IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

IN THE MATTER OF

BETWEEN

AND

AND

Redacted
Confidential

5-409-719

an application forjudicial review under Part 1 of

the Judicature Amendment Act 1972

URBAN AUCKLAND, THE SOCIETY FOR THE
PROTECTION OF AUCKLAND CITY AND
WATERFRONT INCORPORATED

Applicant

AUCKLAND COUNCIL

First Respondent

PORTS OF AUCKLAND LIMITED

Second Respondent

 

SUBMISSIONS ON BEHALF OF THE SECOND RESPONDENT
DATED 29 MAY 2015

 

 

RUSSELL. MQVEAGH

Counsei:

A Farmer QC

Ph +64 9 358 7090
Fax +64 9 358 7091
19 Emily Place
Auckland

2394484 v10

A Nolan

Ph +64 9 307 9969
Fax +64 9 377 0997
PO Box 1571
Shortland Street
Auckland

Solicitors:

Crotty/K Dunn
Ph +64 9 367 8000
Fax +64 9 367 8163
PO Box 8

DX 
Auckland

MAY IT PLEASE THE COURT:

1.1

1.2

1.3

1.4

2894484 v10



The Applicant ("Urban Auckland") opposes port expansion. it has
the First

resource

challenged, through an application for judicial review,

Respondent's ("Auckland Council") decisions to grant
consents to the Second Respondent in relation to wharf
extensions. The resource consents in question were granted by
Auckland Council pursuant to a discretion which is signi?cantly and
prescriptiver limited by a statutory framework. Urban Auckland opposes
the fact the consents were granted but it cannot identify a reviewable

error and its application forjudicial review should fail.

POAL is extending two of the berths at its Bledisioe Wharf at the Port of
Auckland ("32 Extension" and Extension"). It applied for, and was
granted by Auckland Council, resource consents for the 82 Extension in
September 2014 and the 83 Extension in November 2014 ("Consents").
Once constructed, both the 82 Extension and the 83 Extension will be
wholly within that part of the Waitemata Harbour that POAL has a right to
occupy under a coastal permit issued pursuant to 3384A of the Resource
Management Act 1991 The 82 Extension and 83 Extension are
extensions to shipping berths in an area specially set aside for port

related activities.

Urban Auckland has applied to judicially review Auckland Council's

decisions:

not to publicly notify applications for the Consents in

accordance with 895A of the RMA ("Notification Decisions");

and

to grant each of the Consents in accordance with ssiO4 to 104D
of the RMA ("Consent Decisions").



Both the Notification Decisions and the Consent Decisions ("Decisions")
involve the exercise of a discretion by Auckland Council or its delegates.
it is submitted that Auckland Council validly and lawfully exercised its

discretion with regard to the Decisions.

1.5

1.6

2894484 v10

2

Urban Auckland challenges Auckland Council's decision-making process

as follows:





(C)





It alleges that Auckland Council should have "bundled" POAL's
the five
applications for the 82 Extension ("32 Consent Applications")

applications and considered resource consent
as one application and the ?ve resource consent applications for
the B3 Extension (?33 Consent Applications") as one
application. it is submitted that neither the RMA nor case law

required it to "bundle" the Consent Applications in this manner.

It alleges that Auckland Council erred in exercising its discretion
not to publicly notify the B2 and BS Consent Applications. it is
submitted that Auckland Council had a discretion whether to
publicly notify the 82 and BS Consent Applications. It exercised

its discretion in a lawful manner.

it alleges that Auckland Council erred in exercising its discretion
in granting each of the 82 and BS Consent Applications. It is
submitted that Auckland Council had varying degrees of
discretion in relation to each of the Consent Applications. It

exercised its discretions in a lawful manner.

It alleges that the independent Commissioners (Ms Rebecca
Macky and Mr Barry Kaye) who made the Notification Decisions
and Consent Decisions under delegated authority from Auckland
Council ("Commissioners") failed to exercise independent
judgement and that Ms Macky had a con?ict of interest. it is

submitted that there is no basis for these allegations.

It alleges that POAL was required to obtain an additional
consent for both of the BZ and BS Extensions under the
Proposed Plan. This is denied. It is submitted that all required

consents were obtained.

It is submitted that Urban Auckland does not like the Decisions, but is not

able to identify a reviewable error by Auckland Council. Throughout its

submissions, Urban Auckland refers to the Decisions having been made

in the context of "intense public controversy" and alleges that factors such

as "amenity" and "viewshafts" should have meant that the applications

were notified and ultimately declined. Auckland Council was required by

1.7

1.8

2894484 v10

3

law to make the Decisions in a legal framework which prescribes the

nature of its discretion, including what may be taken into account in the

exercise of that discretion. The opinions of members of the public on

matters that Auckland Council has no discretion were not relevant to the

Decisions.

Urban Auckland's application for judicial review should be declined.

Alternatively, any error by Auckland Council should be considered to be

minor, and, given the scope of the legislative framework for decision-

making under the RMA, the Decisions should not be set aside.

Accordingly, these submissions address:



(C)











the decisions under review (section 2 below);

the legal position in relation to judicial review (section 3 below);
the planning and resource consent regime (section 4 below);

a brief summary of the key facts of this case (section 5 below);

?rst cause of action: whether the Notification Decisions were

unlawful (section 6 below);

second cause of action: whether the Consent Decisions were

invalid (section 7 below);

third cause of action: failure to obtain all necessary consents

(section 8 below);

fourth cause of action: whether the Noti?cation Decisions and
Consent Decisions were made without exercise of independent

judgement or with bias (section 9 below); and

alternatively, even if Urban Auckland was able to establish that
Auckland Council erred with regard to the Decisions, the Court
should not exercise its discretion to grant the relief sought by

Urban Auckland (section 10 below).

2.1

2.2

2.3

2394484 v10

DECISIONS UNDER 

The Decisions under review were made pursuant to the RMA in relation
to POAL's applications for ?ve resource consents for the 82 Extension

and ?ve resource consents for the BS Extension.

The resource consents required for a project are determined by the
relevant planning documents. Auckland currently has both operative
planning documents (including the Auckland Regional Plan: Coastal
("Operative Coastal Plan") and the Auckland Regional Plan: Air Land
Water ("Operative Air Land Water Plan") (together "Operative Plans"))
and proposed planning documents (proposed Auckland Unitary Plan
("Proposed Plan")). This means that multiple resource consents may be

required for some projects.
82 Consent Applications

In September 2014 POAL made two separate but concurrent applications
for resource consents under the Operative Plans and the Proposed Plan

in relation to the 82 Extension:

in relation to the Operative Plans, it applied for:



A resource consent to extend an existing structure (a
wharf) under Rule 255.18 of the Operative Coastal

Plan ("Operative Plan Construction Consent"). This

(0

was an application for a resource consent for a
"controlled activity". This meant that Auckland Council
was required to grant the consent, and could only

impose conditions on specified matters.

A resource consent to allow the discharge of
contaminants into water from an area used for a new
high risk industrial or trade activity under rule 5.5.18 of
the Operative Air Land Water Plan ("Operative Plan
Stormwater Consent"). This was an application for a
resource consent for a "restricted discretionary
activity". This meant that Auckland Council couid grant
or refuse the application and could impose conditions,
but could only consider the matters over which it had

restricted its discretion.

2.4

2894484 v10

(together "Operative Plan Consents")

It also applied for three resource consents under the Proposed

Plan ("Proposed Plan Stormwater Consents"), namely:

(ii



A resource consent to authorise the use of [and as a
"High Risk" Industrial Trade Activity where the area has
appropriate stormwater treatment under rule H.4.8.?l of
the Proposed Plan. This was an application for a
resource consent for a "restricted discretionary
activity". This meant that Auckland Council could grant
or refuse the application and could impose conditions,
but could only consider the matters over which it had

restricted its discretion.

A resource consent to allow stormwater discharge from
a new impervious area under rule H.4.?l4.?l.1 of the
Proposed Plan. This was an application for a resource
consent for a "discretionary activity". This meant that
Auckland Council could grant or deny the application

and could impose conditions on the consent.

A resource consent to allow stormwater discharge from
a new impervious area of greater than 25m2 where the
total impervious area on site was greater than 10% of
the total site area. This was under rule H.4.14.2.?l of
the Proposed Plan. This was an application for a
resource consent for a "controlled activity". This meant
that Auckland Council was required to grant the
consent and could only impose conditions on specified

matters.

[Arbuthnot affidavit, CB vol SB tab P03 p40,188 para 124]

Following receipt of the BZ Consent Applications, Auckland Council was

required to decide:

(8)

Whether to exercise its discretion to publicly notify any of the B2
Consent Applications under 95A of the RMA. Auckland

Council

decided not to publicly notify the BE Consent

Applications.

2.5

2.6

2.7

2.8

2894484 v10

6

Whether the 82 Consent Applications should be granted. with its
discretion depending on the activity status of the particular
consent applied for104D of the RMA (as
applicable). Auckland Council decided to grant the B2 Consent

Applications.
B3 Consent Applications

Following granting of the B2 Consent Applications, POAL applied for the
B3 Consent Applications. It applied for the same five consents that it
applied for in relation to the 82 Extension. Again, it made separate but
concurrent applications for resource consents under the Operative Plans

and the Proposed Plan.

Auckland Council had the same decisions to make as had been made for
the 82 Extension - whether to publicly notify the B3 Consent Applications
and then, if noti?cation was not to occur, whether to grant the
Applications. Auckland Council decided not to exercise its discretion to
publicly notify the BS Consent Applications. it then decided to exercise its

discretion to grant the 83 Consents.

A core aspect of Urban Auckland's case appears to be an assertion that
the 82 and BB Extensions were made in "the context of intense public
controversy", including in relation to previous port expansion proposals.
With respect, it is not enough to simply assert this and attach selected
newspaper articles. it is accepted that some members of the public
(including some journalists) have strong views about the port and port
expansion. At the time when the applications were being processed or
prior, that was almost entirely in respect of possible future reclamations.
it does not follow that public opinion about previous expansion proposals

colours the B2 and B3 Extensions, which do not include any reclamation.
Bundling of consent applications

The concept of the "bundling" of consent applications is critical to Urban
Auckland's challenge to Auckland Council's Decisions. Many projects
require multiple consents. "Bundling" can occur when the consenting
authority assesses multiple consents for one project with a common test,
as though they were an application for one resource consent. The RMA
does not require (or, indeed, provide for) the bundling of resource

consent applications. This is a judicial construct.

2.9

2.10

2.11

2.12

2.13

2894484 v10

7

POAL takes no issue with the concept of simultaneous processing of
multiple resource consent applications in appropriate cases (indeed, that
is what it proposed for the 82 Extension and then the 83 Extension). But,
for the reasons set out below, it is submitted that Auckland Council did

not err in the exercise of its discretion by:

considering each of the Operative Plan Consents separately;

(8)

and

considering the three bundled Proposed Plan Stormwater
Consents as though they were one application (indeed, that is
the basis upon which POAL lodged its application for these

consents).

The relevant principles as to "bundling" of consent applications are

addressed below.
"Bundling" of resource consents

Many projects require multiple resource consents, often with different
activity statuses. in addition, depending on the timing and duration of a
project, resource consents may currently be required under both the
Operative Plans and the Proposed Plan. That was the case with both the

132 Extension and the BS Extension.

The "bundling" of resource consent applications refers to a situation
where an applicant (and/or a consent authority) treats multiple,
overlapping resource consents as though they were one consent. This is
usually done for administrative and ef?ciency reasons. This is not
required by (or, indeed, contemplated in) the RMA. Rather, the practice
of giving consideration to "bundling" has been developed through case
law. It is submitted that Auckland Council is not required to bundle

consent applications, but has a discretion to do so, in appropriate cases.

When applying for a suite of resource consents for a project, an applicant
may propose that the resource consents be unbundled or bundled, as
well as the way in which any bundling should take place (for example, if it
is proposed (as in the current case) that only some resource consents
should be bundled). It is, however, of course, the Council that ultimately
decides whether it is appropriate to bundle resource consent applications,

as well as how they sh0u d be bundled. Bundling is relevant both to the

2.14

2.15

2.16

2.17

8

assessment of whether a resource consent application should be publicly
notified and also whether the resource consents should be granted.
Given the effects of bundling (set out below), it is not something to be
taken and it is submitted that this Court should be slow to impose
its own view of when bundling would be appropriate upon a consent

authority.

The genesis of bundling is often cited as Cooke J's 1973 Supreme Court
decision under the Town and Country Planning Act 1953 in Locke vAi/on
Motor Lodgef. In Locke, Cooke rejected a "hybrid" approach of different
assessments applying to overlapping considerations. It was held that
where a particular feature of a proposal made it non-complying (the size
of a yard), then the entire proposal should be treated as non-complying
and requiring what was then known as a conditional use consent. It
should be noted that that was an inevitable consequence of the terms of
the Ordinance which expressly provided that any predominant use that
did not comply in respect of bulk and location, parking, loading and

access requirements was ?deemed to be a conditional use? 

The concept of bundling was not included in the RMA when it was
enacted in 1991. Nor has it been included in any of the subsequent

amendments to the RMA. Bundling remains a whollyjudicial construct.

The leading case with regard to bundling under the RMA is the Court of
Appeai's decision in Bayley Manukau City Councilz. In Bay/9y, the
Court accepted the concept of bundling with regard to noti?cation as an
aid to ef?ciency, but held that bundling would not be appropriate in all

cases.

It held the test for whether bundling would be appropriate with regard to
notification was whether there was an overlap in "the matters requiring
consideration under muitipie land use consent applications in respect of
the same development". It is clear that not every application for multiple
consents for the same proposal will be bundled, and bundling depends on
the matters requiring consideration. As a consequence, it is submitted
that where a consent authority's discretion in relation the matters
requiring consideration is limited (as is the case with controlled activities

and restricted discretionary activities), the scope for such overlap is

 

(1973) NZTPA 17. authorities tab 29]
2 [1999] 1 NZLR 568 at 580. authorities tab 11]

2894434 v10

2.18

2.19

9

reduced. The focus is on the activity for which consent is sought and the

effects of that activity.3

Further, even if there is sufficient overlap to justify bundling, the bundling
of consents will not always have the same effect. The effect of bundling
may depend on the activity status. in Bayley, the Court of Appeal said
that while a restricted discretionary consent overlapped with other
consents required, the Council should still only consider the matters in
relation to which it had a discretion.4 That is, bundling did not alter the
activity status of the consent, and was only relevant to the question of
notification. it is submitted that the same must be the case for controlled
activities. It should be noted that the outcome in Bayley was governed by
the fact that restriction in the Plan Rule in that case was found by the
Court on examination to be ?relatively unconfining? in that, as it was put
by the Court, it ?preserves a broad range of consequential effects which

the council needed to consider" in that case.5

In Southpark Corporation Limited Auckland City Councils the
Environment Court considered the effect of Bayley and held that it was
authority for the proposition that bundling "may or may not be
appropriate" where one of the activities for which consent was sought is a
restricted discretionary consent. It went on to say that whether bundling
was appropriate in such a situation would depend on "how relativeiy
uncon?ning" the factors to which the exercise of the consent is restricted
(adopting the words used in Bayley). It is submitted that the same
analysis must appiy to a controlled activity, with an even more confined
discretion (relating only to conditions). it is submitted that the following
summary from the Court at para. [15] of the Judgment, following a review
of the case law to that time, represents a sound summary of the law

relating to the application and limits of bundling:

From the authorities, it is our understanding that while the
Locke approach remains generally applicable, so a consent
authority can consider a proposal in the round, not spiit
arti?cially into pieces, that approach is not appropriate where:
one of the consents sought is classi?ed as a controlled
activity or a restricted discretionary activity; and the scope
of the consent authority's discretionary judgment in respect of

 

3 Bayiey; Body Corporate 97010. authorities tabs 11 and 14]

4 Bayiey Manukau City Council [1999] 1 NZLR 568 at 577. authorities tab 11]
5 authorities tab 11]

6 [2001] NZRMA 350 at authorities tab 56]

2894484 v10

10

one of the consents required is relatively restricted or con?ned.
rather than covering a broad range of factors; and the
effects of exercising the two consents would not overlap or
have consequential or flow-on effects on matters to be

considered on the other application. but are distinct.

2.20 The point made in in the quote above is that the scope of the
discretion of a particular activity is determined by the classi?cation of that
activity under the Plan and in the case of a restricted discretionary activity
and, a fon?ion' in the case of a controlled activity is likely to be ?relatively
restricted or confined? according to the wording of the Plan? This point
has statutory recognition in section 104A(b)(ii) which, in the case of
controlled activities, limits the conditions on the consent to ?only for those
matters  over which it has reserved its control in its plan or proposed

planll'a

2.21 In Tairua Marine Limited Waikato Regional Councilg the High Court
determined that there was an overlap between different resource
consents sought as one was for dredging and one for construction of the
marina, and construction could not occur without dredging. Asher noted
that it would "generaliy be appropriate" to treat applications for multiple
consents as requiring overall assessment on the basis of the most
restrictive activity when there is an overlap between the two consents.
This was said to occur when "the consideration of one may affect the
outcome of the other?). It is submitted that this refers to an overlap
between the matters in relation to which the consent authority has

retained a discretion.

2.22 in Tairua Marine the Court was considering a non-complying consent, a
discretionary consent and a restricted discretionary consent. Accordingly,
when compared to the current case. there were more effects over which
the consent authority could exercise discretion. This, in turn, means that

there must have been more possibility that such effects could overlap.

 

7 As stated above, Bayiey in that respect was a reiative exception to that general prOposition to
the extent that the Court found that in that after examination of the relevant Plan Rule that the
restriction was "relatively uncon?ning, especially in relation to site layout" (p.577)

3 The predecessor to this section was s. 105(3) which was applied to the same effect by
Randerson in King v. Auckiand City Council {2000] NZRMA 145 (H0) at 156, para. 
authorities tab 17]

9 HC, 2005?495-00?i490, 29 June 2006. authorities tab 17]

1? Tairua Marine Limited Waikato Regional Councii at authorities tab 28]

2894484 v10

2.23

2.24

2.25

2.26

11

This matter was also considered by the Court of Appeal in Body
Corporate 97010 Auckland City Council Anor?f in which consents
relating to car parking were not bundled with construction consents as
there was held to be no overlap. The court held that there were no
"consequential or flow-on effects on the matters being considered under
the controlled activity application" (the construction) with the matters
being considered in relation to the discretionary activity (car parking).
This is an illustration of the fact that two consents are part of an overall
development is not the test for bundling or for establishing that the
applications for consents necessarily overlap. The test is much more
nuanced and requires a consideration of the classification of the relevant
activities that are the subject of the resource consent applications,
considered by reference to the extent of control retained by the council
under the Plan and the limitations on the criteria that are relevant to the

exercise of the council?s discretion.

In Newbury Holdings Auckland Council12 the High Court held that

bundling should only occur when it "makes sense", stating:

What is decided under one plan will inevitably impact upon the
other, as evidenced by the fact these proceedings having
occurred because Group received consent under one plan
but not the other. Therefore it makes sense both for the
different activity consents to be bundled together (as is the
norm when they overlap) and also for the activity consents in
two different plans to be bundled together when they also
overlap.

Should there be sufficient overlap between the effects of activities in
relation to which the consent authority has a discretion, then bundling can
occur, but is not required. Should bundling occur, then there are two

potential impacts:

bundling affects notification - if consents are bundled and one



has to be noti?ed, all are notified; and

bundling can affect the activity status - but this "may or may not

be appropriate? for a restricted discretionary or controlled

activity.

At paragraph 3.31 of Urban Auckland's submissions it is alleged that a

consent authority will make an error of law if it processes an application

 

1" [2000] NZRMA 529 at authorities tab 141
?2 [2013] NZHC 1172. authorities tab 16]

2894484 v10

2.27

3.1

3.2

3.3

3.4

12

with an activity status that has been wrongly determined. This is said to
occur if a resource consent application is not bundled when it should be.
This proposition must also apply to applications that are bundled when

they should not be.

Further, given that there is no mandatory legal bundling requirement, the
Urban Auckland submission wroneg assumes, by not bundling certain of
the applications, the Council has ipso facto committed an error of law. To
the contrary, the effect of the case law is that the consent authority has a
discretion as to whether to bundle. Accordingly, a consideration of
bundling is a matter of assessment of the overlap of the effects of the
activity for which consent is sought on the facts before the consent
authority and having regard to characterisation of the activities concerned
under the relevant plan or plans. it is submitted that the courts should be
slow to intervene where a consent authority has considered whether to
bundle applications (including where that would have the effect of
changing an activity status from that in a relevant plan), but has decided
not to exercise its discretion to do so, when it has asked the right
questions. This is a factual assessment, which can only become an error
of law if it is one that no reasonable decision-maker on the evidence

could have arrived at.

FOR JUDICIAL REVIEW: THE LEGAL POSITION

Urban Auckland has brought an application for judicial review under Part
1 of the Judicature Amendment Act 1972.

An application for judicial review is an application for the Court to
Supervise the exercise of a power. Fundamentally, judicial review "is not
an appeal from a decision, but a review of the manner in which the

decision was made".13

in the amended statement of claim filed by Urban Auckland on 25 May
2015 ("Statement of Claim") (and paragraph 4.1 of its submissions),
Urban Auckland alleges that the Notification Decisions and the Consent

Decisions were "unlawful" and "invalid".

There has been no suggestion (and nor could there be) that either

Auckland Council or the Commissioners acted in bad faith or for an

 

13 Chief Constable for North Wales Evans [1982] 3 All ER 141. authorities tab 33]

2394484 v10

13

improper purpose. Rather, the allegation appears to be that Auckland
Council (through its delegates, the Commissioners) made errors of law
and/or mistakes of fact in exercising their discretion with regard to the
Decisions. it is also alleged that the Commissioners failed to exercise
independent judgement. Each of these allegations are denied by both
Auckland Council and POAL.

3.5 Where a decision involves the exercise of a discretion, the Courts have
held that the "very concept of administrative discretion involves a right to
choose between more than one possible course of action upon which
there is room for reasonable people to hold differing opinions as to which
is to be preferred". The role of the Court is not to substitute its opinions
for the decision maker, but to ask whether the decision maker asked
themselves the right questions, and took reasonable steps to acquaint
himself with the relevant information to enable them to answer it

correctly.14

3.6 In this context, review for error of law is confined to requiring the decision
maker to consider matters which expressly or by implication the decision
maker "ought to have regard to", or conversely "would not be germane".15

3.7 It follows, therefore, that the depth or intensity of the judicial review is
usually determined by the width of the power being exercised. The
broader the power of the decision maker, the less likely it is that the Court
will find that an action was not cpen to it or that an error of law arose. As

Fogarty noted in Gordon Auckland City Council?6 it is more difficult to
identify an error of law when the question is one of degree, rather than

applying a standard?

3.8 As noted by the Supreme Court in Unison Networks Commerce

Commission?, a statutory power is subject to limits even if it is conferred

 

1? Secretary of State for Education and Science Tameside Metropolitan Borough Councii
[1977] AC 1014 at 10654066. authorities tab 35]

5 Shotover Park Queenstown Lakes District Council [2013] NZHC 1712 at 
authorities tab 27]

16 (HO Auckland 29 November 2006). authorities tab 23]

17 Fogarty J?s reference to "notions of the Court's scrutinising iegaiity more or less carefuliy" is a
reference to previous decisions in which the Courts have suggested that there is a continuum of
approaches to judicial review, which will be of greater or less intensity according to the nature of
the case and especially the respective competence and experience of the decision-maker and of
the Court (Progressive Enterprises North Shore City Council [2006] NZRMA 72 (HC) at
authorities tab 21] This approach was criticised by the Supreme Court in
McGrath Accident Compensation Corporation [2011] 3 NZLR 733 at authorities
tab 19]

?3 [2007] uzsc 74 at authorities tab 30]

2894464 v10

3.9

3.10

3.11

3.12

14

in qualified terms. The Court also noted that "courts are concerned with
identifying the legai limits of the power rather than assessing the merits of

its exercise in any case".
Application ofjudicial review principles to the RMA

Urban Auckland's claim is an attack on the granting of the Consents by
Auckland Council. While the Statement of Claim purports to focus on
Auckland Council's process in granting the Consents, underlying its claim
is an inference that POAL ought not to be allowed to build the 82 and 83

Extensions. That is not the domain of a judicial review application.

Urban Auckland has made no secret of its opposition to the expansion of
the Port of Auckland. It has opposed port expansion in the current pubiic
submission process underway in relation to the Proposed Plan. voi
SB tab p40,271] It is submitted that the pubiic process for the
Proposed Plan is the proper forum in which to pursue the question of
whether port expansion is in the interests of Aucklanders, and the
country. Urban Auckland is attempting to use a judicial review application
to impose, through bundling, a different activity consent on port related
activities to that set out in the Operative Plans (which underwent public
consultation before they became operative) and the Proposed Plan
(which is stilt going through public consultation). This is not an

appropriate use of a judicial review application.

In Coro Mainstreet (Incorporated) The Thames-Coromandel District
Council19
review, it was not the function of the court to substitute its own decision or

Rather. the court

Wylie noted that in considering an application for judicial

assess the merits of the decision on review.
?undertakes on an application for review is con?ned to whether or not the

consent authority exceeded its limited jurisdiction conferred by the Act".

In Far North District Council Te Runanga-a-iwi Ngati Kahu Orszo the
Court of Appeal considered an application to judicially review a decision
not to publicly notify a resource consent application. It held that a court
was "required to determine whether the decision maker has complied with
its statutory powers or duties" and that the standard of view of decisions
under the RMA was constant, with no sliding scale depending on

perception of the relative importance of the subject matter.

19 [2013] NZRMA 503 at authorities tab 18]
2? [2013] NZCA 221 at authorities tab 123

2894484 v10

3.13

4.1

4.2

4.3

4.4

4.5

2894484 v10

15

The question for this Court is not whether the Decisions were right
(although it is POAL's position that they were), but whether Auckland
Council has erred in fact or law in making the Decisions. if it has not,

Urban Auckland's application forjudicial review must faii.

THE PLANNING AND RESOURCE CONSENT REGIME

The Decisions under review arise in a particular statutory context - the

RMA and associated plans and policies.
in this section we cover:

the statutory framework;

(8)

regional plans;



resource consents;

(C)

the resource consent application process;



the notification of applications for resource consents; and



decisions on whether to grant resource consents.


The statutory framework

The RMA and associated plans is the framework under which resource

consents are granted. Each of the Decisions was made under the RMA.

Pursuant to 35, the purpose of the RMA is to promote the sustainable
management of natural and physical resources. Part 3 of the RMA sets
out the duties under, and restrictions imposed by, the RMA. These duties
and restrictions depend on the nature of the activity to be undertaken and

that part of the environment in which the activity is to be undertaken.

Section 12(1) of the RMA prohibits various activities from being carried
out in the coastal marine area (in which the Port is located). unless
allowed by a rule in a regional coastal plan or a proposed regional plan or
a resource consent is obtained. Such activities include the erection,
reconstruction or extension of any structure that is fixed on, in or under
the foreshore or seabed. it is accepted that 512 applies to the 82 and B3

Extensions and POAL was required to obtain relevant resource consents.

4.6

4.7

4.8

4.9

4.10

4.11

2894484 v10

16

Section 15(1) of the RMA prohibits the discharge of any "contaminant"
into water, or onto land in circumstances in which that contaminant may
enter water, unless allowed by a rule in a regional plan or a proposed
regional plan or a resource consent is obtained. Given the way in which
rainwater is to be dealt with for the 82 and BS Extensions (rainwater that
falls onto the BZ and BS Extensions will be treated and discharged into
the harbour), it is accepted that 815 applies to the 82 and B3 Extensions

and POAL was required to obtain relevant resource consents.

A "resource consent" is de?ned in s87 as including a consent to do
something in a coastal marine area which would otherwise contravene

8812 and 15.
required for particular activities are set out in both the Operative Plans

Pursuant to s87A, those resource consents that are

and the Proposed Plan.
Regional plans

Both the Operative Plans and the Proposed Plan are relevant to the 82

and B3 Extensions.

The Operative Plans were noti?ed in February 1995 and become
operative in August 2004 after the public participation processes in
Schedule 1 of the RMA were completed.

submissions, further submissions, a Council hearing and rights of appeal

This included public

to the Environment Court.

The Proposed Plan was notified on 30 September 2013 and public
submissions and further submissions have been received. A further draft
of the Proposed Plan is expected in late 2016 after the Auckland Council
receives recommendations from the independent Hearings Panel and
produces a "Decisions Version" of the Plan, but given the appeal process
(mostly but not entirely on points of law) it is not expected to be fully
operative for several years. Once it is finalised, it will replace the
Operative Plans. Pursuant to 386(3) of the RMA, a rule in the Proposed

Plan has immediate effect if the rule protects or relates to water.

POAL has a coastal permit pursuant to s384A of the RMA which gives it a
Both the Operative

Coastal Plan and the Proposed Plan recognise a special zone for the Port

right to occupy part of the Waiternata Harbour.

to which special provisions apply. Under the Operative Coastal Plan

4.12

4.13

4.14

4.15

4.16

2394434 v10

17

these are called Port Management areas. Under the Proposed Plan this

is called the Port Precinct.

The Operative Coastal Plan contains five Port Management areas. The
E32 Extension and the 83 Extension are within Port Management Area 1A.
The delineation of these areas recognises the importance of the port to
Auckland as the area where the city?s principal commercial working port
has its wharves and that it is anticipated that future growth will be
[Arbuthnot CB vol SB, tab P03 p40,159
The objectives and policies section for Port

concentrated in this area.
paras 14 and 15]
Management Area 1A refers to the development of new port facilities and
states that any use that adversely effects the ef?cient use and
be

development of the area for commercial port facilities shall

inappropriate. vol 6A tab 10 p50,097]

The Proposed Plan continues with a similar regime and has specific
zones, including the City Centre zone, the General Coastal Marine zone
and the Port Precinct. The Port of Auckland falls partly in the City Centre
zone (land) and partly in the General Coastal Marine zone (harbour). The
entire Port is also within the Port Precinct, which contains particular rules

that apply only with the geographic area of the Port.

The description of the Port Precinct confirms that this area is recognised
as providing infrastructure to service the marine and port activities and it
is therefore appropriate to make provision for continued use and
development. One of the objectives of the Port Precinct is "the ef?cient
operation, growth and intensification of marine and port activities and
marine and port facilities?. voi 6A tab 18 p50,340; Arbuthnot
affidavit CB vol SB, tab P03 p40,172 paras 56] Apart from POAL's port
at Onehunga, this is the only area set aside for such activities in the

Auckland region.

Activities within the Port Precinct are governed by the Port Precinct rules.
if the Port Precinct rules do not address a particular matter, then either
the General Coastal Marine zone rules or the City Centre zone rules
apply, depending on where the activity is located. [Arbuthnot affidavit,
CB vol 5B tab P03 [340,171 para 55]

The 82 Extension and the BS Extension are entirely consistent with the

objective and purposes of development in the Port Management Area 1A

4.17

4.18

4.19

4.20

2894484 v10

18

and the Port Precinct. They are extensions to an existing wharf in

precisely the area in which such development is contemplated.

Urban Auckland alleges that the Decisions should have been made with
the purposes of the RMA in mind, applying the New Zealand Coastal
Policy Statement and the Hauraki Gulf Marine Park Act. it is accepted
that all exercises of a discretion made under the RMA should be made
with regard to the purpose of the RMA. However, it is important to
remember that the various documents that form the framework for RMA
decisions (including the Operative Plans and the Proposed Plan) were

drafted to give effect to these purposes.

Section 104 expressly requires that the New Zealand Coastal Policy
Statement and the Hauraki Gulf Marine Park Act are taken into account
when making decisions whether to grant a resource consent application.
There is no express requirement to consider these matters with regard to
decisions regarding notification under 595A. Accordingly, it is submitted
that the New Zealand Coastal Policy Statement and the Hauraki Gulf
Marine Park Act may be considered by a consent authority when
exercising its discretion regarding notification, but are not a relevant

mandatory consideration.
Resource consents

The Operative Plans and the Proposed Plan each set out various
activities for which resource consents must be obtained. A resource
consent is a permit granted by the relevant local or territorial authority (in
this case, Auckland Council) to carry out an activity that would otherwise
contravene the RMA or a rule in a plan. A resource consent is required
when neither the RMA nor the relevant regional and territorial plan permit
a certain activity. [Arbuthnot affidavit, CB vol 58 tab P03 p40,178

paras 82 and 83]

The RMA (and, in turn, the Operative Plans and Proposed Plan) provide
six categories of activity status - permitted, controlled, restricted
discretionary, discretionary, non?complying and prohibited. In all cases,
the activity for which consent is obtained must comply with the
requirements, conditions and permissions of the RMA, Operative Plans or

Proposed Plan. The applicable test for each activity status as follows:

2894434 v10

(8)



(C)





19

Permitted activity Pursuant to it an Operative Plan or
the Proposed Plan describes an activity as "permitted", then a

resource consent is not required for the activity.

Controlled activity Pursuant to s87A(2) and s?iO4A, if an
Operative Plan or the Proposed Plan describes an activity as a

"controlied activity" then a resource consent is required, but:

Auckland Council must grant the consent unless
speci?ed sections of the RMA or the Marine and
Coastal Area (Takutai Moana) Act 2011 apply (neither

of which are relevant to the current case); and

(ii) whiie Auckland Council may impose conditions on the
resource consent, its discretion is restricted to the
matters over which control is expressly reserved in the

Operative Plan or Proposed Plan.

Restricted discretionary activity - Pursuant to and
31040, if an Operative Pian or the Proposed Plan describes an
activity as a "restricted discretionary activity" then a resource
consent is required, but the Council's power to decline the
consent or grant it with conditions is restricted to the matters
over which the discretion is retained or "restricted" in the

Operative Plan or Proposed Plan.

Discretionary activity Pursuant to s87A(4), it an Operative Plan
or the Proposed Plan describes an activity as a "discretionary
activity", the Council can decline or grant the consent, with or

without conditions.

Non~complying activity - Pursuant to if an Operative
Plan or the Proposed Plan describes an activity as a "non?
complying activity", the Council can either decline the consent or
may, it the requirements of s?iO4D are met, grant the consent

with or without conditions.

Prohibited activity - Pursuant to s87A(6), if an Operative Plan or
the Proposed Plan describes an activity as a "prohibited activity"
then no resource consent can be granted and the activity cannot

occur without a plan change.

4.21

4.22

4.23

4.24

4.25

2894484 v10

20
Resource consent application process

Upon receipt of an application for a resource consent, Auckland Council,

as a consent authority, has two decisions to make:

whether to exercise its discretion to publicly notify the

(8)
application (addressed in more detail at paragraphs 4.24 to 4.45

below) pursuant to and

whether to grant the resource consent (in accordance with
ss?lO4 to 104D) (addressed in more detail at paragraphs 4.46 to
4.48 below).

Pursuant to clause 32(1) of Schedule 7, Part 1 of the Local Government
Act 2002, Auckland Council may delegate its decision making powers
(regarding both whether to publicly notify an application and whether to
grant the consent) to its Hearings Committee. The Hearings Committee's
terms of reference and delegations con?rm that it has responsibility for
decision-making under the RMA. [Valentine affidavit CB v01 4 A02 tab
2 [330,059]

Pursuant to clause 32(3) of Schedule 7, Part 1 of the Local Government
Act 2002, the Hearings Committee may, in turn, delegate its powers. The
Hearings Committee's policy states that it may delegate decisions on

consent applications to a Commissioner.
Notification of resource consents

Pursuant to s95A, Auckland Council has a discretion whether to publicly

notify a resource consent application.

Pursuant to 595A, as POAL did not request public notification in relation
to the 82 Consent Applications or the 83 Consent Applications (under
895A(2)(b)), and there is no rule or environmental standard that requires
public noti?cation (under 895A(2)(c)), Auckland Council had a discretion
whether to publicly notify the applications (under but that

discretion was limited as follows:

it was required to publicly notify if it decided that the activity

would have, or would be likely to have, more than minor adverse

effects on the environment (under 395A(2)(a)): and

4.26

4.27

4.28

4.29

21

it could publicly notify if special circumstances existed (under
including if a rule or standard precluded public

notification (under 
Interpretation of notification obligations - legislative amendments

The law regarding notification has been significantly amended on two
occasions - in 2003 and in 2009. Until 2009 there was a presumption in
favour of notification. This presumption was removed by the Resource
Management (Simplifying and Streamlining) Amendment Act 2009. Prior
to this, the RMA required noti?cation unless the consent authority was
satisfied that the adverse effects of the activity on the environment would
be minor. Now, approximately 95% of resource consent applications
proceed on a non-notified basis. [Arbuthnot voi SB tab P03 p40,182
para 95]

The pre-amendment law regarding noti?cation was accurately described
in Discount Brands West?eld (New Zealand) Limited?. in Discount
Brands the Supreme Court held that noti?cation was not required when
the adverse effects on the environment were minor, but that the Court
had to have adequate, reliable information upon which to base this
decision (as set out in then s93). The Court also noted that given a
consequence of the decision to notify was the exclusion of participation in
the process, the Court would carefully scrutinise the material upon which

the decision was based.

It is submitted that this decision is no longer 'good law' with regard to the
test for notification. In this regard, it is submitted that paragraphs 3.17 to
3.26 of Urban Auckland's submissions should be approached with
caution. For example, at paragraph 3.26 Urban Auckland refers to a
decision not to notify as removing "a participatory right" of people who
may be affected. This is not an accurate description of the current
legislative framework in relation to noti?cation. A decision under 395A not
to notify an application does not remove a right to participate. Rather,

s95A creates a right to participate in certain, de?ned circumstances.

In Coro Mainstreet (Incorporated) Thames-Commands! District
Council? the Court of Appeal noted that much of Blanchard J's analysis

from Discount Brands was based on the RMA provisions from 2003, and

2? [2005] 17. authorities tab 22}
22 [2013] NZCA 665. authorities tab 11]

2894484 v10

4.30

4.31

22

was accordingly dependent on the text of that historic legisiation. it calied
into question the continued applicability of Discount Brands given the
signi?cant amendments that had been made. In doing so, it referred to
the "apparent intention of Parliament to give consent authorities greater
scope to decide not to notify resource consent applications".23
In Coro Mainstreet the Court of Appeal summarised the differences
between the current 395A and the historic provisions under consideration
in Discount Brands (as these provisions were before the 2003 and 2009

amendments) as follows:

The presumption in favour of noti?cation was removed, and

replaced with a discretion regarding whether to notify an

application.

The consent authority no longer had to be "satis?ed" that the

effects are minor, and only had to "decide" if this was the case.

The consent authority must now decide whether adverse effects
"will have or are likely to have" effects that are "more than
minor" (and if so, must notify). Formerly the legislation required
the consent authority to be satis?ed that the adverse effects on

the environment "wilt be minor" (and if so, was excluded from

notifying).

information" was removed as an

"Adeq uate express



requirement.

The Court in Associated Churches of Christ Church Extension and
Property Trust Board Auckland Council? cited the Court of Appeai?s
application of the purpose of the 2009 Amendment Act in Coro
Mainstreet, and noted (at that the amendment provides "limited
scope to challenge Council's decisions not to notify". it held that one of
the purposes of the amended notification regime was to improve the
efficiency of the consenting process. It held that in the case before it, in
deciding to notify an application, the Council had failed to ask the
?essential question" of whether notification would result in receipt of

further relevant information. It was also noted (at that if Parliament's

 

23 Coro Mainstreet (incorporated) Thames-Coromandei District Council [2013] NZCA 665 at
authorities tab 11]
4 [2015] NZRMA 113. authorities tab 2]

2894484 v10

4.32

4.33

4.34

4.35

4.36

23

intention was to allow things to be done more speedily, requiring
notification when it is pointless runs contrary to the purpose of the 2009

Amendment Act.

in this context. the purpose of noti?cation is important. in Bayley, the
Court of Appeal held that it would make little sense to require a consent
authority to notify an application in relation to matters which the authority

must then disregard when considering whether to grant the application.25

Accordingly, care must be taken in relying on cases from prior to the
Resource Management (Simplifying and Streamlining) Amendment Act

2009 to assist in the interpretation of the noti?cation requirement in 

At paragraph 3.24 of Urban Auckland's submissions it is acknowledged
that whether to publicly notify a resource consent application is a
discretionary decision and that discretion must be exercised for the
purposes of the RMA. However, it is then submitted that "(Hi the
purposes of the RMA would be better served by notifying a decision than
non-notifying it, the decision must be notified". That is not the test in
395A of the RMA. While it is accepted that the purpose of the RMA is
relevant to decisions made under the RMA, including the exercise of
discretions set out in the RMA, the decision whether to notify must be

made in accordance with s95A.

As set out at paragraph 4.25, it is submitted that in exercising its

discretion whetherto notify, Auckland Council was required to consider:

whether the activity would have, or would have been likely to

have, adverse effects on the environment that were more than

minor such that noti?cation was required under 395A(2)(a); and

whether there were special circumstances pursuant to 

such that had a discretion to notify (even if noti?cation was
precluded under 

At paragraph 3.28 of Urban Auckland's submissions it is asserted that the
activity status of a resource consent is not speci?cally relevant to the test
for notification and there is no provision that directs that activities of a
certain status must be noti?ed or not. With respect, neither of these

submissions is accurate.

 

25 at p577. authorities tab 11]

2894484 v10

4.37

4.38

4.39

4.40

4.41

4.42

24

irst, the activity status of a resource consent is relevant to the question
of notification. In assessing any adverse effects in relation to an
controlled or restricted discretionary activity (like the two Operative Plan
Consents), 395D(c) requires the consent authority to disregard any
adverse effects which do not relate to a matter over which control is

reserved or discretion restricted.

Secondly, there are provisions which direct that activities of a certain
status are not to be notified, subject to special cir0umstances. Section
95A(3)(a) provides that public notification must not occur if a rule
precludes public notification. The Operative Coastal Plan precludes

public noti?cation of controlled activity resource consent appiications.

it is therefore submitted that the activity status of a consent application is
relevant to, although it may not be determinative of. the question of

notification.
No special circumstances

As set out at paragraph 4.24 above, of the RMA provides that the
consent authority has a discretion to notify if special circumstances exist.
This includes where a rule or national environmental standard would

otherwise preciude public notification.

As set out by the Court of Appeal in Far North District Council Te
Runanga-a-iwi Ngati Kahuza, a "special circumstance" is 
outside the common run of things which is exceptional, abnormal or
unusuai but less than extraordinary or unique". It was also held (at 
that a special circumstances is one which makes notification desirable

despite the general provisions excluding the need for notification.

In Coro Mainstreet the Court of appeai con?ned its review of the Council?s
notification decision to a consideration of the information before the
Council. it determined that the information was both adequate and
reliable and noted (at that further inquiry would be to "second guess?
the Council?s decision and would effectively be a hearing of an appeal of
that decision. This was held to be inappropriate in a judicial review

context.

 

25 [2013] NZCA 221 at authorities tab 12]

2894484 v10

25

4.43 In Housiaux Kapiti Coast District Council the High Court observed that a
determination of whether special circumstances existed was an exercise
of a discretion based on the Council's assessment of the factual position
and use of its exercise and judgment. it was held that there was
therefore limited scope for judicial review.27 The importance of the
decision?maker's experience to the exercise of a discretion was also
noted by Simon France in Royal Forest and Bird Protection Society of

New Zealand Inc Kapiti Coast District Council.28

No obligation to notify (no adverse effects on the environment that

are more than minor)

4.44 Auckland Council would only have had an obligation to publicly notify the
82 Consent Applications if it decided that the 82 Extension will have, or is
likely to have. more than minor adverse effects on the environment. The
same test was to be applied to the 83 Extension upon receipt of the B3

Consent Applications.

4.45 Section 95D contains guidance in relation to the Council's assessment of
whether any adverse effects are likely to be more than minor. It provides

that the consent authority may:

disregard effects on people who own or occupy the relevant land
or adjacent land 

(to) disregard permitted effects (s95D(b)); and

for a controlled or restricted discretionary activity, disregard any
adverse effect that does not relate to a matter in relation to

which control is reserved or discretion restricted (3950(0)).
Granting of resource consents

4.46 Section 104 governs the assessment of resource consent applications. it

provides that a consent authority must have regard to:

any actual and potential effects on the environment of allowing

the activity; and

 

27 Housiaux Kapiti Coast District Council HC Wellington 19 March 2004 at
authorities tab 15]
3 HC, 27 November 2007 at [131]. authorities tab 54]

2894484 v10

4.47

4.48

5.1

5.2

26

any relevant provisions of the New Zealand coastal policy



statement, the Operative Plans and the Proposed Plan.

In assessing "any actual and potential effects on the environment of
allowing the activity" under 5104(2) provides that the Councii
can disregard an adverse effect of the activity if the plan permits an
activity with that effect. This is known as the "permitted baseline". When
assessing the effects of the activity for which consent is sought, the
Council can disregard other activities that either have been lawfuliy done

or could lawfully be done under a plan.29

Section 104A to 104D then provide specific rules for resource consents of
different activity statuses. These rules limit the broad discretion in 5104.
Reference has been made above to 5104A(b)(ii) which limits the matters
upon which the Council can impose conditions on a consent to a
controlled activity (which must be granted) to those over which Council
has reserved its control in a plan or proposed plan. The case for POAL is
that this wouid, for example. preclude the Council taking account of visual
effects when imposing conditions on the consent to construct the wharf

extensions.

SUMMARY OF THE KEY FACTS
Ports of Auckland

POAL is a port company under the Port Companies Act 1988 and an
incorporated company under the Companies Act 1993. it is a wholly
owned subsidiary of Auckland Council Investments Limited 
ACIL is, in turn, a wholly owned subsidiary of Auckland Council. [Kirk
affidavit, CB vol 5A, tab P01 [340,003 para 7] Under 3 5 of the Port

Companies Act, POAL is required to act as a successful business.

POAL operates the coastal Port at Auckland. POAL has a coastal permit
to occupy this area under 3384A of the RMA. [Kirk affidavit, CB vol 5A,
tab P01 p40,004 para 10] POAL manages the loading and unloading
(and distribution) of both containerised and non-containerised cargo
(called It also services cruise ships which cail at Auckland.

The Port of Auckland comprises:

 

29 Bayiey at 576. authorities tab 11]

2894434 v10

5.3

5.4

5.5

2894484 v10

27

a primary container terminal (Fergusson, with Bledisloe Wharf

(8)

as a back-up);

multi-cargo berths (Bledisloe Wharf), Freyberg Wharf, Jellicoe
and Captain Cook Wharf); and



two dedicated cargo ship berths (Queens Wharf and Princes
Wharf).

(0)

A diagram of the wharves at the Port of Auckland is included at CB vol
5A tab P01 p40,027.

Challenges in multi-cargo

Multi?cargo is essentially the transport of non-containerised cargo. Multi-
cargo is usually described as either "bulk" or "breakbulk". Bulk cargo is
cargo in loose form is which is carried on ships or barges in bqu
unpackaged form (for example, cement). Breakbulk cargo is non-
containerised cargo which is bundled in consignments (for example, steel
or timber) or transported in individual form (for example, machinery).

[Kirk affidavit, CB vol 5A, tab P01 p40,005 para 17]

Bledisloe Wharf has three berths - 81, 82 and BB. vol 5A tab P01
p40,028] POAL has decided to extend 82 and BB as it faces the

following issues in relation to the multi-cargo business:

Multi?cargo volumes have increased (by 91% over the past ?ve



years), meaning POAL requires more berth space.

The size of ships calling at the Port of Auckland has increased

(from around 200 metres to 260 metres), meaning that longer

berths are required.

(0) There is greater pressure on POAL's infrastructure due to berths
being dedicated to particular customers, Queens Wharf being
handed back to Auckland Council, and the proximity of Captain
Cook West to Queens Wharf means that when Queens Wharf is
being used for cruise ships, Captain Cook West is not useable

for multi-cargo freight ships.

[Kirk affidavit, CB vol 5A, tab P01 pp40,008 to 40,011]

5.6

5.7

5.8

5.9

5.10

2894484 v10

28

At the same time, similar issues have arisen with regard to cruise ships.
More cruise ships are calling, and the ships that are calling are larger
(from 295 metres to 345 metres) and can no longer be accommodated at
either the dedicated cruise ship terminals (Queens Wharf and Princes
Wharf) or over?ow facility for cruise ships (Jellicoe Wharf). POAL
needs a longer berth for cruise ships. [Kirk affidavit, CB vol 5A, tab
P01 pp40,012 to 40,013]

POAL has considered how best to address these capacity issues. 83?s
proximity to Marsden Wharf (and a sandstone shelf) and 82's proximity to
81 compromise ability to make the most out of each berth. Both
E32 and B3 are structurally sound and have good water depth, but are not
long enough to service the larger ships that are calling at Auckland on a
regular basis. Extending each of 82 and 83 will address these issues. it
will give POAL the two additional long berths it needs to address the
issues it faces, while also converting berths of limited utility into useful
assets. [Kirk affidavit, CB vol 5A, tab P01 pp40,014 to 40,015]

The BZ Extension and the BB Extension

B2 is on the eastern side of Bledisloe Wharf. After the B2 Extension, B2
will be 98 metres longer, and will be able to berth longer multi~cargo
ships, including car ships. This will allow POAL to address increasing
congestion in the Queens Wharf/ Captain Cook Wharf basin and will also
cater for the increase in volume, including of larger ships. [Kirk af?davit,

CB voi 5A, tab P01 p40,0014]

The B3 Extension is a separate project. B3 is on the western side of
Bledisloe Wharf. After the BS Extension, B3 will be 92 metres longer and
will be able to berth longer multi-cargo ships and overflow ships from the
Fergusson container terminal, and will be the berth for the large cruise
ships that have begun to call at Auckland. Kirk affidavit, CB vol 5A, tab

P01 pp40,0014 to 40,0015]
Tug berth consent applications

in April 2014 POAL made an application for resource consents to enable
construction and operation of a new tug berth, situated between Bledisloe
Bi and Jellicoe Wharves. [Arbuthnot affidavit, CB vol 58 tab P03
p40,183 para 102] There were similarities between the tug berth and the

82 and B3 Extensions from a planning and consenting perspective.

5.11

5.12

5.13

5.14

2894484 v10

29

POAL therefore considered Auckland Council?s feedback and response to
the tug berth application when it was formulating its applications for both
the 82 Extension and then for the 133 Extension.

In particular, POAL had initially only applied for one consent under the
Proposed Plan for the tug berth. This was a restricted discretionary
consent under rule H.4.8.1 to authorise the use of land as a "High Risk"
industrial Trade Activity where the area already has appropriate

stormwater treatment.

During the tug berth consent application process, Auckland Council
indicated that it considered that two further consents were required under
rule H.4.14 of the Proposed Plan. Both related to stormwater. POAL did
not agree, but made the application for the two additional consents
?without prejudice and out of an abundance of caution". [Arbuthnot
affidavit, CB vol 58 tab P03 pp40,184 to 40,186] The ?ve resource
consents that POAL applied for in relation to the tug berth were granted
by Auckland Council. The three resource consents applied for under the
Proposed Plan were bundled. The two resource consents applied for
under the Operative Plans (one under the Operative Coastal Plan and
one under the Operative Air Land Water Plan) were not bundled with

each other, and were not bundled with the Proposed Plan consents.

At paragraph 11 of Dr Cayford's second af?davit he refers to POAL's
application for the tug berth application as having "fundamentally
changed the planning rules for the entire port area in ways which have
enabled the 82 and BS processes to occur". With respect, this is not
correct. The tug berth application - like the 82 Consent Applications and
the BS Consent Applications - was made in a lawful, sensible manner. It
assisted POAL to understand how Auckland Council would treat an
application of this nature, particularly given that it was the first application
POAL had made where both the Operative Plans and Proposed Plan
applied. This application did not "fundamentally" change planning rules.

Consent applications cannot change planning rules.
82 Consent Application

On 18 September 2014 POAL applied for ?ve resource consents in
relation to the 82 Extension. it made two separate applications - one for

resource consents under the Operative Plans and one for resource

5.15

5.16

5.17

5.18

5.19

2894434 v10

30

consents under the Proposed Plan. The consents comprising the 82
Consent Applications are set out at paragraph 2.3 above. [Arbuthnot

affidavit, CB vol 5B tab P03 p40,188 para 124]

Both applications expressly addressed the manner in which the

applications should be processed, including bundling and noti?cation.

in relation to POAL's application for the Operative Plan Consents, Mr
Arbuthnot noted that bundling would not be appropriate as the matters in
relation to which the Council retained a discretion with regard to the
Operative Plan Construction Consent (a controlled activity) did not
overlap with the matters in relation to which the Council retained a
discretion with regard to the Operative Plan Stormwater Consent (a
restricted discretionary activity). vol ZB tab p10,071] One
The other

consent was for the ongoing discharge of rainwater from the completed

consent was for the initial construction of the structure.

structure. This was consistent with the way in which Auckland Council
had processed POAL's applications for resource consents for its tug
benh.

Secondly, in relation to the Proposed Plan Stormwater Consents,
Mr Arbuthnot accepted that the stormwater activities were physically and
operationally linked, and the applications should be bundled. vol 
tab p10,455] This was, again, consistent with the way in which
Auckland Council had processed POAL's applications for resource

consents for the its tug berth.

Both applications, however, made clear that the Operative Plan Consents
should not be bundled with the Proposed Plan Consents. There was not
a sufficient degree of overlap and these applications needed to be
considered separately to allow Auckland Council to perform a weighting
exercise should different outcomes be reached under the Operative Plans
and the Proposed Plan. vol 2B tab pp10,071 to 10,072; CB
vol 20 tab p10,455]

POAL also proposed that the Council did not exercise its discretion to
notify the BE Consent Applications, given that there were no Special
circumstances and no relevant adverse environmental effects that were
more than minor. vol 2B tab pp10,072 to 10,077; CB vol
20 tab pp10,456 to 10,458]

5.20

5.21

5.22

5.23

5.24

5.25

2894484 v10

31

Auckland Council processed the 82 Consent Applications in the manner
proposed by POAL. The B2 Consent Applications were granted on 31
October 2014. vol 2F tabs FR16 and 

At paragraphs 2.14 to 2.16 of the submissions filed on behalf of Urban
Auckland, issue is taken with Auckland Council's decisions that the 82
and B3 Consent Applications were not "significant and contentious"
pursuant to the Hearings Committee Policy, meaning they were not
but

consideration by an independent commissioner.

referred to the Hearings Committee. instead proceeded to

Auckland Council (via a delegated power to its Hearing Committee who,
in turn, delegate that power to a staff member) determines who will hear
it is submitted that it

the matter. It has a discretion in this regard.

exercised this discretion in a reasonable manner.
BS Consent Applications

POAL made the B3 Consent Applications on 19 November 2014. During
the processing of the B2 Consent Applications Auckland Council had
POAL
incorporated this additional information into the B3 Consents Application.
POAL applied for the same five consents that had been granted in

asked for additional information in relation to some matters.

relation to the B3 Extension, namely:

the Operative Plan Construction Consent;



the Operative Plan Stormwater Consent; and



the three Proposed Plan Stormwater Consents.

(0)

Again, as suggested by POAL, Council bundled the three Proposed Plan
Stormwater Consents, but did not bundle the two Operative Plan
Consents with each other, or with the Proposed Plan Stormwater
Consents. The 83 Consent Applications were granted on 19 December
2014. vol 2K tabs FR40 and 

Urban Auckland initially made. but has now withdrawn, an allegation that
POAL should not have applied for the 82 Consent Applications and the
B3 Consent Applications separately. At paragraphs 4.55 of Urban
Auckland's submissions the separate applications are referred to as a

"slice and dice" approach and are said to have precluded an overall

5.26

5.27

5.28

6.1

2894484 v10

32

assessment of both applications together. This is not accepted. At the
time that the as Consent Applications were lodged, the B2 Consent
Applications had already been approved. The B3 Consent Applications
therefore included consideration of any effects of the B2 Consent

Applications. This was a lawful and sensible way for POAL to proceed.
Construction progressed

POAL put the construction out for tender and accepted a tender from
Brian Perry Civii, a division of Fletcher Construction Company Limited
("Brian Perry Civil") on 21 January 2015. A construction contract was
formally signed on 17 February 2015. [Kirk affidavit, CB vol 5A tab
P01 p40,019] Work commenced on site shortiy thereafter.

This proceeding was not filed by Urban Auckland until "(April 2015.
However, the granting of resource consents for the B2 and BS Extensions
had been in the public domain since at least 12 February 2015, with
public comments from Urban Auckland since at least 25 February 2015.
[Kirk affidavit, CB vol 5A tab P01 p40,018]

Halt on construction of the B3 Extension

On 30 April 2015 POAL agreed to halt construction of the B3 Extension
until the Future Port Study is completed in 2016. It has, however,
continued with construction of the 82 Extension. [Kirk affidavit, CB vol
5A tab P01 pp40,020 to 40,021; tab 

FIRST CAUSE OF ACTION: NOTIFICATION DECISIONS WERE NOT
UNLAWFUL

Urban Auckland?s first ground of review is that Auckland Council?s
Notification Decisions were unlawful and its Consent Decisions were

therefore invalid and should be set aside. This is said to be because:

Auckland Council's assessment of notification was flawed;

(8)

failed to consider relevant statutory

Auckland Council



instruments; and

Auckland Council failed to consider the alleged "significant

(0)

public interest and controversy about the Bledisloe Wharf?.

6.2

6.3

6.4

2894484 v10

33

The Notification Decisions were discretionary decisions. albeit that
Auckland Council had to exercise its discretion in accordance with 895A.
It is submitted that as such, the role of this Court is not to substitute its
view as to whether noti?cation should have occurred. Rather, it is to
determine whether Auckland Council exercised its discretion not to notify

the 82 and 83 Consent Applications in a proper manner.

At paragraph 4.5 of the submissions ?led by Urban Auckland, the
Noti?cation Decisions are described as the "?rst, and fundamental,
problem" with the Decisions. Paragraph 4.6 to 4.13 then traverse why (in
Urban Auckland's view) the "public" were interested in the 82 Consent
Applications and the 83 Consent Applications. As outlined in paragraphs
4.24 to 4.45 above, whether the public (or a section of the public) may
now be interested in an application is not the test for noti?cation under
395A.

Auckland Council's assessment of noti?cation was not flawed

Urban Auckland has alleged that Auckland Council erred by not bundling
all of the 82 Consent Applications and then all of the 83 Consent
Applications. At paragraphs 25 to 33 of the Statement of Claim, Urban

Auckland alleges that Auckland Council's assessment of notification was

flawed as:

each of the 82 Consent Applications and, in turn, each of the 83
Consent Applications, were inextricably connected, overlap and
could not reasonably be separated and therefore should have

been bundled;

if the consents had been bundled, the bundled applications (one
for the 82 Extension and one for the 83 Extension) would have
been "wholly discretionary" requiring an "unrestricted
assessment of all of their actual and potential effects on the

environment"; and

as a consequence, the Council misdirected itself as to the
"extent and adequacy of information" it reasonably required to
determine whether the 82 Consent Applications and 83 Consent
Applications needed to be publicly noti?ed and failed to take into

account mandatory relevant considerations.

6.5

6.6

6.7

6.8

6.9

2894484 v10

34

it is submitted that deciding not to bundle the 82 Consent Applications
and the B3 Consent Applications and then subsequently deciding not to
notify those applications were decisions open to Auckland Council.
Bundling of the Consent Applications was not contemplated by (let alone
required by) by the RMA. Nor does the case law impose bundling as a

mandatory requirement.

For each of the 82 and 83 Extensions, POAL sought and obtained five
separate consents. There are two different ways in which Urban
Auckland alleges that bundling should have occurred, namely bundling of

each of the:

consents under the Operative Plans and the Proposed Plan; and



the Operative Plan Construction Consent and the Operative

03)

Plan Stormwater Consent.

It is submitted that the only resource consent applications which were
serious candidates for bundling were the Proposed Plan Stormwater
Consents. POAL lodged both the 82 Consent Applications and the B3
Consent Applications on the basis that these consent applications should
be bundled.

applications.

Auckland Council did, in tact. bundle these consent

Consents under the Operative Plans should not be bundled with

consents under Proposed Plan

Urban Auckland has asserted that the Operative Plan Consents should
have been bundled with the Proposed Plan Consents. The Operative
Plan Consent Applications were not bundled with the Proposed Plan
Consent Applications for either the 82 Extension or the 83 Extension. it
The
Operative Plans have been through a full public participatory process.
The Proposed Plan remains a draft and is in its infancy. it has not yet

been through a full Schedule 1 process. with the scrutiny that brings.

is submitted that this was a correct and legitimate approach.

Further, the Operative Plans and the Proposed Plan have different
planning frameworks and different policies and objectives (from which the

rules contained therein are derived).

POAL made separate applications for the Operative Plan Consents and
the Proposed Plan Consents for both the 82 Extension and the 83

6.10

6.11

6.12

6.13

35

Extension. Auckland Council exercised its discretion not to bundle these
applications and, it is submitted, cannot reasonably be criticised for that

decision.

Where an applicant has made separate but concurrent applications for an
activity under both an operative and proposed plan, each application
must be assessed separately. lithe result is different under each plan,
then a weighting exercise takes place in a principled way to determine
which framework should have priority.30 Bundling would bypass that

weighting exercise.

As set out in Bayley, where an activity requires consents under different
plans (one proposed and one operative), a consenting authority can
validly process an application under one plan without dealing with the
consents required under the other plan at the same time.31 Consents
required under an operative plan and a proposed plan are not required to
be made together, or even at the same time. Depending on the status of
a prOposed plan, an applicant may elect only to apply under one plan (for
example, if the proposed plan is close to being operative, no application
may be made under the operative plan and construction delayed until

after the proposed plan has become operative).

At paragraph 4.58 of its submissions, Urban Auckland addresses its claim
that the Operative Plan Consents should have been bundled with the
Proposed Plan Stormwater Consents. Only one case is cited in support
of this proposition - Newbury Holdings Auckland Council?.
Critically, Newbury was about whether it had been inappropriate for the
Environment Court to bundle between an operative district plan and an
operative regional plan, not an operative plan and a proposed plan. It
can be distinguished on that basis, as it referred to bundling as between
two operative regimes. As such, no weighting exercise was required or
was appropriate as both plans were operative. Further, the effects to be
considered for the purposes of assessing the overlap were much broader
in Newbury as the case considered a discretionary consent and a non~

complying consent.

At paragraph 4.63 of its submissions, Urban Auckland acknowledges that

Bayley is authority for the proposition that "it will not be a reviewable error

 

3? Stokes Christchurch City Council [1999] NZRMA 409 (at p417). authorities tab 57]
31 p580 to 581. authorities tab 11]
32 [2013] NZHC 1,172. authorities tab 16}

2394484 v10

6.14

6.15

6.16

6.17

2894484 v10

36

of law for a consent authority to fail to insist that applications required
under an operative and proposed plan be lodged and dealt with at the

same time".

POAL did lodge its

applications under the Operative Plans and the Proposed Plan at the

it is submitted that this is a critical concession.

same time (one lodgement for the 82 Consent Applications and one for
the B3 Consent Applications). It did, however, request that the Council
not bundle the applications. It follows from Urban Auckland?s concession

above that:

if it is not a reviewable error of law to fail to insist that
applications under the Operative Plans and Proposed Plan be
lodged together and dealt with at the same time, then it must not
be a reviewable error to deal with such applications at different

times.

As bundled applications are dealt with at the same time, it
follows that it is not a reviewable error for the Council to decide
not to bundle applications under the Operative Plans and
Proposed Plan (or, using Urban Auckland's language "to fail to

bundle" such applications).

Accordingly, it is submitted that Auckland Council's Noti?cation Decisions
were not flawed because it decided not to bundle the Operative Plan

Consents with the Proposed Plan Consents.

For completeness, we note that the Proposed Plan Stormwater Consent
that was a discretionary activity (the consent under rule H.4.?l4.?l.1 of the
Proposed Plan) was not, in POAL's view, required by POAL in relation to
the 82 and B3 Extensions and was applied for "out of an abundance of

cau?onh

The Operative Plan Construction Consent should not be bundled

with the Operative Plan Stormwater Consent

Urban Auckland has also alleged that the Operative Plan Construction
Consent should have been bundled with the Operative Plan Stormwater

Consent.

6.18

6.19

6.20

6.21

2894484 v10

37

As set out at paragraphs 2.8 to 2.27, the matters of control under the
Operative Coastal Plan are entirely separate from the matters in relation
to which the Council had restricted its discretion in respect of the
Operative Air Land Water Plan consent applications. There was no
overlap between the two Operative Plans in terms of the particular

matters to be considered in assessing the applications.

The Operative Plan Construction Consent was a controlled activity.
Auckland Council was required to grant the consent. Its only discretion
was whether to grant conditions on specified matters. Pursuant to rules
25.5.18 and 25.5.20 of the Operative Plan. Auckland Council could only

impose conditions on:

the adverse effects associated with methods of construction;



public access;



navigation and safety;

(C)

the duration of the consent; and



monitoring of the consent.

(6)
These were the only relevant effects for this consent.

The Operative Plan Stormwater Consent was a restricted discretionary
activity. Auckland Council could therefore grant or deny the application.
but only in relation to matters set out in rule 5.5.18 of the Operative Air

Land Water Plan, namely:

quality of the discharge arising from the activity area;



degree of adverse environmental effects on the receiving

(13)

environment;

(0) management practices, treatment systems and devices (to the

extent that they are required to avoid, remedy more than minor

effects);

the inspection and assessment regime for the Environmental

Management Plan;

the duration of the consent; and



6.22

6.23

6.24

6.25

6.26

6.27

2894484 v10

38

the timing and nature of reviews.


These were the only relevant effects for this consent.

it is submitted that it can be seen that no overlap exists between those
effects or factors that are relevant to Auckland Council's consideration of
the Operative Plan Construction Consent and its consideration of the
Operative Plan Stormwater Consent. Auckland Council does not have a
discretion whetherto grant the Operative Plan Construction Consent. it is
required to do so. it can, however, consider the grant of conditions, but
such conditions can only relate to the method of construction, public
access and navigation and safety. These matters have nothing to do with

the factors that are relevant to the Operative Plan Stormwater Consent.

While Auckland Council does have a discretion whether to grant the
Operative Plan Stormwater Consent, it may only exercise that discretion
with regard to matters such as the quality of the discharge (including
environmental effects) that will be put into the harbour and management,
treatment and inspection practices regarding that discharge. Section 104
refers to consideration of the "effects of allowing the activity", which is
distinct from the "proposal". These matters have nothing to do with the
Operative Plan Construction Consent or the conditions that can be

imposed on that consent.

When comparing the list of matters that Auckland Council may consider
to determine whether there is an overlap between the two consents. it is
apparent that no overlap exists. The Operative Plan Construction
Consent and the Operative Plan Stormwater Consent should not be

bundled for eitherthe 82 Extension or the 83 Extension.

Accordingly, it is submitted that Auckland Council's Noti?cation Decisions
were not flawed because it decided not to bundle the Operative Plan

Construction Consents with the Operative Plan Stormwater Consents.
Proposed Plan Stormwater Consents

For completeness, the three Proposed Plan Stormwater Consents were
bundled. They were submitted on this basis by POAL, given the
significant degree of overlap between the matters within Auckland

Council?s discretion in relation to each of the consents. it is submitted

6.28

6.29

6.30

6.31

6.32

2394484 v10

39

that this was an appropriate exercise of Auckland Council?s discretion

with regard to bundling.
Effect of bundling

As set out at paragraph 6.4 above, Urban Auckland contends that each of
the 82 Consent Applications and BS Consent Applications were bundled.
then the two applications would both have been "wholly discretionary".
For the reasons set out above, it is submitted that bundling to this extent
would not have been an apprOpriate exercise of Auckland Council's

discretion.

Urban Auckland goes on to allege that Auckland Council's failure to
bundle meant that it did not have "adequate information" in relation to the
Noti?cation Decisions. The statutory requirement for Auckland Council to
ensure it had received adequate information from which to assess
notification was repealed in 2003. Now, the obligation in is for
Auckland Council to have sufficient information to decide whether the
activity will have, or is likely to have, adverse effects on the environment
which are more than minor (our emphasis). It is submitted that Auckland
Council did have suf?cient information upon which to make the

Noti?cation Decisions.
Consideration of "adverse effects"

Alternatively, even if the Court was to ?nd that further bundling should
have occurred, it is my no means automatic that a finding should be
made to the effect that the adverse effects alleged by Urban Auckland

exist or are relevant.

Auckland Council did not fail to consider relevant statutory

instruments

At paragraphs 34 to 38 of the Statement of Claim, Urban Auckland
alleges that the Council misdirected itself as it failed to take account of as
7 and 8 of the Hauraki Gulf Marine Park Act 2000 and the New Zealand

Coastal Policy Statement when making the Noti?cation Decisions.

As set out at paragraph 4.24, the Council has a broad discretion with
regard to the public notification of resource consent applications.

However, 395A does not require Auckland Oeuncil to consider either the

6.33

6.34

6.35

6.36

6.37

6.38

2894484 v10

40

Hauraki Gulf Marine Park Act 2000 or the New Zealand Coastal Policy
Statement when making decisions regarding noti?cation. This can be
contrasted with decisions whether to grant consents, as 3104 expressly

requires consideration of the New Zealand Coastal Policy Statement.

in any event, it is submitted that, contrary to Urban Auckland's assertion,
these statutory instruments were considered by Auckland Council in

relation to the Notification Decisions.

In relation to the Noti?cations Decisions for the 82 Consent Applications,
Ms Macky's evidence is that she did take these matters into account
when assessing noti?cation and determined that there were no issues
raised that indicated a need for further information or public input.
[Macky affidavit, vol 4 tab AC3 p30,136 para 33(d)]

in relation to the Notification Decisions for the BS Consent Applications,
Mr Kaye's evidence is that he also took these matters into account, and
determined that there were no issues that indicated a need for public
input. [Kaye affidavit, vol 4 tab AC4 p30,207 para 42(b)]

[t is submitted that the fact that the Noti?cation Decisions did not
expressly refer to s3? and 8 of the Hauraki Gulf Marine Park Act and the
New Zealand Coastal Policy Statement is not material. The evidence of
the decision-makers is that these matters were, in fact, taken into

account. This is a complete answer to this claim.

Auckland Councii did not fail to consider the "significant public

interest and controversy about the Bledisloe Wharf"

At paragraphs 39 to 42 of the Statement of Claim, Urban Auckland
alleges that Auckland Council?s decision that none of the Consent
Applications gave rise to special circumstances was flawed. At
paragraph 41 of the Statement of Claim several matters which are said to

be "special circumstances" are listed.

What can constitute special circumstances is addressed at paragraphs
4.40 to 4.43 above. An assessment of special circumstances is limited to
the matters in relation to which Auckland Council has restricted discretion
or can exercise control. it is submitted that wharves are not special or
unusual in the Port area, as demonstrated by structures being controlled

or permitted activities (the lowest levels of activity). It is submitted that

6.39

6.40

6.41

2894434 v10

41

the 82 and B3 Extensions are neither unusual nor exceptional and are

expressly contemplated by the Operative Coastal Plan.

The Noti?cation Decisions for the 82 Consents record the fact that
special circumstances were considered in relation to each of the
consents. [Vol 2F tab 16A pp10,857 to 10,858; vol 2F tab 17A

pp10,873 to 10,874]
Decisions for the 82 Operative Plan Consents is consistent with the

Ms Macky's evidence regarding the Notification
record of decision. She records that she carefully considered special
circumstances and decided that she had suf?cient information on which
to decide the applications. In making this decision. she noted that she
had a limited discretion regarding the particular consents which was
technical in nature. She had information from experts from both POAL
and Auckland Council upon which there was a consensus. [Macky

af?davit, vol 4 tab AC3 p30,134]

The Noti?cation Decision for the 83 Consents record the fact that special
circumstances were considered in relation to each of the consents. [Vol
2K tab 40A p11,?09; vol 2K tab 41A p11,?26] Mr Kaye's evidence
regarding the Noti?cation Decisions for the B3 Operative Plan Consents
is consistent with the record of decision. He records that in exercising his
discretion regarding noti?cation, he considered the limited nature of the
discretion he had and determined he had enough information with which
to make decisions. He records that he had read the information provided
with the applications and did not consider that public notification would
provide any additional relevant information. The 83 Extension was an
expected form of development in the port area, and he therefore
determined that there were no special circumstances. [Kaye af?davit,

vol 4 tab AC4 p30,207]
Urban Auckland?s View of "special circumstances"

At paragraph 41 of the Statement of Claim Urban Auckland alleges that
Auckland Council erred by failing to consider a list of "relevant special
circumstances". It is alleged that the factors below warranted public

notification of the E32 and B3 Consent Applications:

the ownership relationship between Auckland Council and
POAD



6.42

6.43

6.44

6.45

2894484 v10

42

the longstanding and publicly known plans for further

development at Bledisloe Wharf;



the national significance of the location of the 82 and B3

(0)

Extensions;

the adverse effects of the 82 and B3 Extensions properly



assessed; and

the "signi?cant public interest and controversy surrounding past

(6)

proposals for extensions to the Bledisloe Wharf".

it is submitted that none of the above factors amounted to relevant

special circumstances in relation to the 82 and 83 Extension.
Ownership relationship

POAL is a whoin owned subsidiary of which is, in turn, a wholly
owned subsidiary of Auckland Council. This structure is intentional, so
that POAL acts as a "standalone" company, independent of Auckland
Council. [Kirk affidavit, CB vol 5A doc P01 p40,003 para 7] POAL is
not a council-controlled organisation within the meaning of 36 of the Local
Government Act 2002.

in any event, any issue with regard to the relationship between the parties
could only be relevant to the question of whether Auckland Council could
make independent decisions on the 82 and 83 Consent Applications. It

dealt with any issue (or any perception of an issue) by:

appointing an independent planner (Ms Haipin) to assess the 82



and 83 Consent Applications; and

delegating its decision making power in relation to both

notification and granting of the 82 and 83 Consent Applications

to two independent commissioners (Ms Macky and Mr Kaye).
[Valentine affidavit, voi 4 tab A02 p30,027 and pp30,033 to 30,038]
Plans for further port develooment

POAL has made no secret of the fact that it has plans to further develop
the Port of Auckland, subject to making resource consent applications in

the future and being granted consents. Many of its various plans over the

6.46

6.47

6.48

6.49

2894484 v10

43

years are set out in the evidence ?led by Urban Auckland. In addition to
longer wharves, this includes the possibility of deciding to seek consent to
reclaim areas to provide more land for cargo, including the area between
the BZ and B3 Extensions at some stage in the future. The BZ and B3
Consent Applications did not, however, include any reclamation. [Kirk

affidavit, CB voi 5A doc P01 p40,025 para 104]

Before any further port expansion by way of reclamation, POAL would
need to go through a resource consent application process which would
effects of that

development in the port environment as it existed at that time.

assess, the environmental

among other things,
Accordingly, any further port development (which, of course, may never
eventuate) could not be a "special circumstance" for the purposes of
deciding whether to publicly notify the B2 and B3 Extensions.

"National signi?cance" of the location of the B2 and B3 Extensions

Urban Auckland has alleged that the "national signi?cance" of the location
of the 82 and B3 Extensions is a special circumstance that should have
The
Extensions are to be constructed in the Waitemata Harbour, on the end of
POAL's Bledisloe Wharf. The 82 and BS Extensions will be wholly within
that part of the harbour that POAL has a right to occupy pursuant to a
coastal permit under s384A of the RMA.
how this part of the harbour could be said to have "national signi?cance"

been taken into account when considering public noti?cation.

in this context, it is not clear

justifying public notification.
Adverse effects of the B2 and ?33 Extensions

Urban Auckland aileges that the "adverse effects" of the B2 and B3
Extensions should be considered as part of special circumstances. it is,
of course, relevant that a consideration of adverse effects occurs as part
of 

The Council only considers those special circumstances (and/or adverse
effects) that relate to the matters over which the Council has control or a
discretion. This was particularly limited in relation to the Operative Pian
Construction Consent, which was a controlled activity. For the Proposed
Plan the consents related only to stormwater and POAL was proposing
treatment in accordance with the Council's guidelines with the resulting

discharge having only insignificant adverse effects.

44

The ?signi?cant public interest and controversy surrounding past

proposals for extensions to the Bledisloe Wharf"

6.50 Urban Auckland (now) contends that the degree of public interest and
controversy about the B2 Consent Applications and the BS Consent
Applications was a special circumstance that required notification in order
to fulfil the purpose of the RMA. However, it is critical to distinguish
between these particular extensions and the broader debate about any
future reclamation. in particular, as noted by Alistair Kirk, it is not
accurate to say that "the public" is against the 82 and [33 Extensions.
Some of the public may be, but there were only a handful of submissions
opposing expansion in relation to the Proposed Plan process. The public
controversy over the extensions referred to by Urban Auckland appears
instead to have been generated by Urban Auckland and others well after
the consents were granted. Vol 2A, P01, pp 40023?40024, at 


6.51 Whilst public interest could be a factor in determining whether special
circumstances exist in some cases, it cannot be determinative?3 The test
remains, as set out in Far North District Council Te Runanga-a-iwi 
Ngati Kahu, that a special circumstance is one which makes notification
desirable despite general provisions excluding the need for notification.34
Ultimately, as noted by Toogood in Associated Churches, requiring
notification when it is pointless runs contrary to the purpose of the 2009

Amendment Act.35

6.52 In Bayley the Court held that it was about an assessment of the quality of
concerns held, not just the fact that there were (or are now) people with

concerns, or the number of such people. It stated:36

Nor could the residents? concerns be said to give rise to
special circumstances. If this were so, every application would
need to be advertised if there was any consern eXpressed by

people claiming to be affected. It was in fact part of the

 

33 MacKenzie J, in Creswick Vatiey Residents Association Wellington City Council [2012]
NZHC 644, accepted evidence from the Council's resource consents planner that "public interest
in a development or site does not automatically give rise to special circumstances.? 
authorities tab 9]

3? Far North District Council Te Runanga-a-iwi Ngati Kahu [2013] NZCA 221 at 
authorities tab 12]

35 Associated Churches of Christ Church Extension 1/ Auckland Council [2014] NZHC 3405 at
authorities tab 2]

6 at p575. authorities tab 11]

2894484 v10

6.53

6.54

6.55

2894484 v10

45

exercise of the Council's discretion to decide whether those

concerns were justi?ed.

in this case, for all the reasons set out by the Commissioners in their
decisions, it was appropriate to conclude that noti?cation was not
required. Central to the Commissioners' decisions was the controlled or
permitted status of the construction of the 82 and B3 Extensions. This
meant these consents could not be declined. Accordingly, even if there
had been signi?cant public opposition to their construction, this cannot
have been relevant in circumstances where the Council had no ability to

decline the application for consent.
Alleged errors

At paragraph 42 of its Statement of Claim Urban Auckland alleges that

the Notification Decisions are unlawful as Auckland Council erred in that

it:

failed to take into account a relevant consideration in exercising

its discretion whether to notify, namely the alleged likely public

interest in the applications;

breached a legitimate expectation created by the Council's
Hearing Policy, namely that signi?cant and/or controversial
issues would be considered by the Hearings Committee and

noti?ed for public comment;

(0) exercised its discretion under a mistake of fact, namely in failing

to appreciate that there was controversy and significant public

interest in the applications;

acted so unreasonably in failing to notify these applications that



no reasonable decision-maker could have so decided; and

made an error of law that the activity status of the consent



applications related, determined or in?uenced acted so

unreasonably that no reasonable decision-maker could have so
decided.

Each is considered in turn below.

46
No failure to take account of a relevant consideration

6.56 At paragraph 4.18 of its submissions, Urban Auckland alleges that
Auckland Council erred in its assessment of the likely controversy of the
B2 and 83 Extensions.

6.57 it is accepted that Urban Auckland has strong views about the B2 and B3
Extensions. That does not alter the statutory test for notification or give
such individuals the "right" to be heard regarding the 82 or 83 Consent
Applications. it is anticipated that a larger minority may have views about
reclamation of the harbour. Again, the 82 and BS Consent Applications

do not include any reclamation.

6.58 It is submitted that even if the prospect of public controversy could have
been relevant to the question of noti?cation, it must be balanced by the
locations of the 82 and B3 Extensions. Both are wholly within the Port
Management Areas under the Operative Coastal Plan and the Port
Precinct under the Proposed Plan. They will be constructed in the area
speci?cally zoned for the port including future port development. POAL

has a coastal permit to occupy this area.
No breach of legitimate expectation

6.59 At paragraph 4.15(b) of its submissions, Urban Auckland asserts that it
(and the ?Auckland public generally") had a legitimate expectation
founded on the Hearings Policy that a controversial application for a
resource consent would be considered by the Hearings Committee and

publicly noti?ed.

6.60 Two recent Court of Appeal decisions37 have considered the scope of
legitimate expectation. A legitimate expectation is more than a mere
hope and must have occurred in circumstances where it is reasonable for

the application to have relied on the expectation. This requires:
a commitment made by promise, settled practice or policy; and

reliance by the applicant on that commitment, such reliance to

be reasonable in the context.

 

3? Comptroller of Customs Terminals (NZ) [2012] NZCA 598, [2014] 2 NZLR 137 at [124] to
[127] authorities tab 8] and Green 1/ Racing Integrity Unit Limited [2014] NZCA 133 at
authorities tab 13]

2894484 v10

47

6.61 The Hearings Policy relates to who will make a decision, not whether it is
to be noti?ed. Further, Ms Valentine has deposed that the Hearings
Policy is internal. [Valentine vol 4 tab AC2 p30,025 para 26(0)] There
is no evidence that Urban Auckland was aware of the hearings policy
before it was referred to in Ms Valentine's affidavit, and there is certainly

no evidence that Urban Auckland has "relied" on such a policy.

6.62 indeed, given the discretionary nature of the Notification Decisions, such
reliance would be inappropriate, and could be seen as an unreasonable
fetter on Auckland Council's discretion. The test for noti?cation is found
in 395A not Auckland Ocuncil's Hearings Policy. it is notable that
Toogood J, when faced with a legitimate expectation argument in the
context of a noti?cation decision under the RMA, held that he was "not
persuaded in the present context that the argument based on legitimate
expectation adds anything to the nature of the enquiry the court is
required to undertake in the judicial review of an administrative

decision".38

6.63 Further, noti?cation would be contrary to the controlled (in the Operative
Coastal Plan) and permitted (in the Proposed Plan) activity status for
construction of a wharf in the area occupied by the port pursuant to a
coastal permit. The essence of Urban Auckland's case is that it should
have been notified about the construction of the 82 and B3 Extensions,
but POAL did not need a construction consent under the Proposed Plan
and Auckland Council could not decline a construction consent under the

Operative Coastal Plan.
No mistake of fact regarding the alleged public interest

6.64 For the reasons set out at paragraphs 6.50 to 6.53, Auckland Council did
not make a mistake of fact regarding whether there was a "significant

public interest". This cannot, therefore, invalidate the Notification

Decisions.
No Wednesbury unreasonableness

6.65 At paragraph 42(d) of the Statement of Claim Urban Auckland alleged

that Auckland Council "erred in acting so unreasonably in failing to notify

 

33 Associated Churches of Christ Church Extension Auckland Council [2014] NZHC 3405 at
authorities tab 2]

2894484 v10

48

these applications that no reasonable decision-maker could have so

decided."

6.66 in Associated Churches of Christ Church Extension Auckland Council,
Toogood described the test as that the Council's decision could be set
aside if ?the decision was so irrational that no decision maker, acting

reasonably, could have arrived that that decision".

6.67 it should be noted that Associated Churches was a challenge to a
decision to notify, and not a decision not to notify. Toogood .J left open
(but did not express a view on) the possibility that a "non-notification?
decision required greater scrutiny than where the decision is for
notification. POAL respectfully submits that this is not the case for the

following reasons:

The construction or application of relevant provisions should
remain "objectively constant" and should not be subject to a
sliding scale depending on "a judicial perception of relative
importance based on subject matter"?9

The 2009 amendments have given greater scope to decide not

to notify resource consent applications.?

6.68 in any event, POAL respectfully submits that, in the circumstances, Urban
Auckland cannot argue that the decisions of Ms Macky and Mr Kaye were
ones that "no decision maker, acting reasonably, could have arrived at".
The fact that Ms Macky and Mr Kaye both reached the same decision,
acting independently of each other, is evidence of this. POAL does not
understand Urban Auckland to be challenging either the competence or

expertise of Ms Macky or Mr Kaye.
No error of law regarding relevance of activity status

669 Urban Auckland has alleged that the Council made an error of law, that
the status of the activity to which the consent applications related

determined or influenced whether the applications should be notified.

 

39 Far North District Council 1/ Te Runanga?a?iwi Ngati Kahu [2013] NZCA 221 at 

authorities tab 12]
4? Coro Mainstreei inc Thames?Commands! District Council [2013] NZCA 665 at 

authorities tab 11]

2894484 v10

49

6.70 POAL respectfully submits that this cannot be correct, given the express
requirement under section 95D(c), to disregard (in the case of a
controlled or restricted discretionary activity) an adverse affect of the
activity that does not relate to a matter for which a rule or national

environmental standard reserves control or restricts discretion.

6.71 In any event, "requiring noti?cation where it is pointless runs contrary to
the purpose of the 2009 Amendment Act".41 The Court must consider
whether public noti?cation of the application is likely to produce any
significant additional material on the issues relevant to the substantive
decision.42 POAL respectfully submits that if it is not, then noti?cation
would be pointless. in assessing whether noti?cation will lead to relevant
additional material, the status of the activity (which is crucial to
determining what is relevant). must be taken into account. Again. as an
example, material relating to visual effects will not be relevant to the issue
of how a discretion (whether restricted or not) should be exercised in
relation to an application for consent to stormwater discharge. Nor will it
be relevant to an application for the construction of a wharf extension
where that is a controlled activity or where (as considered below) the
proposed construction is outside a speci?c View Protection Area in the

Plan.

6.72 It is submitted that Auckland Council apprOpriately exercised its discretion
with regard to the Noti?cation Decisions, and they were not flawed.
Accordingly, Urban Auckland's application to judicially review Auckland

Council?s Noti?cation Decisions on the basis that they are unlawful should

fall.

7. SECOND CAUSE OF ACTION: CONSENT DECISIONS WERE NOT
INVALID

7.1 Urban Auckland?s second ground of review is an allegation that the

Consent Decisions were invalid.

7.2 In this section we set out Auckland Council's process regarding the

Consent Decisions (as recorded in the formal record and the evidence of

 

41 Associated Churches of Christ Church Extension 1/ Auckland Council [2014] NZHC 3405 at

authorities tab 2]
2 Associated Churches of Christ Church Extension Auckland Council [2014} 3405 at

authorities tab 2]

2894484 v10

7.3

7.4

7.5

7.6

2894484 v10

50

the decision-makers) and then address the particular grounds of invalidity

alleged by Urban Auckland.
The Consent Decisions
Council made six separate Consent Decisions:

a decision to grant the Operative Plan Construction Consent for



the 82 Extension;

a decision to grant the Operative Plan Stormwater Consent for



the 82 Extension;

a decision to grant the three Proposed Plan Stormwater

(C)

Consents (as bundled) forthe 82 Extension;

a decision to grant the Operative Pian Construction Consent for

the 83 Extension;

a decision to grant the Operative Plan Stormwater Consent for



the 83 Extension; and

a decision to grant the three Proposed Plan Stormwater



Consents (as bundled) forthe 83 Extension.
The Operative Plan Construction Consents

As set out at paragraph 2.3, the Operative Plan Construction Consents
were controlled activity resource consents under Rule 25.5.18 of the

Operative Coastal Plan.

Consents under Rule 25.5.18 are subject to the standards and terms in
Rule 25.5.19. This includes Rule which states that any new
building, extension or alteration is not to take place within the View
Protection Area identi?ed on Plan Map Series 2, Sheet 4A. The View
Protection Area identi?ed on this map does not include Bledisloe
Terminal. Accordingly, it is submitted that the Operative Coastal Plan
addresses the issue of the location of structures within the Port
Management Area with regard to view. It does not prohibit the

construction of the 82 and 83 Extensions at their planned locations.

As a controlled activity, Auckland Councii was required to grant the
Operative Plan Construction Consent for both the 82 and 83 Extension.

7.7

7.8

7.9

7.10

7.11

2894484 v10

51

While it could grant the consents subject to conditions, it could only
impose conditions on speci?ed matters. Those matters are speci?ed in
Rule 25.5.20 as follows:

the adverse effects associated with methods of construction,

(8)

especially on coastai processes;

any provision to be made for public access;



navigation and safety;

(0)

the duration of the consent; and



monitoring of the consent.

(9)

For the reasons set out at paragraphs 6.8 to 6.25 above, it is submitted
that the Operative Plan Construction Consent should not be bundled with
any of the other consents included in the 82 and B3 Consent

Applications.

However, even it bundling between the Operative Plan Consents did
occur. pursuant to Bay/9y, this should not affect activity status. As set out
at paragraphs above, where a restricted discretionary activity consent (or.
it is submitted, a controlled activity consent) is being considered, bundling

should only affect the activity status where it is appropriate.
Taking each of the Operative Plan Construction Consents in turn:
The Operative Plan Construction Consent for the 82 Extension

As the Operative Plan Construction Consent for the 82 Extension was a
controlled activity resource consent, Council was required to grant the
consent. It did so. vol 2F 

Auckland Council could, however. consider the imposition of conditions in
relation to matters set out at paragraph 7.6. It did so, but noted that any
actual and potential effects on the environment were insigni?cant in terms
navigation and safety and construction effects
associated with the extended wharf structure. vol 2F 
[310,861] As the 82 Extension was to be part of an operational wharf in a

of public access,

biosecurity and customs controlied area, no provision could be made for

public access. The comments made regarding the possibility of an

7.12

7.13

7.14

7.15

2894434 v10

52

opportunity to increase public access to Captain Cook Wharf were not a
commitment by POAL and were not treated as such by Auckland Council.
Notably, Urban Auckland removed this allegation from its claim foliowing

the filing of evidence by the Respondents.

Auckland Council imposed the conditions on the Operative Plan

Construction Consent forthe BZ Extension, including:

the activity had to be carried out in accordance with the plan that


had been submitted with the 82 Consent Applications;

the consent expired within ?ve years unless it was given effect

(10)

t0;

POAL was required to provide a construction management plan

which included its construction methodology; and

various conditions were imposed throughout construction,



including noise, timing and environmental restrictions (for
example, machinery was not to be refuelled within the coastal

marine area)

Accordingly, it is submitted that Auckland Council properly exercised its
discretion in relation to the Operative Plan Construction Consent for the
82 Extension by turning its mind to the factors in Rule 25.5.20 in relation

to which it could impose conditions.
The Operative Plan Construction Consent for the 83 Extension

As the Operative Plan Construction Consent for the B3 Extension was a
controlied activity resource consent, Council was required to grant the
consent. it did so. vol 2K 

Auckland Council could, however, consider the imposition of conditions in
relation to matters set out at paragraph 7.6. It did so, but noted that any
actual and potentiai effects on the environment were insignificant in terms
of public access, navigation and safety and construction effects
associated with the extended wharf structure. vol 2K 
{311,712} This is addressed at paragraphs 10.38 and 10.39 (regarding
navigation and safety) and paragraph 10.47 (regarding construction

effects).

7.16

7.17

7.18

7.19

2394484 v10

53

Auckland Council imposed simiiar, but not identical conditions on the
Operative Plan Construction Consent for the 83 Extension as it did for the

82 Extension.

Accordingly, it is submitted that Auckland Council properly exercised its
discretion in relation to the Operative Plan Construction Consent for the
BS Extension by turning its mind to the factors in Rule 25.5.20 in relation

to which it could impose conditions.
The Operative Plan Stormwater Consents

As set out at paragraph 2.3, the Operative Plan Stormwater Consents
were restricted discretionary resource consents under rule 5.5.18 of the
Operative Air Land Water Plan which allow the long term discharge of
contaminants into water from an area used for a new high risk industrial

or trade activity.

As this is a restricted discretionary activity, Auckland Council could have
granted or denied the application, and had a discretion to impose
conditions. However, in exercising its discretion it could only have regard

to the following matters set out in rule 5.5.18:

the quality of the discharge (where it is discharged into either an
network or



authorised stormwater or wastewater after

reasonable mixing in the receiving environment);

the degree of adverse environmental effects on the receiving



environment;

(0) management practices, treatment systems or devices, to the

extent that they are required to avoid, remedy or mitigate more

than minor adverse effects;

inspection and assessment regime for the Environmental



Management Plan

the duration of the consent; and



the timing and nature of reviews of consent conditions.



7.20

7.21

7.22

7.23

2894484 v10

54
The Operative Plan Stormwater Consent for the 82 Extension

ln relation to the Operative Plan Stormwater Consent for the 82
Extension, Auckland Council exercised its restricted discretion to grant
the consent. in doing so, it recorded that any actual and potential effects
on the environment were acceptable in terms of the effects on coastal
processes and water quality associated with the discharge of
contaminants from an industrial or Trade Activity. vol 2F 

p10,861]

in recording its decision, it also noted that the discharge of contaminants

associated with the B2 Extension was consistent with:

the Operative Plans;

(8)

the relevant provisions of the New Zealand Coastal Policy
Statement, the Hauraki Guit Marine Park Act and the Auckland


Council Regional policy statement; and

Part 2 of the RMA.

Auckland Council imposed conditions on the Operative Plan Stormwater

Consent for the 82 Extension, including:

the activity had to be carried out in accordance with the plan that


had been submitted with the 82 Consent Applications;

there must be a programme for regular maintenance and



inspection of the stormwater works;

the site was to be operated an managed in accordance with an

(C)

environmental management pian;

a report was to be provided to Auckland Council on an annual



basis regarding the matters in and and

the conditions under which the Operative Plan Stormwater

Consent for the 82 Extension was granted could be reviewed

every two years.

Accordingly, it is Submitted that Auckland Council properly exercised its
discretion in relation to the Operative Plan Stormwater Consent forthe 82

Extension.

7.24

7.25

7.26

7.27

7.28

2894484 v10

55
The Operative Plan Stormwater Consent for the 83 Extension

in relation to the Operative Plan Stormwater Consent for the 82
Extension, Auckland Council exercised its restricted discretion to grant
the consent. In doing so, it recorded that any actual and potential effects
on the environment were acceptable in terms of the effects on coastal
processes and water quality associated with the discharge of
contaminants from an industrial or Trade Activity. vol 2K 
p11,712]

In relation to the Operative Plan Stormwater Consent for the B3
Extension, Auckland Council noted the same matters as it had done with
regard to the 82 Extension and imposed similar, but not identical
conditions. vol 2K 

Accordingly, it is submitted that Auckland Council properly exercised its
discretion in relation to the Operative Plan Stormwater Consent forthe B3

Extension.
The Proposed Plan Stormwater Consents

As set out in paragraph 2.3. POAL applied for the three Proposed Plan

Stormwater Consents in relation to both the 82 and B3 Extensions:

a resource consent for a restricted discretionary activity under
rule 4.8.1 of the Proposed Plan (for an existing or new Industrial
Trade Activity where there will be appropriate stormwater

treatment;

a resource consent for a discretionary activity resource consent
to allow stormwater discharge from a new impervious area

under rule of the Proposed Plan; and

a resource consent for a controlled activity resource consent to

allow stormwater discharge from a new impervious area under
rule H.4.?l4.2.l of the Proposed Plan.

When Auckland Council processed the Tug Berth Consents, it had
bundled application for the three Proposed Plan Stormwater
Consents. As a result, when POAL submitted both the 82 Consent
Applications, and then the BB Consent Applications, it did so on the basis
that the Proposed Plan Stormwater Consents should be bundled. This

7.29

7.30

7.31

7.32

7.33

7.34

2894484 v10

56

was because all related to stormwater and the matters in relation to which
Auckland Council had a discretion overlapped. Auckland Council

processed the application in this manner.

Given that the consent under rule H.4.14.1.1 of the Proposed Plan (the
consent referred to at paragraph 7.27(b) above) was a discretionary
activity, bundling of the three Proposed Plan Stormwater Consents had
the effect of converting each into a discretionary activity for stormwater
activities. They were considered by Auckland Council as one

discretionary activity application. vol 2F p10,876]
The Pronosed Plan Stormwater Consents for the 82 Extension

Auckland Council granted the Proposed Plan Stormwater Consents for
the 82 Extension. vol 2F [310,877] In doing so, it recorded
that any actual or potentiai effects of the proposal on the environment in
terms of water quality and quantity and cultural values are less than minor
and such effects will be appropriate avoided or remedied or mitigated by
the conditions of consent. it is submitted that this was a decision open to

Auckland Council.

Auckland Council imposed the conditions on the Proposed Plan
Stormwater Consents for the 82 Extension, including the same conditions

imposed on the Operative Plan Stormvvater Consents, set out at

paragraph 7.22.

Accordingly, it is submitted that Auckland Council properly exercised its
discretion by considering all relevant stormwater matters before making a
decision to grant the Proposed Plan Stormwater Consents for the 82

Extension.
The Pronosed Plan Stormwater Consents for the 83 Extension

Auckland Council granted the Proposed Plan Stormwater Consents for
the 82 Extension. vol 2K in doing so, it recorded the
same matters and imposed the same conditions as it did with regard to

the Proposed Plan Stormwater Consents for the 82 Extension.

Accordingly, it is submitted that Auckland Council properly exercised its

discretion in making the Consent Decisions.

7.35

7.36

7.37

2894484 v10

57

Urban Auckland's claim regarding the validity of the Consent

Decisions

At paragraphs 43 to 60 of the Statement of Claim Urban Auckland alleges
that:

the Consent Decisions were flawed;

(8)

failed relevant

instruments properly; and

Auckland Council to interpret statutory



the Consent Decisions were flawed for mistake of fact and law.

(0)
The Consent Decisions were not flawed
At paragraphs 44 to 49 Urban Auckland alleges that:

the 82 Consent Applications (and, in turn, the B3 Consent

Applications) should have been bundled for the purposes of the

Consent Decisions;

if bundling had occurred, all of the 82 Consent Applications
(and; in turn, all of the BS Consent Applications) would have
been "wholly discretionary", by virtue of the activity status of one
of the Proposed Plan Stormwater Consents, and Auckland

Council would have had additional relevant information; and

by failing to consider that additional relevant information,
Auckland Council has failed to take into account mandatory

relevant considerations in making the Consent Decisions.

For the reasons set out at paragraphs 6.8 to 6.25 above. it is submitted
that Auckland Council was not required to bundle all of the Consent
Applications. Indeed, it was not possible for it to bundle between the 82
Consent Applications and the E33 Consent Applications. it is submitted
that the Consent Decisions are not flawed as a consequence of Auckland
Council exercising its discretion not to bundle all ten applications and

consider them as one discretionary activity application.

7.38

7.39

7.40

7.41

7.42

2894484 v10

58

Auckland Council did not fail to interpret relevant statutory

instruments prcperly

At paragraphs 50 to 53 of the Statement of Claim, Urban Auckland
alleges that Auckland Council's alleged failure to bundle the Consent
Applications means that it failed to consider the relevant policy
requirements of the Hauraki Gulf Marine Park Act and the New Zealand

Coastal Policy Statement.

It is submitted that these matters were considered by Auckland Council in

relation to each of the Consent Decisions.
in relation to the B2 Consent Decisions:

The 82 Consent Decisions record that the granting of the
consents is consistent with the Hauraki Gulf Marine Park Act
and the New Zealand Coastal Policy Statement. [Vol 2F tab

[$10,861: tab p10,877]

Ms Macky's evidence records that when making the 82 Consent
Decisions she took into account the documents referred to in the
Decisions. [Macky affidavit, vol 4 tab AC3 pp30,135 and

30,136]
In relation to the E53 Consent Decisions:

The B3 Consent Decisions record that the granting of the
consents is consistent with the Hauraki Gulf Marine Park Act
and the New Zealand Coastal Policy Statement. [Vol 2K tab

p11,?12; tab p11,?29]

Ms Macky's evidence records that when making the 82 Consent

Decisions she took into account the documents referred to in the
Decisions. [Kaye affidavit, vol 4 tab AC4 p30,207]

The Consent were not flawed for mistake of fact and law

At paragraphs 54 to 60 of the Statement of Claim, Urban Auckland
alleges that the Consent Decisions were flawed for mistake of fact and
law. it is alleged that Auckland Council relied on statements in the

reports prepared by Ms Sally Halpin (an independent planner engaged by

7.43

7.44

7.45

59

Auckland Council) ("Reports") in relation to the Decisions, and that the

Reports had contained mistakes of fact regarding:

visual effects and ?life supporting capacity and environmental



amenity" in the application for the 82 Operative Plan Consents;

visual effects and "life supporting capacity and environmental



amenity" in the application for the 83 Operative Plan Consents;

(0) construction, navigation, public access and safety in relation to
the application for both the 82 Operative Plan Consents and the

83 Operative Plan Consents.

The courts have tended to be reluctant to interfere with ?ndings of fact by
a decision maker, it is accepted that a mistake of fact can give rise to a
judicially reviewable error. This is aligned to the concept that a decision-
maker must take into account relevant considerations.43 It is submitted
that in order to give rise to a reviewable error. the mistake of fact must

have been about a relevant matter.
in relation to the mistake alleged by Urban Auckland, it is submitted that:

no mistake was made by Auckland Council; and



if, alternatively, the Court was to find that a mistake occurred,

this mistake was not relevant to the Consent Decisions

regarding the 82 Extension.
Visual effects

Urban Auckland alleges that in relation to the applications for Operative

Plan Consents for both the 82 and B3 Extensions, it is alleged that:

the Reports said that the visual effects of the 82 Extension and
B3 Extension would be "barely perceptible" given the "highly

modi?ed large working port environment";

there was no information or assessment of visual effects upon


which the Reports could rely; and

the ?actual and potential visual effects" of the 82 and 83

(0)

Extensions were substantially adverse.

43 Daganayasi Minister of immigration [1980] 2 NZLR 130. authorities tab 10]

2894434 v10

7.46

7.47

7.48

2894484 v10

60

It is submitted that visual effects are not relevant to either the Notification

Decisions or the Consent Decisions.
in relation to the Noti?cation Decisions:

Visual effects would only have been relevant to an assessment
of notification of the Operative Plan Construction Consents if
they were a special circumstance that related to a matter over

which Auckland Council had control. The matters over which

Auckland Council had control are listed at paragraph 6.19.

These matters do not include visual effects.

Visual effects would only have been relevant to an assessment
of notification of the Operative Plan Stormwater Consents if any
adverse effects were not more than minor and related to a
matter in relation to which Auckland Council had retained its
discretion. The matters over which Auckland Council restrained
a discretion are listed at paragraph 6.21. These matters do not

include visual effects.

Further, it is submitted that a consideration of visual effects is not relevant
to Auckland Council?s exercise of its discretion whether to grant the 82
Operative Plan Consents and the BS Operative Plan Consents. For the
reasons set out at paragraphs 6.8 to 6.16, the applications for resource
consents under the Operative Plans were not (and should not have been)
bundled with the applications for resource consents under the Proposed
Plan. Accordingly, the Operative Plan consents are controlled (Operative
Plan Construction Consent) or restricted discretionary (Operative Plan
Stormwater Consent). in either case, Auckland Council had a very

limited discretion to exercise, in that:

it was required to grant the Operative Plan Construction

Consent and could only grant conditions on speci?ed matters,

which did not include visual effects; and

it could grant to decline the Operative Plan Stormwater Consent
and impose conditions, but in relation to both questions, could
only consider speci?ed matters, which did not include visual

effects.

7.49

7.50

6?1

Accordingly, it is submitted that visual effects were not relevant to the
Consent Decisions in relation to the B2 and BS Operative Plan Consent

Applications.

If, however, the Court considers visual effects to be relevant, it is
submitted that the Council?s decisions on this point were not a mistake.
The visual effects of the 82 and BS Extensions will not be "substantially
adverse" and there was a reasonable basis for Auckland Council's
Consent Decisions. it is neither appropriate nor reasonable to simply
point to one viewpoint (Queens Wharf) and comment on visual effects. A
considered study, consistent with best practice should occur. Mr John
Goodwin considered the views attainable from 19 viewpoints around
Auckland and determined that the majority of views would be "unaffected
or affected in a limited way". [Goodwin affidavit, CB vol SC tab P04

p40, 374 para 19]

Life supporting capacity and environmental amenity

7.51

7.52

2894434 v10

Urban Auckland alleges that in relation to the applications for the
Operative Plan Consents for both the B2 and BS Extensions, it is alleged
that:

the "life supporting capacity and environmental amenity of the
Hauraki Gulf" will be affected; and



in fact, the "life supporting capacity and environmental amenity

of the Hauraki Gulf" will be "adversely affected to a greater than

minor degree".
In relation to the Noti?cation Decisions:

Life supporting capacity and environmental amenity would only
have been relevant to an assessment of notification of the
Operative Plan Construction Consents if it was a special
circumstance in relation to which Auckland Council had retained

control. The matters over which Auckland Council had control

are listed at paragraph 6.19. These matters do not include iife

supporting capacity and environmental amenity.

Life supporting capacity and environmental amenity would only



have been relevant to an assessment of notification of the

7.53

7.54

7.55

7.56

2894484 v10

62

Operative Plan Stormwater Consents if any adverse effects
were not more than minor and they related to a matter over
which Auckland Council retained discretion. The matters over
which Auckland Council retained a discretion are listed at
paragraph 6.21. These matters do not include life supporting

capacity and environmental amenity.

For the reasons set out at paragraph 7.46 above, Auckland Council had a
very limited discretion with regard to the Operative Plan Consents. While
this limited discretion does allow consideration of the quality of the
discharge and the degree of adverse environmental effects on the
receiving environment with regard to the Operative Plan Stormwater
Consents, it is submitted that Auckland Council is not permitted to
consider the "life supporting capacity and environmental amenity of the

Hauraki Gulf" more generally.

Accordingly, it is submitted that this issue was not relevant to the Consent
Decisions in relation to the E32 and B3 Operative Plan Consent

Applications.

If, however, the Court considers that the "life supporting capacity and
environmental amenity of the Hauraki Gulf" could be considered by
Auckland Council, then the treatment and discharge processes put in
place (and the reports on stormwater discharge effects prepared by
Beca) mean that there was a factual basis upon which Auckland Council
was able to conclude that the treatment and discharge processes to be
put in place would ensure that no issue arose with regard to the "life
supporting capacity and environmental amenity of the Hauraki Gulf".
[Hart affidavit CB vol SC tab P06 p40,531 to 40,532 paras 4.1 to 4.4]

Navigation, public access and safety effects

Urban Auckland alleges that in relation to the applications for the
Operative Plan Consents in relation to both the 82 and BS Extensions the

Reports stated that:

the actual and potential effects of granting the consents were

negligible in terms of navigation, public access and safety

effects; and

7.57

7.58

8.1

8.2

2894434 v10

63

such effects were, in fact, greater than negligible and more than

minor in relation to recreational use of the inner Waitemata

Harbour by water craft.

it is accepted that the Operative Plan Construction Consents allowed
Auckland Council to exercise a degree of control over public access,
navigation and safety. Auckland Council had sufficient information to

make an assessment in this regard:

in relation to navigation and safety Auckland Council had access
to a report from Mr Nigel Meek (POAL's Chief Pilot) and a peer
review of this report by Mr Geraint Bermingham (Navigatus
ConsultingBoth Mr
Meek and Mr Bermingham concluded that the 82 and B3
Extensions would improve navigation and safety within the port

and would not materially impact other harbour users. This is

addressed further at paragraphs 10.35 to 10.44 below.

in relation to public access, Bledisloe Wharf is an operational
part of the port and for security, safety and customs reasons,
there is no public access. That position was not to change by
virtue of the 82 and B3 Consent Applications. VOIZB tab3B

p10,080]

Accordingly, it is submitted that Auckland Council did not make a relevant
mistake of law and appropriately exercised its discretion with regard to

the Consent Decisions and they are not invalid.

THIRD CAUSE OF ACTION: FAILURE TO OBTAIN ALL NECESSARY
CONSENTS

At paragraph 13(c)(i) of its Statement of Claim, Urban Auckland alleges
that POAL was required to apply for an additional resource consent in
relation to both the 132 Extension and the B3 Extension. This is said to be
a restricted discretionary consent under rule l.6.1.10 of the General
Coastal Marine zone section of the Proposed Plan ("Additional

Consent").

At paragraph 65 of the Statement of Claim, Urban Auckland then alleges
that without this additional consent, POAL cannot lawfully implement the

8.3

8.4

8.5

8.6

8.7

2894434 v10

64

Consents it has obtained. Urban Auckland seeks a declaration and an
injunction preventing POAL from commencing any work authorised by the

Consents forthe 82 and B3 Extensions.

It is submitted that the Additional Consent was not required for either the
82 or the B3 Extension.

As set out at paragraphs 4.13 to 4.16 above, like the Operative Plans, the

Proposed Plan contains special rules applicable to various

areas/categories of work. The Proposed Plan includes the General
Coastal Marine Zone, which applies to marine and harbour areas, and a
City Centre Zone which applies to areas including the central business
district. There is also the Port Precinct, in which the Port is situated. This
covers the area (both land and sea) occupied for the purposes of the Port
of Auckland by POAL. The Port Precinct is located in both the General
Coastal Marine Zone and the City Centre Zone. Each zone has speci?c

consenting rules applying to it.

Pursuant to rule K.3.7 of the Proposed Plan, the activities, controls and
assessment criteria in the General Coastal Marine Zone rules apply,
unless the Port Precinct rules contain a rule which deals with the matter.
In short, the Port Precinct rules "trump" the General Coastal Marine Zone
Rules in relation to activities within the Port Precinct, unless the Port
Precinct rules are silent. Where a matter arising within the geographical
area of the Port Precinct Rules is not dealt with in those rules then (and

only then) the General Coastal Marine Zone Rules apply.

Both the General Coastal Marine Zone rules and the Port Precinct rules
contain rules regarding wharves in the coastal marine area. As the Port
Precinct rules address the matter, the Port Precinct rules apply to
wharves within the Port Precinct and the General Coastal Marine Zone
Rules apply to wharves in all other areas of the General Coastal Marine

Zone.

Pursuant to rule 3.7.1 of the Port Precinct Rules (as set out in Chapter 
of the Proposed Plan), the development of "marine and port facilities" is a
permitted activity. This means that a resource consent does not need to
be obtained. The de?nition of "marine and port facilities" (as set out in
Part 4 of the Proposed Plan) includes wharves. vol BB tab 24

50,524]

8.8

8.9

8.10

8.11

9.1

2894484 v10

65

It is submitted that rule K.3.7 of the Port Precinct Rules applies to the 82
and 83 Extensions. It is immaterial that the 82 and 83 Extensions are
extensions to existing wharves, as the Port Precinct Rules do not
distinguish between the construction of new "marine and port facilities"

and the extension of existing "marine and port facilities".

Urban Auckland's position requires a different interpretation of the Port
Precinct Rules. it must interpret "marine and port facilities" in the Port
Precinct Rules as not applying to the extension of such facilities. it
asserts that there is then no rule in the Port Precinct rules applying to the
extension of marine and port facilities. meaning that the General Coastal
Marine Zone rules (and therefore the requirement to obtain the Additional

Consent) must apply to the 82 and 83 Extensions.

it is submitted that the Port Precinct Rules apply to POAL's activities in
the area it occupies pursuant to s384A of the RMA. in this area alone.
the Port Precinct rules trump the General Coastal Marine Zone rules.
The only way the General Coastal Marine Zone rules apply to the Port
Precinct is if the Port Precinct rules are silent on a particular matter. The
Port Precinct rules are not silent on resource consents for wharves. They
are a permitted activity. it is submitted that it would be an absurd result if
POAL was required to apply for a restricted discretionary resource
consent to extend a wharf by even one metre, but could build an entirely
new wharf all of the way out to the edge of that part of the Waitemata
Harbour covered by its coastal permit (much further into the harbour than
the 82 Extension and the 83 Extension) as a permitted activity, without

obtaining a resource consent.

Accordingly, it is submitted that POAL is not required to obtain the
Additional Consent and it has lawfully obtained all of the Consents

required forthe 82 and 83 Extensions.

FOURTH CAUSE OF ACTION: DECISIONS WERE NOT MADE
WITHOUT AN EXERCISE OF JUDGEMENT OR WITH
BIAS

Urban Auckland's fourth ground of review is that the Decisions were
invalid as the Commissioners did not exercise independent judgement

and Ms Macky (the Commissioner who made the Decisions on the 82

9.2

9.3

9.4

9.5

66

Consent Applications) had a conflict of interest and was biased against
Urban Auckland.

At paragraphs 59 to 63 of the Statement of Claim, Urban Auckland has
alleged that:

the Commissioners failed to exercise independent judgement

when making the Noti?cation Decisions and the Consent

Decisions; and

Ms Macky had a conflict of interest and she was unable to
the 82 Consent


independently and impartially consider

Applications.

it is submitted that on the basis of both the Formal Record and the

evidence of the Commissioners, neither allegation can be substantiated.
No failure to exercise independent judgement

At paragraphs 59 to 60 of the Statement of Claim, it is alleged that the
Commissioners failed to exercise independent judgement when making

the Noti?cation Decisions and the Consent Decisions as:

the Commissioners read and considered the reports made by
the planners engaged by Auckland Council ("Reports") and

prepared their written decisions under a time constraint;

the Noti?cation Decisions and the Consent Decisions adopted
the recommendations in the Reports without evidence of
independent evaluation; and

the Commissioners? decision making delegation was limited.

In Sawmill Workers Against Poisons Inc Whakatane District Council
[2006] NZRMA 500 the High Court considered an allegation of a failure
on the part of a decision-makerto bring an independent mind to bear on a

decision.44 This question was said (at 49]) to turn on whether the

decision-maker acted as a "rubber stamp? in processing

recommendations from a Council official. Heath found that there was
no evidential basis for such an allegation as the decision-maker's

evidence was that:

 

4? authorities tab 24]

2894484 v10

9.6

9.7

9.8

9.9

2894484 v10

67

he had sought assistance from various Council personnel in

determining which decisions ought to be made; and

when making decisions he read the information he received and



brought an independent mind to bear.

it is submitted that the current case is precisely the same, when the
evidence before the Court regarding the Commissioners' decision-making

process is assessed.
Decisions made under time constraint

Urban Auckland has alleged that because the Commissioners made the
Decisions under a time constraint, they did not exercise independent

judgement.

In relation to the 82 Consent Applications, Ms Macky received the
application documents when the timeframe for the notification decisions
was on day 20 of 22 working days. She was under "professionai
pressure" to meet this deadline, but had suf?cient time to make the
Decisions. if she did not have suf?cient time to make the decisions she
knew that she could have informed Auckland Council of this. [Macky
affidavit, CB vol 4 AC 3 p30,133] Ms Macky recorded spending nine
hours making the Decisions on the E32 Consent Applications, which was
longer than she would usually spend on such decisions. The additional
time is accounted for by the careful consideration Ms Macky gave to the

Noti?cation Decisions. [Macky af?davit, CB vol 4 AC 3 p30,136]

In relation to the B3 Consent Applications, Mr Kaye received the
application documents when the timeframe for the noti?cation decisions
was on day 21 of 22. He was aware that the Council had a focus on
reaching these deadlines, but if he did not have enough time to make
decisions properly and independently he would have advised the council
and made the decisions outside of these timeframes. [Kaye affidavit,
CB vol 4 AC 4 p30,206] Mr Kaye recorded spending two hours making
the Decisions on the B3 Consent Applications, but actually spent longer
doing so. His evidence is the he is a fast reader and spent the time he
needed to make an informed an independent decision. [Kaye affidavit,

CB vol 4 AC 4 [330,208]

68

9.10 Notably, the consequence of non-compliance with statutory timeframes is
only a fee discount. [Valentine affidavit vol 4 tab ACZ [330,023 para
14]

Adoption of recommendations in the Reports

9.11 At paragraph 60(b) of the Statement of Claim it is alleged that the
Commissioners adopted the recommendations in the Reports without any

evidence of independent evaluation.

9.12 The Commissioners are entitled to give "considerable weight" to the
reports and recommendations of the Council?s planning of?cers. Such
of?cers are engaged or employed because of their competence and work
on a daily basis with applications that require consideration of the
relevant portions of the Operative Plans and Proposed Plans. Further,

the planning officers' mindset is to give impartial and detached advice.45

9.13 in relation to the 82 Consent Applications, Ms Macky understood that she
was required to make the Decisions independently and was not bound to
follow the recommendations in the Reports, although she could adopt the
reasoning in the Reports if she agreed with it. [Macky affidavit, CB vol
4 AC 3 p30,133] Ms Macky made some amendments to the draft
decisions received as part of the Reports. [Macky affidavit, CB vol 4
AC 3 p30,136]

9.14 in relation to the 83 Consent Applications, Mr Kaye did not simply just
adopt the recommendations in the Reports. [Kaye affidavit, CB vol 4
AC 4 p30,207 and 30,208]

No limitation of decision making delegation

9.15 At paragraph 60(0) of the Statement of Claim it is alleged that the

Commissioners' decision-making delegation was limited.

9.16 in relation to the 82 Consent Applications, Ms Macky knew that she had
been delegated the power to make the Noti?cation and Consent
Decisions on behalf of Auckland Council. She understood that she could
decide to notify or not notify the 82 Consent Applications. She
understood that she oculd grant or not grant the 82 Consent Applications,

or grant the applications on conditions. She also understood that she

45 Sheppard North Shore City Council Anor (HC, 1791-SW00, 1 May 2011). 
authorities tab 26]

2894434 v10

9.17

9.18

9.19

9.20

2894484 v10

69

could determine that further information was needed or that further
resource consents were needed and the application should be deferred.
[Macky affidavit, CB vol 4 AC 3 p30,132 and 30,133]

Mr Kaye's evidence regarding his decision~making delegation was similar.
He was aware of the scope of decisions available to him in relation to
both notification and granting of the BS Consent Applications. [Kaye

affidavit, CB vol 4 AC 4 p30,205 and 30,206]

it is submitted that there is no evidence before the Court that the
Commissioners made the Decisions without exercising independent
judgement. The fact that the Decisions aligned with the Reports is not
suf?cient. This does not demonstrate that the Commissioners did not
exercise independentjudgement. The evidence from the Commissioners
is clear. They did exercise independent evaluation in relation to each of
the Decisions. [t is submitted that there is ample evidence of their
independent decision-making processes. [Macky affidavit, CB voi 4 AC
3 p30,134 to p30,136; Kaye affidavit, CB vol 4 AC 4 1330.206 to

p30,208]
No conflict of interest or bias

At paragraphs 61 to 63 of the Statement of Claim, Urban Auckland
alleges that the Decisions in relation to the 82 and 83 Consent

Applications were invalid as:

Ms Macky disclosed that she "may have had a conflict of

(8)

interest" in relation to the 82 Consent Applications;

in order to avoid a conflict of interest, Ms Macky adopted without

(13)

question the recommendations in the Reports; and

Ms Macky was unable to consider the 82 Consent Applications

(0)
independently and impartially.

This cause of action is misconceived. Ms Macky did not disclose that she
had a con?ict of interest on the sheet recording her Decisions on the 82
Consent Applications. She in fact disclosed that she did not have a

conflict of interest. Vol 2F FR.18 and 

70
The legal position

9.21 Urban Auckland has claimed that Ms Macky's alleged conflict of interest
biased her decision?making in relation to the 82 Consent Applications.
Bias is a predisposition to make a particular decision which does not
leave one's mind properly open to persuasion. Whether a decision-maker
is biased will depend on the factual matrix. The test is whether there is a
"real danger that the Judge unfairly regarded the case of the appellant

with disfavour".46

9.22 The question of bias in relation to commissioners making decisions on
behalf of a council was addressed by the Court of Appeal in Davenport
Borough Council Local Government Commission?. it was held that
"even strong expressions of prior views do not disqualify persons" and
that being unbiased requires a decision maker to "remain amenable to

argument".
Ms Macky did not have a conflict of interest and was not biased

9.23 As set out above, in order to succeed with this claim. Urban Auckland
would need to show that Ms Macky had a conflict of interest that mean
she did not approach her consideration of the 82 Consent Applications

with an open mind.

9.24 it is submitted that the fact that Ms Macky has a prior association with an
interest group that is against port expansion is not sufficient to give rise to
an issue. Ms Macky did not disclose on her record sheet that she had a
conflict of interest. Rather, she set out why her public association with
the Parnell Community Committee did not give rise to a conflict of
interest. vol 2F FR.18 and FR.19 p10,885]

9.25 In her evidence Ms Macky con?rms that she is not a member of the
Parnell Community Committee but assisted with the drafting and
presentation of the Committee's submissions on the Proposed Plan.
[Macky affidavit, CB vol 4 AC 3 p30,136 para 44 to 49] Ms Macky
records the fact that as a barrister, she is comfortable writing and making

legal submissions independently of her personal views and does not

 

45 Man O'War Station Limited Auckiand City Councii [2001] 1 NZLR 552. authorities

tab 13]
47[198912 NZLR 203 at p207. authorities tab 11]

2894434 v10

9.26

10.

10.1

10.2

10.3

10.4

71

consider that she had a conflict of Interest in relation to the Decisions

regarding the B2 Consent Applications.

It is submitted that there is no basis for the allegation that the Decisions
were invalid as the Commissioners did not exercise independent
judgement or Ms Macky has a conflict of interest or was biased against
Urban Auckland in relation to her Decisions on the B2 Consent

Applications.

ALTERNATIVE ARGUMENT: IN THE EXERCISE OF ITS DISCRETION,
THE COURT SHOULD NOT GRANT THE RELIEF SOUGHT

Introduction

It is well established that, in an application for judicial review, the Court
has a discretion to refuse to grant relief. As set out above, it is POAL's
case that there was no reviewable error in Auckland Council's Decisions,
and therefore the question of the appropriate relief, and the question of

whether to exercise the discretion to grant relief, does not arise.

However, in the event that the Court is minded to consider that the
Council, in granting the resource consents, fell into error, the Court can
decide that, notwithstanding that there were errors in the Council's
decision-making with respect to either or both of the Consent Decisions
or the Notification Decisions, it is not appropriate to grant the relief sought
by Urban Auckland.

The proper approach to the exercise of the discretion

The starting point is the statutory framework. Section 4(1) of the
Judicature Amendment Act expressly notes that the High Court "may"

grant relief in response to a successful application forjudicial review.

The Courts have long considered that the making of an error does not

automatically lead to a decision being set aside. In Hill Wellington

Transport Licensing Authority, Somers stated that "such a result will
depend on the gravity of the error in the context and circumstances of the

case-p.48

 

43 [1984] 2 NZLR 314 at 324. authorities tab 14]

2894484 v10

72

10.5 The discretion to grant (or decline) relief has been discussed in a number
of recent Court of Appeal decisions. This discussion was summarised by
O'Regan in Minister for Canterbury Earthquake Recovery Fowler
Developments (a judgment released in December 2013 and, to the best

of our knowledge, the Court's latest word on the matter): 49

Much has been said in recent years in this Court about the
discretion to decline relief in judicial review cases. in Air
Neison Limited 1/ Minister of Transport, the Court recorded that
public law remedies are discretionary, but added that there
must be "extremely strong reasons" to decline to grant reiief.
However, in later cases, a more nuanced approach has been

taken.

10.6 POAL respectfully submits that, when the Court of Appeal's recent
decisions are read together, the Court has endorsed an approach which
requires careful consideration of all relevant factors, but which places a
particular focus on the extent to which the applicants had suffered

prejudice as a result of the decision.50

10.7 POAL submits that, consistent with these recent decisions, the approach
that should be adopted by this Court in determining whether it is

appropriate to exercise the Court's discretion to decline relief is:

First, this court should consider whether there has been any

substantial prejudice to Urban Auckland;

If so, the Court should then consider whether there are
nonetheless strong reasons to decline to grant relief, and can

consider (without limitation)??
the needs of good administration;

(ii) any delay or other disentitling conduct of the claimant;

 

49 [2013} NZCA 588, [2013] 2 NZLR 587 at [164]. For completeness, Fowler Developments was
the subject of a partially successful appeal to the Supreme Court, but that the discretion to grant
relief was not discussed in any great detail by that Court. authorities tab 20] See Quake
Outcasts Minister for Canterbury Earthquake Recovery [2015] N280 27 at 
authorities tab 22]

5? Air Nelson Minister of Transport [2008] NZAR 139 (CA) at authorities tab
1] as discussed in Rees Firth [2011] NZCA 668, [2012] 1 NZLR 408 at 
authorities tab 23] See also Tauber Commissioner of iniand Revenue [2012] NZCA 411,
[2012] 3 NZLR 549 at authorities tab 29] and Secretary for Justice Simes
[2012] NZCA 549, [2012] NZAR 1044 at authorities tab 25]

1 Air Nelson Minister of Transport [2008] NZAR 139 (CA) at authorities tab 5]

2394484 v10

10.8

10.9

10.10

73

the effect on third parties;

the commercial community or industry; and

(iv)

the utility of granting a remedy.

However, if there has been no substantial prejudice to Urban
Auckland, then the Court should consider whether the gravity of
the error in the context and circumstances of the case favours

granting relief or not?2

POAL submits that the test articulated above, and the Court?s discretion
to decline relief, is a valuable counterbalance to the Court?s liberal
approach to standing.53 As noted by Lord Carnwath, in the 2012 UK

Supreme Court decision of Walton Scottish Ministers??1

The courts may properly accept as "aggrieved", or as having a
?suf?cient interest" those who, though not themselves directly
affected, are legitimately concerned about damage to wider
public interests, such as the protection of the environment.
However, if it does so, it is important that those interests
should be seen not in isolation, but rather in the context of the
many other interests, public and private, which are in play in
relation to a major scheme such as the [road network].

Futility of relief

As noted above, the "utility of granting a remedy" is a relevant factor for
the Court in determining whether to grant relief. Further, the utility (or
futility) of granting relief is obviously important to place any prejudice

suffered by a party in its proper context.

in recent applications for judicial review of decisions to grant resource
consent on a non-noti?ed basis, the Court has been prepared to take into
account the futility of granting relief in circumstances where it is likely the

same decision will be made again.55

 

52 Barker Queensiown Lakes District Council [2007] NZRMA 103 (H0) at 

authorities tab 5]

53 See, for example, Auckland City Councii Attorney-General l-lC Auckland 

1761, 24 November 2009 at authorities tab 4]

54 [2012] UKSC 44, [2013] PTSR 51 at [103]. authorities tab 36]

55 Associated Churches of Christ Church Extension and Property Trust Board Auckland
Council [2014] NZHC 3405, [2015] NZRMA 113 at authorities tab 2]
Anderson 1/ Auckland Council [2014] NZHC 1480 at authorities tab 1] and
Collins 1/ Northland Regional Council [2013] NZHC 3039 at authorities
tab 7]

2894484 v10

Redacted
Con?den?al

10.11

10.12

10.13

10.14

2394434 v10

74

In this context, it is relevant that the powers of the Council to process the
consent on a noti?ed basis, and to refuse to grant the resource consents,
are narrowly con?ned. As noted above, the amendments to the RMA by
the Resource Management (Simplifying and Streamlining) Amendment
Act 2009 have removed the "presumption of notification" that existed prior

to the amendment.

Further, the consents in relation to the construction of the wharf
extensions are a permitted activity under the Proposed Plan, and a
controlled activity under the Operative Plan. Accordingly, as a controlled
activity, these consents must be granted, and the Council's powers to
impose conditions on these resource consent are restricted to the matters
over which control is reserved (which, in the context of the Operative
Coastal Plan, is strictly limited). While the consents in relation to
stormwater discharge were a restricted discretionary activity under the
Operative Plan and a discretionary activity under the Proposed Plan
(due to the way in which the stormwater consents had been bundled for
both the 82 and BS extensions), the only effects that the Council could
consider with respect to these effects related to stormwater discharge (as

has been canvassed above).

Accordingly, even if the Court were to ?nd that the Council failed to
consider a relevant factor in reaching its bundling decision, any reference

back to the Council to reconsider its decision would likely only lead to:
a further decision not to notify being made, or

the matter being heard on a notified basis, but, because of the
Council?s limited power to impose conditions on the resource
consent, the process of notification would fail to lead to the
Council obtaining any further information that would alter its

decision.

The futility of granting relief, just so that the same decision can be
remade, is acutely relevant in this case. As noted at paragraph 10.66
below, there are signi?cant costs associated with a delay to works. For
example, if works were delayed by six months, in order for the Council to
process the application on a notified basis, onlv for the same decision to
be made again, this has had a cost impact of

for POAL, as well as a real impact on members of the shipping industry

75

who, at present, are facing increasing delays as capacity constraints at
the wharf intensify.

10.15 However, even if the Court is of the view that quashing the resource
consents may lead to a different outcome if the decision is referred back
to the original decision maker, POAL respectfully submits that, in these
circumstances, the prejudice suffered by POAL and other third parties

nonetheless justifies withholding relief.
Urban Auckland has not suffered prejudice

10.16 The Court has, in previous cases, been prepared to weigh up the
competing prejudices to the parties, and to third parties, in determining
whether or not to grant relief.?5
10.17 As noted above, the Court of Appeal in recent decisions has emphasised
the importance of any "substantial prejudice" to the applicant. In Chow
Group Walton, your Honour rejected a submission that "substantial
prejudice" will automatically be presumed from a breach of natural justice,
and considered that "substantial prejudice is not per se to be presumed
from an error of law".57 Accordingly, the Court must ask, what is the

prejudice to Urban Auckland if the resource consents remain in place?
Who is Urban Auckland?

10.18 Urban Auckland has provided an af?davit from its chair, Julie Stout. Ms
Stout deposes that Urban Auckland was formed in 2000 to "advocate for
good design in relation to Auckland?s waterfront and [First Stout
Affidavit, CB vol 3.1, tab 1 p20,001 para 5] and that its obligations are
to "promote and encourage" protection and enhancement of the
Waterfront and Downtown Area [Second Stout Affidavit, CB vol 3.5 tab
11, p20,960 para POAL notes that, in previous litigation, Urban
Auckland was described as a ?coalition of architects, designers, and
others interested, incorporated to promote good architecture in central

Aucklandsa?

 

55 independent Fisheries Minister for Canterbury Earthquake Recovery [2012] NZHC 1810
at authorities tab 15]

57 [2011] NZAR r47 (H0) at authorities tab 6]

53 Urban Auckland - The Society for the Protection of Auckland City and Waterfront inc 1/
Auckiand City Council HC Auckland, 2 December 2004 at authorities
tab 31]

2894434 v10

76

10.19 Ms Stout?s af?davit suggests that Urban Auckland consider these
proceedings to have been brought in the public interest First Stout
Affidavit, CB vol 3.1, tab 1 p20,001 para . POAL has not disputed
(and does not dispute) Urban Auckland's standing to bring these judicial
review proceedings. However, if Urban Auckland's standing is based
purely on a desire to bring litigation in the public interest, it cannot say
that it has suffered "significant prejudice" itself. in particular, Urban
Auckland cannot rely on the affidavits filed on behalf of other various
groups claiming to oppose the wharf extensions as evidence of its own

"substantial prejudice".59

What preiudice has Urban Auckland su??ered?

10.20 At best, Urban Auckland's interest in these proceedings is that of an
interested member of the public who has (as a result of the non-notified
process) been denied an opportunity to comment on the proposed

extensions.

10.21 As noted by MacKenzie in Aro Valley Community Council Inc 
Wellington City Council (albeit in the context of an application for interim
relief), a ?nding by this Court that there was a reviewable error in the
Council?s Noti?cation Decisions does not necessarily mean that Urban
Auckland will have a right to be heard.60 The Council would first need to
reconsider the question of noti?cation, and the possibility of the same

outcome cannot be excluded.

10.22 Further, even if the application was processed on a non?noti?ed basis,
due to the limited factors the Council can take into account when
assessing the application for resource consent (due to the "controlled
activity" status of the wharf extensions), the ef?cacy of any such comment
would have been limited. Crucially, nothing that Urban Auckland could or
would have said would have changed the fact that as a controlled activity,
the Council must grant the consent. This is, to paraphrase Toogood J's
dicta in the decision of Associated Churches of Christchurch Extension

and Property Trust Board Auckland Council, a situation in which

 

59 For example, the af?davit of Graeme Clement Scott of the Urban Design Forum vol 3.1
tab the affidavit of Andrew Anderson of the Royal New Zealand Yacht Squadron vol 3.1
tab 4] and the af?davit of Heather Ruth Shotter of the Committee for Auckland vol 3.1 tab

6
65] Are Valley Community Council inc Wellington City Council [2015] NZHC 532 at 
authorities tab 8]

2894484 v10

77

noti?cation is pointless, and requiring noti?cation would run contrary to
ts1

the purpose of the 2009 Amendment Ac
10.23 Ms Stout's affidavit appears to suggest that Urban Auckland has suffered
substantial prejudice because the public has been denied an opportunity
to have an input into the form and scale of POAL's development through
the Proposed Plan process. [First Stout Affidavit, CB vol 3.1, tab 1
pp20,003-20,004 para 11] An application for resource consent is not an
appropriate forum to discuss wider issues, such as the role of POAL in

the Waitemata Harbour.

10.24 The appropriate place for those "big picture" discussions is when the
planning frameworks are being put in place. The Operative Plans'
processes under Schedule 1 of the RMA provided the public with
opportunities to participate at muitiple stages. POAL's applications for E32
and B3 under those plans were therefore made in reliance on rules
established through public participation. The Council also invited informal
submissions on the Proposed Plan in March to May 2013. After
considering those comments from the public, the notified version was
then released in September 2013. That noti?ed version of the Proposed
Plan provides for the construction of wharf extensions as a permitted
activity, such that POAL did not need a consent for that purpose. There
have been more than 13,000 submissions across a wide range of issues.
[Arbuthnot affidavit vol 5B tab P03 p40,170] This second opportunity
for the public to have input into the Proposed Pian is therefore currently
occurring and now part way through a hearing process before the
Independent Hearings Panel, in which both POAL and Urban Auckland
are already participating. The Proposed Plan will eventually replace the

Operative Plan.

10.25 Accordingly, given that the real issues that concern Urban Auckland are
ultimately irreievant to the speci?c issues that were before the Councii?s
independent commissioners determining whether to grant the resource
consents, even if the Court ultimater considers that the Council erred in
processing the applications on a non-noti?ed basis it cannot follow that
Urban Auckland, by being denied an opportunity to submit on these
particular consents, has been substantially prejudice, as Urban Auckland

 

6'1 Associated Churches of Christchurch Extension and Property Trust Board Auckiand Council
[2014] NZHC 3045 at authorities tab 2]

2894484 v10

10.26

10.27

10.28

10.29

78

and the public generally have had and are continuing to have

opportunities to participation in the formulation of all the relevant plans. .

In any event, any public prejudice arising from the wharf extensions

is minor

In this case, Urban Auckland have pointed to three different types of
prejudice which it considers the public, or sections of the public, will suffer
if the consents are granted. submits that, with respect, these

concerns are overstated or misguided.
This is not a case about reclamation

Throughout the af?davits filed on behalf of Urban Auckland, Urban
Auckland's witnesses have discussed broader concerns that they have
regarding POAL's location, and its growth. As noted above. this litigation
is not the appropriate forum for a wide ranging discussion as to the wider
role of POAL in the Waitemata Harbour.

Certain of POAL's witnesses have focussed on the effects of further
reclamation in the Waiternata Harbour. As noted in the second affidavit
of Alistair Kirk, sworn 15 April 2015, the extensions of the 82 and BS
wharves are piled wharf structures, and there is no reclamation of land
associated with their construction.62 Accordingly, any discussion by
Urban Auckland's witnesses of reclamation, or the effects of reclamation,

is irrelevant to this proceeding.

In particular, the af?davit of Dr Joel Cayford, filed on behalf of Urban
Auckland, appears to suggest that the B2 and B3 extensions are a
"means to an end", and that that "end" is a proposal to expand Bledisioe
wharf by reclamation. [Cayford Affidavit, CB vol 3.3 tab 10 pp20,325-
20,326, para 49] Such statements belie the fact that Urban Auckland,
and its witnesses, see this proceeding as an opportunity to air broader
concerns about POAL's role in the Waitemata Harbour, rather than a
challenge to the process followed by the Council in making a speci?c
decision about resource consents. As noted in the third af?davit of
Alistair Kirk, all planned further reclamation (if any) will first be subject to

the separate, proper resource consent process.

 

52 Second Af?davit of Aiistair Graeme Kirk sworn 15 April 2015 at 

2894484 v10

79
Overall. visual effects are limited

10.30 For the reasons set out above, visual effects were not relevant to the
Council's consideration of either the Noti?cation Decisions, or the

Consent Decisions.

10.31 Urban Auckland has ?led affidavit evidence from Gavin Lister, a quali?ed
landscape architect and urban designer. Mr Lister has provided evidence
on the effects of the 82 extension and, in particular, the B3 extension on

the views from Queens? Wharf.

10.32 John Goodwin, a landscape architect of over 30 years' experience, has
provided an af?davit for POAL. Mr Goodwin accepts that the BS
Extension (and to a lesser extent, the 82 Extension) will impact the
eastern view from the end of Queens Wharf. [Goodwin affidavit, CB Vol
SC tab P04 p40, 376 to 40,377 para 30] However, Mr Goodwin notes

that these effects need to be considered in their proper context:

Mr Goodwin notes that the extensions affect only the eastern
view. As Mr Goodwin notes, visibility of the harbour from the
end of Queens Wharf is not limited to the eastern view; the
harbour features as a prominent element in a much wider
panorama from west to east. [Goodwin af?davit, CB Vol SC
tab P04 p40,380 para 48] As Mr Lister notes, "people will, of
course, take in the whole Lister Affidavit,
CB vol 3.5 tab 12 pp21,019-21,020 para 14]

Mr Goodwin has also carried out an analysis of the current use
of Queens Wharf as a viewing platform, and notes that during a
summer's day, a relatively low number of people congregate at
the northern end of the wharf. [Goodwin affidavit, CB Vol 50
tab P04 p40,381 para 51 to 52] Whilst Mr Lister suggests that
the value of a View is not determined by the number of viewers,
the sensitivity of the viewing audience (and the significance of
an effect) will be influenced by the number of people who may
see the view. [Goodwin affidavit, CB Vol 50 tab P04 p40,373
para 15] POAL respectfully submits that the use of Queens

Wharf is therefore relevant to the overall question of prejudice.

10.33 Mr Goodwin has also visited and analysed 18 other viewpoints around

and within the Waitemata Harbour, and con?rms that, from many

2894484 v10

10.34

10.35

10.36

10.37

2394484 v10

80

locations the Extensions would be hard to perceive, be recessive and in
many cases not be visible at all. [Goodwin affidavit, CB Vol 50 tab P04
40,379 para 42].
extensions for ferry passengers and other watercraft users of the harbour,

He has also assessed the visual effects of the

and considers the extent of any adverse effect on the view towards the
outer harbour and Gulf islands to be negligible. [Goodwin affidavit, CB
Vol SC tab P04 p40,378 to 40,379 paras 39 to 41].

As a result of Mr Goodwin?s analysis, it is clear that, when the wharf
extensions are viewed in the context of the surrounding harbour, the
visual effects of the extensions, for the majority of Aucklanders, are likely
to be very minimal. Any prejudice arising as a result of the visual effects
is limited to the users of the Queens Wharf (which, as noted by Mr

Goodwin, is a relatively low number, even in summer).

Overall, the Extensions are not likely to affect navigational and safety

issues

Urban Auckland has focused on the potential impact on recreational
yachting, and has ?led affidavit evidence from Andrew Anderson, the
Commodore of the Royal New Zealand Yacht Squadron. Mr Anderson is
a professional architect, and recreational sailor. He does not purport to
be an expert witness. Mr Anderson's evidence focuses, in part, on the
effects of an "incremental reduction of the harbour", and the potential
effect of future changes at the port. POAL does not dispute that these
views are genuinely held by Mr Anderson, but with respect, these issues
are not relevant to the issues of the resource consents for the 82 and 83

extensions.

Geraint Bermingham, a risk management consultant and former naval
Mr

Bermingham, also a keen private sailor, considers that given the breadth

officer, has sworn an af?davit for POAL as an expert witness.

of the harbour in this location, the extension of the two wharves should
not impose any real constraint on yachts tacking up and down the
harbour. [Bermingham affidavit, CB vol SC tab p05 p40,522 para 35]

Indeed, the 82 and BS extensions are likely to have positive, not
negative, effects on navigation and safety overall. As noted above,
navigational safety is one of the factors to be taken into account by the

Council in determining what, if any conditions should be attached to the

81

granting of the resource consent. In preparing the application for
resource consents under the Operative Plan (for both 82 and 83), POAL
submitted an assessment of the effects of the proposed construction on
navigation and safety. This assessment was undertaken by Nigel Meek,
the senior pilot at POAL.

10.38 In relation to the 82 extension Mr Meek noted that:

the area to be constructed is within the customs controlled area,

and the public tend to keep away from this area of the port;

the wharf will be constructed of concrete, which is light in colour,
and will be of suf?cient size to be clearly visible during daylight
hours, meaning that any collision risk will be minimal (and that
during the hours of darkness, additional lighting will be

provided);

(0) very few non-port craft (recreational craft, ferries etc) enter the
area which will be occupied by the berth extension. Mr Meek
referred to a survey, conducted by Beca Limited, in which Beca
undertook a count of harbour traf?c over two summer periods in
2014 (and also on Anniversary Day 2014). This survey
indicated that, during particularly busy periods, only 6% (on
average) of craft passed within the zone that will be occupied by

the 83 extensions.

the berth extension will not reduce the overall length of the
harbour;
The fact that the 82 berth extension will allow ail ships to

currently berth at Captain Cook west during the summer cruise
season to be relocated to the far wider basin at Bledisloe 82, will

lead to navigation and safety improvements.
vol 20 tab FR.3H p10,215]

10.39 Mr Meek's report was peer reviewed by Geraint Bermingham, who
agreed with POAL's assessment. [Bermingham affidavit, CB Vol SC
tab P05 p40,519 paras 17 to 18] Mr Bermingham notes in his affidavit
that his review did not contain any comment on potential tidal effects, but

notes that as the wharf extension is constructed from piles, he did not

2894484 v10

10.40

10.41

10.42

10.43

2394484 v10

82

expect this to have a noticeable tidal effect [Bermingham affidavit, CB
Vol 50 tab P05 p40,520 para 19]. The Council?s final planning report
also notes that the Auckland Council Harbourmaster has not raised any
navigation or safety issues in respect to B2 Extension proposal. vol
2E tab FR13.A p10,696]

A similar process was followed by POAL in relation to the B3 Extensions.
Mr Meek considered that the B3 extension would also have similar safety
effects as noted for the 82 extension (and as set out at paragraphs
and 10.38(d) above). vol 26 tab p11,080]

Mr Meek also considered BS extension would enable POAL to
manoeuvre and moor ships well to the north of Marsden Wharf and the
rock shelf at the southern end of the "berth pocket". This would allow
POAL to moor longer ships at the berth in a safe manner using more
conventional and accepted mooring practices. Mr Meek noted that, at
present, some of the ships protrude north of B3, and POAL cannot tie the
Whilst

contingency measures are implemented for these larger ships (ie, having

ships to the wharf structure using standard industry practices.

a tug on standby). these contingency measures are not suitable long
term. vol 26 tab FR 24.  pp 11,077-11,079]

As with his report on the B2 extension, Mr Meek's report was reviewed by
Mr Bermingham, who agreed with view that the proposed 83
extension would act to improve overall safety, navigation and berthing
within the port whilst not materially impacting the safety of other harbour
uses [Bermingham affidavit, CB Vol 5C tab P05 p40,520 to 40,521

para 25]. As noted in Mr Bermingham's affidavit, his review:

Highlighted that the 83 extension would act to prohibit poor

navigation practice that some traf?c may be tempted to follow;

and

The BS extension would enable the proper mooring of large
ships, and this would be a significant contributor in terms of
maritime safety. [Bermingham affidavit, CB Vol 5C tab P05

p40,521 paras 26 to 27]

Further, and as with the 82 Extension, the Auckland Council Harbour
Master did not raise any navigation or safety issue with the proposed
develOpment. vol 2J tab FR38.A p11,564]

10.44

10.45

10.46

10.47

2894434 v10

83

From the above analysis, based on the expert, professional assessments
made by Mr Meek and Mr Bermingham, reviewed by the Harbour Master,
the Council was entitled to conclude that the extensions are likely to lead

to increased navigation and safety bene?ts, not risks.
The effects of any stormwater discharge will be insigni?cant

Mr Ngarimu Blair, deputy chair of Ngati Whatua, has suggested in his
affidavit that the larger the wharf extensions, the greater the likelihood of
impacting cultural sites, waahi tapu or other taonga, as a result of the
greater stormwater discharge produced by the extensions. [First Blair
Affidavit CB vol 3.1 tab 5 [920,164 para 21]

As set out above, cultural impacts and mana whenua values are not
included in the matters that were relevant to the Council's Notification
Decisions or Consent Decisions in respect of the construction, As set out
in Mr Arbuthnot?s af?davit, POAL consulted with mana whenua groups to
con?rm whether a cultural impact assessment was required to discharge
treated stormwater from a new CMA structure. None of the relevant
mana whenua groups that responded identified a need to undertake a
cultural impact assessment. [Arbuthnot Affidavit CB vol 58 tab P03

[340,190 para 128(i)}

One of Mr Blair?s concerns seems to be focused on the size of the wharf
extension, and the corresponding impact on stormwater discharge. Mr
Blair is not, and does not purport to be an expert in stormwater effects.
POAL has obtained an af?davit from Jennifer Hart, a senior civil engineer

for the Ports and Coastal team of Beca Ltd. Ms Hart has deposed that:

The stormwater treatment device was designed in accordance
with the Auckland Council's guidance document Stormwater
Management Devices: Design Guidelines Manual, Second
Edition, May 2003, ARC Technical Publication 10 and
is sized in direct proportion to the impervious area, so that the
same discharge quality is achieved whatever the size of the

extensions? impervious surface.

There is no additional volume of stormwater runoff entering the
harbour as a result of the extensions, because the rain that
would otherwise fail on the extensions and flow into the harbour

presently falls directly into the harbour.

10.48

10.49

10.50

10.5?!

10.52

84
[Hart affidavit, CB voi 5C tab P06 p40,526 para 5.4]

As also deposed in Ms Hart's af?davit, Beca was commissioned by POAL
to prepare a technical report for each of the extensions covering the ITA
and stormwater discharge effects and confirmed, in relation to both the
82 and B3 extensions, that any effects would be insigni?cant. [Hart
affidavit, CB vol 50 tab P06 p40,528 para 

It the wharf extensions did not go ahead, there would be significant

prejudice to third parties, including POAL

POAL respectfully submits that, for all the reasons set out above, the
issues raised by Urban Auckland are either irrelevant, non~existent or

insigni?cant.

In contrast, the prejudice to POAL, and other third parties, it the resource
consents are quashed and the 82 and BS extensions are either delayed
(to allow for a noti?ed consent process) or never buiit at all, will be
significant. Crucially, by 26 March 2015, when Urban Auckland ?rst
noti?ed POAL of its intention to issue proceedings, POAL had committed
to a construction contract, and had committed to expenditure under that
contract. it there is any delay to construction, POAL will inevitably incur
costs. As noted by Eric Lucas, these costs could include demobilisation
costs, demolition costs, committed contractor costs, and lost margins to
be claimed by contractors. [Lucas Affidavit, CB vol 5C tab P08
p40,595 para 35]

In addition, prejudice is likely to be suffered by commercial shipping

industry, and the cruise ship industry.

There will be substantial breiudice to POAL, its contractor, and

subcontractors. if relief is granted

in this case, the prejudice suffered by POAL, and by other third parties,
has been exacerbated by Urban Auckland's delay in commencing
proceedings. in the 1970 Court of Appeai decision of Turner Allison,
Turner considered that delay could be a decisive factor in declining
relief, especially when considered in conjunction with the effects that

delay has had on the conduct of the other party to the proceedingse?g

 

53 Turner [1971] NZLR 833 (CA) at 850. authorities tab 531 See aiso WendCo
(NZ) Auckiand Council [2014] NZHC 1481. authorities tab 32]

2894484 v10

85

10.53 As noted above, the resource consents for the 82 extension were granted
on 31 October 2014, and the consents for the B3 extension were granted
on 19 December 2014 (for the consents required under the Proposed
Plan). and 23 December 2014 (for the consents required under the

Operative Plan).

10.54 As noted by Mr Kirk, on 12 February 2015 the NZ Herald published an
article which referred to the Council's approval of consents for E52 and BB.
[Kirk Affidavit CB vol 5A tab P01 p40,018 para 77] Ms Stout has
confirmed that Urban Auckland became aware of the resource consents
on or after this date. [Second Stout Affidavit CB vol 3.5 tab 11
pp20,961-20,962 para 6]

10.55 Given the significant nature of the construction. and the potential ?nancial
effects of the delay, POAL respectfully submits that this is a case where
Urban Auckland could and should have acted with the utmost
expedition.E4 However, as noted in Mr Kirk's 15 April af?davit, Urban
Auckland did not inform POAL or the Auckland Council of its intent to
challenge the lawfulness of consents for the BZ and B3
extensions until its letter of 26 March 2015 (which was sent in the

evening).65

10.56 Ms Stout?s second affidavit deposes that Urban Auckland did not place
the Council and POAL on notice until 26 March 2015, as it was seeking
legal advice. [Second Stout Affidavit CB vol 3.5 tab 11 pp20,962-
20,963 para 7] It appears that Urban Auckland ?rst discussed the matter
with Mr Hardy on 10 March 2015. and sought two further legal opinions,
from Rob Enright and Juiian Miles QC. it is not clear why Urban
Auckland required three legal opinions before any action was taken. At
the least, it could have put POAL on notice that it was reviewing the
resource consents, with the aim of determining whether the Council had
made any errors in its decision (particularly as Urban Auckland appear to
consider the Notification Decision to be so unreasonable no reasonable
decision maker could have made it). It is also not clear why Urban
Auckland waited until 10 March 2015, nearly a month after the NZ Herald
article, to ?rst contact Mr Hardy. Mr Hardy is, after all, Urban Auckland's

honorary solicitor.

 

54 See Auckland Casino Casino Control Authority [1995] ?l NZLR 142 (CA). 
authorities tab 3]
55 Af?davit of Alistair Graeme Kirk sworn 10 April 2015 at 

2894484 v10

86

10.57 Accordingly, POAL respectfully submits that Urban Auckland have not

properly explained the delay. Whilst this time period may appear to be

relatively short, Urban Auckland's delay has had a signi?cant effect on

POAL.

By 26 March 2015, it is ciear that POAL was irrevocably,

contractually committed to the project:





(C)





Redacted
Confidential

(0

2894484 v10

The construction contract for the B2 and BS extensions was put
out for tender in December 2014. [Kirk affidavit, CB vol 5A
P01 p40,018 para 74]

Tenders closed on 23 December 2014. POAL received a tender
from Brian Perry Civil a trading division of The Fletcher
Construction Company Limited. [Kirk af?davit, CB on  SA
P01 [340,018 para 76] Christopher Turner, a project the project
manager for the 82 and B3 extensions, deposes that the cost of
labour and materials in compieting the tender was approximately
$45,000. [Turner affidavit, 08 vol SD tab P09 p40,614 para
3.6]

On 21 January 2015, POAL accepted BPC's tender. [Kirk
affidavit, CB vol 5A tab P01 [340,018 para 76] The notice of
acceptance of tender provided that acceptance of the tender
was based on the programme proposed in BPC's tender, and
the due date for the completion of all works (for both the 82 and
BS extensions) is 3 February 2017. [Turner affidavit, CB vol
SD tab P09 p40,615 para 

The Construction contract was signed by BPC on 7 February
2015, and by POAL on 17 February 2015. [Turner affidavit,
CB vol 5D tab P09 [340,615 para 3.10] The value of the
contract is $22,433,625 [Kirk affidavit, CB vol 5A tab P01
p40,019 para 78].

By the end of March, BPC had completed signi?cant planning
and design work in relation to the extensions, and had
committed to major items of plant. [Turner affidavit, CB voi SD
tab P09 p40,619 para 4.12]

Redacted
Con?den?al

Redacted
Confidential

10.58

10.59

2894484 v10

87

As is apparent from this timetable, POAL was contractually committed to
the construction contract by 21 January 2015, when it accepted BPC's
tender. Further (and as can be expected on a large construction project),
BPC began committing to subcontracts, and securing the necessary

plant, materials, labour and equipment, shortly after this date.

Redacted
Con?den?al

Redacted
Con?den?al

10.61

10.62

2894434 v10

88

[Lucas affidavit, CB vol 5D tab P08 p40,596 para 45; p40,608
Appendix 

As noted above, given these major financial costs, this was a case in
which Urban Auckland should have acted with the utmost expedition. Its

failure to do so has caused signi?cant prejudice for POAL.

For completeness, Mr Lucas has also assessed the costs to POAL
incurred after 26 March 2015, and notes that if work ceases permanently
at 30 June 2015, POAL will face exposure to an estimated total costs of

plus demolition costs. [Lucas affidavit, CB vol 5D tab P08
p40,598 para 56]

Redacted
Con?den?al

10.63

10.64

10.65

2394484 v10

89

POAL and subcontractors will also incur significant costs if the

construction works are delaved

Of course, any further delay will have a ?nancial cost to POAL and BPC's
subcontractors. Mr Turner deposes that, if BPC is required to suspend
construction, it will need to make a decision as to whether to demobilise
the construction site (is, to remove all plant and equipment from the site),
or to stand the site down for a period of time. He notes that standing
time, demobilisation and remobilisation costs are very dif?cult to estimate,
and will be dependent on when any instruction to stop or suspend work is
given. [Turner affidavit, CB vol 5D tab P09 p40,615 to 40,616 para
4.2]

Of course, as noted by Mr Turner, there will be other costs associated
with demobilisation, as BPC will not necessarily be able to guarantee the
availability of that equipment upon the recommencement of the works.
[Turner af?davit, CB vol SD tab P09 p40,616 para 4.3] In particular:

since the hired plant includes particularly Specialist equipment
including three crawler cranes and specialist drilling equipment,
it would be very dif?cult to guarantee the same equipment was
available following a delay (and even if availability could be
arranged, it would liker be at a different cost); [Turner affidavit,
CB vol 5D tab P09 p40,616 para 4.3]

while the piling team are employees of BPC, they are a
specialist crew who work around the country. There is no
guarantee that they would be able to return to the construction
works following a delay, as it is likely that they will have

The result of this is likely that

further training of alternative BPC employees in relation to the

committed to other projects.

project will be required following a resumption of work - which

Redacted
Con?den?al

10.66

10.67

10.68

10.69

10.70

10.71

2394484 v10

90

will obviously affect production and cost ef?ciency. [Turner
affidavit, CB vol 5D tab P09 p40,617 para 4.9]

Urban Auckland appears to contend, in relation to the interim orders
application, that as the Auckland Council has indicated that it will abide
the decision of the Court in relation to that application, it can be logically

assumed that it is willing to accept the ?nancial implications of delay.

Auckland Council is not owner, is. has acknowledged
the financial consequences of delaying the E32 and B3 extensions. The
fact that POAL's shareholder acknowledges that POAL will suffer financial
consequences does not, of course, change the fact that these
consequences will be suffered. Further, it does not change the fact that
there will be significant prejudice suffered by other industries (ie, the

shipping and cruise ship industry), if the extensions do not proceed.
Cost to the shipping industry

POAL has filed evidence from Captain John Andrew Robinson, the
chairman of Shipping New Zealand. Captain Robinson's evidence
focuses on the car shipping industry which is, of course, just one part of

the multi-cargo shipping industry at the Port of Auckland.

Captain Robinson's evidence describes the need for bigger wharves, in
response to a prevailing trend in the shipping industry for bigger ships.
He notes that vessels also require room for a ramp, a safe "turning circle"
to safely unload cargo, and room for mooring lines. [Robinson affidavit,
CB vol tab P07 p40,580 para 3.4] Accordingly, certain vessels with a
length of 200m will have a preferred length of berth for safe mooring of
250m, whilst certain vessels with a length of 265m may have a preferred

length of berth for safe mooring of 333m.

In addition to the increasing size of ships, Captain Robinson also
deposes that, in relation to the car shipping industry, cargo volumes are
steadily increasing. [Robinson affidavit, CB vol SD tab P07 p40,582

10.72

10.73

10.74

10.75

10.76

2894434 v10

9?1

paras 4.3 to 4.4] This is supported by Alistair Kirk. [Kirk affidavit, CB
vol 5A tab P01 p40,009 para 33]

Mr Kirk also deposes that over the past decade, ships are calling less
frequently, but are bigger and tranSport more cargo, and which puts
increased pressure on back-up storage associated with the berths [Kirk
affidavit, CB vol 5A tab P01 p40,009 paras 34 to 36]

Captain Robinson considers that, in tight of these trends, capacity
constraints on the wharves are increasing. He notes, in particular, that
certain existing berths, including E32 and BS are inadequate to meet the
needs of modern shipping. [Robinson affidavit, CB vol 5D tab P07
p40,578 to 40,579 para 2.3] This view is backed by the "Port Study 
an independent study commissioned by Auckland Council, and
undertaken by NZIER with specialist port and transportation input from
Aurecon New Zealand and Australia. Third Kirk affidavit, CB vol 5A

tab P01 p40,012 para 45 to 46]

The effect of these capacity constraints, deposes Captain Robinson, is
that during the 2013-2014 cruise season, 21% of the car carriers and
'Roli-On Roll-off" ("RoRo") vessels suffered delays to their normal
operations. In the 2014-2015 cruise season, this number increased to
41%. Captain Robinson's affidavit sets out the effects of these delays.

[Robinson affidavit, CB vol 5E) tab P07 p40,585 paras 6.2 to 6.3]

Captain Robinson also notes that a large carrier (with the ability to carry
6,000 CEU (the equivalent of 6,000 Toyota Coronas) is delayed in
Auckland or any other port for 24 hours, it wiil cost the owner or
charterers at least per day in lost revenue earnings. He notes
that these figures do not include increased stevedoring costs, additional
labour employed by vessel operators to ensure that cargo can be
discharged efficiently, and additional fuel consumption, as a result of
having to "fast stream" to try and restore schedules. [Robinson

affidavit, CB vol 50 tab P07 p40,584 para 6.6]

As noted by Eric Lucas, continued delays wiil, over time, incentivise the
shipping tines to seek alternative destinations if they can be serviced
more economically. To iilustrate the possible impact on POAL of not

compieting the extensions, Mr Lucas has:

Redacted
Con?den?al

10.77

10.78

10.79

2894484 v18

92



assessed, using a valuation model previously used by POAL in
2013, the value impact of a failure to achieve the volume
growths previously projected by the Port. Mr Lucas quantifies a
reduction in the multi~cargo volume as reducing this projected

value by $86m.

Mr Lucas also notes the costs to the consumer, should shipping lines
relocate, costs to the consumer are likely to be significant as well as
impacting general economic ef?ciency. He notes that the costs of
transport between Whangarei and Auckland is almost half the cost to ship
between Singapore and Auckland. [Lucas affidavit, CB vol 5D tab P08

p40,598 para 54]
Cost to cruise ships

Captain Robinson deposes in his affidavit that the number of cruise
season vessels calling at Auckland has grown from 71 vessel calls in
2010-2011 to 85 vessel calls in 20142015. [Robinson affidavit, CB vol
5D tab P07 p40,582 para 5.1]

Mr Kirk has deposed that, whilst cruise ships primarily call at Princes
Wharf and Queens Wharf:

when cruise ships call at Queens Wharf they preclude the use of
nearby Captain Cook West for multi-cargo work. Consequently,
POAL needs an additional multi?cargo berth in order to continue
to service the vessels it is increasingly unable to service at

Captain Cook West; and

the size of some of the cruise ships currently calling at Auckland
(and some of the ships we anticipate will be calling at Auckland
in a few years) cannot currently be accommodated at Princes
Wharf and Queens Wharf.

[Kirk affidavit, CB vol 5A tab P01 p40,012 to 40,013 paras 48
to 49]

10.80

10.81

10.82

10.83

10.84

2394484 v10

93

Mr Kirk notes that, in the past, POAL has been able to cater for the
occasional one~off large cruise ship at its Jellicoe cargo berth, but that
due to increasing capacity constraints, this is no longer an option. [Kirk
affidavit, CB vol 5A tab P01 p40,013 para 50]

In this respect, planned halt to the BB wharf extension (awaiting
the outcome of the Port Future Study) provides a real-life case study of
the bene?ts that will be lost to Auckland if POAL is unable to
accommodate cruise ships. As noted by Mr Kirk, this has led to some
concern that the cruise ship, the Ovation of the Seas, will be unable to
call in Auckland, which Cruise New Zealand estimates to lead to a loss of
$12.4 million to the Auckland economy next year. Further, if the ship
does not call at Auckland, it is unlikely to call at other New Zealand ports
(such as Port Chalmers, Lyttelton, Port Nicholson or Tauranga). [Kirk
affidavit, CB vol 5A tab P01 p40,013 para 51]

For completeness, POAL now understand that Ovation of the Seas may
come to Auckland, and anchor in the harbour. As deposed by Mr Kirk,
this is not ideal. Vast numbers of passengers would have to be ferried
ashore, and passenger exchanges could not be undertaken [Kirk
affidavit, CB vol 5A tab P01 p40,013 para 52].

Conclusion on the discretion to grant relief

POAL submits that, for all the reasons set out above, the Court should
hold that (on a "nuanced assessment"), the gravity of the error in the

context and circumstances of the case do not favour relief.
in particular, POAL submits that:

Urban Auckland has not suffered any substantial prejudice as a

(8)

result of the Council's decision;

in fact, the "prejudice" alleged by persons or groups other than

Urban Auckland, if the extensions were to be constructed is

either non-existent, or minimal:

In terms of visual effects, following a comprehensive
assessment of views across Auckland, the only
affected viewpoint is the eastern view from Queens

Wharf;

(ii)



94
any effects on navigation and safety are minimal; and

any stormwater discharge will be properly treated (and
the size of the extensions are irrelevant to stormwater

effects);

(0) However, the prejudice to third parties (being, in particular, BPC

and its subcontractors) if the wharves are not constructed are

significant (and have been exacerbated by Urban Auckland?s

delay in bringing proceedings):

0)

Redacted
Confidential

(ii)

Redacted
Con?den?al

Redacted
Con?den?al



(EV)

2894484 v10

As noted by Mr Lucas, as at 26 March 2015, when
Urban Auckland advised POAL of its intent to bring
judicial review proceedings, POAL may well have
already been exposed to costs of i if it were

to cease construction;

Even if work ultimately does not cease permanently,
there are real, and signi?cant, costs to POAL arising
from any delay, which couid be up to within

six months;

There will be real, and increasing, capacity constraints
to POAL's wharves if the extensions cannot be built or

are delayed, with real costs to the shipping industry.

Further, if shipping companies were incentivised to
reiocate to alternative ports (where they can be
serviced more economically), this will have a signi?cant
impact on POAL.

a
reduction in multi-cargo volume couid reduce 

projected value by $86m.

In addition, POAL's inability to continue to berth large
cruise ships impacts New Zealand's economy. For
example, if the Ovation of the Seas cannot call in New
Zealand next year, that represents a $12 loss to

the New Zealand economy.

10.85

11.

12.

12.1

12.2

12.3

2894434 v10

95

This signi?cant prejudice to POAL needs to be weighted in a
context where, if the Court was to refer the decision back to the
Council, it may be likely that any such referral back would
ultimately iead to the consents being granted again (even if they

are granted by way of a notified process).

Accordingly, POAL respectfully submits that the anticipated futility of any

and its contractors and

relief, the significant costs to POAL,
subcontractors, the shipping industry, and the wider economy that wiil be
incurred if relief is granted amount to strong reasons for the Court to

exercise its discretion, and withhold relief.

COSTS

POAL respectfully submits that, if Urban Auckland's challenge to the
Council's decision fails, it is entitled to costs, and reserves the right to

make further submissions in relation to costs.

In any event, any award of costs in these proceedings must take into
account Urban Auckland's late, and substantiai, amendment to the
statement of claim, and its late con?rmation of its intent to pursue its
application for interim orders (which are the subject of separate

submissions).

CONCLUSION

Urban Auckland seeks to judicially review Auckland Council's
discretionary decisions not to publicly notify POAL's 82 and B3 Consent

Applications and, in turn, to grant these applications.

Urban Auckland's claim must fail. Its true complaint is that the resource
consents were granted; not the manner in which they were granted. In
order to succeed with its claim, Urban Auckland would need to establish
that faiied

considerations, including matters such as the visual effects of the 82 and

Auckland Council to consider mandatory relevant

83 Extensions. These matters were not within Auckland Council's

speci?c and limited statutory discretion.

Urban Auckland?s case relies on this Court finding that Auckland Council

erred in relation to the Decisions. it is submitted that, in relation to the

12.4

12.5

12.6

96

?rst two causes of action, this question is determined by whether bundling
sh0uld occur across the Operative Plans and Proposed Plan. it is
submitted that such bundling was not appropriate. Auckland Council

appropriately exercised its discretions.

Urban Auckland also alleges that the Commissioners failed to
appropriately exercise their decision-making powers. This has not been

established on the evidence before the Court.

Finally, it is alleged that POAL failed to apply for all relevant resource
consents. In order to succeed with this claim, Urban Auckland would
need to establish that both POAL and Auckland Council wrongly
interpreted the Port Precinct Rules and that these rules did not, in fact,
apply to the extension of wharves in the Port Precinct. This cannot be

correct.

Accordingly, it is submitted that Urban Auckland's claims must fail.

Dated 29 May 2015

2894434 V10

 

A Farmer QC A Nolan Crotty
Counsel for the Second Respondent