queenstown community as a result of this decision would be an acceptance by the council that there needed to be a significant change of direction in its approach to enabling growth in the district: “Contentious planning & constant litigation wastes time and hugely drives up the cost of development, if not deterring investment, which also drives up land prices.  In short, we need a Queenstown culture change that is all about encouraging quality growth & economic development by co-operation.”


 In the judgment, issued on 15 March, Judge Jackson went through the chronology of the dispute, noting that Remarkables Park argued that the council should have withdrawn its district plan proposal as far back as 2003, to replace it with a regime under the Local Government Act.


The council said no costs award should be made. Remarkables Park had a vested interest in contesting the regime as a developer, and it couldn’t be said the council was more responsible for the length of time taken to resolve the matter.


As for adopting the Local Government Act regime earlier, the council said it needed to be sure the new procedure was “robust & review-proof”. The council said the longer introduction of the new process was delayed, the longer the council would net lower contributions under an older procedure.


Jude Jackson said costs weren’t awarded as a penalty but to compensate “where that is just”, and costs were commonly not awarded in plan appeals. However, he found n this case that the high standard required before awarding costs against a council had been met.


Part of his reasoning for reducing the award was that Remarkables Park had consented to some of the adjournments “and perhaps incurred some unnecessary costs along the way”. The judge also said it had to be kept in mind that, the year the plan change was lodged, 1998, there were 201 Queenstown references lodged with the court – a challenging caseload for both court & council.


“It would be fair to say that, to some extent, the court & the council let the financial contributions provisions take something of a back seat to more significant matters such as the landscape-related references until the end of 2003. However, the council has had second thoughts at various points of the proceedings – mostly from 2003 onwards – which have led to delays in progressing this reference….


“It took the council 4 years before it decided to go with that alternative funding mechanism (under the Local Government Act) and withdraw the proposed changes to chapter 15 (of the district plan). The council had wasted

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ARC proposes changes to Environment Court costs

The Auckland Regional Cost, smarting from a $50,000 award of costs against it from the long-running Arrigato case, has come up with a recommendation on Environment Court costs awards.

It proposes that, with some exceptions, no costs be awarded against a local body, or a longstanding public interest or community group which has sought to promote the interests of the public, local community or the environment.

Outs for the court would be where the local body or interest group has advanced arguments without substance, has presented or pleaded them poorly, has failed to explore settlement when a compromise could reasonably have been expected, taken a technical & unmeritorious point and failed, hasn’t met the required timeframe or given inadequate notice of abandonment, unnecessarily lengthened or abused the process, or has advanced arguments relating to trade competition.

Council lawyer John Burns agreed it was worth investigating how costs might be recovered from organisations set up to campaign on an issue and were disbanded on failure. There was also some concern at the proposal that approved organisations would have to have been formed more than 2 years.

On the recommendation of council chairman Gwen Bull, the proposal will go to Associate Environment Minister David Benson-Pope for inclusion in amendments to the Resource Management Act.

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propbd Diary 2002 – Environment Court

The Environment Court sits in Auckland in the Auckland District Court building, side entrance off Kingston St.


Monday 8 April, fortnight, before Judge Whiting & commissioners: Kitewaho Bush Reserve Co Ltd (Peter Mawhinney) v Waitakere City Council, district plan reference.
St Lukes Group Ltd v Waitakere City Council, district plan reference.
Waitakere Ranges Protection Society v Waitakere City Council, minor household units.

Monday 15 April, before Judge Laurie Newhook & commissioners: Fullers Group Ltd v Auckland Regional Council, redevelopment of wharves & boatramps at Matiatia, Waiheke Island.

Monday 22 April, before Judge Laurie Newhook & commissioners: MJ Murphy v Rodney District Council, subdivision consent Witten Rd, Pakiri.

Friday 26 April, 9.30am: A Smith & S Clark v Rodney District Council, objection to charges associated with processing a resource consent application. 2pm: Cabra Developments Ltd (Lloyd Barker & Ian Boocock) v Rodney District Council, subdivision of industrial-zoned land at Whangaparaoa. Backup cases: Private Life Care of NZ Ltd (Ian Morris & John Bethell) v Rodney District Council, to rezone land for residential units for elderly & retired; IE & MR MacDonald v Rodney District Council, plan change 55.

Monday 6 May, before Judge Whiting & commissioners: Waitakere City Council v A & S Borrett, unauthorised landfill.

Thursday 9 May, before Judge Whiting & commissioners: DRA Eden v Franklin District Council, creation of 6 additional lots from rural-zoned title.

Monday 20 May, 3 weeks: Appeals against North Shore City Council rezoning at Okura.

Monday 10 June: The last stage of the Pak N’ Save (Foodstuffs Auckland Ltd) application to get a supermarket on its Wairau Rd site, v North Shore City Council.

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