081 Auckland 2040 (R Brabant) - Legal Submission

In the Matter
of the Resource Management Act 1991 as

amended by the Local Government (Auckland
Transitional Provisions) Amendment Act 2010
And

In the Matter
of a submission lodged by Auckland 2040
Incorporated (1473) on the Proposed Auckland
Unitary Plan

Legal Submissions for Auckland 2040 Incorporated
Topic 081

24 March 2016

Richard Brabant
Barrister

Level 2, Broker House, 14 Vulcan Lane
PO Box 1502, Shortland St
Auckland City

Email: richard@brabant.co.nz

Topic 081
Auckland 2040 Legal Submissions

Summary

1. The earlier requested changes to the Single House Zone Description,
Objectives and Policies by the Auckland Council directly link to the
subsequent proposal for substantial up-zoning of the SHZ. Whether those
proposed changes are outside the scope of submissions, whether specific
changes to the zone wording or mapping were reasonably foreseeable, and
whether recommending the requested changes would create procedural
unfairness are issues that arise in both respects.
2. By reference to established principles in the case law on this matter the
correct conclusion is that the requested changes to the Description,
Objectives and Policies and to the mapping of the SHZ to reflect those
changes is outside the scope of any submissions. In respect of generic
submissions now relied upon by HNZC the specific changes were not
reasonably foreseeable.
3. These requests for change also fail the "second bipartite test" as described
in the Clearwater High Court judgement and affirmed more recently in the
Motor Machinists judgement.
4. The Panel should not resort to the statutory provision for recommendations
which are outside the scope of any submission because the changes in
question are too far reaching. That concern is not alleviated by the right of
appeal in s155(3), when the appropriate response is to recommend against
the changes in order that the matter can if necessary be the subject of a
notified plan change in the future.
5. The most recent Council evidence on capacity modelling (from Kyle
Balderston), and from its Economist Dr Fairgray do not support changes to
the SHZ to enable more intensification.
6. An appropriate evaluation under s32 RMA of the proposed changes has
not been completed. The assessments done by witnesses supporting
changes enabling intensification in the SHZ have incorrectly confined their
evaluation to the benefits of intensification and growth.
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7. Proponents of intensification in the SHZ have failed to recognise the

importance of the existing Urban Forest in the older established low-density
suburbs zoned SHZ. As a result adverse ecological, biodiversity and water
quality effects of intensification have been ignored.Retention of the zone
provisions and the extent of the zone as notified is the appropriate method
to maintain and enchance these values and the amenity of these areas and
to achieve the purpose of the Act.
Introduction
8. My legal submissions on behalf of Auckland 2040 on Topics 059 063
dated 16 October 2015 provide the foundation for submissions on this topic
opposing wide-spread re-zoning throughout some established residential
suburbs of properties that the notified Unitary Plan zoned Single House
Zone (SHZ).
9. Without repeating those submissions I refer to the following key elements:
a. The sweeping changes the Auckland Council sought in evidence
and submissions to the description, the objectives and the policies
for the SHZ would, if adopted into the operative version of the
Unitary Plan, fundamentally alter the purpose of the zone. Clearly
the Councils intention was to create a different and more restricted
zone, the purpose of which would be confined to the recognition of
natural and built heritage values (already recognised and
protected through overlays), to locations where there were
"significant environmental and infrastructure constraints, and to
areas the Council considered were not in close proximity to
locations which would otherwise support intensive development;
b. The proposed changes removed from the zone description, the
objectives and the policies key words and phrases - "low-density
suburban housing"; the reference to one building per site
"surrounded by areas of private open space"; the reference to
limitations on the range of activities to "maintain the low-density
suburban residential character and amenity of the areas"; the words
"maintaining the low-density suburban residential character of 1 to
2 story detached dwellings within a generally spacious setting"; and
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that dwelling design must achieve "usable and accessible outdoor

living space of a size consistent with the spacious qualities of the
zone";
c. The Auckland Council's own description of the proposed changes
was that they were intended to alter the SHZ so it is focused on
land which has either historic character values, identified natural
character1, or is located in areas with environmental or
infrastructure constraints.
d. The changes sought by the Auckland Council (supported by some
parties, in particular Housing New Zealand Corporation) were
substantial and significant. I submitted at the time that the clear
intention was to remove the SHZ off a large percentage of
properties currently so zoned, which indeed proved to be the case
when the Auckland Councils amended mapping finally became
public;
e. This is because, as I pointed out in that earlier submission, the
inevitable consequence of the Council- led proposed changes to the
SHZ description, the objectives and the policies, if adopted, would
mean the zone could no longer be applied to the many of the areas
shown in the notified version of the PAUP maps as SHZ.
10. The Opening Submissions for the Auckland Council for Topic 081 formally
advised the IHP of the decision taken by the Full Council to withdraw the
re-mapping of the SHZ that the Auckland Council acknowledged was
outside the scope of any submission. At least in respect of the Council's
own presentation this has had a significant effect on the re-zoning request
but did not remove proposed mapping changes that the Council asserted it
could advance in reliance on a third-party submission, or that others still
pursue. I addressed that issue in my earlier submissions.2
11. The Councils announcement of a change of position was followed by
attempts by 3rd parties to adopt or essentially "pick up" the evidence of the
Council witnesses that had been withdrawn and use it. When that course
1
2
These are narrowly defined values

reference paragraphs 17 21 of my submissions dated 16 October 2015.
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of action was opposed, HNZC then requested witness summonses be

issued by the IHP Chairman, the number of which and the terms on which
they have apparently been granted are not currently known to me. Because
of the timing of presentation of the Auckland 2040 submissions and
evidence it is not possible to know the extent to which the IHP might receive
evidence it could rely on to effectively re-introduce the extensive SHZ re-
zoning the Council has abandoned.
12. Two important questions:
a. as to whether there are submissions to the PAUP on which HNZC
or another party could legitimately rely to request those changes, or
alternatively
b. whether the IHPs special jurisdiction under s144(3) could and
should be used to recommend those sweeping zoning changes
remain very much live issues -as they were when the Auckland Council led
the charge on proposals to change the SHZ Description, Objectives and
Policies.
13. Of necessity, these submissions will need to re-visit questions of "scope",
the use of "generic" submissions to support radical requests for changes to
the Residential zone maps, and the permissible extent to which the s144(3)
jurisdiction should be utilised. I will need to address the Auckland Council
response to those submissions in its Closing Statement and the
submissions of legal counsel for HNZC dated 10 March 2016. An additional
matter is whether these re-zonings would be an appropriate change to the
notified provisions by reference to the duty to consider s32.
14. I address the broader recognition of all the Part 2 values, and the purpose
of the Act in sustainably managing natural and physical resources. I also
will make reference to the latest capacity modelling results provided in the
Kyle Balderston evidence of 2 March, and the economic evidence of Dr
Fairgray of the same date.
15. Ultimately, I submit the appropriate recommendation is to to reject the
Auckland Council proposed changes to the SHZ Description, Objectives
and Policies and the proposed large scale re-mapping of properties the
4
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notified PAUP zoned SHZ, as those proposed changes to the mapping of

the SHZ rely on the narrow focus of the zone the proposed Auckland
Council amendments promoted.3
16. In the conclusion to my 16 October 2015 submissions I referred to an
important feature of the existing areas of low-density suburban housing in
the established Auckland suburbs as the established and extensive
vegetation including many mature trees. Collectively these spacious
private open spaces provide important amenity and environmental benefits
for those neighbourhoods and suburbs, habitat for indigenous fauna, and
corridors for the movement of native and exotic birds. This relates to
ecological and amenity values, environmental values, the finite resource of
Aucklands urban forest, and biodiversity. The expert evidence of Dr
Dumbell addreses the ecological and biodiversity matters, and the potential
for significant adverse effects on this existing urban forest if there is
significant re-zoning of SHZ neighbourhoods.
Are the mapping changes sought within scope of submissions?
17. My submissions on this matter are in the nature of a response first to the
closing statement for the Auckland Council dated 17 November 2015, and
secondly to the legal submissions on behalf of Housing New Zealand
Corporation dated 10 March 2016.
18. At paragraph 3.6 of the Closing Statement legal counsel stated the Council
position was that while there was no submission seeking the precise
wording (of the SHZ Description, Objectives and Policies) proposed by Mr
Roberts, the relief sought in submissions does provides " direct jurisdiction
and support for the amendments being sought.
19. Those legal submissions went on to refer to the 29 page schedule of
submission points filed by the Council on 19 October 2015 containing a
representative selection of submission points the Council suggested
potentially provided scope for the proposed changes.
20. I made specific reference to these various submissions in my October
submissions on behalf of Auckland 2040 and do not repeat those.4
3
4
As described in paragraph 10 (c) above.

Paragraphs 19-25.
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However, the point of principle remains as previously submitted general

points of submission do not provide an appropriate foundation for specific
changes to objectives and policies (as proposed through Topic 059) or the
rezoning proposals, particularly those making sweeping changes to the
SHZ mapping as notified. While the Council has now withdrawn its
evidence in support of the map changes, they were inextricably linked to
the out of scope changes the Auckland Council and its witnesses
requested at the hearing of Topic 059. I remind the Panel that alongside
the proposed tracked changes to the SHZ Description, Objectives and
Policies produced through the evidence of Mr Roberts was the statement:
"no submissions request this specific change but there is general scope to
make this amendment based on the following submissions:." 5
21. The legal submissions for Housing New Zealand Corporation address the
question of whether the relief it seeks6 are within the scope of either its
submissions or submissions of other parties.
22. The HNZC submissions7 suggest that the submission and hearing process
including rights of appeal differ from plans and plan changes promulgated
under the RMA. If these submissions are suggesting that the process of
making submissions and further submissions as provided for in the First
Schedule RMA does not apply then I disagree. There are some specific
changes for example in s124 of the LGATPA to time limits or provision for
electronic submissions, but certainly no changes that effect consideration
of whether specific amendments to the wording or mapping of the PAUP
are "within scope" or are otherwise permissible by reference to the
applicable case law. The question of LGATPA appeal rights from out of
scope decisions I deal with later.
23. In my submission the decisions referred to in paragraphs 19 22 of the
HNZC submissions do not respond to the submissions on case law I made
previously- in particular to the High Court judgement in Palmerston North
City Council v Motor Machinists Limited, and the adoption by Kos J of what
he described as the "bipartite approach" taken by William Young J in the
Clearwater judgement see also Option 5 Inc v Marlborough District
5
Referencing the submissions relied on in the Closing Statement, paragraph 3.7.

including apparently by adopting the re-zonings proposed by the Auckland Council it had withdrawn, I
understand proposed to be introduced through Auckland Council witnesses appearing on summons
7
commencing at paragraph 16
6
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Council.8 The 2nd fundamental test is described as "robust, notified and

informed public participation in the evaluative and determinative process".
24. The question of whether a general or broad submission can support specific
changes was recently considered by the Environment Court in Hills
Laboratories Limited v Hamilton City Council. 9 In a review of the relevant
case law principles (and leaving to one side the particular issues arising
from amendments sought on appeal as in that case), the Court agreed that
consequential changes which logically arise from the grant of relief
requested in submissions were permissible provided they are reasonably
foreseeable,10 and that such changes can therefore extend to
consequential rule changes following agreed relief regarding policy
changes, provided they are reasonably foreseeable.11 The Court referred
to the Environment Court decision in Westfield v Hamilton City Council12 at
paragraphs [73], [[74] where the Court stated it was implicit in the legislation
that the jurisdiction to change a plan confirmed by a reference is not limited
to the express words of the reference but the changes must "fairly be said
to be foreseeable consequences of any changes directly proposed in the
reference." However the Court in Westfield also went on to say that
ultimately it was a question of procedural fairness, which extends to the
public as well as to the submitter and the territorial authority. This
references the question of whether proposed changes (in that case that the
Environment Court had been asked to make) would have been within the
reasonable contemplation of those who saw the original submission.
25. The decision in Hills Laboratories then quotes from the Motor Machinists
judgement concerning a plan change so morphing that a person not directly
affected at one stage might find themselves directly affected but
speechless at a later stage.13 what Kos J later referred to in his judgement
as a "submissional side-wind".14 The Judge in Hills Laboratories also
stated that "incidental or consequential extensions of zoning changes
proposed in a plan change (here read zoning proposed in the notified PAUP
refer paragraphs 36-39 10 October submissions.

[2016] D No NZEnvC 023, dated 18 February 2016
10
Cepas Group Ltd v Tasman District Council [2013] NZEnvC 239 at [74]
11
Ibid, at [20]-[21]
12
[2004] NZRMA 556, at [574], [575].
13
found in paragraph [77] of my submissions last October .
14
Motor Machinists, [82].
8
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maps) are permissible, provided that no substantial further s32 analysis is

required to inform affected persons of the comparative merits of that
change.15
26. In my submission the Motor Machinists judgement is the most recent
leading authority on the issue before you, discussing and drawing upon the
case law principles derived from the Clearwater and Option 5 judgements
as well as other decisions. The legal submissions for HNZC do not refer to
any of those High Court decisions.
27. In my submission as a result of not referencing the appropriate case law
the contention in paragraph 23 of those 10 March 2016 submissions as to
the key issue for the Panel is incorrect. The submissions also fail to
address the question of procedural fairness and whether by reference to
the general submissions extensively quoted in the Housing NZ Corporation
submission the specific proposed changes first to the Description,
Objectives and Policies of the SHZ (as compared to those that were
notified), and then the extensive re-zoning proposals16 were reasonably
foreseeable by reference to the general submissions.
28. In the Auckland Council Closing Statement reference is made to further
submissions by Herne Bay Residents, The Character Coalition and
Auckland 2040.17 These were further submissions from community
organisations the question of whether the specific mapping changes now
sought were reasonably foreseeable, and whether there is a question of
procedural unfairness should focus on the legitimate interests and the right
to be heard of the hundreds of property owners directly affected.
29. Some examples taken from the Housing NZ Corporation legal submissions
make the point. For example, the relief sought in a submission of the
Corporation (described by the legal submission as relief being specifically
sought) that "zoning, overlays, development controls and other rules be
adjusted to provide sufficient residential development capacity and land
supply particularly in areas of high market demand to meet Auckland's
long-term (30 year) growth projections, as well as the development
15
Ibid, at [81].
instigated initially by the Auckland Council, but now sought to be adopted and supported by HNZC
17
At paragraph 3.14
16
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objectives of the AUP itself. " Specifically then, what zoning? Which
overlays? Which development controls and which are the development
controls and other rules" that are to be adjusted? What is "sufficient
residential development capacity and land supply? What are the specific
areas of "high market demand"? Which long-term (30 year) growth
projections? (These have been changing throughout the hearing process.)
Which "development objectives" of the AUP?
30. Or, as another example take paragraph 34 of the legal submissions
referencing the SHZ. The submission states specific amendments were
sought to the regional and district objectives and policies to allow for greater
density within the zone by way of rules permitting the conversion of an
existing dwelling into two dwellings, and the establishment of a small
detached residential unit in addition to the main dwelling. That specific
relief cannot possibly support the Auckland Council-led proposed changes
to the SHZ Description, Objectives and Policies and subsequent proposed
re-zoning to MHS or MHU of thousands of properties in the notified SHZ.
31. Nor can specific zoning requests by HNZC of its existing housing stock form
a legitimate foundation for supporting up-zoning of adjoining privately
owned properties in groups streets or even neighbourhoods based on the
presence of one or two, a scattering, or even a grouping of state houses in
that street or within that neighbourhood. In reality such a proposition can
be seen as an attempt to avoid the HNZC individual property re-zoning
requests being characterised as "spot zoning".
Recommendations on out of scope changes to the PAUP
32. I previously made submissions on the IHPs special jurisdiction to make
recommendations not limited by the scope of submissions to the proposed
Unitary Plan.18 I took issue with the Auckland Council legal submissions
relating to the advice given to the IHP by Dr Somerville QC, suggesting that
the natural justice considerations he averted to could be seen as
"moderated" by the right of appeal available under the LGATPA.
33. In my submission as the hearing process has progressed the appropriate
circumstances where the Panel could legimately use s144(5) to make out
18
10 October 2015 submissions, paragraphs 34,35
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of scope changes or additions to the plan provisions has become

reasonably clear.
34. I expect the Panel will find this jurisdiction useful where, for example, all
parties involved in a hearing topic agree a consequential change is
sensible, or where it becomes apparent that a consequential or necessary
amendment or addition to plan provisions should be made to recognise
other changes the Panel finds otherwise appropriate, and within scope.19
In my submission the underlying premise though remains of the changes
being consequential or necessary given other in scope recommendations,
and always while avoiding procedural unfairness. The use of the special
jurisdiction to change the substantive provisions of the SHZ, starting with
the zone Description, then the Objectives and Policies, leading then to
changes to the rules and a major reduction in the extent of the zone falls
well outside the reasonable scope of use of this jurisdiction, especially
where those changes are strongly contested.
35. It is not an answer either to point to the provision for an appeal to the
Environment Court under ss156(3) LGATPA by a person who is not a
submitter if the Auckland Council decision has accepted a recommend on
ation changes of this magnitude that are outside the scope of submissions
made on the proposed plan. First, because this implies that it is acceptable
to make a decision amending the proposed Unitary Plan provisions in a
way that is procedurally unfair, since that will have deprived potentially
affected persons from having the opportunity for participation in a
subsequent plan change to the Unitary Plan. Secondly, because the
appeal right is not on the same terms as the right of appeal that a person
who made a submission on the proposed plan has relating to a provision
or matter addressed in a submission and where the Council has rejected a
recommendation of the Hearing Panel and decided on an alternative
solution.
36. The appeal right for a non-submitter under sub paragraph (3) imposes an
initial threshold on such an appeal of "undue prejudice".
37. In the RMA that "threshold test" is applied under s 281(2), where an
application for waiver of time is made for example late filing of an appeal
19
Examples are given by the Environment Court in the Hills Laboratories decision at [18] (c), (d) and (e).
10
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or a Notice under s274. From the case law that has developed from
contested applications for waivers of time comes the proposition that
"undue prejudice" means prejudice greater than that which would
necessarily follow in every case from waving compliance with the time for
appealing.20 The no doubt well-meaning intention of the Parliamentary
Select Committee to provide a right of appeal in circumstances where a
recommendation accepted by the Council is outside the scope of
submissions is recognised, but the legislature has added a "threshold test"
somehow qualifying the right of appeal.21 Leaving aside the difficulties of
applying this threshold test in practice, it is the case that an appellant under
s156(3) is not on the same footing as an appellant under s156(1). In my
submission such a person responding (for example) to a change of zoning
of his or her property outside the scope of any submission through the
formal appeal process of the Environment Court is undoubtedly
disadvantaged compared to the alternative, which is that the requested
relief sought by a submitter outside the scope of its submission is rejected,
and if that change to the plan is to be pursued it must be the subject of a
subsequent plan change and proper notification.
Capacity assessments and economic evaluation Council evidence
dated 2 March 2016
38. The substantive issue for determination under this Topic 081 is whether
significant up-zoning of residential properties in established suburbs is
merited. In my submission the most recent statements of evidence from
the council witnesses Kyle Balderston and Dr Fairgray do not support the
change of zoning as promoted by the Auckland Council and still supported
by other parties including HNZC.
39. A rerun of the model that has been used to provide a forecast of "feasible
plan enabled capacity" (Run V 3.7) corrected the assessment of site yield
and development feasibility for apartment developments and now show a
20
Reilly v Northland Regional Council and FNDC (1993) 2 NZRMA 414, see also Man O War Station v
Auckland Council [2014] NZEnvC 134, quoting from Reilly, and Jezma Pty Ltd v Waipa District Council
[2014] NZEnvC 74 at [20]. The Environment Court in Trustees of Runwild Trust v Auckland Council [2014]
NZEnvC 18 at [5] noted that s 281 of the Act is a threshold test. It applied the test in Reilly and added that
the threshold test reflects a balance between the participatory focus of the Act and the certainty for the
parties to proceedings when entering into negotiations and preparing evidence.
21
There is no provision for the Environment Court to apply the threshold test, so in practice how these
appeals (if any) might proceed is unclear.
11
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significant increase for the feasible supply of dwellings for all scenarios
particularly in areas where apartments are enabled. Although that latest
model run did not take account of the revised Council position on re-zoning,
the Balderston evidence refers to the in-scope changes being spatially
widespread and involving both up and down zoning with the land area
affected being relatively small and scattered. His view is that the "in scope"
changes would have relatively minimal discernible overall effects on the
total capacity or feasible capacity when considered at a regional scale22.
40. The evidence of Dr Fairgray draws on those latest capacity figures, and in
summary:
a. states the increase in feasible capacity from the latest model run
means that the PAUP makes adequate provision (sufficient feasible
capacity) to accommodate household growth in both the medium
and high growth futures, to 2026 and 2041;23
b. his overall conclusion is that the currently available information
shows that feasible dwelling capacity is likely to be considerably in
excess of demand for additional dwellings in the period to 2026 (and
beyond to 2041);24
c. he states that the modelling does not include either the "out of
scope" changes nor the "in Scope" changes to the geographical
extent of the Residential zoned areas, and is based on the as
notified PAUP spatial structure and rules, with the exception of the
Residential Zone rules that reflect the evidence of the Council to the
Residential Zones topic;25
d. Social housing is stated by him to currently account for an estimated
6% of total housing demand in Auckland, based on the total HNZC
portfolio of 30,800 dwellings (around 5.9% of total dwelling numbers
in Auckland) together with allowance for smaller social housing
providers. His evidence draws on the HNZC estimates of
22
2 March 2016 evidence, paragraph 8.1

2 March 2016 evidence Executive Summary, paragraph K(a)
24
Ibid, paragraph X
25
Ibid paragraph 4.1
23
12
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developable capacity, which allow for development of 19,000 and

up to 29,000 dwellings over the period to 2041.26
41. In relation to capacity to 2026 Dr Fairgray concludes the updated results
confirm the estimated capacity for dwellings within the RUB and for all of
Auckland in the period to 2026 is considerably greater than the projected
demand for dwellings, based on the Residential zone provisions as
amended in August 2015. He states the PAUP provisions and zoning
together are able to provide sufficient capacity for Aucklands population
and household growth over the period to 2026, or the expected life of the
PAUP.27
42. In relation to the longer term outlook to 2041 and subject to the caveats he
places on advice extending out for that period of time, his view is that the
current estimates suggest that feasible and zoned capacity is likely to be
substantially greater than the expected demand for dwellings over the
period to 2041.28
43. In my submission this evidence is important on 3 counts. First, it provides
a powerful counter to the proposition initially advanced through the
Auckland Council evidence but now apparently to be continued through the
evidence to be produced by HNZC that significant opportunities for
intensification through re-zoning of thousands of properties in the notified
SHZ is necessary to achieve capacity targets. And that a re-zoning
recommendation ought to be made by the IHP regardless of whether the
request is within the scope of any submissions to the PAUP. Secondly, the
proposed re-zoning has been justified solely on capacity modelling and
economic considerations relating to feasible development, despite the RMA
requiring a more balanced approach. Absent support for the SHZ being
substantially diminished to achieve "sufficient capacity" to accommodate
population growth to 2026 and even out to 2041, there is no justification
even on this one-dimensional approach for the recently promoted and
highly contentious proposed SHZ changes. Thirdly, and relevant to the
intended use by HNZC of the Auckland Council evidence through calling
those witnesses before the IHP on summons, the percentage of social
26
Ibid, paragraph 5.7

Ibid, paragraphs 5.31, 5.33
28
Ibid, paragraphs 5.34, 5.39
27
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housing at some 6% of total housing demand in Auckland, and the HNZC

estimates of its requirement for social housing development could not
possibly justify the extent of the up-zoning of SHZ properties as indicated
in the Auckland Council re-mapping the Council no longer supports.
44. Section 32 and s32AA of the RMA in tandem require an evaluation of the
re-zoning proposal in question. One of the considerations (and I will shortly
address the others in s32) is the risk of acting or not acting if there is
uncertain or insufficient information about the subject matter. The most up-
to-date evidence of the two Auckland Council witnesses just referred to
support a conclusion that no action should be taken on rezoning in the SHZ.
To the extent that other witnesses might challenge the conclusions they
have reached, in my submission there is insufficient information or
justification to support changing the SHZ Description, Objectives and
Policies followed by extensive up-zoning of properties in that zone.
An evaluation under Section 32
45. The section refers to "the proposal" for the purpose of these submissions
I contend this encompasses the Auckland Council's proposed changes to
the SHZ Description Objectives and Policies as well as the subsequent
proposals advanced under this topic for re-zoning of residential properties
that were zoned SHZ when the PAUP was notified. As I referred to in my
16 October 2015 submissions, the Auckland Council's description of the
proposed changes to the zone provisions was that they were intended to
alter the SHZ so it is "focused on land which has either historic character
values, identified natural character, or is located in areas with
environmental or infrastructure constraints". Because such a highly
modified zone would not recognise the broader purposes of the zone as
notified (and as recognised in the equivalent zones in the legacy plans) a
significant reduction of the extent of the zone was effectively a
consequence or outcome of those major changes, if accepted.
Submissions and evidence as to both the lawfulness of those changes29
29
Are they within scope? Were these changes reasonably foreseeable? Would acceptance of these
changes be in breach of the second fundamental test described in the High Court decisions I have already
referred to?
14
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and the merits of those changes has already been received by the IHP in
the hearings of Topic 059.
46. In my submission for this hearing s32AA required a further evaluation
undertaken in accordance with s 32 (1) to (4), and to a level of detail that
corresponds to the scale and significance of the proposed zoning changes.
This has not been done. In my submission as the obvious purpose of the
changes was to enable intensification of built development and increased
residential activity within the areas to be up-zoned, it is necessary to assess
the implications of that intensification. This means assessing the effects of
at least doubling the site coverage and impervious surfaces, meaning a
concominant reduction in vegetation cover and loss of environmental and
biodiversity values, including increased contaminant run-off.
47. The starting point in such an evaluation is to examine the extent to which
the intensification objective was the most appropriate way to achieve the
purpose of the Act. That requires the proponents of change to move from
a single purpose focus on intensification and consider the broader
promotion of the sustainable management of natural and physical
resources. This as you know brings into play managing the use
development and protection of natural and physical resources. Intensifying
residential development in the areas to be affected involves consideration
of whether the zone changes would enable people and communities (not
just new arrivals but as well the existing communities) to provide for their
social, economic and cultural well-being and for their health and safety.
The sub-sets of sustaining the potential of natural and physical resources
to meet reasonably foreseeable future needs, of safeguarding the life-
supporting capacity of air water soil and ecosystems, and of avoiding
remedying or mitigating any adverse effects of the proposed intensification
on the environment need to be addressed.
48. These considerations encompass the values defined in the RMA as
"amenity values"; and the relevant values to which particular regard should
be had found in s7 of the Act.30
30
Viz, the efficient use and development of natural and physical resources (not necessarily implying
maximum financial yield, but encompassing heritage and environmental values too), the maintenance and
enhancement of amenity values and the quality of the environment, the intrinsic values of ecosystems,
the finite characteristics of natural and physical resources
15
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49. While the proposed changes to the zone provisions and the extent of zoning
could be argued to achieve an objective of making additional provision for
the predicted increase in population by providing for intensification within
these low-density suburbs, the latest evidence on capacity for growth and
the accompanying economic evidence produced by the Auckland Council
shows that the objective of increased opportunity for housing can be better
met in other locations and through other more intensive forms of
development such as apartments. Within the areas presently zoned SHZ
there may be specific areas (such as the HNZC-owned social housing in
the vicinity of the Meadowbank train station) where the merits of
intensification outweigh the effects on existing environmental social and
cultural values, but this evaluation has simply not been done. Rather a
broad brush approach has been taken with a single focus.
50. By reference to subsection (2) it is necessary to both identify and assess
the benefits and costs of the environmental economic social and cultural
effects that can be anticipated from the proposed zoning changes.
Evidence from economists might have identified and assessed anticipated
economic growth and employment benefits, but in my submission no
attention has been given to the environmental social and cultural effects.
51. Given the latest evidence of Auckland Council witnesses as to available
capacity based on existing SHZ zoning arrangements, to further progress
significant intensification in the SHZ requires an appropriate level of
assessment of the risk of not acting, and in my submission this is not been
done.
52. The absence of sufficient evidence addressing these matters reinforces the
appropriateness of refusing to recommend the requested changes to the
zone provisions (the text) and the extent of the application of the zone (the
maps), and for the proposal to be the subject of further evaluation and if
appropriate a plan change or variation after the Unitary Plan becomes
operative.
16
Topic 081
Environmental Values in the SHZ -ecology, biodiversity water quality

and amenity
53. The existing environment in the low density older established suburbs of
the Central Isthmus and the North Shore are characterised by an
abundance of established vegetation including many mature trees. The
photographs in Attachment 1 are of one such neighbourhood, on the
western flank of Meadowbank. This vegetation provides a distinctive
character to the districts where it is found. It provides a particular and
valued amenity, in the terms described in the definition "amenity values".
However, the evidence of Dr Dumbell prepared for this hearing focuses on
ecological water quality and biodiversity values.
54. The same values were addressed in evidence presented at the hearing of
Topic 025 (Trees) on behalf of the Tree Council, EDS and the RFBPS. The
evidence of Dr Marie Brown referred to and produced the research paper
relied upon by Dr Dumbell in his evidence. That evidence can be seen as
complementary to and in fact adding to the evidence presented today, even
though the object of the presentation by those three organisations was to
seek additional tree protection by scheduling.
55. While a request for additional scheduling of notable trees may well have
merit, in reality relying on that process to protect and maintain Aucklands
Urban Forest would simply fall woefully short of what is required. Also,
confining protection of trees to those in public streets and on public
reserves would be grossly inadequate in terms of the values present in
Aucklands privately owned urban forest and vegetation, and the
importance of that vegetation to the health and well-being of the city and its
inhabitants.
56. With legislative amendments having removed the ability to include general
tree protection controls in the Unitary Plan it is my submission the retention
in the SHZ Description Objectives and policies as notified, and thereby
retaining the important characteristics of the zone - low density, areas of
(collective) private open space, and maintaining the character and amenity
of the areas and the spacious qualities of the zone is the appropriate
17
Topic 081
method31 through which this Urban Forest will be protected, and that will
enable it to be maintained and enhanced.
57. What can be seen in these older established low-density suburbs is the
product of up to around 100 years of planting nurturing and developing
private gardens in the collective space afforded by the low density housing
and generous sites. The health and vitality of this vegetation is a testament
to the value that has been placed on it by successive landowners and it
represents a valued attribute for those seeking to reside in such an
environment. Given that the presence in the Auckland District Plan of
general tree protection rules has spanned a period of only 20 years of that
time (and the last 20 years at that) the maturity of the gardens hedges and
trees demonstrates that the establishment, maintenance and the continued
enhancement of that vegetation does not need to rely on tree removal
controls- which in any event have never protected a wide range of the
vegetation. Its future will instead rely on maintaining a low density of
residential detached housing, utilising zone provisions that preserve the
relative spaciousness of the existing neighbourhoods and their collective
private open space. That will enable these suburbs to maintain their
character and their environmental and amenity values.
58. The presence of substantial areas of mature vegetation provides benefits
for all its inhabitants, including ( but not only) the residents of these areas.
The expert evidence of Dr Dumbell and the evidence given in the Topic 025
hearing addresses that. In addition Dr Dumbells evidence covers the
adverse effects on water quality and habitats from contamination arising
from the effects of intensification of built development and associated
increases in traffic usage of roads. As Dr Brown has said, loss of the urban
forest is generally irreversible as trees and other vegetation removed are
usually replaced with impervious surfaces and other land uses not
compatible with significant vegetation retention.
59. Based on research done by others, Dr Dumbell has calculated the potential
for loss of up to 32% of this urban forest through residential intensification
if the extent of re--zoning as originally promoted by the Auckland Council
were to proceed. As it is impossible to know what the modified proposal
31
reference s75(2) RMA
18
Topic 081
might be from other submitters the assessment has not been revisited, but
the point remains a natural resource within the Auckland Citys established
suburbs will almost certainly suffer substantial depletion if intensification
that is more than minor and dispersed were to be enabled by re-zoning.
The expert evidence supports the conclusion that protection of the urban
forest in Auckland is vital to protect biodiversity and ecosystem services,
mitigate against climate change and enhance human well-being.
Dated this 24th day of March 2016

____________________
Richard Brabant
Counsel for Auckland 2040 Incorporated

19
ATTACHMENT 1
Photographs showing the western flank of the suburb of Meadowbank with Ngapipi Road in the
foreground
ATTACHMENT 2
BEFORE THE ENVIRONMENT COURT

DecisionNo. [2016]NZEnvC
IN THE MATTER
02-S
of an appeal pursuant to Clause 14 of

Schedule 1 of the Resource Management
Act 1991 (the Act)
BETWEEN
HILLS LABORATORIES LIMITED

(ENV-20 14-AKL-000 i 54)
Appellant
AND
HAMILTON CITY COUNCIL

Respondent
Comt:
Environment Judge JA Smith, sitting alone pursuant to s 279 of

the Act,
Considered on the papers, at Auckland
Submissions:
LF Muldowney and M Mackintosh for Hamilton City Council

(Hamilton City)
L Burkhardt and B Bailey for Hills Laboratories Limited (Hills)
Date ofDecision:
"'""'"",
('.:,'
18 February 2016
DECISION OF THE ENVIRONMENT COURT
A.
On balancing the consi<).erations under the Act, and on the basis that the
amendment is not opposed by the Council, the amendment to Rule
6.3.3(q)(Retail) to provide for retail activity between 150m2 and 399m2
GFA as a restricted discretionary activity for Lot 1 DPS 86312, Lot 1 DPS
1751 and part Lot 8 DP1233 is within the jurisdiction of the Court on
appeal and accordingly can be incorporated in the resolution of the Plan
provisions.
B.
That having regard to the same considerations, an amendment to

Rule 6.3(q)(Retail) for retail activity between 400m2 and 999m2 GFA as
discretionary activity for the same lots and amendment to Rule 6.3(z)
(Commercial spaces of assembly) to provide for commercial places of
assembly (excluding cinemas and bowling alleys), for the same lots, is not
within the jurisdiction of the Court on appeal and accordingly cannot be
resolved by amendment to the Plan as sought.
C.
Costs are reserved.
D.
The parties are:

(a) to confirm whether the Plan provisions as amended at C with changes
noted by the Court can be confirmed within 30 working days; and
(b) File any application for costs within 30 working days. In the event that
an application for costs is made, the other party shall have 10 working
days to respond and a fmal response 5 working days thereafter.
..::.:;,.
Hills Laboratories Limited v Hamilton City Council
REASONS FOR DECISION

Introduction
[1] Hills appealed ce1tain prov!Slons of the Hamilton District Plan, in patticular
relating to the Business 1 (Commercial Fringe) zone in which their premises me
situated. Hills me an analytic testing laboratory at 1 Clyde Street, Hamilton East,
situated next to the W aikato River. It is proximate to but not part of the Hamilton
City Centre. The specific location is shown in the attached Annexure A, Figure 1 and
2.
Background
[2] The patties have reached an agreement in mediation to resolve the issues on
appeal. There is now concem. by the Council as to whether several of the matters can
properly be the subject of consent orders, and whether these are within jurisdiction.
[3] There is no dispute that the provisions would otherwise meet the issues, objectives
and policies of the Plan as they provide for a site specific solution on the particular
site utilised by Hills.
Background to the appeal

[4] Hills filed a comprehensive submission to the District Plan, which Ms Burkhmdt
for Hills sunnnarised as follows:
(a) a desire to recognise the re-development potential of the Business 1 zone as
an employment area for a mix of land uses and higher density living to
support the viability and vitality of the city centre;
(b) in a further submission, for retail activities up to 500m2 to be permitted
activity in the Business 1 zone.
[5] The original submission and further submission were comprehensive and sought
explicit changes to the purpose, objectives and policies and a number of activity status
changes including:
(a) new buildings, alterations and additions, accessory buildings, laboratories

and research facilities, offices, residential; and
(b) some changes to general standards and assessment criteria; and
(c) issues relating to heritage featmes and earthworks and vegetation removal.
[6] Similarly, the fu:rther submissions included a relatively comprehensive document,
the relevant portion of which was a further submission on a submission by 490 Grey
Limited that sought Clyde Street as part of the central city business area and removal
of the floor limitations for offices and retail tenancies up to 500m2 as pe:rmitted
activities.
[7] As a result of Council decisions an appeal was filed, which is a comprehensive
document prepared by legal counsel.
It appealed only parts of the decision,
particularly
(a) parts 6.1 (d), (g) and (i). The appeal states at 7.1:
The decision's appealed are:
(a) the decision to only accept in part the appellant's submission to
amend 6.1(d) to provide a purpose for the Business 1 (Commercial
Fringe) zone which reflects and supports the mixed use nature of
these areas and their location within easy walking distance of the city
centre;
(b) the decision to reject the appellant's submission to amend 6.1(g) to
encourage residential activity as part of the appropriate mixed use;
(c) the decision to reject the appellant's further submission supporting the
Waikato Regional Council's submission to amend 6.1 (i) to recognise
the interaction between Hamilton East and the central city.
(b) It similarly sought changes to the objectives and policies to be reflective of

the issues above. Both these matters have been subject to agreed wording
changes which are not the subject of any jurisdictional issue before this
Court. The relevant part of the decision appealed in this regard is 6.3(a),
(b), (d), (e), (m), (ww) and (xx). It again notes the decisions appealed
against are:
(i) the decision to reject the appellant's submission to
a. amend Rule 6.3(a) so that in Business 1 (Connnercial Fringe) zone
new buildings are a controlled activity;
':" ,'. c'"'
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b.
6.3(b) in the same zone, alterations and additions are a

permitted activity; and
c. amend Rule 6.3(d) so that in the same zone accessory buildings are
a permitted activity;
(ii) the decision to amend Rule 6.3(e) for the same zone so that laboratories
and research facilities are a pennitted activity;
(iii)the decision to reject 6.3(m) so that Business 1 (Co=ercial Fringe)
zone ofiices 250-500m2 are a permitted activity; and the decision to
reject the appellant's submission to amend Rules 6.3(ww) and (xx) in
the same zone so that apartments are a permitted activity.
(c) Further grounds for appeal relating to general standards, maximum height
have been resolved or not pursued.
[8] Importantly, in relation to relief sought, Hills sought that the relevant rules were
altered to provide for new buildings, alterations and additions and accessory buildings
as permitted activities; and that either laboratories and research facilities were
accommodated under the definition of Service Industry or the Activity Table was
amended to provide for laboratories and research facilities as permitted activities in
that zone; or that research and innovation activities are pennitted activity and the
Defmition of research and innovation includes chemical and analytical testing.
[9] It also sought that offices between 250m2 and 500m2 had status as a permitted
activity and that apartments were a permitted activity.
[1 OJ
Under further relief sought are similar and/or consequential an1endments to

the proposed Plan to satisfactorily address the matters raised in tlris appeal and such
other relief as the Court considers appropriate.
The current issues
[11]
The parties attended mediation and constructively addressed the issues.
Thls has led to the parties reaclring a mediated agreement as to the relevant wording
of the Plan. The matters agreed are armexed hereto and marked B (Niediated
Nevertheless, the Council, having received legal advice, is now
concerned as to whether at least two elements of the outcome are within the scope of
'the appeal.
Provisions).
,.
i
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[12]
For reasons I will go into shortly, the Councils consider that the amendment
to Rule 6.3(q)(Retail) to provide for retail activity between 150m2 and 399m2 GFA as
a restricted discretionary activity for the Hills site is within jurisdiction.
[13]
However they consider that the amendments to 6.3(q)(Retail) to provide for
retail activity between 400m2 and 999d GFA as discretionary activity for the Hills
site; and 6.3(z) (Commercial places of assembly) to provide for commercial places of
assembly (excluding cinemas and bowling alleys) from the Hills site are beyond
scope.
Matters agreed
[14]
Both parties have made extensive and helpful submissions on the issue and
there is a large measure of agreement between the parties as follows.

[15]
Both parties acknowledge that the mediated provisions acbieve the
objectives and policies of the Plan as they have agreed to be amended in terms of this
decision and more generally fit within the Hamilton Plan as a whole. In large pmt this
is because there is no significant anomaly created by dealing with these changes on a
site-specific basis. Having noted the position of this site adjacent to the Hamilton
East shopping cen1Te and botmded by Victoria Bridge to the north and the river to the
west we acknowledge that the changes on this site me likely to have limited precedent
value.
[16]
Other changes, including to Objective 6.2.8, acknowledging a range of
activities in built form, including residential activity, mixed nse development, office
and retail activity, are agreed.
[17]
The question essentially is whether or not there is jurisdiction to include
retail and commercial places of assembly elements within the specific Activity
Tables, based on the submissions and appeal filed.
[18]
The parties seem to agree on the basic relevant case law principles, wbich
Ms Burkhardt expressed as follows:

(a) A party is not necessarily restricted in the matters it can raise on appeal by
the express words of a submission. 1
\ .,} (:eplzas Group Ltd v Tasman District Council [2013] NZEnvC 239 at [18]
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(b) Failing to specifically request relief is not fatal to a proposed amendment on

appeal?
(c) Consequential changes which logically arise from the grant of relief
requested in submissions are penoissible provided they are reasonably
foreseeable. 3
(d) Such changes can therefore extend to consequential rule changes following
agreed relief regarding policy changes, provided they are reasonably
foreseeable. 4
(e) The Comi has an implied jurisdiction to make consequential amendments to
rules following changes to objectives and policies on the principle that
regional and district plans have an internal hierarchical structure. 5
[19]
As far as general principles are concerned both parties agree that an unduly
fonnulistic approach when considering scope is not appropriate. The question is
whether it is fairly and reasonably raised in the submissions/appeal as to be
approached in a realistic, workable fashion rather than in the perspective of legal
nicety. 6
[20]
The starting point for consideration of this case is that both pmiies agree that
a submission seeking the outcomes now sought would be on the plan change. The
question is not whether it could be within scope, ie within the plan change, but rather
whether in this case the appellant has done so throngh the submission/further
submission/appeal process. As the Court noted in Federated Farmers & Ors v
Otorohanga District Council: 7
Review of the relevant subsequent case law shows that circumstances of
particular cases have led to the identification of two fundamental
principles:
(a) the Court cannot permit a planning instrument to be appreciably
amended without real opportunity for participation by those potentially
affected; and
(b) care must be exercised on appeal to ensure that the objectives of the
legislature in limiting appeal rights to those fairly raised by the appeal
are not subverted by an unduly narrow approach.
Ibid,
Ibid, at [74]
4
\ Ibid, at [20]-[21]
5
Clark Fortune McDonald & Associates v Queenstown Lakes District Council C089/02 at [17]
\, ,;"-,~oyal Forest and Bird Protection Society v Southland District Council [1997] NZRMA at 413
j :;~[;2014] NZEnvC 70, at [18]
3
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_.,./Hills Laboratories Limited v Hamilton City Council
[21]
I was referred to Westfield v Hamilton City Council: 8

[72]1 agree that the Environment Court cannot make changes to a plan
where the changes would fall outside the scope of the relevant reference
and cannot fit within the criteria specified in ss 292 and 293 of the Act (see
Apple Fields, Williams & Purvis and Vivid)
[73] On the other hand I think it is implicit in the legislation for the
jurisdiction to change a plan confirmed by a reference is not limited to the
express words of the reference. In my view it is sufficient if the changes
directed by the Environment Court can fairly be said to be foreseeable
consequences of any changes directly proposed in the reference.
[74] Ultimately it is a question of procedural fairness. Procedural fairness
extends to the public as well as to the submitter and the territorial
authority. Adequate notice must be given to those who seek to take an
active part in the hearing before the Environment Court if they know or
ought to foresee what the Environment Court may do as a result of the
reference. This is implicit in ss 292 and 293. The effect of those
provisions is to provide an opportunity for others to join the hearing if
proposed changes would not have been within the reasonable
contemplation of those who sought the scope of the original reference.
[22]
In Palmerston North City Council v Motor Machinists 9 Kos J's observes:

It would be a rernarl<able proposition that a plan change might so morph
that a person not directly affected at one state (so as not to have received
notification initially under clause 5(1 a)) might then find themselves directly
affected but speechless at a later stage by dint of the third party's
submission not directly notified would have been if it had been included in
the original instrument. It is that unfairness that militates the second limb
of the Clearwater test.
[23]
Like Judge Kirkpatrick,
I too am concerned at the extent to which criteria
from decisions as to whether a submission is on a plan change should be used as a

determinative test for whether an outcome agreed between the parties is within the
jurisdiction of the Court. Nevertheless, I acknowledge that there is a particular issue
for this Court to be satisfied that the outcome now proposed is one which was within
foreseeable contemplation of third parties at the various stages of the process.
The submission
[24]
It is common ground that the original submission did not address retail at alL
It sought a series of changes involving ofiices, apartments and the like. It did seek
amendments to the words:
in the policies and objectives to recognise the mixed use environment in
business zones.
~ ~/ /.~?-;> ~~~;:~-.,.:~~.: ~-
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:t ,
It talks, however, of the established mix and scale of office and healthcare services
and residential use. It is essentially the 490 Grey Limited submission that sought the
2
removal of floor area limitations for offices and retail tenancies up to 500m . This
submission was supported in pari and opposed in part by Hills. They agreed that Rule
6.3 should remove the floor area limitations for offices, ar1d provide for retail
tenancies up to 500m2 as a permitted activity; they opposed their inclusion witbin
Precinct 2 of the Central City zone or the Suburban Centre Core zone unless
appropriate provision was made for laboratory activities.
[25]
hnportar1tly, when it came to the appeal we can see no reflection of that
submission support in the appeal document itself. It does pursue a number of changes
of status of activities but does not mention retail at all witbin the status changes
sought. It is aclmowledged that fue notice of appeal sought mixed uses and low
intensity commercial activities in locations adjacent to nearby centres in the pmpose
parts witbin fue objectives it sought amendments to 6.2.6 which noted a range of
mixed uses and low intensity commercial activities in both the relevant objective and
policy. However, when it came to the activity status it sought no change of activity
status in respect of these retail activities.
We agree wifu Ms Burkhardt that Hills clearly signalled the intention that
[26]
they sought:
(a) to enable appropriate mixed use development in the Business 1 zone; and
(b) numerous changes to the pennitted activities rule to better enable those
activities in the Business 1 zone
[27]
However it is necessary to go back to the original 490 Grey Ltd submission,
which Hills supported, to find my support for the proposition that they supported
provision for retail up to 500m2 as a permitted activity. The question is, therefore,
whether or not this particular change is foreseeable from the appeal.
Evaluation
[28]
The matter is finely balanced.
On the one hand the omission of the
.. ... reference to retail in the appeal could be seen as constraining the matters raised in the
\>riginal
submission. It is clear that parties can constrain their appeal beyond the
.
.
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10
matters raised in their appeaL In other words an appeal can constrain the matters
raised in a submission, but it canuot extend it.
[29]
The Hamilton District Council submit that taking a broad approach the
change to the policy sought may give some support to the submission which sought
retail as a permitted activity up to 500m2 The parties are agreed that as a restricted
discretionary activity this would still be within the scope of the further submission. I
see this as a generous approach, given the question of retail is clearly a key aspect of
the distinction between the fringe zoning and the centre zoning.
In the end I have exercised the doubt in favour of :Hills on retail status from
[30]
2
150m to 399m2 for the following reasons:

(a) the change fits within the low intensity commercial activities sought in the
appeaL Although it goes beyond office space and now includes retail up
to 399m2 this would still be seen as low intensity in terms of the approach
of this district plan;
(b) more particularly, the constraint is site specific and is likely to have
limited application given that this site is peripheral to the centre. On this
basis there is unlikely to be any potential for further precedent arguments
in the future;
(c) the Council has agreed to the change and has confirmed to the Court, in
their submissions, that they consider that this matter is within the scope of
the submissions and appeal on a broad and generous basis;
(d) the area of retail sought (150m2 to 399m2 ) is Jess than the 500m2
supported in the further submission.
[31]
For these reasons I have concluded that the inclusion of retail between
2
150m and 399m2 is within the jurisdiction of this Court and can be approved.
Retail Activity 400m2 to 999m2
[32]
i
When I tum to the other aspects of retail, I have considerably more difficulty
:.~::!?;;,;>.\_in fitting this within the scope of any aspect of the appeaL
-.\
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11
[33]
There was no m:gument before me that retail up to 399m2 is low intensity,
and it appears that the Colmcil have taken the hierarchical position in respect of retail
depending on GFA, ie between 150m2 and 400m2 that between 400m2 and 999m2 etc.
[34]
Furthe1more, and in particular, the fmiher submissions supp01ied a
submission seeking permitted stal"us for up to 500m2 . There is no evidence that Hills
at m1y time sought alternative status for retail activity above that GFA, or that there
was any submission on the Plan to which they became a pmiy that sought such an
outcome.
[35]
Finally, there may be a range of building owners and/or retailers who would
see that the step up to retail premises of l ,000m2 on this site represented a: more
significant compromise to the I-Imnilton Centre, or other centres and their fringe
zones.
[3 6]
In pmiiculm I have concluded that an interested pmty would not be able to
asce1iain from the submissions that there was the potential for retail activities between
500m2 and 1,000m2 to occur on this site. The failure at the submission stage means
that the Court cmmot be certain that all pmiies who had an interest in that issue are
captured by the parties who were notified of the appeal. In particular there is nothing
in the notice of appeal that would have alerted parties to the fact that the status of
retail activities was sought to be changed (particularly over 500m2).
[3 7]
The Plan provisions talce a strong approach to containing retail activity
within the relevant business centres. I conclude the step-wise increase in retailing
opportnnity on this site is a: more direct challenge to the integrity of the Plan. There
appears to be an argument that the distinction between such activities being
inappropriate generally within the zone (as a non complying activity), and generally
appropriate within the zone, depending on the site specifics and facts of the case,
might become blurred. In this regard I acknowledge Ms Burkhardt's point that the
change is site specific. In a general sense this is correct, but all applications for
consent are certainly site specific as well. The difficulty such changes create for any
Plan is that they provide for an apparent fragmentation in one area, which might then
be argued as a basis for fragmentation in other areas.
<.\,- .
[3 8]
I discuss this particular issue in my recent decision of Yovich v Whangarei
. District Cozmcil, 10 where successive non complying applications had the potential to
10
[2015] NZEnvC 199.
12
compromise the viability of the central business district. Plan changes were then
sought to regularise the non complying activities and provide for a new intensification
of development in the consented areas. It appears to me that the Hamilton City Plan
has set its face strongly against such a course of action, which should lead to the
number of exceptions being relatively small. By comparison I conclude that retail
development up to 399m2 is unlikely to impact upon the existing adjacent centre, but
there is potential for larger scale retail development to begin to shift activity in a more
significant way.
Places o(Assembly
[39]
The first issue in relation to commercial places of assembly is that these are
not defmed in tenus of the Plm1, although places of assembly are defmed as:
Means land or buildings used principally for the public or private assembly
of persons for cultural, entertainment, recreation, leisure, education or
similar purposes. They include conference centres, seminar rooms,
gymnasiums, public halls, theatres and cinemas, display galleries and
museums.
[40]
The exclusion of cinemas and bowling alleys tends to indicate that these
would also be considered to be places of assembly. Col1ll1lercial activities on the

surface of water means any activity undertaken on the swface of water for
commercial gain. One assumes, therefore, that in relation to places of assembly this
means places of assembly used for col1ll1lercial gain.
Although it is difficult to
ascertain the exact intent of this provision (given its exclusion of cinemas and bowling
alleys) there is clearly a wide rmige of activities that might occur within that
definition, and which may have very different impacts upon the adjacent commercial
zone.
[41]
In practical terms, anything that may be said about the retail over 500m2
equally applies to this commercial places of assembly. It is acknowledged that there

was no suggestion of such an outcome being sought in the submission, further
submission or appeal. In any event these activities are currently non-complying
within the col1ll1lercial fringe, and the changes agreed produced for Hills shows it
would have restricted discretionary status on this site. I would consider that such
activity could have impacts greater than those for retail premises of 400m2 to 999m2
which is proposed to be discretionary activities. Nevertheless I acknowledge that
::c ,;L':..:'~',,/.::-,'\ conditions could deal with potential effects if the scope of col1ll1lercial places of
.......-- -"'''"'~'''. '<
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13
I also note that there is no scale of activity provision limiting it to area. It
[42]
might be many thousands of metres. A stallholders bazaar or paintball, would have

very different impacts in terms of patronage traffic and the like. Thus, they may
include medium or higher intensity activities.
[43]
In its decision on the PDP in Church of Jesus Christ of Latter Day Saints
Trust Board v Hamilton City Councilll the Court noted:
The Court is satisfied that the amendments sought are sufficiently
inferential to the extent that other submitters will have been aware that the
issue of ranking and the activity status of demolition relating to those
ran kings were in contention.
[44]
In this case I carmot conclude that there is any inference from the
submissions, or the appeal, that commercial places of assembly could be included as
part of a low intensity mixed activity zone. I agree with Hamilton City submissions
that the submissions and notice of appeal refer to the existing mixture of land uses
with its predominance of offices, health care facilities, and residential activities.
TI1ere is also the reference to low intensity commercial activities. I have concluded
that it is a long step - a step too far - to draw from that wording a reference to
commercial places of assembly. I note in particular that there is no GFA proposed in
relation to it, so it appears that a wide range of activity intensity might occur within
the ambit of the amended Rule 6.3.z.
Outcome
[4 5]
The Council has proposed a series of changes to the District Plan which are
annexed hereto as C. These include changes agreed with the exception of retail
between 499rif aud 999rif and commercial places of assembly. I would be minded to
confirm the provisions of the plan as annexed in C. However, the position of the
parties in submissions is that they wish to fmalise the matter once the decision of the
Court was available on this. I wish to give a brief opportunity for the parties to confer
and confirm whether or not the CoUit can make fmal orders for those provisions in C
to be incorporated within the Plan.
11
[2015] NZEnvC 166
14
Costs
[46]
Costs are reserved. The parties are to advise whether C can be confirmed,
and file with any application for costs. The Court does not consider that costs are
generally appropriate on plan appeal issues. In the event any application for costs is
made, the other party shall have 10 working days to respond, and a final reply 5
working days thereafter.
SIGNED at AUCKLAND this
c=~
----rf Smith )
t~vironmen Judge
'' ~
<.:~ .
day of
~e..Srv~
2016
/f
Figure 1: General location of Hills' site (extract of ZoningMap No 45A)
Figure 2: Specific location and legal description of Hills' sites (highlighted yellow)
Amllexmure lB
,,
Attachment C- Track Changes (scope to be determined)
PROPOSED
DISTRICT PlAN
a)
Business resources commonly group around a series of centres in Hamilton and

include activities such as retailing, offices, business and financial services,
manufacturing, warehousing and associated parking, storage and display areas.
These areas and the infrastructure that serves them are significant public and
private resources and influence the urban form and function of all parts of the
City.
b)
The grouping of business activities into centres provides an environment that will
draw in other business and facilities. This agglomeration results in productivity
gains arising from economies of scale and efficiencies of inter-connectedness.
c)
The focus of the business centres' hierarchy is to manage existing centres to

ensure they retain and enhance their function, vitality, viability and amenity as
focal points for a diverse range of activities needed by the community. Ongoing
public investment is a significant element in any centres-based strategy.
d)
A centre is a cohesive or integrated set (cluster) of diverse land-use (business)

activities, characterised by high pedestrian levels in a high-amenity public
environment and supported by efficient and accessible passenger transport,
infrastructure and services.
e)
A business centres' hierarchy has been developed that comprises five tiers. The
overall aim being to re-establish the primacy of the Hamilton Central City and
define its relationship with the sub-regional centres and suburban centres, in
particular, with each centre comprising one or more of the following Business
Zones.
i. . The Central City Zone (refer to Chapter 7: Central City Zone)
ii. Sub-regional centres being at The Base and Chartwell that generally comprise
some or all the following business zones:
Business 3 (sub-regional centre) Zone at The Base, the primary subregional centre
Business 3 {sub-regional centre) and Business 5 (suburban centre) Zone at

Chartwell, the secondary sub-regional centre
iii. Suburban centres distributed around the City's residential neighbourhoods
that comprise:
Business 5 (suburban centre) Zone
Business 1 (commercial fringe) Zone
iv. Neighbourhood centres serving local residential areas that comprise the
Business 6 (neighbourhood centre) Zone
_.,.-----,.... 0 E.l'L o--";.,,.,~:- _;. ___ ~_.i>
J'
'\
v. Localised commercial activity supporting major visitor facilities that comprise

the Business 2 {events facilities) Zone
'>'~0\
....,
!17',. :r~he approach taken in :his pian is necessary to ensure that inv~stment in
mfrastructure and serv1ces programmed and used most efficiently. The
1/j\/f;t:.'-\~\-: :~! j'
~~t~l\;
l:~~
~
/ ~rg :;,-~\!
1,., 1 f,l,c'ffi-!;ii;r;( \
iz H
~~ \
?;.....",,
~.--,\'+
~
<!~,~ r
IS
ol
" ;r ""
~-
~~
./~~"'
'<'"~;,"'-~- -~- 'VoJur:rie 1
"'--.,. C.';JI'._,~,,~= 'f'./.r'
-~
6 Business 1 to 6 Zones
Page 6-1

Proposed District Plan- Appeals Version, September 2014
Hamilton City Council
approach will also support the primacy of the Central City and manage the range
and scale of commercial development outside this area to ensure its function,
vitality, viability and amenity is enhanced.
g)
Zoning and rule provisions provide for a range of activities, scale and format for
managing the development of busine.ss centres, the principally retail role of the
sub-regional centres, the community, mixed use and pedestrian focus ofthe
suburban centres, the neighbourhood function of local facilities and the peak
visitor demands associated with visitor facilities.
h)
The rule provisions reflect six distinctive business environments, which operate
either individually or in combination with each other. In each Business Zone the
distribution of office and retail development, outside the Central City Zone, is.
controlled to ensure that adverse effects on the Central City are avoided. Rules
are more permissive in relation to community activities while residential activity
above ground floor as part of appropriate mixed use is encouraged in the
suburban centre.-a-R1 neighbourhood centres and commercial fringe zones. The
intention is to encourage the establishment of retail and office activities back to
the Central City. The retention, re-development and return of office activities to
the Central City is critically important to maintaining a sizeable day-time
population to support retail and other activities.
i)
The approach also aims to consolidate people-focused activities within cohesive

and integrated business centres, supported by larger-format vehicle based
activities in the fringes of these centres. This is reflected in the sub-regional
centres zoning and in particular atTe Rapa North, where a grouping of large
format activities has established within and on the edge of The Base retail centre.
j)
It is envisaged thatfuture large format retail growth will be accommodated within

existing centres and significant large format retail development beyond the
identified out of centre zones is not envisaged for the Plan period. Car.afiercial
fringe and l],arge format retail zoning provide!; for out-of-centre development
such as offices and/or of large format retail activities only in circumstances where
their scale/floor area may not be appropriate in centres within the business
hierarchy and it can be demonstrated that the primacy, function, vitality, viability
and amenity of the Central City, the function, vitality, viability and amenity of the
sub-regional centres and the function of lower order centres within the business
hierarchy are not" undermined. The CoFnffiercial fringe zening also provides fur a
range of CGFAFAuni'.y facilities such as hospitals, health care :entres, eaucatior~
tFaining centres tl1at Fnay not be appropriate fer, sr are unable ta locate in
centres.
k)
The Commercial Fringe zone orovides for a mix of uses and commercial activities
in locations that are adjacent to nearby centres. It is anticipated business activities
will compliment and support the centres they are adjacent to without
undermining the Primacy. function. vitality and amenity of the Central City. subregional centres or suburban centres.
/;;~;:-Q;:;J:l,__ln some limited locations commercial development has occurred outside defined
l",'""-:;.;::... " '-". ~S<;"\centres on large sites; Home Straight Park is one such example. It can be
/
~C' "'+" ,.,'J\ described as an integrated business park with a unique set of characteristics.
J f l;~ff1,;)~t!.d1;{:\ \ f\hese include being reliant on passing motor vehicle custom, shared access and
1 rn :, \>{/!?- k!':".:.-! .'Jf_:it~\f
~ r.:.:; 1
1
\~ \
~ ~:l
li.J.r.
,h:
\f:?-1/. \" '\'ih:.~.
J ~I
.., >!,"\
-+..,;;-..,,' - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
"'..c".;."
,.l:t!J
\?{:::;!;>--~ _,."Y,~~;~,f.Ple 1
'~~-
'. _, .:;:~ e: _;../'
Page 6-2

common parking on site, com man landscaping themes, and shared services
supporting mixed use developments that include offices, small and large format
retailing and commercial services.
im)
Hamilton East is also recognised as having a unique character, being an important

residential and employment area situated close to the Central City, readily
accessible from a walkable residential catchment, yet well served by public
transport. A greater commercial role for Hamilton East is envisaged as an
'overflow' or fringe commercial area to the Central City and as a stand alone
suburban centre. There are opportunities for sites on the frilige of the suburban
centre to be developed to accommodate a range of residential and commercial
activities.
mn) The adoption ofthe business centres hierarchy is consistent with the commercial
development framework promoted in the Regional Policy Statement. This
recognises the Hamilton Central City as the primary commercial, civic and social
centre in the region ahead of the sub-regi 0 nal centres of The Base and Chartwell.
See Figures 6.1a and 6.lb.
Page 6-3

Figure 6.1a: Chartwel\ Sub-regional Centre
Chartweli Sub-regionaiCentre
Page 6-4

Figure 6.1b: The Base Sub-regional Centre
legend
The Base Sub-regional Celitre
300
400
Page 6-5
PROPOSED
D~STIJUCT
PlAN
Sub-regional Centres
6.2.1
The Base and Chartwell function
as sub-regional centres for
business activities providing a
scale and diversity of retail
floorspace, entertainment
facilities and limited offices
while not undermining the
primacy, vitality, viability,
function and amenity of the
Central City.
6.2.1a
The further development of sub-regional centres,
the range and trading format of activities and
traffic management shall contribute to the
development of a cohesive and integrated centre,
commensurate with their role in serving an
extensive catchment, whilst avoiding adverse
effects on the functionality, vitality, viability and
amenity of the Central City.
6.2.1b
Development provides for a diverse range of
activities but remains predominantly retail and of
a scale that will sustain the centres and
complement but not undermine the primary role
of the Central City.
6.2.1c
The anticipated high levels oftrave/ demand is
proactively managed to optimise opportunities for
passenger transport, walking and cycling.
6.2.1d
Development maintains and enhances the
amenity values of the centre as a destination for
sub-regional visitors.
6.2.1e
The scale and nature of activities within subregional centres do not generate significant
adverse effects on neighbouring amenity values.
6.2.1f
Residential development is discouraged from
establishing in sub-regional centres.
~.. lc.-The.su!J-n~qi.~ncJicentres
provide for on integrated pattern of diverse activities which
"':r:nfM,,fi'f,,/1" include retail activities in a mix of mall and small scale speciality stores,
torrnat retail, limited offices, community services, entertainment facilities
accommodation with easy access to the strategic transport network.
as enabled on
Page 6-6

office development which has contributed to the underperformance of some elements

of the Central City with consequential effects on its function, amenity and vitality.
Therefore, when considering development outside the Central City, it is important to
consider the potential for that to result in adverse effects on the role of the Central
City. Individual or cumulative establishment of commercial development that may
jeopardise the function, vitality and amenity of the Central City should be avoided or
managed.
The Base sub-regional centre is significantly larger than the Chartwe/1 subcregional
centre, and with existing consents has greater potential to accommodate additional
business activities. Accordingly there is a distinction in rules that apply between the
two sub-regional areas.
Assessment criteria related to the establishment of offices, retail activities and
community facilities apply to further development of the two sub-regional centres.
Any further development at the two sub-regional centres needs to be carefully
managed to safeguard the transport ne-twork and ensure consistency with
neighbouring activities.
Suburban Centres
6.2.2
A distribution of suburban
centres that provide a mixed use
environment with health-care
services, goods, services and
employment at a scale
appropriate to suburban
catchments, while not
undermining the primacy,
function, vitality, amenity or
viability of the Central City.
6.2.2a
Suburban centres are to be retained, expanded,
and provided at a scale and nature appropriate to
the needs ofthe surrounding residential areas,
taking into account the need for any expansion to
avoid adverse affects on the functionality, vitality,
viability and amenity values of the Central City.
6.2.2b
Suburban centres provide an opportunity to
reduce the need for travel, by providing for mixed
uses, a diverse range of activities, services and
trading formats. Residential activities above
ground floor level shall be supported.
6-2-Zc
Suburban centres act as focal points for local
community developmentthrough the control of
size, scale, built form and diversity of activity.
6.2.2d
Expansion of existing suburban centres is
integrated with existing activities and transport
networks.
6.2.2e
A comprehensive, urban design-led approach is
used to determine the form of suburban centres
intended to serve new growth areas.
Page 6-7
Attachment C--Track Changes (scope to be determined)

6.2.2f
Recognise Hamilton East as a fringe employment

node to the Central City, but ensure potential
adverse effects on adjoining areas (including the
Central City) and the safety and efficiency of. the
transport network are avoided.
Ei.2.2g
Recognise that the expansion of healthcare

services and facilities maintain viable and
accessible medical services and hospital facilities
to the regional and city-wide community.
Suburban centres anchor the City's main residential areas and provide a range of
activities and services that can reduce reliance on car travel for meeting day-to-day
requirements. These centres provide multi-purpose destinations for customers. Parking
is provided onsite and these centres are generally well served by passenger transport.
Suburban centres vary in size and character between 10,000-20,000m 2 gross floor
area and generally serve between 10,000-30,000 people. Supermarkets commonly
anchor these centres and between 20-30 outlets, comprising a variety of smaller
specialist retailers, provide retail, limited office, community and other services to the
suburban population on an integrated basis. Often another large format retailer is
located in the centre. Service stations may also be a feature.
Opportunities exist for limited expansion and intensification to ensure the centres
continue to meet the needs of growing populations and provide a focal point for
communities. Residential activity above ground floor level in suburban centres
enhances mixed use outcomes.
Recognition has been made for the hospital facilities at Hamilton East
Carefully planned suburban centres will help to anchor and support residential and
community development.
Neighbourhood Centres
6.2.3
A distribution of locally based
centres that provide services
and health-care services
capable of meeting the day-today needs of their immediate
neighbourhoods.
6.2.3a
Activities within neighbourhood centres principally
serve their immediate neighbourhood.
6.2.3b
The scale and nature of activities within
neighbourhood centres shall not generate
significant adverse amenity effects on surrounding
residential areas and transport networks.
6.2.3c
Residential activities above ground floor
commercial uses are encouraged as part of mixed
use development.
Page 6-8

Neighbourhood cent'res provide a limited range of everyday goods and services and
essentially serve a walk-in population. Being situated within residential areas it is
essential that the range and scale of activities is compatible with neighbouring
residential activity and local amenity values. Very limited opportunities exist for
expansion of these centres. .
Neighbourhood centres are small inland area and shop sizes are between 100-300m 2
with the overall floorspace for a centre between 500-5,000m 2 The anchor store is
likely to be a superette.
Major Event Facilities
6.2.4
Significant City events
destinations are supported by
complementary commercial
activities.
6.2.4a
A limited range of commercial activities can
establish outside recognised business centres
where they shall directly relate to major events
facilities within the City.
6.2.4b
The range and scale of activity and built form flo
not undermine the role of any business centre and
are consistent with the amenity values of
neighbouring areas.
The provision of support activities in the immediate locality of significant events

destinations can enhance the attraction of such facilities and meet community needs
without adversely affecting the role of business centres. Such activities will assist in
meeting the demands of occasional peak visitor numbers but will require careful
management to ensure they will not undermine the amenity values of neighbouring
areas. Securing additional commercial development in a limited number of locations
aims to bring benefits to, and strengthen the attraction and viability of these stand
alane facilities.
Out-of-Centre Development -large Format Retail Zone
Large format trading activities may be permitted to

locate outside zoned business centres where it can
be demonstrated that:
"""---.hR.~1~e'l~imited zones provide for

Q.\Jt"or-ormtlre development
a range of moderate
i. Appropriately zoned land is not available within

the Central City, or sub-regional centres or
suburban centres; and
ii. There is consiste
assessment
Page 6-9

to low intensity commercial
uses (offices and/or large
format reteil activities and
community services) only in
circumstances where the
primacy, function, vitality,
viability and amenity of the
Central City, the function,
vitality, viability and amenity of
the sub-regional centres and
the function of the lower order
centres in the business
hierarchy are not undermined.
criteria to avoid potential adverse effects on the

primacy, function, vitality, viability and amenity
of the sub-regional" centres and the function of
the lowerDrder centres; and
iii. The proposal does not add to the continued loss
of developable industrial land to retail uses.
6.2.5b
Development ensures potential adverse effects on
adjacent residential areas are avoided, remedied
or mitigated and the safety and efficiency of the
transport network is maintained.
It is envisaged that future large format retail growth will be accommodated within
existing centres for the life of the Plan, h a wever, it is acknowledged that not all
business activities are able to locate within the defined zoned boundaries of the
centres that comprise the business hierarchy and that there are often physical,
historical and commercial relationships and trading patterns that need to be
recognised. The Plan provides for these circumstances provided there are no suitable
alternatives within the centres and the business hierarchy will not be undermined.
The extent to which the new large format trading activities replicate and challenge the
junctions as to result in adverse effects that are more than minor on the existing
services and facilities and amenity of neighbouring business centres must be carefully
considered through the provision of a Centres Assessment Report (refer to 1.2.2.19}.
Out-of-Centre Development- Commercial Fringe Zone
6.2.6
Provide for a range of business
activities that support and
compliment the Central City,
Sub-Regional and Suburban
Centres.
6.Z.6a
Business activities may be permitted to locate in
the commercial fringe zone where it can be
demonstrated that: large ferrnat trading activities
fl)ay be permitted to locate s!ltside zeAed business
Befltres where it can be eeffionstrated that:
SigAificant large fermat retail

developrnen': seyend the aut of
centre zancs iaentified is net
envisages fer tF!a Plan per: ea.
These lirniteEI zenes jlrevide fer
mlt sf sentre davelopffieAt
sernprising a range offfioEicrate
i. Appro.priate_ly :oned land is not available within

suburban centres; and
ii. There is consistency with the assessment.
of the central Citv, Sub-Regional Centres and
suburban centres and the function of the lower
order eentres; and
iii. The role and function of lower order centres are
not undermined.
Page 6-10

primacy, funetion, vitality,

viability anel amenity eft~e
i!i. Ticle preposa! E!ees not add to the contiAHeEl less

sf develsflab!e :ne!lstriallana to retail Hses.
-Gentra! City, tAe functioR,

vitalitt, viabilit~ and amenity ef
the sH!3 regiDfd centres and
the ?..:nction of tAo !o.ver ere1ef
eentres in tAo b!lsiness
hicrarctly arc net !lP.dermiRed.
6.2.6b
or mitigated~ and tAo safety anel efficiency eftf.le
traP.sport network is maintaiRed.
The safety and efficiency of the transport network.

is not adversely affected.
It is acknowledged that not all business activities are able to locate within the defined
zoned boundaries of the centres that comprise the business hierarchy and that there
are often physical, historical and commercial relationships and trading patterns that
need to be recognised. The Plan provides for these circumstances, provided there are
no suitable alternatives within the existing centres and the business hierarchy will not
be undermined.
The extent to which me new business ferae format tn:ui!.sg activities replicate and
challenge the junctions o[the business hierarchy as to resultin adverse effects that
ore more than minor on the existing services<-5P.fi facilities and amenity of
neighbouring business centres must be carefully considered through the provision oja
Centre Assessment Report (refer to 1.2.2.19}.
6.2.7
Provide for a range of
community facilities, residential
and business activities that may
not be appropriate.for, or are
not able to locate in centres in
the business hierarchy.
6.2.7a
Enable a range of commllAity activities such as
hospitals, research and innovation, health care
centres, education and training centres to establish
outside recognised business centres that are:
i. difficult to accommodate within centres due to

their scale and functional requirements; and
ii. more appropriately located outside of the
Central City, sub-regional and suburban centre
zones.
6.2.7b
Residential activity is encouraged in locations
adjacent to centres where it can be shown to
suoport established and future business activity
I whHst providing a high amenity living environment.
PNo~d small sca!e retail activities locating vithin
tile zane eJ<eept fer rcsta!lFants, cafes aneJ licensed
premises.
Page 6-11
Attachment
c- Track Changes (scope to be determined)

Seib~Ges
activities that may not be appropriate for, or are unable to locate in centres.
This includes activities ranging from light industrial, research and innovation activities,
hospitals, health care services, education and training centres which whilst preferred
in centres is recognised that this is not always possible due to scale and functional
requirements. These activities are considered non-threatening to the function,
primacy, vitality, viability and amenity of existing centres within the business hierarchy
and so can reasonably be expected to locate in close proximity to existing centres in a
fringe location. Retail and office activitv mav be allowed to establish where it is
supportive of and complementary to the Central Citv, sub:regional centres and
adjacent centres. These activities must be considered through the provision of a Centre
Assessment Report (refer to 1.2.2.19} to ensure that thev do not replicate and
challenge the functions of the business hierarchy as to result in adverse effects that
are more than minor on the primacv. function. vitality, viability and amenity of the
Central City, sub-regional centres and adjacent centres.
Residential activity is encouraaed as part of comprehensive mixed use development
where any adverse effects of reverse sensitivitY are able to be aoprooriate/y
managed.i!i-Ae!ieFJvisageEf El!ie te the prlmaryfews DR ::uburbe.~ an1Re.'gl1beurhdo1
centres fer epertmeat l!1!ng, presence qf'f.qd;Jstrie.' aeth'it!es \i1tMn this zone aa1 tlw
RaCE/ te ;>reserve lfmE/frx O!it cent."'! $111RiCtfiG/ opportunities.
ej
6.2.8
6.2.82
The built form sha II:

Enable sites adjacent to the
Hamilton East Suburban Centre
i} Have regard to the character and scale of
to be redeveloped for a range of
the Hamilton East Suburban Centre and
activities that complement and
surrounding
area.
support the established cehtre.
iil Respond to the setting. context and
opportunities of the site and adjoining
areas of open space.
iii) Respond to and maintain the amenity of
the Waikato River. adjoining open space
and surrounding urban area.
ivl Provide aualitv urban design that resoonds
to the form. scale and heritage of the
Hamilton East Suburban Centre and the
Waikato River.
6.2.8b
Residential activity is encouraged in locations

adjacent to the Hamilton East Suburban Centre
where it can be shown to support established and
future business activity whilst oroviding a high
amenitv living environment.
6.2.8c
Mixed use development shall provide a range of

uses that complement. and are suoportive of. the
Page 6-12
Attachment C- Track Changes [scope to be determined)

managed to ensure high levels of amenity for any

residential activity and avoid any reverse sensitivity
issues.
6.2.8d
Office and retail activitv shall provide a range of
tenancy sizes that are supportive of. and
complementary to, the Hamilton East Suburban
Centre and Central Citv.
The unique characteristics affarqe Business 1 zoned sites adjacent to the Hamilton
East Suburban Centre provide an ooportunity for high qualitv development of a range
of uses. Development of this nature has the potential to support the economic,
cultural, social and environmental sustainability of the Hamilton East area.
It is envisaged that any high qualitv development will be well integrated inta the
Hamilton East Suburban Centre by being of appropriate scale and including activities
that reflect the strategic position adiacent to the established Suburban Centre. These
activities should onlv be allowed to establish where any adverse effects on the
function. primacv. vita/it~ viabifitv and amenitv of the Central City and established
centres within the business hierarchy are proven to be no more than minor.
Page 6-13

a)
New buildings,
alterations and
additions*
b)
Minor works
c)
Accessory buildings
d)
Demolition, removal,
maintenance or repair of
existing buildings (except
heritage buildings
scheduled in Volume 2,
Appendix 8, Schedule 8A:
Built Heritage)
e)
f)
RD
RD
RD
RD
RD
RD
RD
RD
RD
RD
RD
RD
Demolition or removal of
existing buildings on Lot
129.DPS 930
NC
Industrial activity
i.
excluding light or
service industry
NC
NC
NC
NC
NC
NC
NC
NC
NC
RD
NC
ii. noxious or offensive
activities
g)
Light industry
h)
Service industry
i)
Transport depot
RD
NC
NC
j)
Emergency service
facility*
RD
RD
RD
RD
NC
NC
NC
NC
NC
Page 6-14

I)
Ancillary office
RD
NC
NC
NC
NC
NC
NC
NC
--
--
--
m) Office*
i.
<250m GFA per site

2
ii. 250m - 500m GFA

per site
2
iii. >500m GFA per site

whereby site excludes
Unit Titles and Cross
Leases in i- iii above
n)
Offices
i.
up to 11,350m GFA
on The Base site
shown on Figure 6.1b
ii. >11,350m GFA on

The Base site shown
on Figure 6.1b
. o)
NC
Offices on lot 1 DPS

86312, lot 1 DPS 1751
and Pt lot 8 DP1233
2
L <250m oer existing

title
2
ii. 250m - 500m per

existing title
2
iii. >500m per existing

title
.E
--
RD
--
Q.
--
---
--
where an existing title

was held as at the date
of plan notification (10
December 2012)
Page 6-15

p)
Ancillary retail
q)
Retail*
i.
<150m GFA
RD
RD
--
RD
per tenancy
2
ii. 150m - 399m GFA

per tenancy
Excegt for Lot 1 DPS
86312, lot 1 DPS
1751 and Pt Lot 8
DP1233
2
iii. 400m - 999m GFA
RD
NC
--
--
NC
NC
per tenancy
Except for Hamilton
East
NC
Exceot for lot 1 DPS

86312, lot 1 DPS
1751 and Pt lot 8
DP1233
Except for Hamilton

East
r)
-RD
NC
iv. >1,000m GFA per

tenancy
--
NC
Total retail floorspace in

categories o) top) and t)
to v)
i.
up to 103,700m GFA
on The Base site
shown on Fig 6.1b
ii. >103,700m GFA on

RD
The Base site shown

on Fig 6.1b
s)
Any retail floorspace

described in o) top) and
t) to v) comprised in
less than
RD
Page 6-16
'

t)
Banks
2
NC
NC
NC
ii. >400m GFA
NC
NC
v)
Supermarket*
w)
NC
NC
NC
NC
NC
NC
NC
RD
NC
RD
RD
RD
NC
Building Improvement
Centres
NC
NC
NC
x)
Wholesale retail and

trade supplies
NC
NC
NC
NC
NC
y)
Restaurants, cafes and

licensed premises
p
NC
p
p
NC
NC
NC
NC
NC
NC
RD
RD
RD
RD
RD
NC
RD
NC
RD
NC
NC
i.
<200m GFA
ii. >200m GFA

u)
Yard-based retail
i.
<400m GFA
2
i.
<200m GFA
2
ii. >200m GFA
z)
Commercial places of
assembly
i.
excluding cinemas
and bowling alleys
Except for lot 1 DPS
86312. lot 1 DPS
1751 and Pt lot 8
DP1233
ii. cinemas and-bowling

alleys only
aa) Drive-through services
i.
excluding automotive
fuel retailing
ii. automotive fuel

retailing only
bb) Parking lots and parking
buildings
,~ :=~t\~~~5~-~
I /,. v.\/
. ....... ..,.,,,
;1:
.,~t:~;
r.;\
Except for sites in
0
~\ f~~~!~(('~!l ''1--H_a_m_il_to_n_E_a_s_t~----'-----'-----'-------'------'------'----__J
"'1 ,,
... ~:..
'
(~I::~~ .. ~~c7:,..,.---~~-~--~6-B~u-s~in~e-s~s~l~t~o~6-Z~o-n~e-s----~~----Pa-g-e~6~--17~

cc) Passenger transport

facility
NC
NC
NC
RD
NC
RD
RD
dd) Health-care services

i.
above ground floor

2
ii. <250m GFA

2
iii. 250m -1,000m
GFA at ground floor

2
iv. > 1,000m GFA at

ground floor
ee) Health-care services and
hospital including
Whanau Ora
i.
up to 10,750m GFA
on The Base site
shown on Fig 6.1b
ii. > 10,750m GFA on

The Base site shown
on Fig 6.1b
ff)
Chi/dcare facility
gg) Community centres
NC
RD
RD
hh) Tertiary education and

specialised training
facilities
i.
above ground floor

2
ii. <250m GFA

iii. 250m
1,000m GFA
2
iv. >1,000m GFA
./ ~:.-~0~-~'~()7:;>
'(fy,"' '~ .,
! f?!J, :,;~:r;;lft \
,t'-:, '<'-\,<'
.'
''"' ~ v,,-,,
p
p
NC
RD
p
p
D
D
p
p
p
p
RD
NC
RD
NC
NC
NC
ii)
Public art
jj)
Hospital
NC
NC
NC
NC
NC
} (,'- ' \
~-
'~~ -~ ~ffll;,;:~f"~'1),'i:j. ) ~)
:
.
,
.
,_;;~}
. . ...
~:~i>
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~
Page 6-18
'

kk) Ancillary residential
RD
RD
RD
RD
RD
RD
NC
NC
NC
NC
NC
at ground floor
NC
NC
NC
NC
NC
NC
ii. above ground floor
N-GRD
NC
NC
NC
RD
RD
NC
units*
II) Single dwellings and
duplex dwellings
mm)
i.
Apartments*
nn) AQartments on Lot 1 DPS

86312, Lot 1 DPS 1751
and Pt Lot 8 DP1233
.E.
oo) Residential centres
RD
RD
RD
pp) Visitor accommodation*

qq) Subdivision
Refer to Chapter 23: Subdivision and Chapter 24:

Financial Contributions
Note
1. For any activity not identified above, see Section 1.1.8.1.

2. Refer to Chapter 1.1.9 for activities marked with an asterisk(*)
Page 6-19

Figure 6.3: Lot 1 DPS 86312, lot 1 DPS 1751 and Pt Lot 8 DP1233
20.
40
Meters
80
120
Page 6-20

6.4.1
MaJdmum Building Height
Business 3, 4 {where adjoining Industria I

Zone)
20m
b) Business 1, 2, 4, 5
15m
c) Business 6
10m
d) Elements such as flues, flagpoles, open balustrades and aerials shall be exempt from
6.4.1{a), {b) and {c) above
6.4.2
Height in Relation to Boundary

a)
Where any boundary adjoins a Residential or Special Character Zone, no part of any
building shall penetrate a height control plane rising at an angle of45 degrees
beginning at an elevation of3m above the boundary.
b)
Elements such as flues, flagpoles, open balustrades and aerials shall be exempt from
6.4.2{a) above.
Figure 6.4c: Height control plane for boundaries adjoining any residential or special character
zone
.15m height
Residential or Special
l:h;:~racterzone
-45'
. /
.v.:>"'~
arnetre:.atbcundary
.
s
:PropertyBoundary
-------------7:------------+~--S-m-,,-;,-ao-,-1,--~
'
~-12m setback:--------------c>,
Attachment c- Track Changes (scope to be determined)

6.4.3
Building Setbacks
b) Business 1, 2, 5
Sm where the boundary adjoins a

Residential or Special Character Zone
c)
Sm (except for any internal site boundary

within the Business 4 Zone)
Business 4
1.5m where the boundary adjoins a

d) Business 6
6.4.4
Building Intensity
a)
The following maximum building intensities (floor area ratios) shall apply.
i.
Business Zones 1, 3, 5
2::1
iL
Business Zones 2, 4, 6
'1::1
b)
In determining the floor-area ratio:

i.
Floor space used for parking within Business Zones 3 and 5 shall be excluded when
it does not increase the maximum permitted floor area by more than 50%.
ii. Underground parking is fully excluded.
6.4.5
Service Areas
a)
Any building shall provide service areas as follows.

i. At least one service area of not less than 10m 2 or 1% of the gross floor area ofthe
building, whichever is the greater.
ii. Any additional service areas shall not:
2
Be less than 5m
Have a minimum dimension of less than 2.5m
Page 6-22

v. Any service area shall not encroach on to areas required by this District Plan for
other purposes (e.g. parking, loading, landscaping and screening).
6 ..t,.6
Outdoor Storage
a)
Any outdoor storage area used for the storage of goods or materials shall:
i. Be laid out and used in a manner that does not conflict with vehicle access.
ii. Be maintained with an all-weather, dust-free surface.
iii. Be located away from public view or otherwise screened by fencing and
landscaping.
iv. Not encroach on areas required by this District Plan for other purposes (e.g.
parking, loading, landscaping and screening).
6.4.7
Residential Development
a)
Only one ancillary residential unit is allowed per site.
b)
Except for providing an entrance or when located on Lot 1 DPS 86312, Lot 1 DPS 1751
or Pt Lot 8 DP 1233, no residential activities shall be undertaken at ground-floor level.
c)
The following standards shall apply to residential units, including apartments above
ground floor, residential centres and ancillary re_sidential units. Unless specifically
noted, they do not apply to visitor accommodation.
d)
Density
i.
Minimum densities within the Business Zones shall be 30 residential units per
hectare based on net site area.
ii. Where mixed-use is provided for within a development (e.g. office or retail with
residential above), the density requirements of Rule 6.4.9 (d) shall be applied on a
pro rata basis relative to the percentage of development that is residential (e.g.
where a development is made up of40% residential activities, a density
requirement of 40% of 30 residential units/ha (30 dwellings/ha x4D%) shall be
required).
e)
Outdoor Living Areas

i. . Each residential unit shall be provided with an outdoor living area that is:
o
For the exclusive use of each residential unit.
Readily accessible from a living area inside the residential unit.
Free of driveways, manoeuvring areas, parking spaces, accessory buildings and

service areas.
Located on a side of the residential unit which faces north of east or west (refer
Figure 6.4d).

Figure 6.4d: Outdoor living area- north of east or west
r~-~-~-~---~-~-~~-~~-~~N~-~~----~-~~--~-[
.~-~:~:~~
wP
-1
.
Parl1"g
!
;
.i
''
--~~-------;
ii. Outdoor living areas for residential units shall have areas and dimensions as
follows.
Ancillary residential units
12m
Apartments above
ground-floor level
12
All other residential units

1
No dimension less than

2.5m
40m 2

2.5m
Capable of containing a Sm
diameter circle
The outdoor living area for an ancillary residential unit shall be separate from the outdoor living area
provided for the principal residential unit.
Note
1. Any communal open space is optional and is additional to the above provisions.
f)
Storage Areas
Each residential unit shall be provided with a service area:
Located at or below ground-floor level, readily accessible to that residential unit,
secure and weatherproof.
A minimum of 1.8m long by ~m high by 1m deep.
,/;:~: ~::~;,,, .
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Page 6-24

g)
Residential Unit Size

i. The minimum gross floor area required in respect of each residential unit shall be:
Studio unit
Minimum 40m
1 !Jedroom unit
Minimum 45m
2 bedroom unit
Minimum 70m
3 or more bedroom unit
Minimum 90m
2
2
2
ii. In any one apartment building containing in excess of 20 residential units, the
combined number of one-bedroom units and studio units shall not exceed 50% of
the tqtalnumber of residential units within the building.
h)
Daylight Standards
Residential units shall be designed to achieve the following minimum daylight
standards.
i.
Living rooms and living/dining areas: a total clear-glazed area of exterior wall no
less than 20% ofthe floor area ofthat space.
ii. Bedrooms: a minimum.of one bedroom with a total clear-glazed area of exterior
wall no less than 20% of the floor area of that space.
iii. No more than one bedroom in an apartment may rely on natural light borrowed
from another naturally lit room provided:
The maximum distance of the bedroom from the natural light source window
shall be 6m.
The minimum total clear-glazed area of the light source shall be no less than
20% of the floor area of that bedroom.
i)
External Outlook Area

Each residential unit shall have an external outlook area that:
i.
Is provided from each face of the building containing windows to habitable rooms.
Where windows to a habitable room are. provided from two or more faces of a
building, outlook areas shall be provided from the face with the greatest window
area.
ii. Has a minimum depth of 6m, perpendicular from the window.
Active Frontages
6.4.8
a)
No roller doors, or similar, which may obscure windows or entranceways may be

installed on the front of any building fronting a public space within Business Zone 5
(Suburban Centre) and Business Zone 6 (Neighbourhood Centre) .
..~.)Y,_,ote
_.
~t,..:'..: :J:.f:>P.er the purpose of clarification, security grilles which allow views between the street and premises
/""--~~v ~::
,-..~fc<i>~ acceptable means of compliance with this standard.

~~-'!i <tc. ;\ \
~--(. -~~~,~r:~::~;~ ).~!

\:~~:~:>.
""-....
.,_,-c:i'cr~~-~~--------~---------------~
.:~ :~gJ~fe1
. ..
Page 6-25

6.4.9
Provisions in Other Chapters

The provisions of the following chapters apply to activities within this chapter where
relevant.
Chapter 2: Strategic Framework
Chapter 3: Structure Plans
Chapter 19: Historic Heritage
Chapter 20: Natural Environments
Chapter 21: Waikato River Corridor and Gullies
Chapter 22: Natural Hazards
Chapter 23: Subdivision
Chapter 24: Financial Contributions
Chapter 25: City-wide
o
o
o
o
o
o
o
o
o
6.5.1
Rototuna Western Neighbourhood Centre

There shall be:
6.5.2
a)
A maximum individual gross floor area of 250m 2 for each office activity.
b)
A maximum individual gross floor area of 250m 2 for each education and training
facility.
c)
A front building setback of 10m maximum when fronting an arterial transport corridor.
d)
No service areas within the front building setback or forward of the front building line.
e)
A maximum of 50% of the ground floor wall of any activity facing the road/transport
corridor or public space shall consist of clear glazing and be capable of displaying goods
and services.
Rotokauri Suburban Centre Primary Frontage Interface

For buildings within the primary frontage as defined in Volume 2, Appendix 2, Figure 213 Rotokauri Suburban Centre Concept Plan:
a)
i.
Buildings shall include a minimum of two storeys of usable floor space.
ii. The width of any ground floor tenancy shall not exceed a maximum of 1.5 times the
height of the building above that tenancy. For the purposes of this standard,
tenancy is defined as 'the gross floor area occupied by way of exclusive use by a
tenant and includes both freehold and leasehold areas'.
iii. A minimum of75% of the ground floor wall facing the main shopping street, as
defined in the Rotokauri Suburban Centre Concept Plan set out in Volume 2,
Appendix 2, Figure 2-13, shall be of clear glass and capable of being used for
displaying goods and >ervices to passing pedestrians.
/'({i~\-"'~:;t::~--"
/;;:~"r::>. ~<':''' ~ A continuous veranda!; not less than 2.5m deep shall be provided which extends
/ j'ff'."' .t..J:'x ,f'' \ \along the full street frontage, except that no veranda!; over a footpath may
{ , i."~:\".\;i-"~<.0. \ \encroach to within 600mm from the kerb.
m .! \r(l\'\.:::~:::.:~,.- ,. :: 1~ t
lf't \ J.d, .'\'b). /T~he shall be no vehicle access or parking within the primary frontage area.
\~~$~~~~.>
' .}~::/
'
v~ume 1
Page 6-26

~~!iittJrktetdl IDJil!li:lretiilllllilJil"Y Adivilttil~!ii: M~tttJr!ii illlif IDJii!ii:Jr\tiilllllil
O'lllllltdl A!iiS!ii!iiMIIilt (wittll"Ul

a)
In determining any application for resource consent for a restricted discretionary

activity, Council shall have regard to the matters referenced below, to which Council
has restricted the exercise of its discretion. Assessment Criteria within Volume 2,
Appendix 1.3 provide for assessment of applications as will any relevant objectives and
policies. In addition, when considering any Restricted Discretionary Activity located
within the Natural Open Space Zone, Waikato Riverbank and Gully Hazard Area, or
Significant Natural Area, Council will also restrict its discretion to Waikato River
Corridor or Gully System Matters (see the objectives and policies of Chapter 21:
Waikato River Corridor and Gully Systems).
i.
New buildings, alterations and

additions to buildings, and accessory
buildings*
B- Design and Layout
ii.
Ancillary residential units*
C- Character and Amenity
F- Hazards and Safety
H- Function, Vitality and Amenity of
iii.
iv.
v.
Light industry and transport depots

(goods)
Emergency service facility*
Retail activities*
Centres
Offices*
H- Function, Vitality'and Amenity of

Centres
Health-care services
Supermarkets*
vii. Drive-through services
viii. Community centres~ tertiary
educa_tion and specialised training
facilities
ix.
Apartments and visitor
accommodation*
x.
,-;;v.,-....C~~~~~-;:.--~~:~::-;~~"
/
">.
/~
~-
....
(f\!i" ''"'f'.'1 /!:!
L',---------------'---------~------'
~:~\'~_1.;.!_,1: <;~ ~"' ,~-~f_:_______________________________

---- C.:-Volume 1
Page 6-27
(,
: '; .. f

-
xii. Supermarkets (Business 1 and 4- out

of centre zones)
xii!. Research and Innovation activities

centres
Note
1. Refer to Chapter1.1.9 for activities marked with an asterisk(*)
Refer to Chapter 1: Plan Overview for guidance on the following.

o
o
o
o
o
How to Use this District Plan

Explanation of Activity Status
Activity Status Defaults
Notification I Non-notification Rules
Rules Having Early or Delayed Effect
Refer to Volume 2, Appendix 1: District Pian Administration for the following.

Definitions and Terms Used in the District Plan
Information Requirements
Controlled Activities- Matters of Control
Restricted Discretionary, Discretionary and Non-Complying Activities Assessment Criteria
Design Guides
Other Methods of Implementation
Amumexmure C
Attachment A- Track Changes (provisions in scope)
J'ROPOSED
D~STIIUCT
PLAN
a)
Business resources commonly group around a series of centres in Hamilton and

include activities such as retailing, offices, business and financial sell!ices,
manufacturing, warehousing and associated parking, storage and display areas.
These areas and the infrastructure that seM~s them are significant public and
private resources and influence the urban form and function of all parts of the
City.
b)
The grouping of business activities into centres provides an environmen_t that will
draw in other business and facilities. This agglomeration results in productivity
gains arising from economies of scale and efficiencies of inter-connectedness.
c)
The focus of the business centres' hierarchy is to n\anage e)(isting centres to

ensure they retain and enhance theirfunction, vitality, viability and amenity as
focal points for a diverse range of activities needed by the community. Ongoing
public investment is a significant element in any centres-based strategy.
d)
A centre is a cohesive or integrated set (cluster) of diverse land-use (business)
activities, characterised by high pedestrian levels in a high-amenity public

environment and supported by efficient and accessible passenger transport,
infrastructure and sell!ices.
A business centres' hierarchy has been developed that comprises five tiers. The
overall aim being to re-establish the primacy of the Hamilton Central City and
define its relationship with the sub-regional centres and suburban centres, in
particular, with each centre comprisi.ng cine or more of the following Business
Zones.
e)
i. The Central City Zone (refer to Chapter 7: Central City Zone)

iL Sub-regional centres being at The Base and Chartweil that generally comprise
some or all the following business zones:
e
Business 3 (sub-regional centre) Zone at The Base, the primary subregional centre
Business 3 (sub-regional centre) and Business 5 (suburban centre) Zone at

Chartwell, the secondary sub-regional centre
iii. Suburban centres .distributed around the City's residential neighbourhoods

that comprise:
Business 5 (suburban centre ) Zone
Business 1 (commercial fringe) Zone
iv. Neighbourhood centres serving local residential areas that comprise the
Business 6 (neighbourhood centre) Zone
_o.-
v. Localised commercial activit\{ supporting major visitor facilities that comprise

the Business 2 {events facilities) Zone
/iJl'!S1~;uJ~ \ t1 \
The approach taken in this plan is necessary to ensure that investment-in

infrastructure and services is programmed and used most efficiently. The
'.~,~~:~~)~::~;>
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Page 6-1
Attachment A- Trade Changes (provisions in scope)

approach will also support the primacy of the Central City and manage the range
and scale of commercial development outside this area to ensure its function,
vitality, viability and amenity is enhanced.
g)
Zoning and rule provisions provide for a range of activities, scale and format for
managing the development of business centres, the principally retail role of the
sub-regional centres, the community, mixed use and pedestrian focus of the
suburban centres, the neighbourhood function of local facilities and the peak
visitor demands associated with visitor facilities.
h)
The rule provisions reflect six distinctive business environments, which operate
either individually or in combination with each other. In each Business Zone the
distribution of office and retail development, outside the Central City Zone, is
. controlled to ensure that adverse effects on the Central City are avoided. Rules
are more permissive in relation to community activities while residential activity
above ground floor as part of appropriate mixed use is encouraged in the
suburban centre.-a-aG neighbourhood centres and commercial fringe zones. The
intention is to encourage the establishment of retail and office activities back to
the Central City. The retention, re-development and return of office activities to
the Central City is critically important to maintaining a sizeable day-time
population to support retail and other activities.
i)
The approach also aims to consolidate people-focused activities within cohesive

and integrated business centres, supported by larger-format vehicle based
activities in the fringes of these centres. This is reflected in the sub-regional
centres zoning and in particular at Te Rapa North, where a grouping of large
format activities has established within and on the edge of The Base retail centre.
j)
It is envisaged that future large format retail growth will be accommodated within
existing centres and significant large format re.tail development beyond the
identified out of centre zones is not envisaged for the Plan period. Cam mercia!
friAge aRe! IJ,ilrge format retail zoning provide_ for out-of-centre development
sasH as effiees aRel/er of large format retail activities only in circumstances where
their scale/floor area may not be appropriate in centres within the business
hierarchy and it can be demonstrated thatthe primacy, function, vitality, viability
and amenity of the Central City, the function, vitality, viability and amenity of the
sub-regional centres and the function of lower order centres within the business
hierarchy are not undermined. The Cemmereial friRge zoning a !sa f!I'G'>'ides fer a
FaRge sf commaAit'{ facilities saeil as llasj>itals, health sare seR'I:res, ea~catieR aRd
tFaiAiRg eefltres that may not I:Je af>~rnpriate fer, sr are \lRala!e to locate iR
cestrcs.
k)
The Commercial Fringe zone provides for a mix of uses and commercial activities
in locations that are adiacent to nearby centres. It is anticipated business activities
will compliment and support the cemres they are adjacent to without
undermining the prlmaw, functiat1, vita!ltv and amenity ofthe Central City, subregional centres or suburban centres
.!L.......)n some limited locations commercial development has occurred outside defined
centres on large sites; Home Straight Park is one such example. It can be
described as an integrated business park with a unique set of characteristics.
These include being reliant on passing motor vehicle cu.stom, shared access and
Volume 1
Page 6-2
'

common parking on site, common landscaping themes, and shared services

supporting mixed use developments that include offices, small and large format
retailing and commercial services.
1m)
Hamilton East is also recognised as having a unique character, being an important

residential and employment area situated close to the Central City, readily
accessible from a walkable residential catchment, yet well served by public
transport. A greater commercial role for Hamilton East is envisaged as an
'overflow' or fringe commercial area to the Central City and as a stand alone
suburban centre. There are mpportunities for sites on the fringe ofthe suburban
centre to be developed to accommodate a range of residential and commercial
activities.
mill
The adoption ofthe business centres hierarchy is consistent with the commercial
development framework promoted in the Regional Policy Statement. This
recognises the Hamilton Central City as the primary commercial, civic and social
centre in the region ahe~d of the sub-regional centres ofThe Base and Chartwell.
See Figures 6.1a and 6.1b.
Page 6-3

Figure 6.1a: Chartwell Sub-regional Centre
Chartwell Sub~reglonal Centre'
.120
160 .
/;;-:;_;~:~~~:;-~>
/~.;;;.::~
M~
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......... '
I"- "'
'-..
~ ~ (~~S~%~\f{\ .~ i
(1,f\.
. .
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~'c.c~,./_.--,-----~-------------------------
<./
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-
Page 6-4

Figure 6.1b: The Base Sub-regional Centre
Legend
The Base sub-regional Centre
@I
so. .100
PROPOSED
D~STR~CT
PLAN
Sub-regional Centres
The Base and Chartwell function The further development of sub-regional centres,
as sub-regional centres for
; the range and tradi~gformat of activities and
traffic management shall contribute to the
business activities providing a
development of a cohesive and integrated centre,
scale and' diversity of retail
floorspace, entertainment
commensurate with their r0 1e. in serving an
facilities and limited offices
1 extensive catchment, whilst avoiding adverse
. while not undermining the
J effects on the functionality, vitality, viability and
; primacy, vitality, viability,
L.:~e-~ityoftheCentral City... ~- ----~
i function and amenity ofthe
16.2.1b
1 Central City.
j Development provides for a diverse range of
I
activities but remains predominantly retail and of
a scale that will sustain the centres and
complement but not undermine the primary role
1
!
of
the Central Crty.
i
I
I
1-------- ......
6.2.1c
'
1 The
anticipated high levels of travel demand is

proactively managedto optimise opportunities for
passenger transport, walking and cycling.
' 6.2.1d
Development maintains and enhances the
amenity. values of the centre as a destination for
I
i sub-regional visitors.
f--
16.2.1e
. The scale and nature of activities within subregional centres do not generate significant
1. adverse effects on neighbouring amenity values.
I 6.2.1f
- .. --
---------
"'.
''
Residential development is discouraged from

establishing in sub-regional centres.
The Regional Policy Statement acknowledges the primacy of the Central City while
noting
the role of two sub-regional centres in meeting the needs of large sections of
1
! the community living within and beyond the City boundary.
i
.-~-:~..:!~The sub-regional centres provide for an integrated pattern of diverse activities which
/;'<'-~: s~;'_':. }";Jl-ihcipal/y include retail activities in a mix of mall and sma/1 scale speciality stores,
j
1
J. l'?f~es) large format retail, limited offices, community services, entertainment facilities
#,~\ "}i~'P.~pd;,satiJB visitor accommodation with easy access to the strategic transport network. !
(
' <, .,..cc--"'"''i'"()
\ '
, ~ :; '';/:;iY'.':'::;j::'~~he pfMious planning framework has enabled an unplanned dispersal of retail and .
r',/
/ /
~;',;~~-:
~:u~~r
. . ' .,
<>"''
'~"~~:::~.. ~ ...--~"'
... .
. . . .. . --
.. 6 susinessl to
6.Zon~s
. ... .. .
. . Page 6-6

------
r;jj;~~ d~~~~~p-;;j~~t-;;;hi~h has cont~ib~i-;;;rt; th;-~-;;d~~p~if~;~; ~~~ ~~ ;;~~-~-;~~~~;;; .

; afthe Central City with consequential effects on its function, amenity and vitality.
Therefore, when considering development outside the Central City, it is important to
i consider the potential for that to result in adverse effects on the role of the Central
1City. Individual or cumulative establishment of commercial developmentthat may
jeopardise the function, vitality and amenity of the Central City should be avoided or
1
I managed.
I The Base sub-regional centre is !;ignificantly larger than the Chartwe/1 sub-regional
I centre, and with existing consents has greater potential to accommodate additional
business activities. Accordingly there is a distinction in rules that apply between the
two sub-regional areas.
, Assessment criteria related to the establishment of offices, retail activities and

community facilities apply to further development of the two sub-regional centres.
Any further development at the two sub-regional centres needs to be carefully
managed to safeguard th~ transport network and ensure consistency with
neighbouring activities.
____,.
. . ...
.....
. -
. ...
'~
........
"
....
Suburban Centres
A distribution of suburban
centres that provide a mixed use
environment with health-care
services, goods, services and
employment at a scale
appropriate to suburban
catchments, while not
undermining the primacy,
function, vitality, amenity or
viability of the Central City.
Suburban centres are to be retained, expanded,

and provided at a scale and nature appropriate to
the needs of the surrounding residential areas,
taking into account the need for any expansion to
avoid adverse affects on the functionality, vitality,
viability and amenity values of the Central City.
r:~~~~ban~~ntres
opportu~ityto
provide an
reduce the need for travel, by providing for mixed
uses, a diverse range of activities, services and
trading formats. Residential activities above
ground floor level shall be supported.
6.2.2c
Suburban centres act as focal points for local
community development through the control of
size, scale, built form and diversity of activity.
I .. ... .
..
. ........... .
6.2.2d
1 Expansion of existing suburban centres is
i integrated with existing activities and transport
:~~::rks._ ----
A comprehensive, urban design-led approach is
.. __ __ .. . .. .
. . .. .. __ .
j used to determine the form of suburban centres

1 intended to serve new growth areas.
-_!. ... - -
......... _,._ ...... ~----
- ..
Page 6-7

.
.
~
'
;
.. _;_ ----~-.:..- .:....

. -- .. - ---- . ... 'l
6.2.2f
!
Recognis<> Hamilton East as a fringe employment
node to the Central City, but ensure potential
adverse effects on adjoining areas (including the
Central City) and the safety and efficiency of the
transport network are avoided.
i 6.2.2g
Recognise that the expansion of healthcare
iI services and facilities maintain viable and
accessible medical services and hospital facilities
to the regional and city-wide community .
1
. Suburban centres anchor the City's mafn residential areas and provide a range of
ii activities and services that can reduce reliance on car travel for meeting day-to-day
.
. requirements. These centres provide multi-purpose destinations for customers. Parking
is provided onsite and these centres are generally wei/served by passenger transport.
Suburban centres vary in size and character between 10,00D-20,000m 2 gross floor
i area and generally serve between 10,000-30,000 people. Supermarkets commonly
anchor these centres and between 20-30 outlets, comprising a variety ofsmaller
I specialist retailers, provide retail, limited office, community and other services to the
; suburban population on an integrated basis. Often another large format retailer is
!located in the centre. Service stations may also be a feature.
! Opportunities exist for limited expansion and intensification to ensure the centres
I continue to meet the needs of growing populations and provide a focal point for
Icommunities. Residential activity above ground floor level in suburban centres

: enhances mixed use o'utcames.
Recognition has been made far the hospital facilities at Hamilton East.
' Carefully planned suburban centres will help to anchor and support residential and
; community development.
'
Neighbourhood Centres
6.2.3
A distribution of locally based
centres that provide services
and health-care services
capable of meeting the day-today needs of their immediate
1 neighbourhoods.
.- ;""\i;si,,:
I
-b>.,
''
/-~,~'"-../'" .....1 '',','\
~m .,; 1'"'-!.'~
. 6.2.3a
. Activities within neighbourhood centres principally
serve their immediate neighbourhood.
'...
...... - - .....o..
; 6.2.3b
The scale and nature of activities within
: neighbourhood centres shall not generate

, significant adverse amenity effects on surrounding
!residential areas and transport netw~~~--- .. __ __

li 6.Z.3c
Residential activities above ground floor
i commercial uses are encouraged as part of mixed
~ , ~,:-"'~"'~ ~'l l~bc,~\,;~'f)'-;---------6-B-:s-s~-n-:-~s-v:--~-~-P:~z-~-~-~-s-------~---_
.._.._.. _.P_a_ge-6--8
.....
'
""-.. .,~. --- '~".;:;
.. :_:;-

Proposed Pistrict Plan- Appeals Version, September 2014
Neighbourhood centres provide a limited range of everyday goods and services and
essentially se1ve a walk-in population. Being situated within residential areas it is
essential that the range and scale of activities is compatible with neighbouring
residential activity and local amenity values. Very limited opportunities exist for
expansion of these centres.
Neighbourhood centres are small in land area and shop sizes are between 100-300m 2
. with the overallfloorspacefor a centre between 500-5,000m 2 The anchor store is
likely to he a superette.
Major Event Facilities
Significant City events

destinations are supported by
complementary commercial
activities.
A limited range of commercial activities can

establish outside recognised business centres
where they shall directly relate to major events
facilities within the City.
6.2.4b
The range and scale of activity and built form do
not undermine the role of any business centre and
are consistent with the amenity values of
neighbouring areas.
The provision
activities in the immediate locality ofsignificant events
destinations con enhance the attraction ofsuch facilities and meet community needs
without adversely affecting the role of business centres. Such activities will assist in
meeting the demands of occasional peak visitor numbers but will require careful
management to ensure they will not undermine the amenity values of neighbouring
areas. Securing additional commercial development in a limited number of locations
' aims to bring benefits to, and strengthen the attraction and viability of these stand
alone facilities.
Out-of-Centre Development - Large Format Retail Zone
, Significant large format retail

; development beyond the out of
! centre zones identified is not
,..0,-;::;;~:;;?nvisagedforthe Plan period.
>' '
'
/((''";/ ... _ ' TheSe'~mited zones provide for

I i~--,\ t.(::.:,:
. - ..,_, __ ,_ 1 . - development
1
r c I ([W-' xc-:<Ti~qmP,ris.ihg a range of moderate
/ 1;,0
! ~;,! 1
9~t pf-c~ntre
1l,~:!'
li\l '': l ')I
Large format trading activities may be permitted to

locate outside zoned business centres where it can
be demonstrated that:
i. Appropriately zoned land is not available within
suburban centres, and
. ii,_ !h_er" is consisten.c:v.~~t~ the:_a_s_ses~!ll.':'~t
\::02;~,:~:' -~___,_::l{.::;~+~--~----------------------------\~;?:"
'
..;'
/''
\(o!uipe' 1
Page 6-9
Attachment A- Tracl< Changes (provisions in scope)

Proposed Distrkt Plan- Appeals Version, September 2914
. Jjai"Qj)ton City Council
-------.
; to low intensity commercial

; uses {offices and/or large
of the sub-regional centres and the function of
format retail activities and
the lower order centres; and
! community services) only in
i
.
i circumstances where the
; iii. The proposal does not add to the continued loss
i primacy, function, vitality,
' of developable industrial land to retail uses.
viability and amenity of the
6.2.5b --- --... -----Central City; the function,
vitality, viability and amenity of ! Development ensures potential adverse effects on
] adjacent residential areas are avoided, remedied
, the sub-regional centres and
the function of the lower order : or mitigated and the safety and efficiency of the
1
transport network is maintained.
centres in the business
hierarchy are not undermined.
It is envisaged thatf4ture large format retail growth will be

within
existing centres for the life of the Plan, however, it is acknowledged that not all
business activities are able to locate within the defined zoned boundaries of the
centres that comprise the business hierarchy and that there are often physical,
historical and commercial relationships and trading patterns that need to be
recognised. The Plan provides for these circumstances provided there are no suitable
alternatives within the centres and the business hierarchy will not be undermined.
The extent to which the new large format trading activities replicate and challenge the
functions as to result in adverse effects that are more than minor on the existing
services and facilities and amenity of neighbouring business centres must be carefully
considered through the provision of a Centres Assessment Report (refer to 1.2.2.19}.
Out-of-Centre Development.:.. Commercial Fringe Zone
6.2.6
i 6.2,6a
Business activities may be permitted to locate ill

the commercial fringe zone where it can be
demonstrated that:Large fermat t;aeiEg aativitfes
ma1lle permittee tEl locate aijts!!le zeReEilmsiRess 1
eeMres wflere it eaR ao dcmemstrated t~at:
!
J i. AppropriateJl' zoRee land is not available within j
Sig!liflcant la<ge fermat retail
de.relspmeat eeyencl tile e;tt of j t)le Central City, or sub-regional centres or
sentre zones itientifieel is ast
ii.
the assessment
eB'<'lsageel fertile !'!an per!m:!.
These limited ze~~es ~ro,iele far
primacy, function, vitality, viability and amenity 1
slit of sentre ele'.elef)P.'leRt
of the Central City, Sub-Regional Centres and
1
sempri&iRg a range sf meder-ate
suburban centres ancl tile functi.on eftlle !ewer I
ereer eefltres; aRd
iii. The rofe and fu nc!ion of lower order centres are 1
not undermined.
1
Provide for a range of business
activities that support and
compliment the Cent;al City.
Sub-Regional and Suburban
Centres.
'
~~:~~~::;~~:::~c:n~ith
------
---~---
..- .. _. __________ .... __....... - _.J
Page 6-10

i*~.;mctisn, Jita!it',';
iii. T!ole prepesa! does Ret ad1 to tile eentini!Cd Ieee

~c!opable imit~stria! IaP.d te retai.' ~ses.
,
JiablliW aad amenity af tile
~........................._,__________, _ ,.. __
- - - - - - ....... - .... I
Central Cily, the functi9fl;

'6.2.6b
'lltality,-AabHity and ameRitl' Sf
:lle sub regional ccntr...os an4
the func:ion eft he .!ower orclef
or mitigated. ana :he safety and efficienq of the
centres intP.e ll~
' :~anspsf!: networlc is !Tlaffit-aifl.e4
hierarch'{ are 11at ;:mlermincd.
6.2.6c
Tite safety and efficiency of the transport network
is not adversely affected.
It is acknowledged that not all business activities are able to locate within the defined
zoned boundaries of the centres that comprise the business hierarchy and that there
are often physical, historical and commercial relationships and trading patterns that
need to be recognised. The Plan provides for these circumstances, provided there are
no suitable alternatives within the existing centres and the business hierarchy will not
be undermin~d.
The extent to which #1e new business IG:gefermet t"ediflg activities replicate and
challenge the functions of the business hierorchy as to result in adverse effects that
are more than minor on the existing services"V/W facilities and amenity of
neighbouring business centres must be carefully considered through the provision of a
Centre Assessment Report (refer to 1.2.2.19).
6.2.7
Provide for a range of
community facilities, residential
and business activities that may
not be appropriate for, or are
not able to locate in centres in
, the business hierarchy.
6.2.7a
Enable a range of eommtJRit';' activities such as
hospitals, research and innovation, health care
centres, education and training centres to establish
outside recognised business centres that are:
i. difficult to accommodate within centres due to
their scale and functional requirements; and
ii. more appropriately located outside of the
Central City, sub-regional and suburban centre
zones.
6.2.7b
Residential activitv is encouraged in locations
adjacent to centres where it can be shown to
sur>oort established and future business activitv
whilst providing a high amenity living environment.

Avoid small ssale Fetal! activities!scetlng witlli!l
t1le zsRe e;:eept fer recte!lrants, eafes al'!d licensed

!JiCFl'!ises.
6 Businessl to 6 Zones
Page 6-11

[-;;;,t;;;a-,;ti~th~tmay ;~Tb;;;;p;;;;;ri~te Jar, or are unable to locate in centres.

This includes activities ranging from light industrial, research and innovation activities,
hospitals, health care services, education and training centres which whilst preferred
in centres is recognised that this is not always possible due to scale and functional
requirements. These activities are considered non-threatening to the function,
primacy, vitality, viability and amenity of existing centres within the business hierarchy
and so can reasonably be expected to /ocate in close proximity to existing centres in a
fringe location. Retail and office activitv mav be allowed to establish where it is
supportive of and complementarv to the Central City, sub-regional centres and
adjacent centres. These activities must be considered through the provision of a Centre
Assessment Report (refer to 1.2.2.19) to ensure that thev do not replicate and
challenge the functions afthe business hierarchy as to result in adverse effects that
are more than minor on the primacy, function, vitalitv. viabilitv and amenitvof the
Central Citv, sub-reoional centres andadiacent centres.
Residential activity is encouraged as part otcamprehensivemixed use development
where anv adverse effects of reverse sensitivitv are able to be appropriately
manaqed.i5 Ret erwl!iflged due te the p:-fmeryjecus OR soourhEH'l endRefgl;beurheed
ceRtres fer epsrtmiMt liv.'ilg, W<JSEflEI/2 ojindustr.'e! GEtMties within this zone e.~d the
need te weserve !endfer e&t ef sentre cemmereie! 9f!pertulli~'es.
The built form shall:

' Enable sites adjacent to the
Hamilton East Suburban Centre
!) Have regard to the character and scale of
to be redeveloped fur a range of
the Hamilton East Suburban Centre and
activities that complement and
surrounding
area.
.support the established centre.
iil Respond to the setting. context and
1I
opportunities of the site and adjoining
!
1
areas of open space.
liil Respond to and maintain the amenity of
the Waikato River, adioining open space
ami surrounding urban area.
iv} Provide quality urban design that responds
to the form. scale and heritage ofthe
Hamilton East Suburban Centre and the
Waikato River.
i 6.2.0!'!b
,---
/~~;~-----
: Residential activity is encouraged !n locations

adjacent to the Hamilton East Suburban Centre
where it can be shown to support established and
future business activity whilst oroviding a high
~=~~~~=-=~:::::~
---
<
'
_jl
4<c ::.;:,.. ,, . I<

~
/ ~ :- ff" . j..i ., \
Mixed us.e development snail orovide a range of
1
I"'' { ~P'-.- .~c- ' i;l'J \ '~ \
uses:hatcomp!ement. and are supportive of. the r
':? ;\, .!\. i . k::,;~J~~-------------- ' HamdtO.!!<~.s,.t,SEIJ.u~c;~ll.tr~ ~~!=~!:e. _____ -' -;-?,
,; ,. }'
\"~~:;;.::~: ,.. v:r~~~;d
Page 6-12

---~----.--
...
-~ ""-------~---~----..
managed to ensure high levefs of amenity fur any

residential actMty and avoid anv reverse sensitMtv
issues.
j_:::=:
_____. _.__ ... _-~-- --- ' -- --- '
6.2.8(1
Office and retail activitv shall provide a range of
tenancy sizes that are sunportive of, and
complementarvto, the Hamilton East Suburban
Centre and Central Citv.
East Suburban Centre provide an ooportunity for high quality development of a range
of uses. Development of this nature has the potential to support the economic,
cultural, social and environmental sustainabi/ity of the Hamilton East area.
It fs envisaged thotonv high aualitv development will be well integrated into the
Hamilton East Suburban Centre bvbeinq of appropriate scale and includina activities
that reflect the strategiC qosition adiacent to the established Suburban Centre. These
acl:ivities should only be allowed to establish where any adverse effects an the
function, orimacy, vitolitv. viabilitv and amenitv of the Central City and established
centres within the business hierarchy are proven to be no. more than minor.
,/(~\~~~~~~~2?.:.~;. \
!I 4~
l~~~>\ t{f \ \,
:m
~~)/_,~_;_--~-:~;;-:'/~:-.~;\
;:;?.'
1,-i, '
\~~::~,;:,,:,
'
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--}
,C,_,f
' '_\_:_';::-:\_,'?,:"-":_',',_/_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
,.
',,... ,,.. ,.,.,:volume 1
Page 613

RD
RD
RD
RD
RD
RD
RD
RD
RD
RD
p.
additions*
b) Minor works
'--- ----------c) Accessory buildings
d)
. - J ..... -- -
Demolition, removal,
maintenance or repair of
existing buildings (except
heritage buildings
scheduled in Volume 2,
Appendix 8, Schedule 8A:
Built Heritage)
e)
..
.i.
----- --
'
Demolition or removal of
existing buildings on Lot
129 DPS930
i.
NC
"
excluding light or
service industry
NC
NC"
NC
NC
NC
NC
NC
NC
NC
NC
ii. noxious or offensive
activities
g)
light industry
h)
Service industry
i)
Transport depot
NC
---- - J_I
RD
RD
--- --j)
Emergency s~rvice
facility*
Res:ar~h and innovation
----
-----
RD
RD
RD
RD
~IDE
NC
NC
NC
NC
-1-
i
I
D
NC
I
I
Attacl1ment A- Track Changes (provisions in scope)

m) Office*
i.
<250m GFA per site
D
NC
NC
soom' GFA
RD
NC
iii. >500m2 GFA per site
NC
NC
NC
NC
ii. 250m
per site
whereby site excludes
Unit Titles and Cross
[e~ses in i- iii above
n)
Offices
i.
up to 11,35Dm GFA
p
on The Base site

shown on Figure 6.1b
2
ii. >11,350m GFA on

The Base site shown
on Figure 6.1b
Offices on Lot 1 DPS
86312, Lot 1 DPS 1751
and pt lot 8 DP1233
;
i. <250m2 oerexisting
title
2
ii. 250m 2 - soom oer

exisdng title
m. >500m2 oer existing
title
whe[e an existing title

was held as at the date
ofolan notification {10

December 20121
For claritv. any future.
./~:~;.":~ ~;~~:~~..
/'~"{~
---~- //.-."'->
<: :
titles created will default

to the zone wide activity
statuslRule6.3m).
( :, ~~~:;~i,(::{::r~,~ :~ - --- --- \~;.:\:
~~"':';"',; .:.:.)-:."'i"' ,c; ~:-f~.!:.:.
' ,'
'<':.
'..,
------------------------------
Volume)f
. ~~~>;,JJ'
6 Business 1 to 6Zones
Page 6-15

q)
--- -----~--~----- ---- -+--- Retail*

i.
<150m GFA
RD
Jill
RD
RD
NC
NC
RD
NC
NC
per tenancy
2
ii. 150m -399m GFA

per tenancy
Excegt for lot 1 DPS
86312, Lot 1 DPS
i75~ and Pt hot 8
DP1233
2
iii. 400m -999m GFA
per tenancy
NC
Except for Hamilton

East
2
iv. >1,00Dm GFA per
tenancy
Exceptfor Hamilton
East
r)
NC
Total retail floorspace in

categories o) top) and t)
tov)
i.
up to 103,70Dm GFA
on The Base site
shown on Fig 6.1b
ii. >103,70Dm GFA on
RD
The Base site shown

on Fig 6.1b
! s)
RD
_.. . .;,.~:\;~;...,~> :
./<:(/~ --~< ''"\
I ( ~),E;J .rO:i:~-,,
ci/1\,
'""'.........~- ... ~- ~--..,-
...
/'
400m GFA that exceeds

2
a total of 34,30Dm GFA
on The Base site shown
L' . --~~Fig 6.1b
%:;ctf;:~~!
Any retail floorspace

described in o) top) and
t) to v) comprised in
tenancies less than
. -- ..........
i
I
lI
J -. _____,____________,_ -------'- . ______l ____ .
'""'"=' """"
..!
Page 6-16

NC
NC
NC
RD
RD
RD
NC
NC
NC
NC
NC
NC
NC
NC
NC
RD
Wholesale retail and

trade supplies
Restaurants~
licensed premises
cafes and
i. <200m GFA
2
il. >200m GFA

z)
Supermarket*
l y)
iI
ii. >400m GFA
; w) Building Improvement
Centres
NC
NC
''
NC
NC
<400m GFA
2
NC
NC
NC
NC'
NC
NC
NC
NC
Commercial places of
assembly
i.
excluding cinemas
and bowling alleys
ii. cinemas and bowling

alleys only
i.
excl~ding
automotive
fuel retailing
ii. automotive fuel
.I -.
r1
aa) Drive-through services
Ij
RD
RD
bb) Parking lots and parking

buildings
I:
RD
NC
NC
. L .. .. . rl'tailing only
Yard-based retail
i.
x)
NC
NC
NC
u)
ii. >200m GFA
iI v).
NC
NC
<20Dm GFA
i.
NC
<*c~~:;~~~;_,:;_~':
,....
'\,
~1 r$?~~;~~?;(:;~~\') ~-~
H------'----------1--p---'---p--'---P-----'----.L.--_i-------.J
'i
\
~./;
.
<{~.-,.''.
'-~
.,_.'_;_Ji'.i'f----------------------------'----
--__
Page6-17

i.
above ground floor

2
ii. <250m GFA

2
NC
NC
NC
RD
NC
RD
RD
iii. 250m -1,000m

GFA at ground floor
2
iv. >1,000m GFA at
ground floor
--~~--
-----
ee) Health-eare services and

hospital including
WhanauOra
i.
r
I
up to 10,750m2 GFA
on The Base site
shown on Fig 6.1b
ii. > 10,750m GFA on

The Base site shown
'
I ff) Childcare facility

.. - ...
NC
on Fig 6.1b
g~) Community centres
RD
p
p
RD
hh) Tertiary education and

specialised training
facilities
-i
I
I
D
D
D
D
D
NC
NC
NC
NC
RD
RD
NC
NC
NC
p
p
iv. >1,000m GFA
RD
RD
RD
Public art
RD
RD
NC
NC
i.
above ground floor

2
ii. <250m GFA
iii. 250m2 -1,000m2 GFA

2
ii)
units*
Single dwellings and

duplex dwellings
I'
f.I
NC
p
p
p
p
__ j
!i
Attachment A-Track Changes (provisions in scope)

at ground floor
NC
NC
NC
'NC
ii. above ground floor
~IG@
NC
NC
RD
i.
~--
nnj Aoa!:!;ments on Lot 1 DES

86:212, Lot 1 DPS 1751
and PU,ot 1!12P1233
.!:
oo} Residential centres
D
RD
.-
RD
RD
NC
-~
pp) Visitor accommodation*
..
--~'----"'-'
- ...... ,.,..,_,
' qq) Subdivision
-,-.
Refer to Chapter 23: Subdivision and Chapter 24:

, Financial Contributions
'
Note
1. For any activity not identified above, see Section 1.1.8.1.

/,,~~~;;~~:_'!;:,
. ,,
.. ,\\' ....
/' "'." j .
i
.t.., rK
"''T{-<l -,tN \
(, ( )~lil-t~~;~;~~~.1~{{~\ \ '='tf'
~\l
,_.,
)'\\\
'I,.,)-
I'
\{J~'-(.>\. _'_~;~_?_.c.: .,:rL~ -l__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

;,;,.
.
./
VoluiTie 1
.w-"-
Page 6-19

figure 6.3: tot 1 DPS 86312.lot 1 DPS 1751 and Pt lot 8 DP1233
Legend
f!l1T/TI1fl
JJJ.fJ1J1JJ
Lot1DPS86312.{ LotlOPS1751,
&Ptlct.8DP12~3
Meters
D
20
40
80
120
160
~/~.:~~-;~~-;~~;~..
l<y?~'~
""--.:,.:..<..:::-'\_
.,_.-.-""""
"'
..
~J .._,
--"'--~~ ---~
-.
i,( ~r:f;::.t\~91;.'~:f~'".t'f~.+}~-~~~~~~~~~-~~~~--.,.-----'--------->, \
,,,, /' "
Volu,flle 1
:'.;~~--._;,.:.>;!?'
6 Business lto 6 Zones
Page 6-20
Attachment A- Track Changes {provisions in scope)

-----------6.4.1
Ma>dmum Building Height
a) Business 3, 4 {where adjoining Industrial

Zone)
b) Business 1, 2, 4, 5
I - - - - - - . - - - - - -
! c)
I 20m
15m
- ,,,._, ......... -..
Business 6
10m
i d) Elements such as flues, flagpoles, open balustrades and aerials shall be exempt from
6.4.1(a), {b) and {c) above
!.... ----~------------------~"':------ - - - .. - - -. -. ----- -----
6.4.2
Height iri Relation to Boundary.

a)
b)
Where any boundary adjoins a Residential or Special Character Zone, no part of any
building shall penetrate a height control plane rising at an angle of 45 degrees
beginning at an elevation of 3m above the boundary.
Elements such as flues, flagpoles, open balustrades and aerials shall be exempt from
6.4.2{a) above.
Figure 6.4c: Height control plane fGlr boundaries adjoining any residential or special character
zone
} Bm/~ight
Resjdeotlal or Special
Charncw-rzone
.,.
3 metres at boond'ary
Page 621
tJ
Attachment A- Track Changes [provisions in scope)

Building Setbacks
6.4.3
, Sm where the boundary adjoins a
' b) Business 1, 2, 5
l Residential or Special Character Zone
c) Business 4
; Sm [except for any internal site boundary

within the Business 4 Zone)
d) Business 6
l.Srn where the boundary adjoins a

-------------- ------------'----- ----------- ----------
Building Intensity
6.4.4
a]
ii.
The following maximum building intensities [floor area ratios] shall apply.
Business Zones 2~ 4, 6
b)
1:1
In determining the floor-area ratio:

i. Floor space used for parking within Business Zones 3 and 5 shall be excluded when
it does not increase the maximum permitted floor area by more than 50%.
ii. Underground parking is fully excluded.
Service Areas
6.4.5
a]
Any building shall provide service areas as follows.

i. At least one service area of not less than 10m 2 or 1% of the gross floor area of the
building, whichever is the greater.
ii. Any additional service areas shall not:
Be Jess than 5m 2
Have a minimum dimension of less than 2.5m
iii. Any outdoor service area shall be maintained with an all-weather, dust-free
surface.
iv. A service area may be located within a building provided that' it is separately
partitioned with an exterior door directly accessible by service vehicles.
__....................
.,...... ~ ' .,- .,.,_

.. . : ;:;,\:.: ---~;- f'
' -'<' V'
v. Any service area shall not encroach on to areas required by this District Plan for
other purposes (e.g. parking, loading, landscaping and screening).
0'' "'
/'/:_/ ''-> \
, ..,--
, . "<.
~?~~~)
""''~..,.,___".,..-r:... ''
'"~"='ID'Woo
~'ll

6.4.6
Outdoor Storage
a)
Any outdoor storage area used for the storage of goods or materials shall:
i. Be laid out and used in a manner that does not conflict with vehicle access.
ii. Be maintained with an all-weather, dust-free surface.
iii. Be located away from public view or othetwise screened by fencing and
landscaping.
iv. Not encroach on areas required by this District Plan for other purposes (e.g.
parking, loading, landscaping and screening).
6.4.7
Residential Development
a)
Only one ancillary residential unit is allowed per site.
b)
E>(cept for providing an entrance or when located on lot 1 DPS 86312. Lot 1 DPS 1751
or Pt Lot 8 DP 1233, no residential activities shall be undertaken at ground-floor level.
c)
The following standards shall apply to residential units, including apartments above
ground floor, residential centres and ancillary residential units. Unless specifically
noted, they do not apply to visitor accommodation.
d)
Density
t
Minimum densities within the Business Zones shall be 30 residential units per
hectare based on net site area.
ii. Where mixed-use is provided for within a development {e.g. office or retail with
residential above), the density requirements of Rule 6.4.9 {d) shall be applied on a
pro rata basis relative to the percentage of development that is residential (e.g.
where a development is made up of40% residential activities, a density
requirement of 40% of30 residential units/ha (30 dwellings/he x 40%) shall be
required).
e)
Outdoor living Areas

i.
Each residential unit shall be provided with an outdoor living area that is:
For the exclusive use of each residential unit.
Readily accessible from a living area inside the residential unit.
Free of driveways, manoeuvring areas, parking spaces, accessory buildings and
service areas.
Located on a side of the residential unit which faces north of east or west (refer
Figure 6.4d).
Attachment A- Track Changes (provisions in scope}

Figure 15.4d: Outdoor living area- north of east or west
ii. Outdoor living areas for residential units shall have areas and dimensions as
follows.
Ancillary residential units

Apartments above
12m 2
ground-floor level

2.5m
Capable of containing a Sm
All other residential units
1
' 40m>
diameter circle
The outdoor living area for an ancillary residential unit shall be separate from the outdoor living area
provided for the principal residential u!lit.

Note
1. Any communal open space is optional and is additional to the above provisions.
f)
Storage Areas
Each residential unit shall be provided with a service area;
Located at or below ground-floor level, readily accessible to that residential unit,

secure and weatherproof.
A minimum of 1.8m long by 1m high by lm deep.
Page 6-24

g)
Residential Unit Size

i. The minimum gross floor area u-equired in respect of each residential unit shall be:
I1
Minimum 45m
Minimum 70m
Minimum 90m 2
.l
1 bedroom unJt
i ~ b:~r~<:>.rn ".~it
: 3 or more bedroom unit
i- ""
ii. In any one apartment building containing in e){cess of 20 residential units, the
combined number of one-bedroom units and studio units shall not e){ceed 50% of
the total number of residential units within the building.
h)
Daylight Standards
Residential units shall be designed to achieve the following minimum daylight
standards.
i. Living rooms and living/dining areas: a total clear-glazed area of exterior wall no
Jess than 20% of the floor area of that space.
ii. Bedrooms: a minimum of one bedroom with a total clear-glazed area of exterior
wall no less than 20% of the floor area of that space.
iii. No more than one bedroom in an apartment may rely on natural light borrowed
from another naturally lit room provided:
The maximum distance of the bedroom from the natural light source window
shall be 6m.
The minimum total dear-glazed area ofthe light source shall be no less than
. 20% of the floor area of that bedroom.
i)
External Outlook Area

Each residential unit shall have an external outlook area that:
i. Is provided from each face of the building containing windows to habitable rooms.
Where windows to a habitable room are provided from two or more faces of a
building, outlook areas shall be provided from the face with the greatest window
area.
ii. Has a minimum depth of 6m, perpendicular from the window.
6.4.8
Active Frontages
a)
No roller doors, or similar, which may obscure windows or entranceways may be

installed on the front of any building fronting a public space within Business Zone 5
(Suburban Centre) and Business Zone 6 (Neighbourhood Centre).
'"' .... ft!.~te

'<0~:
''1./For the purpose of clarification, security grilles which allow views between the street and premises
; ,\'<~;../" " o,are a~ acceptable means of cOmpliance with this standard.

l,i
.r~-~.Y.. ,_:~,_. __:.~ .-t.L_~-
171 ~
1~~:
h'
\{".:, -1..'{
i.._d,.~. :. ,:
\ :;_.: :;__ ., .
\':~.~'
~~
;: ? \
.-:;_{._:;.;
~.! ',,.,.', .
r ,..,
-V-o-_lp-~~-.-..e~/,.~---------6-B-us-in_e_s_s_l_t_o_6_Z_o_n_e_s_ _ _ _ _ _ _ _ _ _Pa_g_e_6--2-5
Attachment A-Track Changes {provisions in scope)

. 6.4.9
Provisions in Other Chapters

The provisions of the following chapters apply to activities within this chopter where
relevant:
Chapter 2: Strategic Framework

Chapter 3: Structure Plans
Chapter 19: Historic Heritage
Chapter 20: Natural Environments
Chapter 21: Waikato River Corridor and Gullies
Chapter 22: Natural Hozords
Chopter 23: Subdivision
Chapter 24: Financial Contributions
Chapter 25: City-wide
iRIIJll~~ ~ Sp~d'ifirc
6.5.1
StJililtdl<ill!"i$
Rototuna Western Neighbourhood Centre

There shall be:
6.5.2
a)
A maximum individual gross floor area of 250m2 for each office activity.
b)
A maximum individual gross floor area of 250m 2 for each education and training
facility.
c)
A front building setback of 10m maximum when fronting an arterial transport corridor.
d)
No service areas within the front building setback or forward of the front building line.
e)
A maximum of 50% of the ground floor wall of any activity facing the road/transport
corridor or public space shall consist of clear glazing and be capable of displaying goods
and services.
Rotokauri Suburban Centre Primary Frontage Interface

a)
For buildings within the primary frontage as defined in Volume 2, Appendix 2, Figure 2.13 Rotokauri Suburban Centre Concept Plan:
i. Buildings shall include a minimum oftwo storeys of usable floor space.
ii. The width of any ground floor tenancy shall not exceed a maximum of 1.5 times the
height of the building above that tenancy. For the purposes ofthis standard;
tenancy is defined as 'the gross floor area occupied by way of exclusive use by a
tenant and includes both freehold and leasehold areas'.
iii. A minimum of75% ofthe ground floor wall facing the main shopping street, as
defined in the Rotokauri Suburban Centre Concept Plan set out in Volume 2,
Appendix 2, Figure 2-13, shall be of clear glass and capable of being used for
displaying goods and services to passing pedestrians.
/;;:.;;-~:-::~:?,
;'/....'<~
iv. A continuous verandall, not less than 2.5m deep shall be provided which extends
along the full street frontage, except that no verandaa over a footpath may
>" --. ,,,. ,, \
( /i:)!., e"i:~:ii\\ \
1 h/i:'7)'''<: .q).\
IJ~~\. ,i;, r
\-.
~~~~:~
\encroach to within 600mm from the kerb.
jTi'lere shall be no vehicle access or parking within the primary frontage area.
_'.'~_.:._~ _.,(,c.,/{.:. ~/_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

,.
Vol9in~ 1
Page 6-26

Hamilton City Council .
Rrestrkt'l ltllh~161l'th:ill1lli!'Y Adivnt~s: Maittll' <if itllil61!'tillll

a1111 Asresmlilt Criteria
(5.6
a)
In determining any application for resource consent for a restricted discretionary

activity, Council shall have regard to the matters referenced below, to which Council
has restricted the exercise of its discretion. Assessment Criteria within Volume 2,
Appendix 1.3 provide for assessment of applications as will any relevant objectives and
policies. In addition, when considering any Restricted Discretionary Activity located
within the Natural Open Space Zone, Waikato Riverbank and Gully Hazard Area, or
Significant Natural Area, Council will also restrict its discretion to Waikato River
Corridor or Gully System Matters (see the objectives and policies of Chapter 21:
Waikato River Corridor and Gully Systems).
i.
additions to buildings, and accessory

buildings*
ii.
Ancillary residential units*
. j..: .1:::- 5_~a!:~IO!erand Amenity

iii. Light industry and transport depots
(goods)
-;
l B- Design and Layout
iv. Emergency service facility*
'
i'
'
Retail activities*
1:
!
Offices*
\VI.
F
'
-~rive-t~~ou~~~e~;~~s
F- Haza_rds and Safety

Centres
'
'
Apartments and visitor
accommodation*
II

Centres
'J.
viii. Community centres, tertiary

education and specialised training
'
- ji
facilities
! .
iix.
!--
-~-;;---~> !:;. ;:;~:::::;:;ices

,<:!-',,/'
-.
'I
-~
I: c8-_c;:::::n:n~a:::nity
!
_1
11
C-CharacterandAmenity
~$ft; s~-~i_r_\_!-~:f:. .;_~-:,____________________________-_~-

-.,,
......
~,~-"
_ Volume 1
_,~
Page 6-27

!xii.
io
i
of centre zones)
J o
' o
--------
Supermarkets (Business 1 and 4 -out
..
......... .
I1xiii. Research. and Innovation activities

L
I
:
i

Centres
!'
Note
Refer to Chapter 1: Plan Overview for guidance on the following.

How to Use this District Plan
Explanation of Activity Status
Activity Status Defaults
o
Notification I Non-notification Rules
. Rules Having Early or Delayed Effect
o
Refer to Volume 2, Appendix 1: District Plan Administration for the following.

~
'<>
Definitions and Terms Used in the District Plan

Information Requirements
Controlled Activities- Matters of Control
Restricted Discretionary, Discretionary and Non-Complying Activities Assessment Criteria
Design Guides
Other Methods of Implementation
ATTACHMENT 3
IN THE HIGH COURT OF NEW ZEALAND

PALMERSTON NORTH REGISTRY
CIV 2012-454-764
[2013] NZHC 1290
UNDER
the Resource Management Act 1991
BETWEEN
PALMERSTON NORTH CITY

COUNCIL
Appellant
AND
MOTOR MACHINISTS LIMITED

Respondent
Hearing:
13 & 20 March 2013
Counsel:
J W Maassen for Appellant

B Ax in person for Respondent
Judgment:
31 May 2013
JUDGMENT OF THE HON JUSTICE KS
[1]
From time to time councils notify proposed changes to their district plans.
The public may then make submissions on the plan change.
By law, if a
submission is not on the change, the council has no business considering it.
[2]
But when is a submission actually on a proposed plan change?
[3]
In this case the Council notified a proposed plan change. Included was the
rezoning of some land along a ring road. Four lots at the bottom of the respondents
street, which runs off the ring road, were among properties to be rezoned. The
respondents land is ten lots away from the ring road. The respondent filed a
submission that its land too should be rezoned.
[4]
The Council says this submission is not on the plan change, because the
plan change did not directly affect the respondents land. An Environment Court
Judge disagreed. The Council appeals that decision.
PALMERSTON NORTH CITY COUNCIL v MOTOR MACHINISTS LIMITED [2013] NZHC 1290 [31 May
2013]
Background
[5]
Northwest of the central square in the city of Palmerston North is an area of
land of mixed usage. Much is commercial, including pockets of what the public at
least would call light industrial use. The further from the Square one travels, the
greater the proportion of residential use.
[6]
Running west-east, and parallel like the runners of a ladder, are two major
streets: Walding and Featherston Streets. Walding Street is part of a ring road around
the Square.1 Then, running at right angles between Walding and Featherston Streets,
like the rungs of that ladder, are three other relevant streets:
(a)
Taonui Street: the most easterly of the three. It is wholly commercial

in nature. I do not think there is a house to be seen on it.
(b)
Campbell Street: the most westerly. It is almost wholly residential.

There is some commercial and small shop activity at the ends of the
street where it joins Walding and Featherston Streets. It is a pleasant
leafy street with old villas, a park and angled traffic islands, called
traffic calmers, to slow motorists down.
(c)
Lombard Street: the rung of the ladder between Taonui and Campbell
Streets, and the street with which we are most concerned in this
appeal. Messrs Maassen and Ax both asked me to detour, and to drive
down Lombard Street on my way back to Wellington. I did so. It has
a real mixture of uses. Mr Ax suggested that 40 per cent of the street,
despite its largely residential zoning, is industrial or light industrial.
That is not my impression.
Residential use appeared to me
considerably greater than 60 per cent. Many of the houses are in a

poor state of repair. There are a number of commercial premises
dotted about within it.
Not just at the ends of the street, as in
Campbell Street.
Between one and three blocks distant from it. The ring road comprises Walding, Grey, Princess,
Ferguson, Pitt and Bourke Streets. See the plan excerpt at [11].
MMLs site
[7]
The respondent (MML) owns a parcel of land of some 3,326 m2. It has street
frontages to both Lombard Street and Taonui Street. It is contained in a single title,
incorporating five separate allotments. Three are on Taonui Street. Those three lots,
like all of Taonui Street, are in the outer business zone (OBZ). They have had that
zoning for some years.
[8]
The two lots on Lombard Street, numbers 37 and 39 Lombard Street, are
presently zoned in the residential zone. Prior to 1991, that land was in the mixed use
zone. In 1991 it was rezoned residential as part of a scheme variation. MML did not
make submissions on that variation. A new proposed district plan was released for
public comment in May 1995. It continued to show most or all of Lombard Street as
in the residential zone, including numbers 37 and 39. No submissions were made by
MML on that plan either.
[9]
MML operates the five lots as a single site. It uses it for mechanical repairs
and the supply of automotive parts. The main entry to the business is on Taonui
Street. The Taonui Street factory building stretches back into the Lombard Street
lots. The remainder of the Lombard Street lots are occupied by two old houses. The
Lombard Street lots are ten lots away from the Walding Street ring road frontage.
Plan change
[10]
PPC1 was notified on 23 December 2010. It is an extensive review of the
inner business zone (IBZ) and OBZ provisions of the District Plan. It proposes
substantial changes to the way in which the two business zones manage the
distribution, scale and form of activities. PPC1 provides for a less concentrated form
of development in the OBZ, but does not materially alter the objectives and policies
applying to that zone.
It also proposes to rezone 7.63 hectares of currently
residentially zoned land to OBZ. Most of this land is along the ring road.
[11]
Shown below is part of the Councils decision document on PPC1, showing
some of the areas rezoned in the area adjacent to Lombard Street.
As will be apparent2 the most substantial changes in the vicinity of Lombard
[12]
Street are the rezoning of land along Walding Street (part of the ring road) from IBZ
to OBZ. But at the bottom of Lombard Street, adjacent to Walding Street, four lots
are rezoned from residential to OBZ. That change reflects long standing existing use
of those four lots. They form part of an enterprise called Stewart Electrical Limited.
Part is a large showroom. The balance is its car park.
MMLs submission
[13]
On 14 February 2011 MML filed a submission on PPC1. The thrust of the
submission was that the two Lombard Street lots should be zoned OBZ as part of
PPC1.
[14]
The submission referred to the history of the change from mixed use to
residential zoning for the Lombard Street lots. It noted that the current zoning did
In the plan excerpt above, salmon pink is OBZ; buff is residential; single hatching is proposed
transition from IBZ to OBZ; double hatching is proposed transition from residential to OBZ.
not reflect existing use of the law, and submitted that the entire site should be
rezoned to OBZ to reflect the dominant use of the site. It was said that the
requested rezoning will allow for greater certainty for expansion of the existing use
of the site, and will further protect the exiting commercial use of the site. The
submission noted that there were other remnant industrial and commercial uses in
Lombard Street and that the zoning change will be in keeping with what already
occurs on the site and on other sites within the vicinity.
[15]
No detailed environmental evaluation of the implications of the change for
other properties in the vicinity was provided with the submission.

Councils decision
[16]
There were meetings between the Council and MML in April 2011. A
number of alternative proposals were considered. Some came from MML, and some
from the Council. The Council was prepared to contemplate the back half of the
Lombard Street properties (where the factory building is) eventually being rezoned
OBZ. But its primary position was there was no jurisdiction to rezone any part of
the two Lombard Street properties to OBZ under PPC1.
[17]
Ultimately commissioners made a decision rejecting MMLs submission.
MML then appealed to the Environment Court.

Decision appealed from
[18]
A decision on the appeal was given by the Environment Court Judge sitting
alone, under s 279 of the Resource Management Act 1991 (Act). Having set out the
background, the Judge described the issue as follows:
The issue before the Court is whether the submission ... was on [PPC1],
when [PPC1] itself did not propose any change to the zoning of the
residential land.
[19]
The issue arises in that way because the right to make a submission on a plan
change is conferred by Schedule 1, clause 6(1): persons described in the clause

may make a submission on it. If the submission is not on the plan change, the
council has no jurisdiction to consider it.
[20]
The Judge set out the leading authority, the High Court decision of William
Young J in Clearwater Resort Ltd v Christchurch City Council.3 He also had regard
to what might be termed a gloss placed on that decision by the Environment Court in
Natural Best New Zealand Ltd v Queenstown Lakes District Council.4 As a result of
these decisions the Judge considered he had to address two matters:
(a)
the extent to which MMLs submission addressed the subject matter of

PPC1; and
(b)
[21]
issues of procedural fairness.
As to the first of those, the Judge noted that PPC1 was quite wide in scope.
The areas to be rezoned were spread over a comparatively wide area. The land
being rezoned was either contiguous with, or in close proximity to, [OBZ] land.
The Council had said that PPC1 was in part directed at the question of what
residential pockets either (1) adjacent to the OBZ, or (2) by virtue of existing use, or
(3) as a result of changes to the transportation network, warranted rezoning to OBZ.
[22]
On that basis, the Judge noted, the Lombard Street lots met two of those
conditions: adjacency and existing use. The Judge considered that a submission
2
seeking the addition of 1619m to the 7.63 hectares proposed to be rezoned was not
out of scale with the plan change proposal and would not make PPC1 something
distinctly different to what it was intended to be.
It followed that those
considerations, in combination with adjacency and existing use, meant that the MML
submission must be on the plan change.
[23]
The Judge then turned to the question of procedural fairness. The Judge
noted that the process contained in schedule 1 for notification of submissions on plan
changes is considerably restricted in extent. A submitter was not required to serve a
copy of the submission on persons who might be affected. Instead it simply lodged a
copy with the local authority. Nor did clause 7 of Schedule 1 require the local
authority to notify persons who might be affected by submissions. Instead just a
3
4
Clearwater Resort Ltd v Christchurch City Council HC Christchurch AP34/02, 14 March 2003.
Naturally Best New Zealand Ltd v Queenstown Lakes District Council EnvC Christchurch
C49/2004, 23 April 2004.
public notice had to be given advising the availability of a summary of submissions,

the place where that summary could be inspected, and the requirement that within 10
working days after public notice, certain persons might make further submissions.
As the Judge then noted:
Accordingly, unless people take particular interest in the public notices
contained in the newspapers, there is a real possibility they may not be aware
of plan changes or of submissions on those plan changes which potentially
affect them.
[24]
The Judge noted that it was against that background that William Young J
made the observations he did in the Clearwater decision. Because there is limited
scope for public participation, it is necessary to adopt a cautious approach in
determining whether or not a submission is on a plan change. William Young J had
used the expression coming out of left field in Clearwater. The Judge below in
this case saw that as indicating a submission seeking a remedy or change:
... which is not readily foreseeable, is unusual in character or potentially
leads to the plan change being something different than what was intended.
[25]
But the Judge did not consider that the relief sought by MML in this case
could be regarded as falling within any of those descriptions. Rather, the Judge
found it entirely predictable that MML might seek relief of the sort identified in its
submission. The Judge considered that Schedule 1 requires a proactive approach on
the part of those persons who might be affected by submissions to a plan change.
They must make inquiry on their own account once public notice is given. There
was no procedural unfairness in considering MMLs submission.
[26]
The Judge therefore found that MML had filed a submission that was on
PPC1. Accordingly there was a valid appeal before the Court.

[27]
From that conclusion the Council appeals.
Appeal
The Councils argument
[28]
The Councils essential argument is that the Judge failed to consider that
PPC1 did not change any provisions of the District Plan as it applied to the site (or
indeed any surrounding land) at all, thereby leaving the status quo unchanged. That
is said to be a pre-eminent, if not decisive, consideration. The subject matter of the
plan change was to be found within the four corners of the plan change and the plan
provisions it changes, including objectives, policies, rules and methods such as
zoning. The Council did not, under the plan change, change any plan provisions
relating to MMLs property. The land (representing a natural resource) was therefore
not a resource that could sensibly be described as part of the subject matter of the
plan change. MMLs submission was not on PPC1, because PPC1 did not alter the
status quo in the plan as it applied to the site. That is said to be the only legitimate
result applying the High Court decision in Clearwater.
[29]
The decision appealed from was said also by the Council to inadequately
assess the potential prejudice to other landowners and affected persons. For the
Council, Mr Maassen submitted that it was inconceivable, given that public
participation and procedural fairness are essential dimensions of environmental
justice and the Act, that land not the subject of the plan change could be rezoned to
facilitate an entirely different land use by submission using Form 5. Moreover, the
Judge appeared to assume that an affected person (such as a neighbour) could make a
further submission under Schedule 1, clause 8, responding to MMLs submission.
But that was not correct.
MMLs argument
[30]
In response, Mr Ax (who appeared in person, and is an engineer rather than a
lawyer) argued that I should adopt the reasoning of the Environment Court Judge.
He submitted that the policy behind PPC1 and its purpose were both relevant, and
the question was one of scale and degree. Mr Ax submitted that extending the OBZ
to incorporate MMLs property would be in keeping with the intention of PPC1 and
the assessment of whether existing residential land would be better incorporated in
that OBZ. His property was said to warrant consideration having regard to its
proximity to the existing OBZ, and the existing use of a large portion of the Lombard
Street lots. Given the character and use of the properties adjacent to MMLs land on
Lombard Street (old houses used as rental properties, a plumbers warehouse and an
industrial site across the road used by an electronic company) and the rest of
Lombard Street being a mixture of industrial and low quality residential use, there
was limited prejudice and the submission could not be seen as coming out of left
field. As Mr Ax put it:
Given the nature of the surrounding land uses I would have ... been surprised
if there were parties that were either (a) caught unawares or (b) upset at what
I see as a natural extension of the existing use of my property.
Statutory framework
[31]
Plan changes are amendments to a district plan. Changes to district plans are
governed by s 73 of the Act. Changes must, by s 73(1A), be effected in accordance

with Schedule 1.
[32]
Section 74 sets out the matters to be considered by a territorial authority in
the preparation of any district plan change. Section 74(1) provides:

A territorial authority shall prepare and change its district plan in accordance
with its functions under section 31, the provisions of Part 2, a direction given
under section 25A(2), its duty under section 32, and any regulations.
[33]
Seven critical components in the plan change process now deserve attention.
[34]
First, there is the s 32 report referred to indirectly in s 74(1). To the extent
changes to rules or methods in a plan are proposed, that report must evaluate
comparative efficiency and effectiveness, and whether what is proposed is the most
appropriate option.5 The evaluation must take into account the benefits and costs of
available options, and the risk of acting or not acting if there is uncertain or
insufficient information about the subject matter.6 This introduces a precautionary
Resource Management Act 1991, s 32(3)(b). All statutory references are to the Act unless stated
otherwise.
Section 32(4).
approach to the analysis.
The s 32 report must then be available for public
inspection at the same time as the proposed plan change is publicly notified.7
[35]
Secondly, there is the consultation required by Schedule 1, clause 3.
Consultation with affected landowners is not required, but it is permitted.8

[36]
Thirdly, there is notification of the plan change. Here the council must
comply with Schedule 1, clause 5. Clause 5(1A) provides:

A territorial authority shall, not earlier than 60 working days before public
notification or later than 10 working days after public notification was
planned, either
(a)
send a copy of the public notice, and such further information as a

territorial authority thinks fit relating to the proposed plan, to every
ratepayer for the area where that person, in the territorial authoritys
opinion, is likely to be directly affected by the proposed plan; or
(b)
include the public notice, and such further information as the

territorial authority thinks fit relating to the proposed plan, and any
publication or circular which is issued or sent to all residential
properties and Post Office box addresses located in the affected area
and shall send a copy of the public notice to any other person who
in the territorial authoritys opinion, is directed affected by the plan.
Clause 5 is intended to provide assurance that a person is notified of any change to a

district plan zoning on land adjacent to them. Typically territorial authorities bring
such a significant change directly to the attention of the adjoining land owner. The
reference to notification to persons directly affected should be noted.
[37]
Fourthly, there is the right of submission. That is found in Schedule 1, clause
6. Any person, whether or not notified, may submit. That is subject to an exception
in the case of trade competitors, a response to difficulties in days gone by with new
service station and supermarket developments. But even trade competitors may
submit if, again, directly affected.
At least 20 working days after public
notification is given for submission.9 Clause 6 provides:
7
8
9
Section 32(6).
Schedule 1, clause 3(2).
Schedule 1, clause 5(3)(b).
Making of submissions
(1)
Once a proposed policy statement or plan is publicly notified under

clause 5, the persons described in subclauses (2) to (4) may make a
submission on it to the relevant local authority.
(2)
The local authority in its own area may make a submission.
(3)
Any other person may make a submission but, if the person could
gain an advantage in trade competition through the submission, the
persons right to make a submission is limited by subclause (4).
(4)
A person who could gain an advantage in trade competition through

the submission may make a submission only if directly affected by
an effect of the proposed policy statement or plan that
(5)
[38]
(a)
adversely affects the environment; and
(b)
does not relate to trade competition or the effects of trade

competition.
A submission must be in the prescribed form.
The expression proposed plan includes a proposed plan change. 10 The
prescribed form is Form 5. Significantly, and so far as relevant, it requires the

submitter to complete the following details:
The specific provisions of the proposal that my submission relates to are:
[give details].
My submission is:
[include
whether you support or oppose the specific provisions or wish to
have them amended; and
reasons for your views].
I seek the following decision from the local authority:
[give precise details].
I wish (or do not wish) to be heard in support of my submission.
It will be seen from that that the focus of submission must be on specific provisions
of the proposal. The form says that. Twice.
[39]
Fifthly, there is notification of a summary of submissions. This is in far
narrower terms as to scope, content and timing than notification of the original
plan change itself. Importantly, there is no requirement that the territorial authority
10
Section 43AAC(1)(a).
notify individual landowners directly affected by a change sought in a submission.

Clause 7 provides:
Public notice of submissions
(1)
(2)
[40]
A local authority must give public notice of

(a)
the availability of a summary of decisions requested by

persons making submissions on a proposed policy statement
or plan; and
(b)
where the summary of decisions and the submissions can be

inspected; and
(c)
the fact that no later than 10 working days after the day on
which this public notice is given, the persons described in
clause 8(1) may make a further submission on the proposed
policy statement or plan; and
(d)
the date of the last day for making further submissions (as
calculated under paragraph (c)); and
(e)
the limitations on the content and form of a further

submission.
The local authority must serve a copy of the public notice on all
persons who made submissions.
Sixthly, there is a limited right (in clause 8) to make further submissions.
Clause 8 was amended in 2009 and now reads:

Certain persons may make further submissions
(1)
(2)
[41]
The following persons may make a further submission, in the

prescribed form, on a proposed policy statement or plan to the
relevant local authority:
(a)
any person representing a relevant aspect of the public

interest; and
(b)
any person that has an interest in the proposed policy

statement or plan greater than the interest that the general
public has; and
(c)
the local authority itself.
A further submission must be limited to a matter in support of or in

opposition to the relevant submission made under clause 6.
Before 2009 any person could make a further submission, although only in
support of or opposition to existing submissions. After 2009 standing to make a
further submission was restricted in the way we see above.
The Resource
Management (Simplifying and Streamlining) Amendment Bill 2009 sought to restrict

the scope for further submission, in part due to the number of such submissions
routinely lodged, and the tendency for them to duplicate original submissions.
[42]
In this case the Judge contemplated that persons affected by a submission
proposing a significant rezoning not provided for in the notified proposed plan
change might have an effective opportunity to respond.11 It is not altogether clear
that that is so. An affected neighbour would not fall within clause 8(1)(a). For a
person to fall within the qualifying class in clause 8(1)(b), an interest in the
proposed policy statement or plan (including the plan change) greater than that of
the general public is required. Mr Maassen submitted that a neighbour affected by
an additional zoning change proposed in a submission rather than the plan change
itself would not have such an interest. His or her concern might be elevated by the
radical subject matter of the submission, but that is not what clause 8(1)(b) provides
for. On the face of the provision, that might be so. But I agree here with the Judge
below that that was not Parliaments intention.
That is clear from the select
committee report proposing the amended wording which now forms clause 8. It is
worth setting out the relevant part of that report in full:
Clause 148(8) would replace this process by allowing councils discretion to
seek the views of potentially affected parties.
Many submitters opposed the proposal on the grounds that it would breach
the principle of natural justice. They argued that people have a right to
respond to points raised in submissions when they relate to their land or may
have implications for them. They also regard the further submission process
as important for raising new issues arising from submissions, and providing
an opportunity to participate in any subsequent hearing or appeal
proceedings. We noted a common concern that submitters could request
changes that were subsequently incorporated into the final plan provisions
without being subject to a further submissions process, and that such
changes could significantly affect people without providing them an
opportunity to respond.
Some submitters were concerned that the onus would now lie with council
staff to identify potentially affected parties. Some local government
submitters were also concerned that the discretionary process might incur a
risk of liability and expose councils to more litigation. A number of
organisations and iwi expressed concern that groups with limited resources
11
See at [25] above.
would be excluded from participation if they missed the first round of

submissions.
We consider that the issues of natural justice and fairness to parties who
might be adversely affected by proposed plan provisions, together with the
potential increase in local authorities workloads as a result of these
provisions, warrant the development of an alternative to the current proposal.
We recommend amending clause 148(8) to require local authorities to
prepare, and advertise the availability of, a summary of outcomes sought by
submitters, and to allow anyone with an interest that is greater than that of
the public generally, or representing a relevant aspect of the public interest,
or the local authority itself, to lodge a further submission within 10 working
days.
[43]
It is, I think, perfectly clear from that passage that what was intended by
clause 8 was to ensure that persons who are directly affected by submissions
proposing further changes to the proposed plan change may lodge a further
submission.
The difficulty, then, is not with their right to lodge that further
submission. Rather it is with their being notified of the fact that such a submission
has been made. Unlike the process that applies in the case of the original proposed
plan change, persons directly affected by additional changes proposed in
submissions do not receive direct notification. There is no equivalent of clause
5(1A). Rather, they are dependent on seeing public notification that a summary of
submissions is available, translating that awareness into reading the summary,
apprehending from that summary that it actually affects them, and then lodging a
further submission. And all within the 10 day timeframe provided for in clause
7(1)(c). Persons directly affected in this second round may have taken no interest
in the first round, not being directly affected by the first. It is perhaps unfortunate
that Parliament did not see fit to provide for a clause 5(1A) equivalent in clause 8.
The result of all this, in my view (and as I will explain), is to reinforce the need for
caution in monitoring the jurisdictional gateway for further submissions.
[44]
Seventhly, finally and for completeness, I record that the Act also enables a
private plan change to be sought. Schedule 1, Part 2, clause 22, states:

Form of request
(1)
A request made under clause 21 shall be made to the appropriate

local authority in writing and shall explain the purpose of, and
reasons for, the proposed plan or change to a policy statement or
plan [and contain an evaluation under section 32 for any objectives,

policies, rules, or other methods proposed].
(2)
Where environmental effects are anticipated, the request shall

describe those effects, taking into account the provisions of Schedule
4, in such detail as corresponds with the scale and significance of the
actual or potential environmental effects anticipated from the
implementation of the change, policy statement, or plan.
So a s 32 evaluation and report must be undertaken in such a case.

Issues
[45]
The issues for consideration in this case are:

(a)
Issue 1: When, generally, is a submission on a plan change?
(b)
Issue 2: Was MMLs submission on PPC1?
Issue 1: When, generally, is a submission on a plan change?

[46]
The leading authority on this question is a decision of William Young J in the
High Court in Clearwater Resort Ltd v Christchurch City Council.12 A second High
Court authority, the decision of Ronald Young J in Option 5 Inc v Marlborough
District Council,13 follows Clearwater. Clearwater drew directly upon an earlier
Environment Court decision, Halswater Holdings Ltd v Selwyn District Council.14 A
subsequent Environment Court decision, Naturally Best New Zealand Ltd v
Queenstown Lakes District Council15 purported to gloss Clearwater. That gloss was
disregarded in Option 5. I have considerable reservations about the authority for,
and efficacy of, the Naturally Best gloss.
[47]
Before reviewing these four authorities, I note that they all predated the
amendments made in the Resource Management (Simplifying and Streamlining)

Amendment Act 2009. As we have seen, that had the effect of restricting the persons
12
13
14
15
Option 5 Inc v Marlborough District Council HC Blenheim CIV 2009-406-144, 28 September
2009.
Halswater Holdings Ltd v Selwyn District Council (1999) 5 ELRNZ 192 (EnvC).
49/2004, 23 April 2004.
who could respond (by further submission) to submissions on a plan change,

although not so far as to exclude persons directly affected by a submission. But it
then did little to alleviate the risk that such persons would be unaware of that
development.
Clearwater
[48]
In Clearwater the Christchurch City Council had set out rules restricting
development in the airport area by reference to a series of noise contours. The

council then notified variation 52. That variation did not alter the noise contours in
the proposed plan. Nor did it change the rules relating to subdivisions and dwellings
in the rural zone.
But it did introduce a policy discouraging urban residential
development within the 50 dBA Ldn noise contour around the airport. Clearwaters
submission sought to vary the physical location of the noise boundary. It sought to
challenge the accuracy of the lines drawn on the planning maps identifying three of
the relevant noise contours. Both the council and the airport company demurred.
They did not wish to engage in a lengthy and technical hearing as to whether the
contour lines are accurately depicted on the planning maps. The result was an
invitation to the Environment Court to determine, as a preliminary issue, whether
Clearwater could raise its contention that the contour lines were inaccurately drawn.
The Environment Court determined that Clearwater could raise, to a limited extent,
a challenge to the accuracy of the planning maps. The airport company and the
regional council appealed.
[49]
William Young J noted that the question of whether a submission was on a
variation posed a question of apparently irreducible simplicity but which may not
necessarily be easy to answer in a specific case.16 He identified three possible
general approaches:17
(a)
a literal approach, in terms of which anything which is expressed in

the variation is open for challenge;
16
17
Clearwater Resort Ltd v Christchurch City Council HC Christchurch AP34/02, 14 March 2003
at [56].
At [59].
(b)
an approach in which on is treated as meaning in connection with;

and
(c)
an approach which focuses on the extent to which the variation alters

the proposed plan.
[50]
William Young J rejected the first two alternatives, and adopted the third.
[51]
The first, literal construction had been favoured by the commissioner (from
whom the Environment Court appeal had been brought). The commissioner had
thought that a submission might be made in respect of anything included in the text
as notified, even if the submission relates to something that the variation does not
propose to alter. But it would not be open to submit to seek alterations of parts of the
plan not forming part of the variation notified. William Young J however thought
that left too much to the idiosyncrasies of the draftsman of the variation. Such an
approach might unduly expand the scope of challenge, or it might be too restrictive,
depending on the specific wording.
[52]
The second construction represented so broad an approach that it would be
difficult for a local authority to introduce a variation of a proposed plan without

necessarily opening up for relitigation aspects of the plan which had previously been
[past] the point of challenge.18 The second approach was, thus, rejected also.
[53]
In adopting the third approach William Young J applied a bipartite test.
[54]
First, the submission could only fairly be regarded as on a variation if it is
addressed to the extent to which the variation changes the pre-existing status quo.
That seemed to the Judge to be consistent with the scheme of the Act, which
obviously contemplates a progressive and orderly resolution of issues associated
with the development of proposed plans.
[55]
Secondly, if the effect of regarding a submission as on a variation would
be to permit a planning instrument to be appreciably amended without real

18
At [65].
opportunity for participation by those potentially affected, that will be a powerful

consideration against finding that the submission was truly on the variation. It
was important that all those likely to be affected by or interested in the alternative
methods suggested in the submission have an opportunity to participate.19 If the
effect of the submission came out of left field there might be little or no real scope
for public participation. In another part of paragraph [69] of his judgment William
Young J described that as a submission proposing something completely novel.
Such a consequence was a strong factor against finding the submission to be on the
variation.
[56]
In the result in Clearwater the appellant accepted that the contour lines
served the same function under the variation as they did in the pre-variation
proposed plan. It followed that the challenge to their location was not on variation
52.20
[57]
Mr Maassen submitted that the Clearwater test was not difficult to apply. For
the reasons that follow I am inclined to agree.
But it helps to look at other
authorities consistent with Clearwater, involving those which William Young J drew
upon.
Halswater
[58]
William Young J drew directly upon an earlier Environment Court decision in
Halswater Holdings Ltd v Selwyn District Council.21 In that case the council had
notified a plan change lowering minimum lot sizes in a green belt sub-zone, and
changing the rules as to activity status depending on lot size. Submissions on that
plan change were then notified by the appellants which sought:
(a)
To further lower the minimum sub-division lot size; and
(b)
seeking spot zoning to be applied to their properties, changes from

one zoning status to another.
19
20
21
At [69].
At [81][82].
[59]
The plan change had not sought to change any zonings at all. It simply
proposed to change the rules as to minimum lot sizes and the building of houses
within existing zones (or the green belt part of the zone).
[60]
The Environment Court decision contains a careful and compelling analysis
of the then more concessionary statutory scheme at [26] to [44]. Much of what is
said there remains relevant today. It noted amongst other things the abbreviated time
for filing of submissions on plan changes, indicating that they were contemplated as
shorter and easier to digest and respond to than a full policy statement or plan.22
[61]
The Court noted that the statutory scheme suggested that: 23

... if a person wanted a remedy that goes much beyond what is suggested in
the plan change so that, for example, a submission can no longer be said to
be on the plan change, then they may have to go about changing the plan
in another way.
Either a private plan change, or by encouraging the council itself to promote a

further variation to the plan change. As the Court noted, those procedures then had
the advantage that the notification process goes back to the beginning. The Court
also noted that if relief sought by a submission went too far beyond the four corners
of a plan change, the council may not have turned its mind to the effectiveness and
efficiency of what was sought in the submission, as required by s 32(1)(c)(ii) of the
Act. The Court went on to say:24
It follows that a crucial question for a Council to decide, when there is a very
wide submission suggesting something radically different from a proposed
plan as notified, is whether it should promote a variation so there is time to
have a s 32 analysis carried out and an opportunity for other interested
persons to make primary submissions under clause 6.
[62]
The Court noted in Halswater the risk of persons affected not apprehending
the significance of submissions on a plan change (as opposed to the original plan
change itself). As the Court noted, there are three layers of protection under clause 5
22
23
24
At [38].
At [41].
At [42].
notification of a plan change that do not exist in relation to notification of a summary

of submissions:25
These are first that notice of the plan change is specifically given to every
person who is, in the opinion of the Council, affected by the plan change,
which in itself alerts a person that they may need to respond; secondly clause
5 allows for extra information to be sent, which again has the purpose of
alerting the persons affected as to whether or not they need to respond to the
plan change. Thirdly notice is given of the plan change, not merely of the
availability of a summary of submissions. Clause 7 has none of those
safeguards.
[63]
Ultimately, the Environment Court in Halswater said:26

A submissions on a plan change cannot seek a rezoning (allowing different
activities and/or effects) if a rezoning is not contemplated by a plan change.
[64]
In Halswater there was no suggestion in the plan change that there was to be
rezoning of any land. As a result members of the public might have decided they did
not need to become involved in the plan change process, because of its relatively
narrow effects.
As a result, they might not have checked the summary of
submissions or gone to the council to check the summary of submissions. Further,

the rezoning proposal sought by the appellants had no s 32 analysis.
[65]
It followed in that case that the appellants proposal for spot rezoning was
not on the plan change. The remedy available to the appellants in that case was to
persuade the council to promote a further variation of the plan change, or to seek a
private plan change of their own.
Option 5
[66]
Clearwater was followed in a further High Court decision, Option 5 Inc v
Marlborough District Council.27 In that case the council had proposed a variation
(variation 42) defining the scope of a central business zone (CBZ). Variation 42 as
notified had not rezoned any land, apart from some council-owned vacant land.
Some people called McKendry made a submission to the council seeking addition of
further land to the CBZ. The council agreed with that submission and variation 42
25
26
27
At [44].
At [51].
2009.
was amended. A challenge to that decision was taken to the Environment Court. A
jurisdictional issue arose as to whether the McKendry submission had ever been
on variation 42. The Environment Court said that it had not. It should not have
been considered by the council.
[67]
On appeal Ronald Young J did not accept the appellants submission that
because variation 42 involved some CBZ rezoning, any submission advocating

further extension of the CBZ would be on that variation. That he regarded as too
crude. As he put it:28
Simply because there may be an adjustment to a zone boundary in a
proposed variation does not mean any submission that advocates expansion
of a zone must be on the variation. So much will depend on the particular
circumstances of the case. In considering the particular circumstances it will
be highly relevant to consider whether, as William Young J identified in
Clearwater, that if the result of accepting a submission as on (a variation)
would be to significantly change a proposed plan without a real opportunity
for participation by those affected then that would be a powerful argument
against the submission as being on.
[68]
In that case the amended variation 42 would change at least 50 residential
properties to CBZ zoning. That would occur without any direct notification to the
property owners and therefore without any real chance to participate in the process
by which their zoning will be changed. The only notification to those property
owners was through public notification in the media that they could obtain
summaries of submissions. Nothing in that indicated to those 50 house owners that
the zoning of their property might change.
Naturally Best
[69]
Against the background of those three decisions, which are consistent in
principle and outcome, I come to consider the later decision of the Environment
Court in Naturally Best New Zealand Ltd v Queenstown Lakes District Council.29
[70]
That decision purports to depart from the principles laid down by William
Young J in Clearwater. It does so by reference to another High Court decision in

28
29
At [34].
C49/2004, 23 April 2004.
Countdown Properties Ltd v Dunedin City Council.30 However that decision does
not deal with the jurisdictional question of whether a submission falls within
Schedule 1, clause 6(1). The Court in Naturally Best itself noted that the question in
that case was a different one.31 Countdown is not authority for the proposition
advanced by the Environment Court in Naturally Best that a submission may seek
fair and reasonable extensions to a notified variation or plan change. Such an
approach was not warranted by the decision in Clearwater, let alone by that in
Countdown.
[71]
The effect of the decision in Naturally Best is to depart from the approach
approved by William Young J towards the second of the three constructions

considered by him, but which he expressly disapproved.
In other words, the
Naturally Best approach is to treat on as meaning in connection with, but subject

to vague and unhelpful limitations based on fairness, reasonableness and
proportion. That approach is not satisfactory.
[72]
Although in Naturally Best the Environment Court suggests that the test in
Clearwater is rather passive and limited, whatever that might mean, and that it
conflates two points,32 I find no warrant for that assessment in either Clearwater
or Naturally Best itself.
[73]
It follows that the approach taken by the Environment Court in Naturally
Best of endorsing fair and reasonable extensions to a plan change is not correct.
The correct position remains as stated by this Court in Clearwater, confirmed by this
Court in Option 5.
Discussion
[74]
It is a truth almost universally appreciated that the purpose of the Act is to
promote the sustainable management of natural and physical resources. 33 Resources

may be used in diverse ways, but that should occur at a rate and in a manner that
enables people and communities to provide for their social, economic and cultural
30
31
32
33
Countdown Properties Ltd v Dunedin City Council [1994] NZRMA 145 (HC).
At [17].
At [15].
Section 5(1).
wellbeing while meeting the requirements of s 5(2).
These include avoiding,
remedying or mitigating the adverse effects of activities on the environment. The

Act is an attempt to provide an integrated system of environmental regulation.34
That integration is apparent in s 75, for instance, setting out the hierarchy of
elements of a district plan and its relationship with national and regional policy
statements.
[75]
Inherent in such sustainable management of natural and physical resources
are two fundamentals.

[76]
The first is an appropriately thorough analysis of the effects of a proposed
plan (whichever element within it is involved) or activity. In the context of a plan

change, that is the s 32 evaluation and report:
a comparative evaluation of
efficiency, effectiveness and appropriateness of options. Persons affected, especially

those directly affected, by the proposed change are entitled to have resort to that
report to see the justification offered for the change having regard to all feasible
alternatives. Further variations advanced by way of submission, to be on the
proposed change, should be adequately assessed already in that evaluation. If not,
then they are unlikely to meet the first limb in Clearwater.
[77]
The second is robust, notified and informed public participation in the
evaluative and determinative process. As this Court said in General Distributors Ltd
v Waipa District Council:35
The promulgation of district plans and any changes to them is a participatory
process. Ultimately plans express community consensus about land use
planning and development in any given area.
A core purpose of the statutory plan change process is to ensure that persons
potentially affected, and in particular those directly affected, by the proposed plan
change are adequately informed of what is proposed. And that they may then elect
to make a submission, under clauses 6 and 8, thereby entitling them to participate in
the hearing process. It would be a remarkable proposition that a plan change might
34
35
Nolan (ed) Environmental and Resource Management Law (4th ed, Lexis Nexis, Wellington
2011) at 96.
General Distributors Ltd v Waipa District Council (2008) 15 ELRNZ 59 (HC) at [54].
so morph that a person not directly affected at one stage (so as not to have received
notification initially under clause 5(1A)) might then find themselves directly affected
but speechless at a later stage by dint of a third party submission not directly notified
as it would have been had it been included in the original instrument. It is that
unfairness that militates the second limb of the Clearwater test.
[78]
Where a land owner is dissatisfied with a regime governing their land, they
have three principal choices. First, they may seek a resource consent for business
activity on the site regardless of existing zoning.
Such application will be
accompanied by an assessment of environment effects and directly affected parties

should be notified. Secondly, they may seek to persuade their council to promulgate
a plan change. Thirdly, they may themselves seek a private plan change under
Schedule 1, Part 2. Each of the second and third options requires a s 32 analysis.
Directly affected parties will then be notified of the application for a plan change.
All three options provide procedural safeguards for directly affected people in the
form of notification, and a substantive assessment of the effects or merits of the
proposal.
[79]
In contrast, the Schedule 1 submission process lacks those procedural and
substantial safeguards. Form 5 is a very limited document. I agree with Mr Maassen

that it is not designed as a vehicle to make significant changes to the management
regime applying to a resource not already addressed by the plan change. That
requires, in my view, a very careful approach to be taken to the extent to which a
submission may be said to satisfy both limbs 1 and 2 of the Clearwater test. Those
limbs properly reflect the limitations of procedural notification and substantive
analysis required by s 5, but only thinly spread in clause 8. Permitting the public to
enlarge significantly the subject matter and resources to be addressed through the
Schedule 1 plan change process beyond the original ambit of the notified proposal is
not an efficient way of delivering plan changes. It transfers the cost of assessing the
merits of the new zoning of private land back to the community, particularly where
shortcutting results in bad decision making.
[80]
For a submission to be on a plan change, therefore, it must address the
proposed plan change itself. That is, to the alteration of the status quo brought about
by that change. The first limb in Clearwater serves as a filter, based on direct
connection between the submission and the degree of notified change proposed to
the extant plan. It is the dominant consideration. It involves itself two aspects: the
breadth of alteration to the status quo entailed in the proposed plan change, and
whether the submission then addresses that alteration.
[81]
In other words, the submission must reasonably be said to fall within the
ambit of the plan change.
One way of analysing that is to ask whether the
submission raises matters that should have been addressed in the s 32 evaluation and
report. If so, the submission is unlikely to fall within the ambit of the plan change.
Another is to ask whether the management regime in a district plan for a particular
resource (such as a particular lot) is altered by the plan change. If it is not then a
submission seeking a new management regime for that resource is unlikely to be
on the plan change. That is one of the lessons from the Halswater decision. Yet
the Clearwater approach does not exclude altogether zoning extension by
submission. Incidental or consequential extensions of zoning changes proposed in a
plan change are permissible, provided that no substantial further s 32 analysis is
required to inform affected persons of the comparative merits of that change. Such
consequential modifications are permitted to be made by decision makers under
schedule 1, clause 10(2). Logically they may also be the subject of submission.
[82]
But that is subject then to the second limb of the Clearwater test: whether
there is a real risk that persons directly or potentially directly affected by the
additional changes proposed in the submission have been denied an effective
response to those additional changes in the plan change process. As I have said
already, the 2009 changes to Schedule 1, clause 8, do not avert that risk. While
further submissions by such persons are permitted, no equivalent of clause 5(1A)
requires their notification.
To override the reasonable interests of people and
communities by a submissional side-wind would not be robust, sustainable

management of natural resources. Given the other options available, outlined in [78],
a precautionary approach to jurisdiction imposes no unreasonable hardship.
[83]
Plainly, there is less risk of offending the second limb in the event that the
further zoning change is merely consequential or incidental, and adequately assessed
in the existing s 32 analysis. Nor if the submitter takes the initiative and ensures the
direct notification of those directly affected by further changes submitted.
Issue 2: Was MMLs submissions on PPC1?
[84]
In light of the foregoing discussion I can be brief on Issue 2.
[85]
In terms of the first limb of the Clearwater test, the submission made by
MML is not in my view addressed to PPC1. PPC1 proposes limited zoning changes.
All but a handful are located on the ring road, as the plan excerpt in [11]
demonstrates. The handful that are not are to be found on main roads: Broadway,
Main and Church Streets. More significantly, PPC1 was the subject of an extensive
s 32 report. It is over 650 pages in length. It includes site-specific analysis of the
proposed rezoning, urban design, traffic effects, heritage values and valuation
impacts. The principal report includes the following:
2.50
PPC1 proposes to rezone a substantial area of residentially zoned

land fronting the Ring Road to OBZ. Characteristics of the area
such as its close proximity to the city centre; site frontage to key
arterial roads; the relatively old age of residential building stock and
the on-going transition to commercial use suggest there is merit in
rezoning these sites.
...
5.8
Summary Block Analysis Blocks 9 to 14 are characterised by

sites that have good frontage to arterial roads, exhibit little
pedestrian traffic and have OBZ sites surrounding the block. These
blocks are predominately made up of older residential dwellings
(with a scattering of good quality residences) and on going transition
to commercial use. Existing commercial use includes; motor lodges;
large format retail; automotive sales and service; light industrial;
office; professional and community services. In many instances, the
rezoning of blocks 9 to 14 represents a squaring off of the
surrounding OBZ. Blocks 10, 11, 12 and 13 are transitioning in use
from residential to commercial activity. Some blocks to a large
degree than others. In many instances, the market has already
anticipated a change in zoning within these blocks. The positioning
of developer and long term investor interests has already resulted in
higher residential land values within these blocks.
Modern
commercial premises have already been developed in blocks 10, 11,
12 and 13.
5.9
Rezoning Residential Zone sites fronting the Ring Road will

rationalise the number of access crossings and will enhance the
function of the adjacent road network, while the visual exposure for
sites fronting key arterial roads is a substantial commercial benefit
for market operators. The location of these blocks in close

proximity to the Inner and Outer Business Zones; frontage to key
arterial roads; the relatively old age of the existing residential
building stock; the ongoing transition to commercial use; the
squaring off of existing OBZ blocks; and the anticipation of the
market are all attributes that suggest there is merit in rezoning blocks
9 to 14 to OBZ.
[86]
The extension of the OBZ on a spot-zoning basis into an isolated enclave
within Lombard Street would reasonably require like analysis to meet the
expectations engendered by s 5. Such an enclave is not within the ambit of the
existing plan change. It involves more than an incidental or consequential extension
of the rezoning proposed in PPC1. Any decision to commence rezoning of the
middle parts of Lombard Street, thereby potentially initiating the gradual transition
of Lombard Street by instalment towards similar land use to that found in Taonui
Street, requires coherent long term analysis, rather than opportunistic insertion by
submission.
[87]
There is, as I say, no hardship in approaching the matter in this way. Nothing
in this precludes the landowner for adopting one of the three options identified in
[78]. But in that event, the community has the benefit of proper analysis, and proper
notification.
[88]
In terms of the second limb of Clearwater, I note Mr Axs confident
expression of views set out at [30] above. However I note also the disconnection
from the primary focus of PPC1 in the proposed addition of two lots in the middle of
Lombard Street. And I note the lack of formal notification of adjacent landowners.
Their participatory rights are then dependent on seeing the summary of submissions,
apprehending the significance for their land of the summary of MMLs submission,
and lodging a further submission within the 10 day time frame prescribed.
[89]
That leaves me with a real concern that persons affected by this proposed
additional rezoning would have been left out in the cold. Given the manner in which
PPC1 has been promulgated, and its focus on main road rezoning, the inclusion of a
rezoning of two isolated lots in a side street can indeed be said to come from left
field.
Conclusion
[90]
MMLs submission was not on PPC1. In reaching a different view from
the experienced Environment Court Judge, I express no criticism. The decision

below applied the Naturally Best gloss, which I have held to be an erroneous
relaxation of principles correctly stated in Clearwater.
Summary
[91]
To sum up:
(a)
This judgment endorses the bipartite approach taken by William

Young J in Clearwater Christchurch City Council36 in analysing
whether a submission made under Schedule 1, clause 6(1) of the Act
is on a proposed plan change. That approach requires analysis as to
whether, first, the submission addresses the change to the status quo
advanced by the proposed plan change and, secondly, there is a real
risk that persons potentially affected by such a change have been
denied an effective opportunity to participate in the plan change
process.
(b)
This judgment rejects the more liberal gloss placed on that decision by
the Environment Court in Naturally Best New Zealand Ltd v
Queenstown Lakes District Council,37 inconsistent with the earlier
approach of the Environment Court in Halswater Holdings Ltd v
Selwyn District Council38 and inconsistent with the decisions of this
Court in Clearwater and Option 5 Inc v Marlborough District
Council.39
(c)
A precautionary approach is required to receipt of submissions

proposing more than incidental or consequential further changes to a
36
37
38
39
C49/2004, 23 April 2004.
2009.
notified proposed plan change. Robust, sustainable management of

natural and physical resources requires notification of the s 32
analysis of the comparative merits of a proposed plan change to
persons directly affected by those proposals. There is a real risk that
further submissions of the kind just described will be inconsistent
with that principle, either because they are unaccompanied by the s 32
analysis that accompanies a proposed plan change (whether public or
private) or because persons directly affected are, in the absence of an
obligation that they be notified, simply unaware of the further changes
proposed in the submission. Such persons are entitled to make a
further submission, but there is no requirement that they be notified of
the changes that would affect them.
(d)
The first limb of the Clearwater test requires that the submission
address the alteration to the status quo entailed in the proposed plan
change. The submission must reasonably be said to fall within the
ambit of that plan change.
One way of analysing that is to ask
whether the submission raises matters that should have been

addressed in the s 32 evaluation and report. If so, the submission is
unlikely to fall within the ambit of the plan change. Another is to ask
whether the management regime in a district plan for a particular
resource is altered by the plan change. If it is not, then a submission
seeking a new management regime for that resource is unlikely to be
on the plan change, unless the change is merely incidental or
consequential.
(e)
The second limb of the Clearwater test asks whether there is a real
risk that persons directly or potentially directly affected by the
additional changes proposed in the submission have been denied an
effective opportunity to respond to those additional changes in the
plan change process.
(f)
Neither limb of the Clearwater test was passed by the MML

submission.
(g)
Where a submission does not meet each limb of the Clearwater test,
the submitter has other options: to submit an application for a resource
consent, to seek a further public plan change, or to seek a private plan
change under Schedule 1, Part 2.
Result
[92]
The appeal is allowed.
[93]
The Council lacked jurisdiction to consider the submission lodged by MML,
which is not one on PPC1.

[94]
If costs are in issue, parties may file brief memoranda.
Stephen Ks J
Solicitors:
Cooper Rapley, Palmerston North for Appellant
ATTACHMENT 4
IN THE HIGH COURT OF NEW ZEALAND

HAMIL TON REGISTRY
CIV2003 485 000956
CIV2003 485 000954
CIV2003 485 000953
Hearing:
BETWEEN
WESTFIELD (NEW ZEALAND)

LIMITED
KIWI PROPERTY MANAGEMENT
LIMITED
WENGATE HOLDINGS LIMITED
Appellants
AND
HAMILTON CITY COUNCIL

Respondent
6, 7, 8 and 9 October 2003
Appearances: C Whata and M Baskett for Westfield (New Zealand) Ltd

D Allan for Kiwi Property Management Ltd
S Menzies for W engate Holdings Ltd
P Lane for Hamilton City Council
D R Clay for National Trading Co Ltd
J Milne for Tainui Developments Ltd
Judgment:
17 March 2004
JUDGMENT OF FISHER J
Solicitors:
S Menzies, Harkness Henry, Private Bag 3077, Hamilton
D Allan, Ellis Gould, P 0 Box 1509, Auckland
C Whata, Russell Me Veagh, P 0 Box 8, Auckland
J MacRae, Phillips Fox, P 0 Box 160, Auckland
P Lang, Swarbrick Dixon, P 0 Box 19010, Hamilton
J Oliver, Crown Law Office, P 0 Box 5012, Wellington
Counsel:
J Milne, P 0 Box 20245, Hamilton
WESTFIELD (NZ) LIMITED And Ors V HAMILTON CITY COUNCIL HC HAM CIV2003 485 000956 [17
March 2004]
Introduction
[1]
Most of Hamilton's retail activities are conducted in either the commercial
centre or five smaller centres in the suburbs. The Hamilton City Council's proposed
district plan provides for additional retail activity in the commercial services and
industrial zones. The present appeals are directed to the additional retail activity
proposed. The appeals are brought against a decision of the Environment Court of 27
March 2003 upholding those aspects of the proposed plan.
Factual background
[2]
Resource management in the city of Hamilton is currently governed by
transitional and proposed district plans. The proposed district plan was notified in
October 1999 and amended by Council decisions in October 2001. It was then the
subject of further Council decisions of 29 January 2002. From the proposed plan as
amended, the Appellants took references to the Environment Court. With minor
qualifications the Environment Court endorsed the proposed plan as amended. From
the Environment Court decision the Appellants have appealed to this Court alleging
legal error on the Environment Court's part.
[3]
Under the proposed plan, retailing is contemplated in four zones - central
city, suburban centre, commercial services and industrial. Retailing is also possible
in new growth areas. In contention in the present appeals are the commercial services
and industrial zones.
[4]
Commercial services zones are found on the fringe of the central city and in
several locations elsewhere. Retailing there is intended to involve primarily vehicleorientated activities including large format shops, traffic orientated services and
outdoor retailing.
With minor exceptions the zone restricts retailing to a gross
leaseable floor area of not less than 400 m2 Any retail activity with an individual
occupancy less than 400 m2 is a controlled activity where it is part of an integrated
development with a gross floor area greater than 5000 m2 and where any occupancy
of less than 400 m2 faces on to an internal pedestrian or parking area and not on to a
road. Any retail activity that generates traffic over a certain threshold becomes a
controlled activity. The significance of designating a retail activity a controlled
activity is that it provides the Council with the power to impose conditions upon
retail use of the land even though not permitting outright prohibition of such activity.
[5]
In an industrial zone retail activities are restricted to a gross leaseable floor
area of less than 150 m2 or greater than 1000 m2 , one retail activity per site, and a
minimum net site area of 1000 m2 As with the commercial services zone, traffic
consequences are controlled by making retail activities that generate traffic over a
certain threshold controlled activities.
[6]
Kiwi and Westfield argue that provision for retail activity in the commercial
services and industrial zones ought to be curtailed in order to protect the viability of
existing shopping centres in the city centre and Chartwell areas. They further argue
that unrestricted retail activity in those zones would have adverse traffic effects. A
particular focus was that in those zones, intensive retail shopping malls should be
"discretionary activities", not "controlled activities".
Legislative background
[7]
Section 74 of the Resource Management Act 1991 required the Hamilton
City Council to prepare a district plan in accordance with ss 31 and 32 and Part II of
the Act. Section 31 prescribes the Council's functions in giving effect to the Act in
the district plan.
The functions include two of particular significance (all statutory
references as they stood prior to an amendment in 2003):

(a)
The establislnnent, implementation, and review of

objectives, policies, and methods to achieve integrated
management of the effects of the use, development, or
protection of land and associated natural and physical
resources of the district;
(b)
The control of any actual or potential effects of the use,

development, or protection of land, including for the purpose
of the avoidance or mitigation of natural hazards and the
prevention or mitigation of any adverse effects of the
storage, use, disposal, or transportation of hazardous
substances.
[8]
Of the provisions contained in Part II, s 5 needs to be quoted in full:

5.
Purpose-
( 1)
The purpose of this Act is to promote the sustainable management of

natural and physical resources.
(2)
In this Act, "sustainable management" means managing the use,

development, and protection of natural and physical resources in a
way, or at a rate, which enables people and communities to provide
for their social, economic, and cultural well-being and for their
health and safety while (a) sustaining the potential of natural and physical resources
(excluding minerals) to meet the reasonably foreseeable needs
of future generations; and
(b) safeguarding the life-supporting capacity of air, water, soil, and
ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of
activities on the environment.
[9]
Finally, s 32 sets out the Council's duty in the following terms:

32 Duties to consider alternatives, assess benefits and costs, etc.
(1) In achieving the purpose of this Act, before adopting any objective,
policy, rule, or other method in relation to any function described in
subsection (2), any person described in that subsection shall-
(a) Have regard to(i) The extent (if any) to which any such objective, policy, rule, or other
method is necessary in achieving the purpose of this Act; and
(ii) Other means in addition to or in place of such objective, policy, rule, or
other method which, under this Act or any other enactment, may be used in
achieving the purpose of this Act, including the provision of information,
services, or incentives, and the levying of charges (including rates); and
(iii) The reasons for and against adopting the proposed objective, policy,
rule, or other method and the principal alternative means available, or of
taking no action where this Act does not require otherwise; and
(b) Carry out an evaluation, which that person is satisfied is appropriate to
the circumstances, of the likely benefits and costs of the principal alternative
means including, in the case of any rule or other method, the extent to which
it is likely to be effective in achieving the objective or policy and the likely
implementation and compliance costs; and
(c) Be satisfied that any such objective, policy, rule, or other method (or any
combination thereof)-
(i) Is necessary in achieving the purpose of this Act; and

(ii)
Is the most appropriate means of exercising the function, having
regard to its efficiency and effectiveness relative to other means.
Environment Court decision
[10]
As mentioned, on appeal from the Hamilton City Council decisions Kiwi and
Westfield argued that in commercial services and industrial zones intensive retail
shopping malls should be discretionary as opposed to controlled. Two grounds were
advanced. One was that such activity would have adverse effects on the transport
infrastructure of Hamilton. The other was that there would be consequential redistribution effects upon existing retail activities elsewhere in the city.
[ 11]
As to the transport infrastructure, a traffic expert called for the Appellants,
Mr Tuohey, considered that developments generating traffic movement beyond a

certain threshold ought to be a discretionary activity in the commercial services
zone. Contrary evidence was given by equivalent experts called by the Council and
Tainui.
After traversing the merits of this evidence the Environment Court
concluded that it preferred the latter witnesses. It considered that the potential for
adverse traffic effects could be adequately controlled by making developments of
this nature a controlled activity. The Court did not agree that imposing conditions
adequate to control the potential for adverse traffic effects would invalidate any
consent given.
[12]
The second issue concerned consequential redistribution effects. The Court
noted that s 74(3) precluded paying regard to trade competition per se but accepted
that it could have regard to consequential ::;ocial and economic effects. On the other
hand, the Court considered that in the light of s 32(l)(c) a rule or restriction could
not be justified unless it was "necessary" in order to achieve the purposes of the Act.
[ 13]
As to consequential effects, there was a similar conflict of evidence. The
Court was critical of the evidence of Mr Tansley and Mr Akehurst who predicted
major adverse impacts on existing centres if new developments proceeded
elsewhere. The Court preferred the contrary evidence of Messrs Donnelly, Speer,
Keane and Warren. In particular, the Court found that the retail premises permitted
by the proposed plan "may have some impact on trade at the existing centres but ...
the impact will not be sufficient to generate flow-on consequential effects" (para
148).
The Court accepted the evidence of Mr Speer that a "Chartwell-type
development", i.e. an intensive retail shopping mall, in the commercial services for
industrial zones was "more theoretical than real". The Court went on to say:
Having found that the proposed provisions as now supported by the Council
are unlikely to give rise to adverse traffic or adverse consequential effects, it
follows that in our view, the changes to the proposed plan as advocated for
by Westfield and Kiwi and to a lesser extent Wengate, are not necessary to
achieve sustainable management. (para 150)
[ 14]
On a separate issue, the Court noted that when the proposed plan had
originally provided for a commercial services zone covering the Wengate site it had
required a buffer strip to manage reverse sensitivity. Consequent upon a Council
decision to re-zone that area industrial, the special buffer had been deleted. In its
2002 resolutions the Council agreed to support reversion to commercial services
zoning for the site but made no overt reference to the buffer.
A Council witness
before the Environment Court suggested that the buffer be reinstated. The
Environment Court agreed with that suggestion and re-imposed the buffer.
[ 15]
From those decisions Kiwi, Westfield and Wengate now appeal.
Appeal principles
[ 16]
Pursuant to s 299 of the Act, a party to proceedings before the Environment
Court may appeal to the High Court only "on a point of law".
The unsuccessful
attempts of appellants to enlarge the jurisdiction has often been commented upon:
see, for example, Countdown Properties (Northlands) Ltd v Dunedin City Council
[1994] NZRMA 145; NZ Suncern Construction Ltd v Auckland City Council [1997]
NZRMA 419 and S and D McGregor v Rodney District Council (High Court,
Auckland, CIV-2003-485-1040, 24 February 2004, Harrison J, para 1).
[17]
Conventional points of law are relatively easy to identify. More complex is
the relationship between law and fact. The only possible challenge to the original
Court's finding as to a primary fact is that there had been no evidence to support it
before the Court. The only possible challenge with respect to inferences is that on
the primary facts found or accepted by the Court at first instance, the inference urged
by the Appellant was the only reasonably possible one.
In these matters the
Environment Court should be treated with special respect in its approach to matters
lying within its particular areas of expertise: see Environmental Defence Society Inc
v Mangonui County Council (1987) 12 NZTPA 349, 353.
As Harrison J recently
pointed out in McGregor v Rodney District Council (supra), Parliament has

circumscribed rights of appeal from the Environment Court for the obvious reason
that the Judges of that Court are better equipped to address the merits of their
determinations on subjects within their particular sphere of expertise.
Kiwi and Westfield appeals
[18]
In this court Kiwi and Westfield allege essentially four errors of law. They
submit that the Environment Court:

(a) Over-estimated the legal threshold required before a restrictive rule can be
justified;
(b) Failed to conduct its own over-arching inquiry into adverse effects;
(c) Failed to take into account the desirability of public participation; and
(d) Misused the controlled activity status as a means of controlling adverse
traffic effects.
[ 19]
In addition Mr Allan argued that the Environment Court "failed to take into
consideration when assessing the potential for flow-on consequential effects to arise
. . . the full range of activities provided for under the zoning provisions being
promoted by the Council including in particular the potential for a more intensive
retail development than large format retail (characterised . . . as a 'Chartwell type
development')". I could not regard this as a question of law, quite apart from the fact
that it was open to the Court to express, as it did, agreement with the evidence that "a
Chartwell type development is more theoretical than real". Other issues originally
flagged by the appellants, such as failure to consider whether controlled activity
status was the most appropriate means, were not pursued at the hearing in this Court.
[20]
The appeal was opposed by the Hamilton City Council as Respondent along
with two interested parties with land potentially affected by any change to the
proposed plan, Tainui and National Trading.
[21]
It will be convenient to proceed through the four identified legal issues in
tum.
(a) Legal threshold required before a restrictive rule is justified
[22]
Before the Environment Court Mr Whata submitted that his client merely had
to show, on the balance of probabilities, that the retail impacts flowing from the
liberal zoning proposed may be of such a scale as to adversely affect the function of
existing centres, and that it was for the Council and other supporting parties to show
that impacts sufficient to generate adverse effects would never occur or were so
remote as to be fanciful or so small as to be acceptable. He submitted that it was not
sufficient for the Council to simply assert that, on the balance of probabilities,
adverse effects were unlikely to occur.
[23]
The Environment Court did not accept that submission. It held that in
accordance with section 32(1)(c) the Council and the Court had to be satisfied that
any rule was necessary in order to achieve the purpose of the Act before a restriction
would be justified. The Court concluded:
[83]
We are required, among other things, under section 32(l)(a)(i) of the
Act to have regard to the extent to which any plan provision is necessary in
achieving the purpose of the Act. In our view, therefore, we are required to
consider carefully the provisions of section 5 and the relevant provisions of
Part II of the Act as they apply to the circmnstances of this case. We are
then, in accordance with sections 32(1)(c)(i) and (ii) to determine on the
evidence whether the restrictive provisions proposed are:
(i) necessary in achieving the purpose of the Act; and
(ii) the most appropriate means, having regard to efficiency and
effectiveness relative to other means.
[84]
We are required to make a judgment in accordance with the wording
of the statute. Whether regulatory control is necessary, will depend on the
circumstances of each and every case. To impose on ourselves a rigid
prescriptive rule, in addition to the statutory directions, would contain [sic]
flexibility in the exercise of our judgment. What is required is a factually
realistic appraisal in accordance with the Act, not to be circumscribed by

unnecessary refinements.
[24]
The Court described the word "necessary" as used in s 32(1) as "a relatively
strong word" defined in the Concise Oxford Dictionary as "requiring to be done,

achieved, etc; requisite; essential." It referred to statements from various authorities
suggesting that the threshold is a high one:
... evidence may show such a large adverse effect on people and
communities that they are disabled from providing for themselves.
[Baker Boys v Christchurch City Council [1998] NZRMA 433]
we do accept that the decisions cited by counsel for Westfield support a
general proposition that potentially high adverse effects on people and
communities, or evidence of unacceptable externalities, should be taken
into account in settling the provisions of district plans about new
retailing activities. [St Lukes Group Ltd v Auckland City Council
(Environment Court, Auckland, A132/0l, 3 December 2001, Judge
Sheppard)]
The proposal would have "a serious and irreversible detrimental effect
on the Upper Hutt CBD" which would be "gutted" with curtain rising
on a "tumble weed street scene". [Westfield (NZ) Ltd v Upper Hutt City
Council (Environment Court, Wellington, W44/01, 23 May 2001, Judge
Treadwell)]
[25]
In this Court the Appellants submitted that in deciding whether more
restrictive controls over retail activity were justified, the Environment Court had set
the threshold too high. The first argument in support was that the dictionary
definition of "necessary" adopted by the Environment Court set too stringent a
standard. The Appellants rightly pointed out by reference to authority that ins 32
"necessary" is not meant to indicate essential in any absolute sense but rather
involves a valued judgment. As was said by Cooke P in Environmental Defence
Society v Mangonui County Council [1989] 3 NZLR 257 (CA) at 260 in this context,
"necessary is a fairly strong word falling between expedient or desirable on the one
hand and essential on the other".
[26]
Clearly there would have been an error of law if the Environment Court had
refused to consider more stringent controls over retailing in the affected zones unless
unavoidable in an absolute sense. However, I do not read the judgment as indicating
that any such approach was taken. As s 5 of the Act makes clear, choosing the
regime that will best secure the optimum use of land is inescapably an exercise in
very broad value judgments. These range across such intangible considerations as
safety, health, and the social, economic, and cultural welfare of present and future
generations. On a full reading of the Environment Court's decision there could be no
suggestion that it approached its task in any other way. There is not the slightest
suggestion that the Court would have refused more stringent controls unless shown
to be necessary in the sense that oxygen is essential for the creation of water.
[27]
It is true that at one point the Court referred to the Concise Oxford Dictionary
definition "requiring to be done, achieved, etc; requisite; essential" but in my view

the matter is not to be approached by dissecting individual words or phrases in
isolation from the rest of the judgment.
The judgment is replete with other
expressions and assessments demonstrating that the necessity for more stringent
controls was approached as a matter of broad degree. The Court described the word
"necessary" as merely a "relatively" strong word.
It also cited passages from
authorities clearly pointing to broad value judgments, for example, "a large adverse
effect on people", and "potentially high adverse effects". At no point does the
Court's evaluation of evidence suggest that the Appellants were required to show
that more stringent controls were "necessary" in any absolute sense.
[28]
A related submission was that the Court erred legally in its finding that
"having found that the proposed provisions now supported by the Council are
unlikely to give rise to adverse traffic effects or adverse consequential effects, it
follows that the changes to the proposed plan adequately catered by [the Appellant]
are not necessary to achieve sustainable management."
The Appellants contended
that the Court ought to have turned its mind to the possibility that, even though
unlikely, the possibility of adverse traffic effects or adverse consequential effects
still warranted greater control. Mr Allan pointed out that pursuant to s 75(1), a
District Plan is to make provision for certain matters set out in Part II of the Second
Schedule to the Act. Clause 1 of Part II requires that provision be made for any
matter relating to the use of land including the control of "any actual or potential
effects of any use of land ... " (Clause l(a)).
[29]
Clearly Mr Allan was right to say that potential effects are to be taken into
account as well as actual effects. That is inherent in the prospective nature of a
District Plan. Furthermore, "effect" is defined in s 3 of the Act to include not only
potential effects of high probability but "any potential effect of low probabilities
which has a high potential impact". The Environment Court concluded that the
proposed provisions were unlikely to give rise to adverse traffic or consequential
effects (para 150). Mr Allan argued that it was illogical to proceed from that
conclusion to the further conclusion that the changes to the proposed plan advocated
by Westfield and Kiwi were unnecessary.
[30]
I agree that a conclusion that adverse effects were unlikely did not lead
inexorably to the conclusion that more stringent controls were unjustified. There
remained an evaluative step between the two. The Court had to decide whether the
level of likelihood, necessarily a question of degree, warranted more stringent
controls.
[31]
Three sentences before referring to the conclusion that adverse effects were
"unlikely" the Court had said:

We therefore find that the retail premises of the plan as now supported by
Council may have some impact on trade at the existing centres but that the
impact will not be sufficient to generate flow-on consequential effects (para
148).
That in tum must be read in the context of the Court's earlier recognition that
pursuant to s 74(3) the Court was not to have regard to trade competition (para 72).
Consequential effects were limited to flow-on effects as a result of adverse effects on
trade competition.
[32]
Reading paras 148 and 150 together, therefore, it becomes clear that the
Court regarded the possibility of relevant adverse effects as minimal, if not

negligible. Para 148 is expressed as an unqualified negative. Para 150 changes the
language to "unlikely". In relation to traffic, the Court had already accepted the
conclusion of Mr Bielby that the Hamilton City roading network "will be able to
safely and efficiently cope with the volumes and patterns of traffic that will result
from additional commercial development in North Te Rapa and in industrial areas"
(paras 62 and 63). So it was after expressing unqualified negatives in relation to both
traffic and consequential effects that the Court went on to refer to such effects as
"unlikely" and its conclusion that the changes advocated for by the Appellants were
unnecessary.
[33]
On appeal there is always a temptation to pick upon each word and phrase in
the judgment appealed from and subject it to microscopic examination. What really
matters is the underlying reasoning. Given the time which the Court devoted to the
reasons for its ultimate conclusion that there would not be adverse effects, and the
different wording used elsewhere, I can attach no significance to the use of the word
"unlikely" in para 150.
[34]
A final point is that when predicting future events in an area as complex as
urban resource management, ultimate conclusions could never be anything more

than opinions. When speaking of the future, the distinction between an absolute
negative and the conclusion that something is "unlikely" is somewhat arbitrary. It is
difficult to exclude most future events in a theoretical sense, at least events of the
kind now under consideration. Of course the Appellants are entitled to argue that
provision ought to be made for potential effects, particularly those which have a high
potential impact. But the Court was entitled to approach the matter in robust terms
by effectively concluding that adverse consequences were so unlikely that further
controls were not necessary. In my view that is what it did.
[35]
On the same topic the Appellants criticised the way in which the Court had
approached the onus of proof. Mr Allan submitted that "the issue before the
Environment Court was whether on the balance of probabilities implementation of
the Council's proposed provisions could give rise to consequential effects of
significance" (my italics). In my view there are two difficulties in this argument. One
is that it is a contradiction in terms to say that the Court was required to determine
"on the balance of probabilities" whether provisions "could" give rise to
consequential effects. The possibility that something "could" happen is clearly a
lower threshold than the probability that it will occur.
The tests are mutually
exclusive.
[36]
But more importantly it involves a confusion between two different concepts.
Doogue J referred to this in the different context of applications under s 1 05 in Ngati
Maru Iwi Authority v Auckland City Council (HC Auckland, AP18/02, 7 June 2002).
In all applications under the Resource Management Act 1991 a distinction is to be
drawn between a burden of proof relating to the facts on the one hand and ultimate
issues as a matter of evaluation in accordance with the law on the other.
[37]
I agree with Mr Whata that in the present context the two questions are "is
there a risk" and "does it need to be controlled"? What was required of the appellants
was sufficient by way of evidence or argument to make the possibility of an adverse
effect a live issue. Once there was a foundation for considering that possibility, it
was for the Court to determine the level of likelihood as a question of fact and then,
in the light of such conclusions, whether particular provisions were justified in the
plan. But I can see no indication that the Environment Court did anything else.
[38]
Mr Allan further submitted that it is not a requirement for a rule to be
"necessary" for the purposes of s 32(1 )(c) if the rule is supportable by reference to
other resource management criteria. He pointed out that pursuant to s 25(1)(d) the
district plan is to state "the methods to be used to implement the policies, including
any rules" which he took to indicate that rules would be required whether or not the
"necessary" test is satisfied.
In my view the word "any" in this context envisages
the possibility that there will be no rules unless the rule is necessary in terms of s
32(1 )(c)(i). Similarly, I accept that in making a rule a territorial authority is required
by s 76(3) to have regard to actual or potential effects and that rules may provide for
permitted activities as well as other forms of activities. But I do not take it from
those provisions that all activities are prohibited unless a rule can be found to justify
them. In our country citizens are free to do whatever they like so long as there is no
law prohibiting it. Rules in district plans are no different in thJ.t respect. That is the
reason for the principle established in s 32(1 )(c)(i) that there is to be no rule unless it
is necessary in achieving the purpose of the Act. Long may it continue.
(b) Failure to conduct own inquiry
[39]
The Appellants submitted that the Environment Court erred in considering
only the question whether more restrictive rules were "necessary" for the purposes of
s 32(l)(c)(i). In their submission the Court ought to have gone on to have regard to
all the other factors adverted to in s 32(l)(a) and, for this purpose, to carry out the
evaluation required under s 32(l)(b).
[40]
I agree that in accordance with its duties under ss 32 and 76 the Court was
required to conduct a broadly-based survey of considerations relevant to the

proposed retailing activities. It is also true that hearings in the Environment Court are
rehearings conducted de novo. However the Court does not have to ignore the fact
that Council officers and the Council had already covered the same ground. The
evidence the Council broadly conveyed to the Court regarding the Council's own
investigations and conclusions with respect to a proposed plan itself represents fresh
evidence before the Environment Court. The Court is entitled to rely upon that
evidence in the absence of specific issues to which their attention is drawn. The
Court is not expected to conduct the type of broad-ranging inquiry that would have
been appropriate if the whole exercise were approached afresh.
(c) Failure to consider desirability of public participation
[41]
Mr Whata submitted that the ability of competitors to oppose development by
means of contesting applications for resource consent was a relevant factor for the
purposes of s 32(1 )(c)(ii) and that this had been overlooked by the Environment
Court. By allowing the extended retail activities as a controlled activity the Council
was denying other members of the public the opportunity to participate. Others could
have mounted an opposition if such activities had been made discretionary and
therefore subject to public notification.
[42]
The Environment Court had itself observed (para 152) that the proposed plan
would enable retail development unrestrained from the ability of competitors to

oppose by contesting applications for resource consent. The Court pointed out that
by this means the considerable delay and expense to which parties and the Council
would be involved could be avoided. The Court considered that a factor which fell
within subs 32(1)(c)(ii).
[43]
Mr Whata contrasted this with the view expressed in the High Court in North
Holdings Ltd v Rodney District Council (HC Auckland, CIV-2002-4()4-002402,
M1260-PL02, 11 September 2003, Venning J) at paras 25, 35 and 36 that in general

the resource management process is to be public and participatory and that at least in
the case before Venning J, the public interest in achieving sound resource
management decisions was of greater importance than the prompt processing of
applications.
[44]
I respectfully agree that as a matter of general policy the resource
management process is intended to be public and participatory. I see no reason to

question the priority which that consideration was given over expedition in the North
Holdings case. Of course, principles of this nature involve a value judgment to be
exercised in relation to the content of each district plan in each case. Otherwise there
would never be permitted or controlled activities in district plans.
[45]
In the present case the Council and the Environment Court considered that
making intensive retail activity a controlled activity in the zones in question strikes
the right balance between public participation and other resource management
values. That was clearly a judgment for the Council and Environment Court to make.
In my view it does not involve any point of law. The Environment Court did not
ignore the many competing considerations which impact upon a decision of this
nature. In para 152 the Court pointed to:
Extensive consultation and the commissioning of reports, both from Council
officers and consultants. Following that process, the Council considered that
to impose restrictions was not necessary for the control of consequential
effects. It would have instead had the effect of inhibiting trade competition.
The plan provisions as now espoused by Council enable retail development
within the city of Hamilton unrestrained from the ability of competitors to
oppose development by means of contesting applications for resource
consents. A practice, the evidence showed, that in the past caused
considerable delays, at expense not only to the parties involved, but also to
Council.
[46]
Clearly the Environment Court has considered the issue of public opposition.
In this case it preferred the equally valid and competing consideration that the rule
should be the most appropriate means of exercising the rule-making function having
regard to its efficiency and effectiveness relative to other means (s 32(1)(c)(ii)).
That was a choice the Court was entitled to make.
(d) Misuse of controlled activity status as the means of controlling adverse

traffic effects
[47]
The fourth ground of appeal to this Court was that the power to impose
conditions pursuant to the classification of retail activities as controlled activities

was not a valid means of avoiding adverse traffic effects in that the conditions which
would need to be imposed would nullify the consents ostensibly given.
The
argument rests on the assumptions that the conditions would be either so onerous as
to remove the substance of the consent or would be dependent upon the activities of
third parties over whom the applicant for consent would have no control.
[48]
The performance outcomes for the relevant activities are set out in Rule
4.4.5(c) of the proposed district plan in relation to commercial service zones and
Rule 4.5.5(c) in relation to industrial zones. In both cases the Council can impose
conditions when consenting to a controlled activity.
The conditions can relate to
traffic requirements within the applicant's immediate control in that they relate to car
parking, access to and from the adjacent road network, access to major arterial roads
and internal vehicular layout. But equally the Rules provide for the conditions to
relate to the impact upon the external reading network with respect to access, traffic
volumes and traffic capacity (see traffic engineering study required under rules
4.4.3( e) or (f) and 4.5.3() or (g)).
[49]
Rules 4.4.3(f) and 4.5.3(g) also provide that where any activity requires
preparation of a traffic impact study the provisions of Rule 6.4.5 relating to reading
contributions is to apply. Rule 6.4.5(a)(iii) provides that in exercising any discretion
available under Rule 6.1.4(e) (no doubt intending to refer to (d)), the Council may
require the provision of new roads, the upgrading of existing roads, or the payment
of a levy as a condition.
Rule 6.1.4(d)(ii) authorises the imposition of such
conditions in a number of circumstances including a commercial development where

the value of the work exceeds $250,000.
[50]
A distinctive characteristic of a controlled activity is, of course, that the
Council may not decline consent to a proposed activity; it can merely impose
appropriate conditions.
The Appellant's argument is that the control necessary to
avoid unacceptable adverse traffic effects requires that the Council be given powers
which extend beyond the mere imposition of conditions upon a consent that must be
given.
[51]
The Environment Court dealt with this issue in the following way:
[64]
It was suggested by some counsel that consent conditions imposed
under controlled activity status may well, from a legal point of view, negate
the consent and accordingly be illegal. In particular, counsel for Kiwi and
Wengate submitted that some conditions, which might otherwise be thought
desirable and necessary, might not be able to be imposed on a controlled
activity because to do so, would result in an applicant being required to carry
out work of such a scale that the consent could not be realistically exercised.
It is welllmown that a condition of a resource consent must be such
[65]
as arises fairly and reasonably out of the subject matter of the consent.
However, in our view, a consent is not "negated", or rendered
"impracticable" or "frustrated", merely because it requires the carrying out
of works which might be expensive. We agree with Mr Cooper's
submission that such may be the price which an appellant has to pay for
implementing a resource consent in certain circumstances.
[66]
It was further argued, that any condition arising out of the controlled
activity status on traffic matters, may well require a third party, such as
Transit New Zealand, to be involved. This may well be so. However we do
not consider a condition precedent to any retail activity commencing, and
involving a third party such as Transit New Zealand Limited to be invalid.
[67]
Counsel also raised the issue, of the ability of the Council to impose
conditions on one developer effectively to take account of cumulative traffic
effects arising from a series of developments. However, in our view, this
does not give rise to any legal difficulty either. Any developer has to tailor
his or her development to the environment as it exists at the time consent for
the development is sought. A developer will be required to ensure that the
traffic impacts of the proposed development are able to be appropriately
accommodated by the roading network. Both Mr Bielby and Mr Winter
were satisfied that the roading network, given the provisions in the proposed
plan as espoused by the Council's latest position, could adequately cope with
future development.
[68]
As pointed out by Mr Cooper the concerns raised by Kiwi and
Westfield on traffic issues would be met by making retailing activities,
restricted discretionary activities, with the matters over which the Council's
discretion is reserved being restricted to traffic related matters. However,
having regard to the evidence ofMr Bielby, and Mr Winter, which we prefer
to the evidence of Mr Tuohey, and where it conflicts, with Mr Harries'
testimony, we do not consider it necessary to amend the provisions to
restricted discretionary activity status.
(paras 64-68)
[52]
As a preliminary point Mr Allan argued that although the rules clearly
provided for conditions relating to internal features of the development site, it was
not clear that the Council would have the power to impose conditions relating to
impact on traffic flows exterior to the Applicant's site. Mr Allan submitted that
although the exterior matters were clearly included in the "traffic impact study"
required in such circumstances, it did not follow that the Council had the power to
impose conditions relating to such matters. I accept the response ofMr Lang and Mr
Milne that the rules do contain the power to impose positive conditions arising out of
the needs demonstrated in the traffic impact study. By virtue of the power to require
"reading contributions" in terms of rule 6.4.5, the Council gains access to the
incidental powers to require the provision of new roads, or the upgrading of existing
roads, as alternatives to the payment of levies simpliciter.
[53]
The Appellant's principal argument, however, was that any conditions
imposed in that respect would or might be legally invalid since the Applicants would
be powerless to bring about the requisite changes in roads on property beyond their
own control. This lack of power was said to "negate the consent".
The Appellants
further pointed out that the approval of the reading authorities, whether the Council
or Transit New Zealand, would place compliance with the condition beyond the
control of the Applicants.
[54]
I agree that the power to impose conditions for resource management consent
is not unfettered. The conditions must be for a resource management purpose, relate
to the development in question, and not be so unreasonable that Parliament could not
have had them within contemplation: see, for example, Newbury District Council v
Secretary of State for the Environment [1981] AC 578 and Housing l'fe;p Zealand
Ltd v Waitakere City Council [2001] NZRMA 202 (CA).
[55]
Conditions attached to a consent will usually be regarded as unreasonable if
incapable of performance.
A classic example was consent to erect additional
dwellings subject to a condition requiring access via a 4.8 metre wide strip when
access to the Applicant's property was in fact possible only through an existing strip
with a width of only 3.7 metres: Residential Management Ltd v Papatoetoe City
Council (Planning Tribunal A62/86, 29 July 1986, Judge Sheppard); and see further
Ravensdown Growing Media Ltd v Southland Regional Council (Environment Court,
C194/2000, 5 December 2000, Judge Smith).

[56]
On the other hand, a condition precedent which defers the opportunity for the
Applicant to embark upon the activity until a third party carries out some
independent activity is not invalid. There is nothing objectionable, for example, in
granting planning permission subject to a condition that the development is not to
proceed until a particular highway has been closed, even though the closing of the
highway may not lie within the powers of the developer: Grampian Regional
Council v City ofAberdeen [1983] P&CR 633, 636 (HL).
[57]
In the present case the Appellants' main argument appears to be that the
district plan contains invalid or unacceptable rules in that adverse traffic effects
could be addressed only by imposing invalid conditions. Mr Allan submitted that
"the Court has conflated the general validity of the content of a resource consent
condition and whether or not, in the context of a particular proposal, that condition
practically negates the consent, is impractical to fulfil, or frustrates the consent." Mr
Whata acknowledged that, as in the case of Grampian Regional Council, "it may be
appropriate to impose a condition that
requir~s
significant works to be undertaken
prior to the commencement of the consented activity" but went on to submit that
"This is no more than a statement about the validity of conditions precedent to
carrying out an activity ... it is quite another matter to adopt as a method in a district
plan, control of all traffic effects by a way of controlled activity status and the
imposition of conditions precedent that may blight an otherwise legitimate
development."
[58]
Wherever there is power to impose conditions there must be the potential for
the territorial authority in question to impose invalid conditions.
In the normal
course any challenge to the conditions must await the specific case in question. It
would normally be premature to challenge the district plan itself on the basis that the
imposition of invalid conditions under it can be foreseen as a possibility.
[59]
Of course it would be different if it could be postulated that consents could
not be given to certain permitted activities without the imposition of invalid
conditions. But I can see no reason for assuming that, faced with the need for
changes to roads which lay beyond the immediate ownership and control of the
Applicant, it would be impossible for the Hamilton City Council to frame valid
conditions in order to meet the need. In principle, for example, it would be possible
to impose a condition similar to that imposed in Grampian, namely that until a
nearby arterial route were increased in size from two lanes to four a proposed retail
development could not proceed.
Further, pursuant to rule 6.4.5 such condition
precedent could be coupled with a levy requiring the Applicant to contribute to the
off-site roading development.
[60]
Technically, it has been held that there is a critical distinction between two
ways in which a condition is framed. One requires an applicant to bring about a

result which is not within the applicant's power, for example that the applicant
construct a new roundabout on a nearby roadway when the roadway is controlled by
Transit New Zealand. The other stipulates that a development should not proceed
until an event has occurred, in this example that the roundabout has been constructed
- see Grampian at 636. While I have no respect for English formalism of this type,
it seems clear that at least by wording the condition in appropriate terms the Council
will have the power to impose valid conditions of the kind in question in this case.
[61]
Mr Allan went on to submit that whether the potential for adverse traffic
effects could be met by an appropriate condition, with the associated possibility that
the further work or contribution required might make the development too
expensive, would be a matter of fact and degree to be determined in each particular
case. He submitted:
It will be in part a function of the relationship between the scale of the work
and expense required by a condition and the scale and nature of the activity
for which consent has been sought. An activity which is of a relatively
modest scale but which involves the generation of additional (cumulative)
traffic effects that, given the traffic conditions at the time, require significant
works on the roading network, may in practice be rendered uneconomic by
those works and effectively be rendered incapable of being carried out.
[62]
I would not have thought that the imposition of a condition that would make
a development uneconomic could normally qualify as incapable of performance for

invalidity purposes. But even if that were so, the invalidity would attach to the
particular condition in question, not to the District Plan itself. It cannot be postulated
that merely because a power could be used in an invalid manner, creation of the
power itself is invalid.
[63]
The last argument was developed by both Mr Allan and Mr Whata in relation
to the hapless small developer who finds that, due to large developments which have
already used up the remaining capacity of the surrounding roading network, the
small developer's proposal requires a roading upgrade which is beyond the economic
capacity of the smaller developer.
Mr Whata coupled that with the need for
opportunity for public opposition to the developments that had preceded it.
[64]
I agree with the Environment Court that a developer has to tailor his or her
development to the environment as it exists at the time consent for the development
is sought. This applies to developments and activities in many contexts other than
traffic effects. I can see its relevance as an argument in support of public notification
as one of the relevant values. But it could not be elevated to the notion that any
condition required at any given time in relation to any particular development might
be invalid simply because the developer in question happens to take adverse traffic
effects over a threshold beyond which an expensive upgrade is required.
[65]
I have already referred to the opportunity for public participation as merely a
number of the competing values which impact upon the way in which the district
plan was drafted. The choice between those competing values was eminently one for
the Environment Court. Similarly the question whether controlled activity status for
retail activities of this sort was the best way of addressing the potential for adverse
traffic effects is not a question of law. It was a resource management question fort he
Environment Court alone.
[66]
My conclusion is that the fourth and final argument on the appeals by Kiwi
and Westfield fails.
The Wengate appeal
[67]
The Wengate site was zoned commercial services under the proposed plan as
originally notified. In rule 4.4.3(g) the plan provided for a special buffer zone
between buildings on the Wengate site and adjacent industrial properties. The buffer
was imposed to manage reverse sensitivity which might otherwise have impacted
upon the Wengate site.
[68]
When the Wengate site was rezoned industrial by the Council decision of
October 2001, the special buffer zone relating to the Wengate site was deleted. In its
subsequent 2002 decision the Council agreed to support reversion to the original
commercial services zoning for the Wengate site but without overt reference to the
associated buffer zone. The Environment Court reinstated the buffer zone. It did so
on evidence from the Council which the Court described in the following terms:
[160] Mr Harkness also pointed out that the proposed plan as notified
contained rule 4.4.3(g) - Special Buffer - Te Kowhai - to manage reverse
sensitivity concerns for the Wengate site. This rule was deleted by Council
when the site was to be zoned as Industrial. He suggested it be reinstated - a
suggestion we agree with.
[69]
On appeal to this Court, Mr Menzies submitted for Wengate that the
Environment Court lacked the jurisdiction to reinstate the buffer zone. He submitted
that the question of a buffer zone was not the subject of any reference before the
Environment Court, and that to rule on an issue not referred to the Environment
Court was an error of law.
[70]
Mr Menzies pointed to a number of decisions in which the Environment
Court accepted that it could not make changes to a plan where those changes were
outside the scope of the reference to it and could not fit within the criteria in ss 292
and 293 of the Act. They included Applefields Ltd v Christchurch City Council
[2003] NZRMA 1; Williams and Purvis v Dunedin City Council (Environment
Court, C022/C002, 21 February 2002, Judge Smith); Re an application by
Northland Regional Council (Environment Court, A12/99, 10 February 1999, Judge
Sheppard) andRe Vivid Holdings Ltd [1999] NZRMA 467.
[71]
W eng ate's challenge to the Environment Court imposition of the buffer zone
is based solely upon lack of jurisdiction. Mr Menzies submitted that the Environment
Court was limited in its jurisdiction to the specific references before the Environment
Court. The only reference before the Environment Court relevantly touching upon
the W engate land was the reference emanating from W eng ate itself.
Before the
Environment Court W engate merely sought the endorsement of the Council's latest
position that the commercial services zone should extend to the W engate site. It did
not ask that in confirming a commercial services zoning for the W engate site the
Environment Court should reinstate the original buffer zone. Mr Menzies submitted
that since the Environment Court's jurisdiction was limited to the matters
specifically brought before it, the Court had acted beyond its jurisdiction. He
submitted that this constituted an appealable error of law.
[72]
I agree that the Environment Court cannot make changes to a plan where the
changes would fall outside the scope of a relevant reference and cannot fit within the
criteria specified in ss 292 and 293 of the Act: see Applefields, Williams and Purvis,
and Vivid, supra.
[73]
On the other hand I think it implicit in the legislation that the jurisdiction to
change a plan conferred by a reference is not limited to the express words of the
reference. In my view it is sufficient if the changes directed by the Environment
Court can fairly be said to be foreseeable consequences of any changes directly
proposed in the reference.
[7 4]
Ultimately, it is a question of procedural fairness. Procedural fairness extends
to the public:. ns well as to the submitter and the territorial authority. Adequate notice
must be given to those who might seek to take an active part in the hearing before
the Environment Court if they know or ought to foresee what the Environment Court
may do as a result of the reference. This is implicit in ss 292 and 293. The effect of
those provisions is to provide an opportunity for others to join the hearing if
proposed changes would not have been within the reasonable contemplation of those
who saw the scope of the original reference.
[75]
In the present case, it is reasonable to infer that the buffer zone was originally
introduced to address environmental effects between industrial zone land and

commercial services zone land. That was relevant at a time when the Weng ate site,
with a commercial services zoning, was across the road from industrially zoned land.
The concept of a buffer zone to address interactions between industrial and
commercial services zones became redundant when the zoning of the Wengate site
was changed to industrial.
This changed back again, however, when Wengate
successfully pursued a reversion to commercial services zoning. It is unsurprising

that on accepting the Wengate position that its land should have the commercial
services zoning reinstated, the Environment Court would reinstate the buffer zone
that had originally been associated with that form of zoning.
[76]
I cannot see that it was not reasonably foreseeable that in reinstating the
original commercial services zoning the Environment Court would also reinstate the
buffer zone that had been associated with it. It would be odd if an appellant could
gain the zoning it sought without the restrictions which one would naturally tend to
associate with zoning of that nature. As Mr Lang pointed out, Wengate's reference
might have sought to omit not only rule 4.4.3(g), which imposed a buffer zone, but
other rules governing activities within the commercial services zone. Taken to its
logical extreme, if Wengate's
arg~ment
regarding the jurisdictional limitations
stemming from the scope of the reference were correct, the jurisdiction of the
Environment Court would have been limited to reinstatement of the zoning without
any of those associated rules.
[77]
In my view the Environment Court must be taken to have had the jurisdiction
to agree to the: requested zoning subject to imposition of other rules foreseeably

associated with such zoning. A buffer zone was in that category. It follows that the
Environment Court had jurisdiction to reinstate the buffer zone.
[78]
The point of law brought before this Court by Wengate was limited to the
question whether the Environment Court erred in law in its assumption of

jurisdiction to reinstate rule 4.4.3(g) relating to the buffer zone. I have already
decided that question against Wengate. However, I note in passing that the only
evidence before the Environment Court on that subject was that ofMr Harkness. The
dimensions of the buffer zone suggested in his evidence were more modest than
those imposed. He suggested that 5 metres may well have been sufficient for the
width of the buffer zone as distinct from the 10 metres specified in the original
buffer zone and reinstated by the Environment Court. Further discussion between
Wengate and the Council may result in some voluntary modification of the
dimensions involved but it is clearly outside the scope of this appeal.
Result
[79]
All appeals are dismissed.
[80]
It was agreed by counsel at the hearing that costs would follow the event on a
scale 2B basis. It follows that the three Appellants, Westfield, Kiwi and Wengate,
must pay costs to the Respondent, Hamilton City Council according to scale 2B.
[81]
No oral submissions were made with respect to the costs liability of the
Appellants to Tainui Developments Ltd and National Trading. I would hope that
these could be resolved by agreement. If necessary they will need to be the subject of
written memoranda and a ruling by another Judge. To deal with that eventuality, and
also any disagreement between the Appellants and the Respondent as to costs details,
I direct that (a) within three weeks of the delivery of this judgment all parties
claiming costs must file and serve memoranda setting out the terms of their claims,
(b) the Appellants will have a further two weeks within which to file memoranda in
opposition and (c) the claimants will have a further ten days within which to file any
memoranda in reply.
Signed at
pm on 17 March 2004
RL Fisher J

081 Auckland 2040 (R Brabant) - Legal Submission

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081 Auckland 2040 (R Brabant) - Legal Submission

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In the Matter

of the Resource Management Act 1991 as

7. Proponents of intensification in the SHZ have failed to recognise the

that dwelling design must achieve "usable and accessible outdoor

These are narrowly defined values

of action was opposed, HNZC then requested witness summonses be

notified PAUP zoned SHZ, as those proposed changes to the mapping of

As described in paragraph 10 (c) above.

However, the point of principle remains as previously submitted general

Referencing the submissions relied on in the Closing Statement, paragraph 3.7.

Council.8 The 2nd fundamental test is described as "robust, notified and

refer paragraphs 36-39 10 October submissions.

maps) are permissible, provided that no substantial further s32 analysis is

10 October 2015 submissions, paragraphs 34,35

of scope changes or additions to the plan provisions has become

2 March 2016 evidence, paragraph 8.1

developable capacity, which allow for development of 19,000 and

Ibid, paragraph 5.7

housing at some 6% of total housing demand in Auckland, and the HNZC

Environmental Values in the SHZ -ecology, biodiversity water quality

reference s75(2) RMA

BEFORE THE ENVIRONMENT COURT

of an appeal pursuant to Clause 14 of

HILLS LABORATORIES LIMITED

HAMILTON CITY COUNCIL

Environment Judge JA Smith, sitting alone pursuant to s 279 of

LF Muldowney and M Mackintosh for Hamilton City Council

DECISION OF THE ENVIRONMENT COURT

That having regard to the same considerations, an amendment to

Costs are reserved.

The parties are:

Hills Laboratories Limited v Hamilton City Council

REASONS FOR DECISION

Background to the appeal

Hills Laboratories Limited v Hamilton City Council

(a) new buildings, alterations and additions, accessory buildings, laboratories

It appealed only parts of the decision,

(b) It similarly sought changes to the objectives and policies to be reflective of

6.3(b) in the same zone, alterations and additions are a

Under further relief sought are similar and/or consequential an1endments to

However they consider that the amendments to 6.3(q)(Retail) to provide for

there is a large measure of agreement between the parties as follows.

Both parties acknowledge that the mediated provisions acbieve the

Other changes, including to Objective 6.2.8, acknowledging a range of

The question essentially is whether or not there is jurisdiction to include

Ms Burkhardt expressed as follows:

(b) Failing to specifically request relief is not fatal to a proposed amendment on

_.,./Hills Laboratories Limited v Hamilton City Council

I was referred to Westfield v Hamilton City Council: 8

In Palmerston North City Council v Motor Machinists 9 Kos J's observes:

Like Judge Kirkpatrick,

I too am concerned at the extent to which criteria

from decisions as to whether a submission is on a plan change should be used as a

i.:;>.f,~i\ , .' [2004] NZRMA 556 at [574], [575]

,': [2013] NZHC, 1290

<:i::.~kj\i, ;,;:\ <~;~ ':>

Hills Laboratories Limited v Hamilton City Council

hnportar1tly, when it came to the appeal we can see no reflection of that

The matter is finely balanced.

On the one hand the omission of the

~\~~. .::_._t<Cti\\;;);fi=""~:',:Z :::'~ ::,:;~,:=:~~; p~:m:~c:i:: ~':::

150m to 399m2 for the following reasons:

[2015] NZEnvC 199.

Hills Laboratories Limited v Hamilton City Council