HOSPITALITY NEW ZEALAND, CANTERBURY BRANCH v CHRISTCHURCH CITY COUNCIL

[2017] NZHC 1360 [20 June 2017]

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV-2014-409-1165

[2017] NZHC 1360

UNDER THE

Judicature Amendment Act 1972

IN THE MATTER

of an application for review of a decision

under section 84 of the Sale and Supply of

Alcohol Act 2012

BETWEEN

HOSPITALITY NEW ZEALAND,

CANTERBURY BRANCH

Plaintiff

AND

CHRISTCHURCH CITY COUNCIL

Defendant

Hearing:

22 March 2017

Appearances:

J G H Gardner-Hopkins for Plaintiff

P M S McNamara and T R Fischer for Defendant

Interim Judgment:

20 June 2017

INTERIM JUDGMENT OF NICHOLAS DAVIDSON J

CONTENTS

A INTRODUCTION

B DEVELOPMENT OF A LOCAL ALCOHOL POLICY (“LAP”)

C CRDP AND DECISION 43

D QUESTIONS RAISED ON THIS JUDICIAL REVIEW

E DISPOSITION

ABBREVIATIONS

ARLA ……………………. : Alcohol Regulatory and Licensing Authority

Council …………………… : Christchurch City Council

CRDP…………………….. : Christchurch Replacement District Plan

Decision 43 ……………….. : Decision 43 released 20 September 2016.

DLAP …………………….. : Draft Local Alcohol Policy

High Street Block ……….... : Lichfield Street, Madras Street, St Asaph Street

and Manchester Street

HNZ ……………………… : Hospitality New Zealand, Canterbury Branch

IHP ………………………. : Independent Hearing Panel

LAP ……………………… : Local Alcohol Policy

LURP ……………………. : Land Use Recovery Plan

North Victoria Street …….. : Victoria Street north of Salisbury Street

(including Carlton Corner)

Officers’ Memorandum …. : Officers’ Memorandum dated

27 September 2016

Order in Council ………… : Order in Council

(the) Working Party ……… : Provisional Local Alcohol Policy Appeals

Working Party

PLAP …………………….. : Provisional Local Alcohol Policy

Reconsideration Decision ... : Reconsideration decision

dated 29 September 2016

RMA …………………….. : Resource Management Act 1991

South Victoria Street ……. : Victoria Street south of Salisbury Street

SSAA …………………… : Sale and Supply of Alcohol Act 2012

VNA ……………………. : Victoria Neighbourhood Association

INTRODUCTION

[1] The motivation for this judicial review is the differentiation in the maximum

or “latest” closing time of on-licence premises between the north and south parts of

Victoria Street in Christchurch.“North Victoria Street” and “South

Victoria Street” are delineated at the intersection of Salisbury and Victoria Streets.

[2] The differentiation arose in a decision (the “Reconsideration Decision”)

made by the Christchurch City Council (“the Council”) during the development of a

Local Alcohol Policy (“LAP”) under the Sale and Supply of Alcohol Act 2012

(“SSAA”). That decision is under appeal by the plaintiff, Hospitality New Zealand,

Canterbury Branch (“HNZ”), to the Alcohol Regulatory and Licensing Authority

(“ARLA”) and due to be heard later in 2017. This judicial review is a collateral

challenge to the Reconsideration Decision.

[3] The Reconsideration Decision provides for a 3:00am maximum closing time

for on-licence premises in South Victoria Street, and a transitional 3:00am maximum

closing time for North Victoria Street, which will cut back to 1:00am after three

years. HNZ says that the 1:00am maximum closing time is unreasonable having

regard to the object of the SSAA, and wrongly “splits” Victoria Street.

[4] Mr Gardner-Hopkins, counsel for HNZ, says that the appeal to the ARLA will

not suffice for those licensed interests it represents. This judicial review is brought

to regularise what is said to be a flawed process by which the Council reached the

Reconsideration Decision. HNZ says it should be revisited by the Council, this time

correctly having regard to the development of a new District Plan for Christchurch,

and in particular a decision made in the course of that development (“Decision 43”)

which addressed Victoria Street licensed premises.

[5] This Interim Judgment holds that the Council did not have such regard, and

should have, and so too should the ARLA on any appeal which addresses the

differentiation, or any other element to which Decision 43 and the new District Plan,

proposed or operative, is relevant.

“District Plan”

[6] HNZ says that when making the Reconsideration Decision the Council failed

to follow the direction that it “must have regard to … the objectives and policies of

the District Plan” under s 78(2) of the SSAA.

[7] HNZ says the “District Plan” for these purposes includes, or should be taken

to include, the Christchurch Replacement District Plan (“CRDP”) amended by

Decision 43 of an Independent Hearing Panel (“IHP”) chaired by retired High Court

Judge, Sir John Hansen. The IHP was established to hear submissions on the CRDP,

which was developed in response to the Canterbury Earthquakes in 2010 and 2011.

Decision 43 was released on 20 September 2016 and was not operative when the

Reconsideration Decision was made on 29 September 2016, but the time for appeal

was running. In the result no appeal was filed. Decision 43 has not yet been made

operative by the Council, but that is a formality.

[8] Decision 43 addressed the extent and importance of entertainment facilities in

the city, including the protection of existing investment and the relationship of

licensed premises and their customers with nearby residents. HNZ says the Council

should have had regard to the CRDP and Decision 43 expressly within the definition

of a District Plan for which it contends, or otherwise by implication. In the

alternative, it says it was unreasonable not to bring it to account, as it was relevant

and may have influenced the Reconsideration Decision.

[9] An underlying theme of this judicial review is the relationship between the

Resource Management Act 1991 (“RMA”), which governs the development of

a District Plan, and the SSAA which governs alcohol licensing. The two processes

bear on one another when a territorial authority decides to develop a LAP under the

SSAA. A LAP may be more restrictive, but it cannot licence the sale of alcohol

where that is prohibited by a District Plan.

Council’s position

[10] The Council says that it was under no obligation to have regard to any

District Plan when it made the Reconsideration Decision. It says that obligation was

spent after it developed a Provisional Local Alcohol Policy (“PLAP”), the next step

in the chain after a Draft Local Alcohol Policy (“DLAP”) was adopted and publicly

notified by the Council.

[11] If that is wrong, it says the District Plan was out of date but still the Operative

Plan, and did not include the CRDP or Decision 43. If that is wrong, it says Decision

43 was brought to account. If it is wrong in all respects and it should have had

regard to Decision 43, it says that no relief should be granted as HNZ’s concerns will

be adequately addressed on the appeal(s) which lie before the ARLA.

The pleading

First cause of action - failure to have regard to a mandatory relevant consideration

[12] The statement of claim pleads:

61. In making its reconsideration decision, and adopting the Victoria

Street Split and 3-year cut off, the Council erred in law by failing to

have regard to the objectives and policies of its district plan as

amended by the IHP in its Decision 43.

Particulars:

(a) In making its reconsideration decision, the Council was

required to consider the relevant objectives and policies of

its district plan under s 78(2) of the SSAA, which applies

pursuant to s 79(1) of the SSAA.

(b) Decision 43 amended relevant objectives and policies, and

explained the reasons for those amendments, including as

summarised in paragraphs [57] to [59] above.

(c) The reasons for the Council’s reconsideration decision are

contained in the reasons table.

(d) The reasons table does not refer to Decision 43.

62. Had the Council had regard to Decision 43, it could not have

adopted the Victoria Street split and the 3 year cut off for

North Victoria Street.

63. This error was material to the reconsideration decision, including

because the objectives and policies (and other district plan

provisions) had changed (including through Decision 43) since the

Council first produced its draft LAPs and its provision LAP.

Second alternative cause of action – unreasonableness/rationality

[13] The statement of claim pleads:

66. If the Council did have regard to Decision 43 in making its

reconsideration decision, it erred in law by acting unreasonably and

irrationally in adopting the Victoria Street Split and 3-year cut off in

light of Decision 43.

Particulars:

(a) Decision 43 amended relevant objectives and policies, and

explained the reasons for those amendments, including as

summarised in paragraphs [57] to [59] above.

(b) The nature of the findings and observations in Decision 43,

strongly support treating all parts of Victoria Street (and

Carlton Corner) equally, given:

(i) their identification within the same Entertainment

Precinct;

(ii) that the precinct rules protect community amenity

(if that were to be more of a concern for some parts

of Victoria Street than others);

(iii) the deliberate strong policy encouragement to the

entertainment and hospitality industry to focus on

establishing within the entertainment precinct (not

just some parts of it);

(iv) the very significant investment recognised in the

Victoria Street Precinct, including North Victoria

Street; and

(v) the significant adverse consequences on existing and

future investment of adopting the Victoria Street

Split and 3-year cut off in North Victoria Street.

(c) The Council’s district plan team were well aware of

Decision 43, and had, in fact participated in the relevant

hearings and generally supported the outcomes that were

confirmed in Decision 43.

(d) Despite the position identified in paragraph (c) of the

pleadings above, the Council adopted a contrary position in

its amended PLAP.

(e) The Council could not have had sufficient time to take

appropriate advice in respect of Decision 43 (issued on

20 September 2016) before making its reconsideration

decision (on 29 September 2016), just seven working days

after the release of Decision 43.

67. Had the Council acted reasonably and rationally, including in a

manner consistent with its position in respect of Decision 43, and

having taken time to take appropriate advice, it could not have

adopted the Victoria Street Split and the 3-year cut off for North

Victoria Street.

Statement of defence

[14] The Council denies that Decision 43 should have been brought to account for

any of the reasons pleaded by HNZ and also pleads:1

… that different statutory considerations applied to Decision 43 made by the

Independent Hearings Panel on the one hand, and the defendant’s decision in

relation to the PLAP on 29 September 2016 on the other;

“have/had regard to”

[15] At times in this Interim Judgment the concept of “have regard to” Decision

43 and the CRDP will be reflected in expressions such as “considered” and “brought

to account”. Each for the purpose of this Interim Judgment comprehends giving

genuine attention and thought to various instruments.

B DEVELOPMENT OF A LOCAL ALCOHOL POLICY

The statutory scheme

[16] This is conveniently set out in the statement of claim, which I adopt with

some alterations:

Statutory Framework

Key elements of a LAP

Under s 75(1) of the SSAA, the Council has a discretion to have a LAP.

Under s 75(3) of the SSAA, a LAP must be produced, adopted and brought

into force, in accordance with sub-pt 2 of the SSAA (comprising ss 75 to

97).

Under s 75(2), of the SSAA, a LAP may:

(a) provide differently for different parts of its district –

s 75(2)(a); and

(b) apply differently to premises for which licences of different

kinds are held or have been applied for – s 75(2)(c).

Further, under s 77(1) of the SSAA, a LAP may include policies on any or

all of the following matters relating to licensing (and no others):

(a) location of licensed premises by reference to broad areas:

1 Paragraph 66(b) Statement of Defence dated 21 December 2016.

(b) location of licensed premises by reference to proximity to

premises of a particular kind or kinds:

(c) location of licensed premises by reference to proximity to

facilities of a particular kind or kinds:

(d) whether further licences (or licences of a particular kind or

kinds) should be issued for premises in the district

concerned, or any stated part of the district:

(e) maximum trading hours:

(f) the issue of licences, or licences of a particular kind or kinds,

subject to discretionary conditions;

(g) one-way door restrictions.

Under s 77(3) of the SSAA, a LAP must not include policies on any matter

not relating to licensing.

Preparing a draft LAP

Under s 78(1) of the SSAA, a territorial authority that wishes to have a LAP

must produce a draft policy (“draft LAP”).

Under s 78(2) of the SSAA, when producing a draft LAP, a territorial

authority must have regard to:

(a) the objectives and policies of the district plan; and

(b) the number of licences of each kind held for premises in its

district, and the location and opening hours of each of the

premises; and

(c) any areas in which bylaws prohibiting alcohol in public

places are in force; and

(d) the demography of the district’s residents; and

(e) the demography of people who visit the district as tourists or

holidaymakers; and

(f) the overall health indicators of the district’s residents; and

(g) the nature and severity of the alcohol-related problems

arising in the district.

In respect of the district plan, under s 93(1) of the SSAA, a LAP may contain

a policy more restrictive than the relevant district plan.

Producing a provisional LAP

Under s 79(1) of the SSAA, if, after producing a draft LAP, a territorial

authority continues to wish to have a LAP, it must produce a provisional

policy (“provisional LAP”) by using the special consultative procedure to

consult on the draft policy.

Under s 79(2) of the SSAA, when producing a provisional LAP, a territorial

authority must (again) have regard to the matters stated in s 78(2) of the

SSAA.

Under s 80 of the SSAA, if, after producing a provisional LAP under s 79, a

territorial authority continues to wish to have a LAP, it must then give public

notice of:

(a) the provisional LAP; and

(b) rights of appeal against it; and

(c) the ground on which an appeal may be made.

Appealing a provisional LAP

Under s 81(1) of the SSAA, a person or party, who or which made

submissions as part of the special consultative procedure on a draft LAP

may, within 30 days of the public notification of the resulting provisional

LAP, appeal to the licensing authority (“ARLA”) against any element of that

provisional LAP.

Under s 81(4) of the SSAA, the only ground on which an element of a

provisional LAP can be appealed against is that it is unreasonable in the light

of the object of the SSAA.

Under s 4(1) of the SAA, the object of the SSAA is that:

(a) the sale, supply, and consumption of alcohol should be

undertaken safely and responsibly; and

(b) the harm caused by the excessive or inappropriate

consumption of alcohol should be minimised.

Under s 4(2) of the SSAA, the harm caused by the excessive or inappropriate

consumption of alcohol includes:

(a) any crime, damage, death, disease, disorderly behaviour,

illness, or injury, directly or indirectly caused, or directly or

indirectly contributed to, by the excessive or inappropriate

consumption of alcohol; and

(b) any harm to society generally or the community, directly or

indirectly caused, or directly or indirectly contributed to, by

any crime, damage, death, disease, disorderly behaviour,

illness, or injury of a kind described in paragraph (a).

Under s 207 of the SSAA:

(a) ARLA may receive as evidence any statement, document,

information, or matter that in its opinion may assist it to deal

effectually with any matter before it, whether or not the

statement, document, or matter would be admissible in a

court of law.

(b) Subject to paragraph (a), the Evidence Act 2006 applies to

ARLA, in the same manner as if ARLA were a court within

the meaning of that Act.

Under s 201(1) of the SSAA, ARLA must, within the scope of its

jurisdiction, be treated as being a Commission of Inquiry under the

Commissions of Inquiry Act 1908; and that Act, with any necessary

modifications, applies accordingly.

Consideration of a provisional LAP

Under s 83(1) of the SSAA:

The licensing authority must dismiss an appeal against an element of a

provisional local alcohol policy if it –

(a) is not satisfied that the element is unreasonable in the light of the

object of this Act; or

(b) is satisfied that the appellant did not make submissions as part of the

special consultative procedure on the draft local alcohol policy

concerned.

Under s 83(2) of the SSAA, if ARLA is satisfied that:

(a) the appellant made submissions as part of the special

consultative procedure on the draft LAP concerned; and

(b) an element of the provisional LAP is unreasonable in the

light of the object of the SSAA;

then ARLA must ask the territorial authority concerned to reconsider

that element.

Under s 83(4) of the SSAA:

(4) The appellant has no right of appeal against the decision of

the licensing authority.

Under s 84(1) of the SSAA, if ARLA asks a territorial authority to reconsider

an element of a provisional LAP, the territorial authority must:

(a) resubmit the LAP to ARLA with the element deleted; or

(b) resubmit the LAP to ARLA with the element replaced with a

new or amended element; or

(c) appeal to the High Court against ARLA’s finding that the

element is unreasonable in the light of the object of this Act;

or

(d) abandon the provisional LAP.

Resubmission of an amended PLAP

Under s 86 (1) of the SSAA, if the territorial authority resubmits the LAP to

ARLA with the element replaced or with a new or amended element

(“amended PLAP”), ARLA must deal with amended PLAP as if it were an

appeal against every new or amended element that has replaced an earlier

element appealed against it.

Decision on an amended PLAP

Under s 87 of the SSAA, if ARLA is satisfied, in respect of an amended

PLAP, that every element it asked the territorial authority to reconsider has

been replaced by a new or amended element that is not unreasonable in the

light of the object of the SSAA, the amended PLAP is adopted when ARLA

makes its decision.

Review of a LAP

Under s 97 of the SSAA, a territorial authority that has a LAP must review

it, using the special consultative procedure:

(a) no later than 6 years after it came into force; and

(b) no later than 6 years after the most recent review of it was

completed.

Narrative of the LAP process

[17] The Council decided to develop a LAP by resolution dated 14 February 2013,

although work had begun in late 2012. The parties agree on this bare narrative.

The Christchurch City Council LAP process

The draft LAPs

In mid-late 2012, the Council began to prepare a draft LAP.

The Council produced four iterations of its draft LAP.

Each draft LAP identified an area as Christchurch Central Area A (“Central

Area A”).

Within Central area A, a maximum closing time of 3am for on-licence

premises was to be allowed.

Outside of Central Area A, in Central Area B, on-licence premises were to be

limited to a maximum closing time of 1am.

In the first three iterations of the Council’s draft LAP:

(a) Central Area A corresponded with those areas identified as

Entertainment Precincts in the District Plan.

(b) Central Area A included Victoria Street (as a whole).

The fourth iteration of the draft LAP excluded Victoria Street (as a whole)

from Central Area A, with the result that trading hours for on-license

premises on Victoria Street were to be limited to a maximum of 1am.

The Carlton Corner was not included in Central Area A in any of the

iterations of the draft LAP.

The provisional LAP

In May 2013, the Council called for submissions on its draft LAP, through

the special consultative procedure under the Local Government Act 2002.

In July and August 2013, the Council held public hearings on the draft LAP,

producing a report in late 2013.

On 28 May 2015, the Council provided notification of its decision to adopt a

provisional LAP.

Appeals to ARLA

In June 2015, nineteen appeals were made to ARLA in respect of the

provisional LAP, including an appeal by HNZ.

In May 2016, the parties to the appeals attended mediation.

Reconsideration of the provisional LAP

In June 2016, the Council advised ARLA that it considered 13 elements of

its provisional LAP to be unreasonable in light of the object of the Act.

On 21 September 2016, ARLA directed the Council to reconsider those

13 elements of its provisional LAP (“ARLA reconsideration direction”).

On 29 September 2016, the Council met to reconsider its provisional LAP

(“reconsideration meeting”).

The Council had the following information before it at its reconsideration

meeting:

(a) an officer report, authored by Vivienne Wilson, Senior

Solicitor;

(b) a memorandum containing additional legal advice, from

Vivienne Wilson, Senior Solicitor;

(c) the ARLA reconsideration direction;

(d) an amended version of the provisional LAP, showing

changes (“amended PLAP”); and

(e) a table showing changes to the provisional LAP, which

included a column headed “reasons for change” (“reasons

table”).

The Council, at its reconsideration meeting, decided to adopt the amended

PLAP for resubmission to ARLA (“reconsideration decision”).

The amended PLAP, in respect of Victoria Street:

(a) includes the area of Victoria Street between Salisbury Street

and Kilmore Street (“South Victoria Street”) within Central

Area A, and therefore within the 3am maximum closing time

area (the area was previously within Central Area B);

(b) continues the area of Victoria Street between Salisbury

Street and Bealey Avenue (“North Victoria Street”) within

Central Area B but provides for that area to have a maximum

3am closing time for a 3-year transitional period and the

maximum closing time to be 1am thereafter (“3-year cut

off”); and

(c) includes the Carlton Corner within Central Area B and

applies the 3-year cut off to it.

Victoria Street - 2013

[18] The first preliminary draft of the LAP placed Victoria Street in Central

Area 1, with maximum on-licence trading hours of 8:00am to 3:00am. There was a

section on “Legal Considerations” which set out the provisions of s 78(2) of the

SSAA.2 A report made to the Planning Committee referred to the “Goals of the

LAP” and “Objectives of the LAP”, and Appendix 1 referred to “Liquor licensing

policy in the District Plan” and Policy 4.2.15, “Sale of Liquor”. The report reads:

The background to the City Plan liquor related rules can be found in the

liberalised regime for licensed premises resulting from the passage of the

Sale of Liquor Act 1989, and the Council’s experience with the

intensification of adverse effects of late hour operations on residential

amenities. These adverse effects stem from a range of activities directly

associated with the sale of liquor for consumption on the premises. They

include marked noise impacts from large gatherings, related musical or

entertainment activities, from traffic entering and leaving the premises and

from noise in carparks.

The rules (methods) cannot and do not, purport to control all adverse effects

associated with licensed premises, particularly as they do not apply outside

late hour operations.

The adverse effects that the rules are designed to mitigate are:

Reduction in potential noise effects associated with vehicles and people

entering leaving and within carparks.

2 Paragraph 14.

Reduction in potential noise effects associated with late hour sale of

liquor and associated music and entertainment activities.

The rules recognise the period during which activities have the greatest

potential to create disturbance to residents, and more importantly, the

“amenities” implications of sale of liquor. (11am – 7pm). This is a specific

matter which can be addressed under the Resource Management Act, and

which cannot be adequately addressed under the Sale of Liquor Act. The

rules, in order to adequately address adverse effects, apply to existing or

proposed licensed premises proposing to have late hour sales both within

and adjoining living zones.

[19] Delegations were made to the Council by HNZ, the Police District

Commander, the Medical Officer of Health, the Victoria Neighbourhood Association

(“VNA”), and a licensee. The VNA outlined the concerns of residents about the

negative impact of new late-night bars in the neighbourhood, which was the only

largely intact residential area in the Central City following the February 2011

earthquake.

[20] Victoria Street was placed in Central Area A, with the same licensing hours.

The Planning Committee reported to the Council with this second iteration of the

DLAP, and the matters to which the Council was required to have regard under

s 78(2) of the SSAA. The objectives and policies of the operative Christchurch City

Plan and the Banks Peninsula District Plan were included, as they further

comprehended the City Plan.

[21] A third draft had been tabled, entitled “Version 1: draft statement of proposal

and other material as per the Planning Committee’s recommendations of

8 May 2013”. On 16 May 2013, the Council resolved to adopt a fourth (and final)

DLAP, called Version 2. Public notice was given on 29 May 2013. The Council had

regard to matters in s 78(2) of the SSAA, referred to in Attachments 3 and 4 of the

Planning Committee’s report to the Council, and paragraph 32 of that report.

Victoria Street was in Central Area B with maximum trading hours of 8:00am to

1:00am. A policy option of 3:00am closing was considered, but not adopted,

because:

Strong feedback from nearby residential community about problems arising

from current 3am closing of some premises, and one premise closing at 5am.

[22] The DLAP was adopted for public consultation on 16 May 2013, and

a committee of the full Council was delegated authority to hear submissions and

decide on the form and content of the next stage of a LAP process, the PLAP. 4,060

submissions were received. Changes were made to the DLAP, enlarging the area

within the Central City where on-licences can trade until 3am. The Committee had

regard to the matters in s 78(2) of the SSAA, and submissions.

[23] The Council resolved to make changes to the DLAP and to produce a PLAP.

It is clear where contest was joined. The hospitality sector opposed reduced trading

hours and wanted 3:00am, and some 5:00am, closing times. The VNA, Police and

other residents strongly supported 1:00am closing on Victoria Street which the

Police considered a post earthquake hotspot for alcohol related crime. A report on

the hearings referred to the range of submissions for Victoria Street:

The exclusion of Victoria St from Area A drew vigorous and opposing

submissions. Individual residents and the local neighbourhood association

strongly supported provision 2.2.2 as in their view it recognises the

long-standing and highly-valued residential character of the area and the

spatial unsuitability of it as a late night entertainment area (proximity of

premises to residential living and the consequential negative behaviour and

unpleasant effects, loss of sound buffers, inadequate space for public

transport options). However, premises operating on Victoria St submitted

that they operate very well-run premises and are working collaboratively

with fellow licensees to address matters of amenity and good order. In their

opinion, the inclusion of the area in the Christchurch Central Recovery Plan

as an entertainment precinct, and resource consenting decisions to take,

vindicate their location and current trading hours there. They felt that the

presence of the Casino on Victoria St (with 24 hour opening) is a further

endorsement of the area as appropriate for late-night trading. Victoria St was

seen by many submitters as a successful and popular late-night area to visit,

offering a welcome bar scene for younger people post-earthquake.

[24] The Committee enlarged the late night area (Central Area A), but made no

change to the 1:00am maximum closing time on Victoria Street.

Delay in PLAP process

[25] After local authority elections on 12 October 2013, the process was on hold

while the results of some appeals to the ARLA became known. It was not until

28 May 2015 that the Council resolved to notify the PLAP.

[26] 19 appeals to the ARLA were filed, with notice of interest by eight parties.

On 10 December 2015, the Council approved the establishment of the Provisional

Local Alcohol Policy Appeals Working Party (“the Working Party”) to which five

Councillors were appointed. The Working Party agreed to go to mediation, funded

by the Council, and a two stage process was established, for on-licence and

off-licence issues. Mediation took place on 11 May 2016 for on-licence issues. The

Working Party was briefed by New Zealand Police about alcohol related harm in

Victoria Street and across Christchurch City.

Reconsideration

[27] The Council received a report on the mediation and negotiation, and on

14 June 2016 resolved to request the ARLA to ask it (the Council) to reconsider

specific elements of the PLAP, which it by this stage considered unreasonable in

light of the object of the SSAA. This, in my view, practical process was established

by the ARLA Practice Note of 19 March 2015, and it bears on this Interim Judgment,

as to what relief should be ordered.

[28] The Council was directed by the ARLA to file a memorandum summarising

the reasons why it considered a number of elements of the PLAP were unreasonable

in light of the object of the SSAA, and a joint memorandum was filed dated

23 August 2016.

[29] Clause 16 of the joint memorandum provided as follows:

Provisional Local Alcohol Policy – Map 1 (which shows Christchurch

Central Area A and Christchurch Central Area B)

This element is a map of the central city showing the boundaries of

Christchurch Central Area A and Christchurch Central Area B, which are

referred to in clauses 2.2.3, 2.2.4 and 2.2.5 relating to maximum on-licence

trading hours. The Council considers this element to be unreasonable in

light of the object of the Act because:

Changes to Christchurch Central Area A

(a) Exclusion of Victoria Street south of Salisbury Street from Central

Area A pays insufficient regard to its relative proximity to the

Central business District which is in Christchurch Central Area A,

the presence of the Christchurch Casino as a focus for late night

activity, the impact 1 am closing would have on holders of

on-licences in this location, and evidence that non-regulatory

measures have been effective in reducing certain types of

alcohol-related harm experienced by residents living close to

Victoria Street;

(b) Exclusion of parcels of land bounded by Manchester Street,

St Asaph Street and High Street, and by High Street,

Lichfield Street, Madras Street and Tuam Street, from Christchurch

Central Area A could create a “black spot” after 1 am between

adjacent areas subject to 3 am closing, in which “side-loading” or

other inappropriate consumption of alcohol could occur in the

absence of active or passive surveillance. 1 am closing is also

unreasonable now that there is greater certainty as to future land use

in the South Frame than was the case when the PLAP was adopted in

2013;

Change to Christchurch Central Area B

(c) Exclusion of land occupied by the Carlton Bar and Eatery on the

corner of Bealey Avenue and Papanui Road from Christchurch

Central Area B pays insufficient regard to this land being

functionally part of the Victoria Street Precinct, meaning it should be

subject to the same maximum trading hours as other on-licensed

premises on Victoria Street between Bealey Avenue and

Salisbury Street. It also pays insufficient regard to the impact 1 am

closing would have on the holder of the on-licence for these

premises, if effective immediately rather than after a transitional

period of some duration.

[30] On 21 September 2016, the ARLA made an order by consent directing that

the Council reconsider 13 elements of the PLAP, which necessarily meant that they

were thought to be unreasonable, and otherwise resolved all appeals, bar one.

The 13 elements included provisions relating to Victoria Street.

[31] The full Council addressed the 13 elements of the PLAP which the ARLA

asked it to reconsider. A report to Council detailed the recommended changes and

explained the reasons for them. The recommended changes included:

(a) Recategorising the stretch of Victoria Street between Salisbury Street

and Kilmore Street from Christchurch Central Area B to

Christchurch Central Area A i.e. changing the maximum closing time

in that area from 1am to 3am (4am for nightclubs);

(b) Providing that the stretch of Victoria Street between Salisbury Street

and Bealey Avenue, including Carlton Corner, would have a 3am

maximum closing time for a 3 year transitional period (and 1am

thereafter) – as compared to the position under the original PLAP

where there was no transitional period and the 1am time limited

applied immediately.

[32] The reasons for these changes were given in Attachment C to the report

prepared for the Council meeting on 29 September 2016:

The 3 year transitional period before 1am closing is required recognises (sic)

the slower than expected rebuild of the City Centre in Christchurch Central

Area A where it had been anticipated that late night trading would occur. The

transitional period alleviates the impact of the shift to 1am maximum closing

on affected licence holders.

3am closing for a transitional 3 year period recognises evidence that

non-regulatory measures have been effective in reducing certain types of

alcohol related harm experienced by residents living close to Victoria Street.

The 1 hour reduction to the default national maximum trading hours (which

provide for 4am closing) for the 3 year transitional period will prevent the

potential for alcohol related harm caused by on-licence sales after 3am.

1am closing after 3 years will reduce certain types of alcohol related harm

experienced by residents living close to Victoria St, and concentrate

late-night trading within Central Area A which will be more manageable for

enforcement purposes.

After the three year transitional period expires, those wishing to purchase

and consume alcohol in a safe and responsible manner will still have

opportunities for late-night consumption until 3am in Central Area A.

Carlton Corner is functionally part of the Victoria Street Precinct and should

be recognised as such.

[33] On 29 September 2016, the Council resolved to change the 13 elements of

the PLAP it had been asked by the ARLA to reconsider, and the PLAP was

resubmitted to the ARLA on 26 October 2016.

Appeals to the ARLA

[34] Two appeals were filed, one by HNZ and the other by Caliente Kitchens

Limited, Papanui Road Limited and Stealth Hospitality Limited (“Caliente”). The

appeals relate to the on-licence trading hours and other elements of the PLAP

relevant to this judicial review. 15 parties filed interested party notices. HNZ

advised its intention to bring judicial review proceedings on 24 November 2016.

HNZ appeal

[35] The HNZ appeal referred to the grounds of appeal advanced by Caliente.

HNZ appealed against the maximum trading hours for on-licence premises, late

night areas proposed by the Council, and exclusion of Victoria Street from Central

City Area A. Brief reference is required to consider the potential relevance of

Decision 43 in the context of the appeals.

[36] HNZ appealed the PLAP on the following grounds:

(a) The elements of the PLAP appealed against are unreasonable in light

of the object of the Sale and Supply of Alcohol Act 2012 (“SSAA”)

being that:

(i) the sale, supply, and consumption of alcohol should be

undertaken safely and responsibly; and

(ii) the harm caused by the excessive or inappropriate

consumption of alcohol should be minimized.

(b) There is no probative evidence that the sale and supply, and

consumption of alcohol is not being undertaken safely

and responsibly in Christchurch;

(c) There is no probative evidence that harm is being caused by the

excessive or inappropriate consumption of alcohol in Christchurch;

(d) The Council’s reasons for adopting the PLAP are unclear, uncertain

and unreasonable in light of the object of SSAA;

(e) The PLAP does not appropriately respond to the local characteristics

of the alcohol related harm in Christchurch;

(f) The PLAP fails to respond to or recognise Christchurch’s evolving

planning framework, and is inconsistent with the Christchurch

Central Recovery Plan and the Entertainment precincts identified in

the Addendum dated December 2014 to the Central City Plan;

(g) The PLAP is a disproportionate or excessive response to potential

harm in the Central City; and

(h) The PLAP is partial and unequal in terms of its treatment of land in

the Central City.

[37] The notice of appeal then particularises the effect on profitability of the

hospitality industry and negative flow-on effect into the Christchurch economy if

licensing hours are constrained to a 1:00am closing time. The PLAP is said to be

inconsistent in the location of late-night entertainment areas and their proximity to

residential development, given that 940 townhouses will potentially be established in

the Eastern frame central to Christchurch, as close as 20 metres from the late-night

entertainment precinct areas, whereas in other areas of the Central City residential

development is, in most cases, in excess of 50 metres from such areas.

[38] The exclusion of parts of Victoria Street from Christchurch Central Area A is

said to be unreasonable in light of the objects of the SSAA, because it is a

commercial zone in the Central City Plan, and represents a successful and long

established late-night economy that has flourished post-earthquake. A large number

of resource consents for 3:00am and 4:00am trading have been approved in Victoria

Street. The detriment to businesses and the Christchurch economy by revocation of

rights to late-night trading are raised on appeal.

[39] Under “Christchurch Rebuild”, the grounds of appeal record:

8.27 Christchurch has an evolving planning framework and accordingly is

unique to any other environment in New Zealand. The PLAP fails to

recognise this framework and, accordingly, is inconsistent with the

Canterbury Regional Policy Statement, the Proposed Replacement

District Plan, the Christchurch Central Recovery Plan, and in

particular, the Entertainment Precincts identified in the Addendum

dated December 2014.

8.28 Given the evolving planning framework, the Council has not been

able to have regard to the matters set out in section 78 of the Act

because those matters are evolving as Christchurch is being rebuilt.

The inability of the council to have regard to the matters set out in

section 78 means that the PLAP is unreasonable in light of the object

of the Act.

8.29 Significant investment decisions have been made in reliance on the

Christchurch Central Recovery Plan. The PLAP undermines those

investment decisions without providing any alcohol related harm

reduction benefits.

8.30 The differentiation in trading hours between on-licences will create a

clear economic advantage to some on-licence businesses.

Furthermore, a reduction in operating hours will lead to a decrease in

the hospitality industry and will ultimately impact on the

Christchurch economy.

[40] It seems that HNZ at this point treated the CRDP as important but outside the

scope of the District Plan under s 78(2)(a) of the SSAA.

Caliente

[41] The notice of appeal by Caliente states that the amended PLAP is

unreasonable in light of the object of the SSAA. It says that the amended PLAP has

“split” Victoria Street into two parts, and the appeal is brought against the North

Victoria Street maximum 1:00am closing after the first three years of the LAP, with

reference to the High Street Block.

[42] It pleads that it is unreasonable in light of the object of the SSAA to

differentiate between North and South Victoria Streets and other parts of Central

Area A, and that it has been held not necessary to limit on-licences to earlier than a

3:00am closing time for South Victoria Street and other parts of Central Area A in

order to minimise harm. Harm is “something significant” and goes beyond

“amenity” which is addressed under the RMA 1991, and the District Plan adopted

under the RMA.

[43] It asserts a lack of evidence that after three years of a transitional 1:00am

closing time, a 3:00am closing time would cause harm over and above that from

3:00am closing time for South Victoria Street and other parts of Central Area A, and

that fairness and equal treatment is a fundamental requirement of justice.

[44] The Entertainment Precincts and Victoria Street (as a whole), were

considered by the IHP in Decision 43, which made no distinction in objectives and

policies between North and South Victoria Street, and “there is no real distinction

between North and South Victoria Street”. Decision 43 is described with reference

to Objective 15.1.5 and Policy 15.15.2.6.7, discussed in detail in Question (2) of

Part D to this Interim Judgment.

[45] Caliente seeks relief that the ARLA ask the Council to reconsider the

amended PLAP to the extent it limits North Victoria Street to a maximum of 1:00am

closing time after the first three years of the LAP, and includes the High Street

Block, with one exception, within Central Area A.

[46] The notice of appeal asserts that the CRDP process and decisions under it

should be brought to account in the appeal to the ARLA. Hitherto, there had been no

such reference that I can identify.

C CHRISTCHURCH REPLACEMENT DISTRICT PLAN AND

DECISION 43

[47] At the heart of this judicial review is the extent to which, if at all, the LAP

process should have had, and should now have, regard to the CRDP and Decision 43.

[48] HNZ pleads Decision 43 in this way:

A review process to replace the then operative district plan with a

“Replacement Plan” was established under the Canterbury Earthquake

(Christchurch Replacement District Plan) Order 2014 (“OIC”), which was

promulgated under s 71 of the Canterbury Earthquake Recovery Act 2011.

Clause 6 of the OIC, directed the Council to “undertake a full review of the

operative provisions of the existing district plans” and to develop a

replacement plan by preparing and notifying proposals (“Proposals”).

An Independent Hearings Panel (“IHP”) was established to hear and

determine a replacement district plan for Christchurch (“Christchurch

Replacement Plan”).

Clause 12(1) of the OIC directs the IHP to hold a hearing on submissions on

a Proposal and make a decision on a Proposal.

Clause 14(1) of the OIC sets out what the IHP must and may consider in

making its decision on a Proposal.

Clause 5 of the OIC qualifies how the Resource Management Act 1991

(“RMA”) is to apply and modifies some of the RMA’s provisions, both as to

our decision-making criteria and processes.

The Statement of Expectations contained in Schedule 4 of the OIC records,

in respect of objectives and policies:

The expectations of the Minister for Canterbury Earthquake

Recovery and the Minister for the Environment are that the

replacement district plan –

… (b) contains objectives and policies that clearly state the

outcomes that are intended for the Christchurch district.

In its first decision, Decision 1, the IHP found that the evidence satisfied it,

in order to achieve the purpose of the RMA:

(a) The expedited recovery and future enhancement of

Christchurch as a dynamic, prosperous and internationally-

competitive city was the overarching outcome that the

Replacement Plan should serve for the district; and

(b) That outcome objective needed to be accompanied by one

focussed on process efficiency and clarity of language,

framed to reflect what the Statement of Expectations

identifies on these matters.

In a later decision, Decision 43, the Independent Hearing Panel addressed,

among other things:

(a) The extent of the Entertainment Precinct in respect of

Victoria Street, and in particular whether the Entertainment

Precinct should include Carlton Corner.

(b) The objectives and policies that apply to the Entertainment

Precinct and address the “late night” sale of alcohol.

The evolution of Decision 43

[49] Mr Alan Matheson is the Team Leader, District Plan (Planning and Strategic

Transport) at the Council, and has been since November 2012. He described the

history of the District Plan, and the CRDP.

[50] The Christchurch City Plan became operative on 21 November 2005 and the

Banks Peninsula District Plan became operative on 15 October 2012. Review of

both Plans was underway before the Canterbury earthquake sequence which

commenced on 4 September 2010, as the Plans were outdated and needed to be

combined into one Plan. There was no Proposed District Plan for Christchurch City,

so at that time the only District Plans were those operative for Christchurch City and

Banks Peninsula.

[51] The earthquakes meant the District Plan review did not progress to

notification of a Proposed District Plan under the RMA and instead the CRDP was

initiated. This was the governmental response and it required swift and

comprehensive completion. Christchurch was on its knees. A tight timetable was

established so all decisions would be made by April 2016, later extended to

16 December 2016. Three stages to the proposals for the CRDP were established, in

sequence.

[52] The IHP issued decisions on all proposals which made up the CRDP.

Appeals were restricted to questions of law to the High Court. There have been few.

Decision 43 was issued on 20 September 2016, nine days before the Reconsideration

Decision.

[53] Public notice of Decision 43 was given on 27 September 2016 and the appeal

period expired on 26 October 2016, with no appeal lodged. Under clause 15 of the

Order in Council (“OIC”), a proposal is deemed to have been approved by the

Council under clause 17(1) of Schedule 1 of the RMA from the date the appeal

period expired in this case, 26 October 2016. However, under clause 16 of the OIC,

the proposal does not become operative as part of the CRDP until public notice is

given by the Council in accordance with Clause 20 of Schedule 1 of the RMA. The

Council has not yet given public notice, although other decisions of the IHP have

been made operative. Once the proposal is operative, it replaces parts of the

“existing District Plans”, being the Operative Plans as at 7 July 2014.

[54] When the PLAP was reconsidered by the Council on 29 September 2016,

Decision 43 was not, and could not have, been operative because the appeal period

had not expired.

[55] HNZ says Decision 43 makes no distinction between “North” and “South”

Victoria Street, and the only boundary change to the overall precinct was to add in

the Carlton Corner precinct. The IHP decided that there is no reason for different

levels of entertainment and hospitality within the (overall) Victoria Street

Entertainment Precinct, compared to other areas, and precinct rules protect

community amenity. It referred to the significant investment in the Victoria Street

precinct, and expressed concern if that investment was put at risk. Decision 43 states

that there is:3

a strong policy encouragement to the entertainment and hospitality industry

to focus on establishing within the precincts.

3 At [129].

[56] The Decision addresses the relevant objective and policy provisions relating

to entertainment and hospitality in the Commercial Zones. It is concerned with the

following provisions of the CRDP:

15.2.5 Objective – Diversity and distribution of activities in the

Central City

a. A range of commercial, community, cultural,

residential and guest accommodation activities are

supported in the Central City to enhance its viability,

vitality and the efficiency of resources, while

encouraging activities in specific areas by …

iv. Encouraging entertainment and hospitality

activity (including late-night trading) in

defined precincts and managing the extent to

which these activities occur outside the

precincts.

15.2.6.3 Policy – Amenity

a. Promote a high standard of amenity and discourage

activities from establishing where they will have an

adverse effect on the amenity values of the Central

City by…

vi. identifying entertainment and hospitality

precincts and associated noise controls for

these and adjacent areas, and encouraging

such activities to locate in these precincts;

15.2.6.7 Policy – Entertainment and Hospitality Precinct

a. Provide for an entertainment and hospitality

precinct, including late night trading, in the Central

City, by:

i. encouraging entertainment and hospitality

activities to locate within the identified area;

ii. protecting the viability of existing

entertainment and hospitality investment,

particularly that investment which has

occurred in the Central City since the

Canterbury earthquakes;

iii. providing certainty to investors that

residential amenity effects related to late

night trading will be managed by rules

relating to noise and off site effects.

15.2.7.1 Policy – Diversity of activities

a. Enhance and revitalise the Commercial Central City

Mixed Use Zone by enabling…

vii. entertainment and hospitality activities of a

scale, type and duration that do not conflict

with or undermine existing and future

residential activity, not undermine the

identified hospitality and entertainment

precincts.

[57] The IHP made observations and findings:4

There is nothing in the plain wording of the CCRP to suggest there should be

different levels of entertainment and hospitality activities within the

Category 1 and Category 2 zones. The lower level noise simply reflects that

Victoria Street is closer to residential areas than the others. It does not carry

with it, in our view, the presumption that Mr Willis gave it that it must mean

differing activity, ie more for restaurants and cafes and not late night

entertainment.

… we are satisfied the precinct rules brought in by the CCRP amendments

protect community amenity. It also needs to be recognised, however, that

following the earthquake much of the Central City was in no position to

respond to citizens’ hospitality and entertainment needs. Victoria Street did,

to the benefit of the City. They invested significant capital. Mr Osborne

acknowledges that if that investment was at risk, that would be a matter of

concern from an economist’s perspective. CCC and submitters seem to set

this to one side.

…it would be a matter of concern if the existing investment in the

entertainment precincts was at risk.

The evidence we have shows there is a very significant investment in the

Victoria Street precinct which relied on the CCRP and its amendments. It is

also clear that, despite the CCRP, at least those three witnesses managed to

interpret it in a way that is contrary to the plain words. In those

circumstances there is a real risk other planners could do the same.

We see as significant the addition of the words “and encouraging such

activities to locate in these precincts.” As is the ability of allowing PA status

for these activities that meet noise and other relevant standards. Elsewhere

in the Central City a resource consent may need to be sought where more

stringent noise standards apply. We read the additional words as a strong

policy encouragement to the entertainment and hospitality industry to focus

on establishing within the precincts.

4 At [97], [114], [120], [128] and [129].

[58] Mr Thorne, in evidence for the Council, says the objectives and policies

introduced by Decision 43 maintain the approach of ensuring entertainment and

hospitality precincts are not undermined.

[59] Decision 56 is a separate and subsequent Decision of the IHP, which

determined some matters relating to the sale of alcohol. It decided that objectives,

policies and rules should be included to address the sale and/or supply of alcohol in

all zones, with one exception. The sale and/or supply of alcohol between the hours

of 11:00pm and 7:00am from any site located within 75 metres of a Residential Zone

is a restricted discretionary activity, with five exemptions including Victoria Street.

I need only mention this, as it may or may not have bearing on what follows this

Interim Judgment.

D QUESTIONS RAISED ON THIS JUDICIAL REVIEW

[60] The pleading requires answers to the following questions.

Question (1): In making a Reconsideration Decision which comes after a

DLAP, PLAP, and the filing of an appeal to the ARLA, is a

Council required to have regard to a “district plan” (however

defined), or is that obligation spent by that stage?

Question (2): If a Reconsideration Decision requires that the Council have

regard to the District Plan, is that only an operative plan, or

does it expressly or impliedly include a proposed plan, in this

case the CRDP and Decision 43?

Question (3): If the Council was expressly or impliedly required to have

regard to CRDP and Decision 43, was it so unreasonable not

to have regard to it, that it should vitiate the Reconsideration

Decision?

Question (4): Did the Council have regard to the CRDP which includes

Decision 43?

Question (5): Should this Court order relief by requiring the Council to

reconsider given that HNZ has appealed to the ARLA and

seeks the same relief which motivates this judicial review?

[61] The Answers to each question are developed to fit the factual settings, to

which they have application.

Question (1): In making a “Reconsideration Decision” which comes after a

DLAP, PLAP, and the filing of an appeal to the ARLA, is

a Council required to have regard to a “district plan” (however

defined), or is that obligation spent by that stage?

[62] Consideration of the Operative Plan(s) is evident, at least in a referential way,

in the DLAP and PLAP processes. HNZ submits that “reconsideration” is not a

jurisprudential island separated from mainstream considerations which are required

to be brought to account in the decision making for a DLAP and PLAP. In the end it

is for the Council to decide in what way the District Plan should bear on the decision

making if it must have such regard.5

[63] The Supplementary Agenda for the meeting of the Planning Committee on

3 April 2013 included a report on relevant objectives and policies of the two

Operative District Plans. The report by the Chairperson of the Planning Committee,

dated 8 May 2013 recorded the obligation to have regard to such Operative Plan(s),

but goes no further. The Committee’s recommendation was to:

[d]etermine that regard has been given to the matters in s 78(2) of the Act in

preparing the draft LAP, namely: …the objectives and policies of its district

plan.

[64] This has a somewhat hollow ring to it without evidence of the regard that was

had. The law requires sufficient regard that a fully informed decision may be made.

HNZ submits that at a meeting of 16 May 2013, when the 8 May 2013 report and

recommendations were considered, there was no discussion by the Council of s 78(2)

matters, or the objectives and policies of the District Plan. There was reference to

the effects of noise from activities involving the sale of liquor, on the residential

5 Glenharrow Holdings Ltd v Attorney-General [2004] UKPC 42, [2005] 2 NZLR 289 at 304.

neighbourhood, but the objectives and policies of the two Operative Plans did not

provide much policy guidance, and the Operative Plans, HNZ says, were outdated.

[65] The Council says the “District Plan”, however defined, applies only to the

DLAP and PLAP processes and when a PLAP is before the ARLA by way of appeal

the focus narrows to whether an element is unreasonable in light of the object of the

SSAA. Mr McNamara submits that this is a discrete exercise and that the obligation

to have regard to s 78(2) considerations, whatever they are, is spent. By this route,

the Reconsideration Decision, the product of an appeal to the ARLA, does not

require any regard to be had to the District Plan. He says that the substance of a

LAP, and the policies it may include are contained in s 77 SSAA:

77 Contents of policies

(1) A local alcohol policy may include policies on any or all of

the following matters relating to licensing (and no others):

(a) location of licensed premises by reference to broad areas:

(b) location of licensed premises by reference to proximity to

premises of a particular kind or kinds:

(c) location of licensed premises by reference to proximity to

facilities of a particular kind or kinds:

(d) whether further licences (or licences of a particular kind or

kinds) should be issued for premises in the district

concerned, or any stated part of the district:

(e) maximum trading hours:

(f) the issue of licences, or licences of a particular kind or kinds,

subject to discretionary conditions:

(g) one-way door restrictions.

(2) Paragraphs (a) to (d) of subsection (1) do not apply to special

licences, or premises for which a special licence is held or has been

applied for.

(3) A local alcohol policy must not include policies on any matter not

relating to licensing.

[66] The location of licensed premises in “broad areas”, and the maximum trading

hours is pertinent to Victoria Street, and proximity to residential buildings.

Section 75 allows for the application of a LAP to different parts of a district, and

different kinds of licence.

[67] Mr McNamara says the only other relevant provisions concerning the

substance of a LAP are ss 93 and 94:

93 Relationship of local alcohol policies and district plans

(1) A local alcohol policy may contain a policy more restrictive than the

relevant district plan.

(2) A local alcohol policy does not authorise any thing forbidden by the

relevant district plan.

94 Local alcohol policies to be consistent with general law

(1) A local alcohol policy must be consistent with this Act and the

general law.

(2) Subsection (1) is subject to section 93(1).

[68] He submits that ss 78 and 79 ensure that District Plan objectives and policies

are given “genuine consideration when producing a DLAP or PLAP”, but once those

matters are addressed, ss 93 and 94 make it clear that the District Plan does not

further influence the LAP, except to mark the boundary of prohibition of an activity

under the District Plan.

[69] He thus submits that the 13 elements for “reconsideration” had to be

addressed simply in terms of the object of the SSAA, and that HNZ has

mischaracterised the Reconsideration Decision which is governed by ss 83 and 84 of

the SSAA. Section 83(1) provides that the ARLA must dismiss an appeal if it is not

satisfied that it is unreasonable. It must first decide if it is satisfied that it is

unreasonable, and did so here. Mr McNamara submits that HNZ is treating the

reconsideration decision as if it was made under s 84(1)(b), which is the decision to

resubmit the policy to the ARLA with element(s) deleted. He submits no express

considerations apply to that decision, just that those elements be tested against the

object of the SSAA.

[70] Mr McNamara says that s 79 of the SSAA applies when a PLAP is produced,

but the PLAP process ended with its public notice, which is required under s 80:

If, after producing a provisional policy [PLAP] under section 79, a territorial

authority continues to wish to have a local alcohol policy, it must then give

public notice…

[71] There is said to be a policy-making phase which runs through to the

production of the PLAP, then an appeals phase when the focus is on the substance of

the appealed elements measured against the object of the SSAA. Parliament is

submitted to have turned its mind to when s 78(2) elements must be considered, and

there is no sound basis to imply the same obligation during the appeal phase. The

process under s 84 may address new or amended elements, but it is not a “general

reconsideration ab initio” of the PLAP, or an element of that.

[72] Mr McNamara says that the process involves “progressively narrowing and

resolving elements which are in dispute”, and not a “broadening out” to encompass

consideration of material which had to be considered earlier in the process. He says

it is not odd that there is no specific requirement as to how the Council should

reconsider elements of the PLAP, because the information base is set by s 78(2) to

produce what he calls a “robust document”. To specify mandatory relevant

considerations again would serve no useful purpose and would replicate policy level

input at “early stage” development of the DLAP, then the PLAP. Reconsideration

is submitted to be more “fact dependent” and centres on the ARLA’s reasons why it

is satisfied that an element of a PLAP is unreasonable for reconsideration.

Mr McNamara says that if HNZ is right, then on reconsideration all the matters in

s 78(2) would have to be looked at. That would require, in effect, a re-gathering of

information, and anything new or different in the District Plan may affect

reconsideration, and go beyond what the ARLA is concerned about on appeal.

[73] HNZ’s response, through Mr Gardner-Hopkins, is that it is obvious that

something said to be “unreasonable” on appeal to the ARLA may be so because of

the objectives and policies of a District Plan. He submits that the District Plan must

always be had in mind and a reconsidered PLAP is still a PLAP, and requires

reference to s 78(2) considerations where they are relevant. Their relevance may be

found in the thread of the process from the outset of the DLAP. It may have arisen

during the LAP process, with a new Operative Plan. It does not lose its relevance by

the time of an appeal, but it may not be a focus on appeal. After all, the object of the

SSAA is fundamental from the outset, through all stages of development of a LAP

and there are many considerations which must be at least considered.

Analysis

[74] Question (1) is directed to an Operative District Plan and at what stage it

must be brought to account. I consider it is clear that if the District Plan must be

brought to account in the development of the DLAP, then it is obvious that it may

reflect in the DLAP, and the PLAP in some way and thus in any appeal

reconsideration. It may or may not, in different degrees, case by case, but regard

must be had to it, for its objectives and policies.

[75] Even without a new Operative District Plan, in whole or in part, if the

objectives and policies of the District Plan are relevant to the DLAP, the PLAP and

whether an element is unreasonable, then they will remain so. Testing the

reasonableness of an element against the objectives and policies of the District Plan

will remain relevant throughout the whole LAP process. An appeal may include a

consideration which has been embedded in the process from the DLAP onwards.

The objectives and policies of an Operative District Plan may increase or diminish in

importance over time as the lens becomes more focused on competing

considerations, and other s 78(2) considerations may have different import too, but

they are not spent.

[76] Further, the SSAA cannot be interpreted to set in concrete the factual and

legal setting when a DLAP process is initiated through to the point where the ARLA

is involved, and sends a PLAP back for reconsideration, or hears an appeal.

Otherwise history will enshrine the answer, or at least the field for consideration.

If a new Operative District Plan comes into force, in whole or in part, that must have

reference in the LAP process, at whatever stage, or the eventual outcome would be

based on obsolete foundations.

[77] In this case, the Operative District Plan had not changed by the time of the

Reconsideration Decision, but if its objectives and policies are relevant to

reasonableness given the object of the SSAA, they remain so. They are not for

ab initio reconsideration along with other s 78(2) elements. Their relevance depends

on the competing contentions as to reasonableness in light of the object of the SSAA

as the process develops.

Answer to Question (1)

[78] On appeal to the ARLA, and on reconsideration as part of that process, the

objectives and policies of an Operative District Plan are matters to which the Council

must have regard. The objectives and policies of the Operative District Plan are not

set in concrete. For example, if there is a new Operative Plan in whole or in part,

regard must be had to that. It cannot be the case that a once Operative Plan which is

no longer operative should hang ghost-like over the appeal and reconsideration

process. If Decision 43 and the CRDP become operative then they must be had

regard to, to the extent they are relevant to meeting the object of the SSAA.

[79] Otherwise, once the objectives and policies in the District Plan have been had

regard to, and been reflected in the DLAP and PLAP development, then they must be

brought to account in the Reconsideration Decision and on appeal to the extent that

they bear on the issues which are in contest, having regard to the object of the SSAA.

[80] The Council on reconsideration did not have to revisit the objectives and

policies of the Operative District Plan ab initio, but rather have regard to them, to

consider the extent to which they were relevant to the grounds of appeal and the

reasons some element(s) of the PLAP were sent back for reconsideration. This

answer is not at the date of this Interim Judgment determinative of this judicial

review but is consistent with the Answers which follow, that the LAP process at all

stages must reflect consideration of relevant objectives and policies as they evolve.

Question (2): If a Reconsideration Decision requires that the Council have

regard to the District Plan, is that only an operative plan, or

does it expressly or impliedly include a proposed plan, in this

case the CRDP and Decision 43?

HNZ submissions

[81] “District Plan” is not further defined in the SSAA, but the RMA defines it as

“an operative plan”. HNZ says that Parliament has chosen not to further define it in

the licensing context, and expressly or by implication the “District Plan” must

include Decision 43 as part of the CRDP, or that it was otherwise unreasonable not to

have regard to it (Question (4)), as it is a decision reached by the IHP on the CRDP

and directly relevant to Victoria Street licensing.

[82] The meaning of “District Plan” is drawn from the text and the purpose of the

legislation. Mr Gardner-Hopkins submits that the purpose of s 78(2), in requiring

regard to be had to the objectives and policies of the District Plan, is instructive in

the interpretation exercise.

[83] A LAP and a District Plan (whatever “District Plan” means), combine in the

control or influence each can and may bring to the location, hours of operation and

other conditions which apply to licensed premises. Different perspectives can be

identified in the two legislative schemes. The SSAA is focused on the responsible

sale of alcohol and minimisation of harm, and the RMA is focused on “wider

amenity” issues, which include the same considerations of responsibility, and harm.

Mr Gardner-Hopkins submits the two regimes do not stand in isolation one from the

other, which is obvious as the Council is required to at least have regard to the

objectives and policies of the District Plan, while in a resource management context,

the Council may consider “any other matter”, which could, for example, include

a LAP under s 104(1)(c) RMA.

[84] Mr Gardner-Hopkins says the reference to the District Plan in s 78(2) is to

ensure consistency in decision making which submission in itself must be correct,

but in my view reflects the complementary roles of the two statutory processes in

shaping and determining licensing outcomes. While the RMA function will be

concerned with planning outcomes, and may address licensing issues such as the

location of licensed premises and their operation, the LAP function of the consent

authority is to develop policies which are directed specifically to alcohol provision

and consumption. Each regime will have regard to the effects of activities, having

regard to the purposes of their parent legislation.

[85] Mr Gardner-Hopkins submits that it is illogical that regard must be had only

to an Operative District Plan. Under Question (1), I held that it must be had regard to

at all stages of the LAP development, including appeal, where it is relevant to any

element for decision.

[86] The often protracted RMA process sees new Plans emerging, sometimes in

parts, and there are changes and variations to Plans over years. A Plan may be

renewed in part, or in whole, every 10 years. Legal processes can add many years.

Mr Gardner-Hopkins puts it this way. If there is no regard had to the objectives and

policies of a proposed plan that would mean having regard only to a “current” or

operative plan, and that would be illogical as a highly developed proposed plan,

lacking only the formality of being made operative, would not be brought to account.

Planning policy evolves, and here the Canterbury earthquakes dictated a policy

response. Thus, Mr Gardner-Hopkins says the Operative Plan might well have

included, and indeed now will, include the CRDP and Decision 43 as they are clearly

relevant to the Council’s decision making. The CRDP was so far developed, and

directly by Decision 43 addressed Victoria Street licensing issues, after full

consideration by a highly experienced Panel.

[87] If the reference in the SSAA to a “District Plan” is only to an Operative Plan,

then mandatory consideration of Decision 43 is otherwise submitted to arise through

implication, based on the proposition enunciated by Lord Greene MR in Associated

Provincial Picture Houses Ltd v Wednesbury Corporation:6

The exercise of such a discretion must be a real exercise of the discretion. If,

in the statute conferring the discretion, there is to be found, expressly or by

implication, matters to which the authority exercising the discretion ought to

have regard, then, in exercising the discretion they must have regard to those

matters.

6 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) 2 All ER 680 (CA)

at 682.

[88] The latest iteration of the District Plan, as expressed by Decision 43 is

something that HNZ says logically had to be considered by the Council in the

reconsideration decision just as it would on appeal because of the combined effect

of the different statutory schemes. A District Plan and its development may have

status in different ways under the RMA. The stage of development of a Plan

influences its status and weight for RMA purposes. For example, s 104(1)(b)(vi) of

the RMA provides that when a consent authority considers an application for

resource consent it must “have regard to” a plan or proposed plan. The relevance

and importance of a Proposed Plan in an RMA context will depend on the extent to

which it has proceeded through the objection and appeal process,7 and will be

determined on a case by case basis. That will include the extent to which the

proposed measure has been exposed to testing and independent decision making,

circumstances of injustice, and the extent to which a new measure, or the absence of

one, might implement a coherent pattern of objectives and policies in the Plan. An

example given by the authors of Brookers Resource Management, is that of Mapara

Valley Preservation Society Inc v Taupo DC,8 where the Court placed substantial

weight on recently notified plan changes relating to growth management and rural

land use.9

[89] While a proposed plan may influence an RMA outcome, Mr McNamara says

it cannot influence an outcome under the SSAA. The idea that proposed provisions

of a District Plan are relevant in the licensing context is submitted illogical, because

it would not reflect in any certainty about the Plan, and a proposed plan may not

survive an appeal. The wording of the SSAA is clear, and Mr McNamara submits a

District Plan refers to an Operative District Plan, as anything short of that is not a

District Plan as it is still uncertain and does not replace the Operative Plan.

[90] Mr McNamara says that there may be consideration of a proposed plan, but

that does not mean it must be considered, and there can be no implication when the

District Plan is the Operative Plan.

7 Keystone Ridge Ltd v Auckland City Council HC Auckland AP24/01, 3 April 2001.

8 Mapara Valley Preservation Society Inc v Taupo DC EnvC Auckland A083/07, 1 October 2007.

9 Brookers Resource Management (online looseleaf ed, Brookers) at [A104-09].

Analysis

[91] In this case, some HNZ members have interests in North Victoria Street.

HNZ says the CRDP provides strong policy support for hospitality operators in the

Victoria Street precinct or area as a whole, and does not differentiate between

“North” and “South”, whereas the revised PLAP adopted in the reconsideration

decision differentiates and disadvantages licensed premises in North Victoria Street.

[92] The answer to Question (1) assists analysis of Question (2). I have held that

an Operative Plan may change in the LAP process and that means its objectives and

policies must be considered, whatever stage the process has reached. It is still,

however, an Operative Plan. The prohibitive provisions of s 93(2) of the SSAA,

whereby a LAP yields to a District Plan, must refer to an Operative Plan as there can

be no prohibition by something which is not of full effect.

[93] It would be curious if Decision 43 did not have to be brought to account in

the Reconsideration Decision but had to be on appeal because in the interim it had

become operative. The answer in my view, turns on whether a proposed plan which

has potential relevance to a LAP should logically be brought to account at any stage

of the process, from its inception. That requires a purposive inquiry into what

Parliament intended by reference to the “District Plan”, without more, unlike the

RMA which defines it.

[94] I interpret the District Plan in the SSAA as including the Operative District

Plan and a Proposed Plan, reminding myself that it is only for the purpose of having

regard. Only by addressing the full planning context can the Council, involved in

both planning and licensing processes, have all the information it needs before it.

To interpret “District Plan” more restrictively seems to me to build in obsolescence,

to ignore vital and responsive proposed plans and Decisions of territorial authorities,

and here the IHP.

[95] Whether that interpretation is right or not, this seems to me a case when it

must be implied, that there should be regard had to the CRDP and Decision 43.

Decision 43 was a fully reasoned decision at the time of consideration and was

destined to become operative, bar appeal. The appeal period has passed, although the

decision has not yet been made operative. It is clearly relevant to the question

whether the PLAP is reasonable having regard to the object of the SSAA. It is still at

Interim Judgment “proposed”, but the time for appeal has long passed, and by

21 June 2017 it will be operative if there is no appeal against another part of the

Proposed Plan.

[96] Decision 43 recognises the provision of the licensed amenity, and the concern

for other amenities, in particular residential. It is the product of consideration by the

IHP of the reasons for a distinction in the licensing hours for different parts of

Victoria Street, and puts those in the context of other licensing provisions in the

Central City. It is manifestly something to which regard should at least be had in the

development of the LAP. Whether by express reference or by implication, it should

have been brought to account as it was the up-to-date, likely outcome of a relevant

part of the CRDP, now enhanced by the fact it was not taken on appeal, and will at

some point become operative. It is a lucid, reasoned consideration of objectives,

policies, amenities and effects with direct application to Victoria Street, and the

matters to be considered on appeal to the ARLA under the object of the SSAA.

[97] It cannot be the intention of Parliament that something so relevant and

reasoned should be brought to account simply and only by incident of timing as to

when a proposed plan becomes operative.

Answer to Question (2)

[98] The Answers are:

(1) The term “District Plan” in the SSAA interpreted expressly or by

implication includes a proposed Plan.

(2) The Council should have had regard to the CRDP and Decision 43 as

would the ARLA on appeal.

(3) Decision 43 will be, or will soon be, operative and that would negate

any residual argument whether it should be had regard to.

Question (3): If the Council was not expressly or impliedly required to have

regard to CRDP and Decision 43, was it so unreasonable not to

have regard to it, that it should vitiate the Reconsideration

Decision?

Analysis

[99] This question reflects the second alternative cause of action.

Mr Gardner-Hopkins refers to the four year process of advancing the LAP to this

point, that the Operative Plans were out of date at the start of the process, with

limited policy guidance in respect of licensed premises, and that “a new stronger and

more detailed policy framework” was notified and strengthened by the IHP decision.

Answer to Question (3)

[100] The test of unreasonableness or “absurdity” as Mr Gardner-Hopkins puts it,

in my view essentially duplicates the argument for the implication of the need for

mandatory consideration of the CRDP and Decision 43. It adds nothing. In my

view, it would have been unreasonable if CRDP and Decision 43 were not brought to

account. They have been held to be express or implied relevant mandatory

considerations.

Question (4): Did the Council have regard to the CRDP which includes

Decision 43?

[101] Mr Gardiner-Hopkins says the evidence is clear that no regard was had.

I agree, but for completeness address the Council’s argument.

[102] Mr McNamara says there is some indication that Decision 43 may have been

considered in the Reconsideration Decision. An officers’ memorandum of

27 September 2016 was given to the District Plan Sub-Committee on

28 September 2016, for consideration at its meeting on 29 September 2016, which

was held immediately after the Council had made its Reconsideration Decision that

day.

[103] Some Council members who made the Reconsideration Decision were not

members of the District Plan Sub-Committee. The officers’ memorandum was

therefore “in the wind”, putting it neutrally, but Mr McNamara submits it was

known, or should have been known to some of the Council through membership of

the District Plan Sub-Committee, and therefore implicitly was regarded by those

Councillors (“a clear majority of Council”) who had been briefed the day before.

[104] The memorandum given to the District Plan Sub-Committee discusses

Decision 43, and is instructive, as while addressed in the planning contest, there is

a clear overlap with licensing considerations.

4. Entertainment and Hospitality Precincts and late Night Sale

of Alcohol

4.1 The Panel decision supported inclusion of the Entertainment and

Hospitality Precincts introduced by the CCRP and signalled that it

will likely support the noise and sale of alcohol provisions proposed

by the Council in its forthcoming decision on Chapter 6 General

Rules, generally as proposed by Council officers.

4.2 However, the Panel also included an additional policy (referred to as

the "Investment Protection Policy") which was proposed in closing

legal submissions by Pacific Park Ltd. The policy reads as follows:

Policy 15. 1. 6. 7 - Entertainment and Hospitality Precinct

Provide for an entertainment and hospitality precinct, including late

night trading, in the Central City, by:

i) encouraging entertainment and hospitality activities to locate

within the identified area;

ii) protecting the viability of existing entertainment and

hospitality investment, particularly that investment which

has occurred in the Central City since the Canterbury

earthquakes;

iii) providing certainty to investors that residential amenity

effects related to late night trading will be managed by rules

relating to noise and off site effects.

4.3 Council officers and evidence of the Crown opposed this policy in

both the Central City and General Rules hearings on the grounds

that:

a. there is already sufficient objective and policy support in the

Plan recognising the importance of investment to the

recovery and the desirability of encouraging late night

activities to locate in identified precincts;

b. it is not appropriate for the Panel to single out a particular

industry for protecting investment, even within the precincts.

The policy could be interpreted as discouraging activities

other than entertainment and hospitality activities in the

precincts;

c. there is no evidential basis for preferring existing activities

in the precincts to potential future activities and there is an

insufficient evidential basis for a policy that would

discourage the location of late night activities in any other

location in the District; and

d. residential amenity effects are managed for a range of

reasons, not only to provide certainty to investors.

4.4. Officers have instructed Legal Counsel to prepare a legal opinion on

potential grounds for appeal in respect of this policy and any

implications that this decision may have for the Local Alcohol

Policy appeals process. That opinion will be provided to the Council

as soon as possible, noting that the deadline for appeals on the

decision is the 26th of October.

[105] The existence of the memorandum does not mean that the Council (being the

Reconsideration Councillors) had regard to Decision 43. Only some Councillors had

it and was made available only one day before the Reconsideration Decision and it

was produced for a different purpose. It is not shown on the record as being drawn

to the attention of all the Councillors, for the Reconsideration Decision.

[106] Mr Gardner-Hopkins says that the “oblique reference to ‘implications’ for the

LAP process is not enough”. He submits that if Decision 43 had to be considered,

then the Council must be sufficiently informed about it, so it could have “proper

regard”. The Council officers’ knowledge or even consideration of Decision 43 takes

the matter no further, as there is no evidence that they considered Decision 43 to be

relevant to the Council’s Reconsideration Decision. It is not the knowledge and

regard of the Council officers which is in issue, but those who made the

Reconsideration Decision.

[107] In any event, HNZ says that the Reconsideration Decision did not have such

regard, as the reconsideration report of 29 September 2016 to the Council

Sub-Committee made no reference to any of the considerations required under

s 78(2). He submits that the reasons given by the Sub-Committee for changes to

the PLAP make no reference to the objectives and policies of the District Plan, the

CRDP, or Decision 43. Mr Gardner-Hopkins says the SSAA’s reference to the

District Plan should be interpreted on this judicial review to recognise the focus on

enabling entertainment and hospitality activities, including late-night sale of alcohol

from on-licences within specific precincts, and constraining them outside their

boundaries.

Analysis

[108] The Court cannot speculate that a report which was “in the hands” of some

Councillors for another (planning) purpose was considered by them and drawn to the

attention of other Councillors for another purpose. That is a stretch too far. Even

those members of the planning Sub-Committee who had the report on Decision 43

cannot be taken to have brought it to account, although that is a possibility.

All Councillors would have had to have been aware of Decision 43, and understood

it, and had regard to it in the context of reconsideration. The ARLA made no

reference to the CRDP when it sent the PLAP back for reconsiderations.

Answer to Question (4)

[109] The Council did not in the Reconsideration Decision, as a matter of fact and

law, have regard to the CRDP which includes Decision 43.

Question (5): Should this Court order relief by requiring the Council to

reconsider given that HNZ has appealed to the ARLA and

seeks the same relief which motivates this judicial review?

[110] HNZ does not say that there is an obligation to apply the “District Plan”

when it produces a LAP, PLAP, and when it reconsiders an element of a PLAP.

Instead, it says that the discretion of the Council is not unfettered, and it must have

regard to the objectives and policies of the District Plan, for each of those steps, as

they are mandatory relevant considerations, express or implied as the Answer to

Question (5) provides.

[111] Mr Gardner-Hopkins submits that the CRDP and Decision 43 make no

distinction between North and South Victoria Street licensed activity, and that a

different Reconsideration Decision cannot be discounted. The rationale for sending

something back to the decision maker is for reconsideration on the correct legal

basis, which will recalibrate the decision maker’s reasoning. Mr Gardner-Hopkins

rightly points out that there is a strong presumption in favour of such relief if an

error is made out, which can only be rebutted if there are strong reasons to decline

that relief.10

[112] The Council says that if the Reconsideration Decision was in error in failing

to have regard to the CRDP, including Decision 43, then no relief should be granted,

as an error must be material, and here it is not because it can otherwise be rectified

on the appeal to the ARLA.

[113] The relief sought by HNZ is that North and South Victoria Street be treated in

the same way in the LAP. Mr McNamara submits that does not truly reflect an

attempt by HNZ to “clarify the extent of a Council’s obligations to have regard to the

objectives and policies of both an operative and any proposed plan in the LAP

process” (HNZ submission). However, while this judicial review goes to licensing

in a particular area, it does have wider ramifications.

No amendment to the PLAP by this Court

[114] If the Council erred in a way which warrants relief being ordered, then

Mr McNamara submits that should extend only to order reconsideration of the

relevant elements of the PLAP, rather than the Court amending the PLAP as

requested in paragraph 69(d) of the statement of claim.

(d) In the alternative to (c), an order replacing the amended PLAP with a

version that includes North Victoria Street and Carlton Corner within

Central Area A, and does not include the Victoria Street Split or

3-year cut off.

[115] That outcome is not tenable. The disputed elements of the PLAP are not for

this Court, unless the outcome of the process is certain, and to avoid unnecessary

time and cost impost. That is far from the case.

10

Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]; GXL

Royalties Ltd v Minister of Energy [2010] NZCA 185, {2010] NZAR 518 at [67]; Rees v Firth

[2011] NZCA 668 [2012] 1 NZLR 408 at [48]; Te Runanga-Ā-Iwi O Ngati Kahu v Far North

District Council (2011) 16 ELRNZ 708 (HC), 29 September 2011, at [124]; Wool Board

Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA, [2011] 2 NZLR 442, 513 at [141].

Does the impending appeal to the ARLA make a remedy unnecessary?

[116] The ARLA will focus on the object of the SSAA and as a specialist tribunal

may consider any matter which the Council should have considered in the test of

reasonableness. It has the powers of a Commission of Inquiry which include

summary of witnesses and requiring documentation for its consideration. This

would include the CRDP and Decision 43, whether Proposed or Operative.

[117] The Council through Mr McNamara says judicial review and the outcome

sought are unnecessary, and should not jeopardise or delay the appeal. If the Council

has made an error, Mr McNamara says it can and will be cured on appeal. The

“reasonableness” of the PLAP elements include the reasons for the differentiation

between North and South Victoria Streets and they are squarely before the ARLA.

The Council submits that HNZ is simply trying to delay the beginning and end of the

three year transitional period for on-licence trading hours in North Victoria Street,

with potential for a revived process, leading to another appeal to the ARLA.

[118] HNZ rejects the submission that its concerns can be addressed on the appeal

before the ARLA. HNZ says it does not by this review seek delay, to give it the

benefit of the current closing hours for a longer period. Mr Gardner-Hopkins submits

that the reconsideration decision, if made in error, significantly affects HNZ, and has

forced HNZ to appeal to the Authority. It considers it has the burden of proving the

elements of the PLAP are unreasonable in light of the object of the SSAA. If the

Council had approached the matter “properly”, then the position may have been

reversed, so that HNZ would be defending a PLAP, with the onus on others to show

the provision which made no closing hours differentiation is unreasonable. The

appeal to the ARLA is not a rehearing. Section 83(1) of the SSAA is expressed

negatively, that the ARLA “must dismiss an appeal” unless it is satisfied that an

element of the decision is unreasonable.

Analysis

[119] Neither the Council nor the ARLA can resist the tide of relevant resource

management outcomes so as to lock the LAP process into an operative planning

regime, here substantially out of date. A new operative provision, and the

imminence or potential imminence of highly developed planning decisions becoming

operative, without question bear on the development of a LAP, from inception of the

process. The law is forever developing and responding to events, changes in social

thinking, and reasoned decisions which reflect these developments.

[120] This Interim Judgment is not concerned with the position prior to

Decision 43, which would reflect on the CRDP in its proposed form, although the

principles behind this Interim Judgment would have application. However, by

the time of the Reconsideration Decision, Decision 43 was subject only to appeal to

the High Court on a question of law and was an up to the minute result of a reasoned

quasi judicial process, by an expert panel. A different decision may be reached by

the Council and/or the ARLA once regard has been had to the CRDP and Decision

43, and now it knows that they will become operative, removing any doubt in that

regard.

[121] The sequence of events to date is relevant. The ARLA responded to the

Council’s request that it be required to reconsider 13 elements of the PLAP because

it thought those unreasonable in light of the object of the SSAA, after mediation and

negotiation. The ARLA agreed, which meant that in principle it was satisfied that

those elements were unreasonable – s 83(2) of the SSAA. The Council then

reconsidered in light of that request, which it had induced, and incorporated elements

in the PLAP against which Caliente and HNZ have now appealed. This process did

not include any regard to the CRDP and Decision 43, and they have not featured in

the development of the LAP.

[122] Once the CRDP and Decision 43 have been had regard to under s 83(1) of the

SSAA, the ARLA must dismiss an appeal against an element of the PLAP if it “is not

satisfied that the element is unreasonable in the light of the object of this Act; …”.

If so, it must ask the Council to reconsider those element(s). The wording in s 83(1)

suggests the presumptive correctness of the PLAP, given the double negative “is not

satisfied that the element is unreasonable…”. The ARLA must inevitably decide

whether an element is reasonable by this route.

[123] I do not consider that an appeal would cure the flawed process. The ARLA

would know that Decision 43 and CRDP were not brought to account when the

Council made its Reconsideration Decision, and by this Interim Judgment that they

should have been. It would look at the Reconsideration Decision and the PLAP in

that light and in light of this Interim Judgment, whether or not Decision 43 is

operative by the time of appeal. However, it would thus vault over the evolutionary

development of a LAP and be compelled to address the appeal de novo, which is not

what the SSAA provides.

[124] The former course is set by the correct process of reconsideration. If HNZ

does not get the result it wants on reconsideration, a fresh appeal process is

available. If HNZ is successful in the Reconsideration Decision, the appeal process

will be available for other parties whose interests are preserved by s 81(1) of the

SSAA, if they made submissions on the DLAP. I cannot anticipate the outcome of

reconsideration by the Council. It has the lead role in the long development phase

of the PLAP. It administers the District Plan. It was I think caught out by the timing

of Decision 43 and the Reconsideration Decision. It is not difficult for it to

reconsider having regard to Decision 43 and the CRDP and it must now do so.

A quite different result may follow but whether that is the case or not, an error of the

kind found to exist here should be corrected to reach a decision as the law requires,

and to reset any appellate process.

Relief

[125] The Judicial Review Procedure Act 2016 re-enacts Part 1 of the Judicature

Amendment Act 1972, and sets out procedural provisions for a judicial review

associated with the exercise of a statutory power. It does not alter the interpretation

or effect of those provisions as they appear in the Judicature Amendment Act 1972.11

[126] Section 16 provides:

16 Relief that court may grant

(1) The High Court may, by order, grant an applicant any relief that the

applicant would be entitled to in proceedings for—

11

Section 3(2) Judicial Review Procedure Act 2016.

(a) a writ or an order of, or in the nature of,—

(i) mandamus; or

(ii) prohibition; or

(iii) certiorari; or

(b) a declaration or an injunction.

(2) If an applicant is entitled to an order declaring that a decision made

in the exercise of a statutory power of decision is unauthorised or

otherwise invalid, the court may, instead of making that order, set

aside the decision.

(3) This section applies even if—

(a) the applicant has a right of appeal in relation to the subject

matter of the application:

(b) the person who has exercised, or is proposing to exercise, a

statutory power to which the application relates was not

under any duty to act judicially.

[127] In addition to any relief that may be granted under s 16 of the Act, a court

may direct any person whose act or omission is the subject matter of the application

to reconsider and determine the whole or any part of the matter to which the

application relates. This applies generally, or in respect of any specified matters.12

There must be reasons given for such direction, and such directions as appropriate

for the purpose of reconsideration.13

Any reconsideration must have regard to the

Court’s reasons for giving that direction, and the Court’s directions.14

[128] Pursuant to s 17(6), if a matter is referred back under s 17(3), then the act or

omission that is to be reconsidered continues to have effect, but subject to any

interim order, unless and until it is revoked or amended by that person. That

I consider requires a stay of the appeals before the ARLA until it, or this Court,

further directs. Interim orders may be made pursuant to s 15.

[129] I have regard to these provisions and make provisional orders and directions

pending further submissions by the parties to make this Interim Judgment final in its

12

Section 17(3). 13

Section 17(4). 14

Section 17(6).

effect. My concern about a declaration of invalidity is that it would extend beyond

the elements under review, so I reserve that issue.

E DISPOSITION

(1) Those parts of the Reconsideration Decision of the Christchurch City

Council of 29 September 2016 which this Interim Judgment holds should

have had regard to the objectives and policies of the Christchurch

Replacement District Plan, and Decision 43, are set aside. These include

the exclusion of Victoria Street from Central Area A, and the different

treatment of North and South Victoria Streets. This may require further

definition by the Court.

(2) The Council is directed to address the Reconsideration Decision afresh, to

the extent of Order 1 above, this time having regard to the objectives and

policies of the Christchurch Replacement District Plan and Decision 43,

whether operative, or proposed.

(3) It is for the Council to determine the relevance and weight of Decision 43

and the CRDP in the Reconsideration Decision directed.

(4) The appeal before the ARLA is in the interim stayed pending further

order of this Court.

(5) Leave is reserved for applications for further directions and orders as

necessary to implement this Interim Judgment.

(6) Costs are reserved.

……………………………………

Nicholas Davidson J Solicitors: Berry & Co, Oamaru Simpson Grierson, Auckland Copy to counsel:

J D K Gardner-Hopkins, Barrister, Wellington