BEFORE THE TASMAN DISTRICT COUNCIL
IN THE MATTER of clause 21 of the First Schedule to the Resource Management Act 1991
AND
IN THE MATTER of a private plan change request by Foodstuffs South Island Properties Limited to the Tasman Resource Management Plan:
Three Brothers Corner Commercial Zone, Richmond (PC49)
SUPPLEMENTARY SUBMISSIONS ON BEHALF OF FOODSTUFFS (SOUTH ISLAND) PROPERTIES LIMITED
(INTERIM RESPONSE)
_____________________________________________________________
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ANDERSON LLOYD LAWYERS
CHRISTCHURCH Solicitor: J M Crawford
18a Birmingham Drive, Middleton,
PO Box 13831,
CHRISTCHURCH 8141 Tel 03 379 0037
Fax 03 379 0039
1. INTRODUCTION
1.1 In accordance with Commissioner Minute 3 dated 5 November 2013, the Requestor provides the following interim response as directed by paragraphs 3 and 11 of the Minute.
Elevations
1.2 Enclosed with these supplementary legal submissions is a further electronic copy of the east/west elevations of the indicative supermarket as viewed from the direction of Waimea Village (Minute 3, paragraph 3a.). It is noted that a hard copy was formally produced by Mr McCoy and explained as part of his evidence that was delivered orally at the conclusion of Day 2 of the hearing.
Milne addendum
1.3 Also enclosed is an addendum from Mr Milne that includes a revised effects assessment of the proposal based on the permitted rule framework for a 'worst case but realistic' development that could in theory be derived from the proposed permitted/controlled rule framework (being 4000m2 supermarket at grade and 750m2 other retail1). This is accompanied by an annotated structure plan showing both scenarios overlaid, the first (solid line) being the indicative supermarket and ancillary retail location for which consent will be sought and the second (dashed line) being the theoretical alternative.
This responds to paragraph 3b. of Minute 3.
1.4 The theoretical alternative has been carefully considered by the Requestor's experts to ensure that it is in fact realistic and does not trigger non-compliances of the site coverage, access, setback and landscaping requirements proposed by PC49 as well as the minimum car parking requirements of the TRMP. While this theoretical alternative is clearly not what the Applicant will be developing on site, it does provide a useful 'health check' against the appropriateness of the PC49 rules framework.
1.5 In my submission, the evidence demonstrates that amenity-related effects have been thoroughly assessed and ought to satisfy you that
1 At the conclusion of Day 2 of the hearing, it was formally confirmed on behalf of the Requestor that the provision for ancillary retail is to be reduced to 400m2. For the purposes of this analysis, a complying 750m2 retail area is shown on plan – obviously the reduction to 400m2 will further reduce potential effects.
See also second Joint Statement filed by the two expert economists which conclusively resolves this issue.
the potential effects of any complying development enabled by PC46 can be adequately controlled. This is addressed more fully in the addendum by Mr Milne which should be read in conjunction with the evidence previously filed by the Requestor's experts.
1.6 As mentioned orally at the conclusion of Day 2 of the hearing, the Applicant has gone much further than would normally be expected for a rezoning and provided detail of the intended development that is likely to occur following the site being rezoned. The rules package is intended, in essence, to facilitate the establishment of a supermarket and secondary retail. You have the advantage of an applicant with a clear development plan that you acknowledge provide a useful indication. It is relevant and can be taken into account.
1.7 It is appreciated that you need to test the reliability of the rules – not just what is enabled, but also what is precluded – and it is anticipated that this will also be clarified further with a refinement of the rules package prepared in accordance with the directions contained in Minute 3.
Trade competition
1.8 The panel has also asked for further information in respect of the trade competition provisions of the RMA that are relevant to your deliberations (Minute 3, paragraph 3c.).
1.9 Part 11A of the Resource Management Act 1991 (RMA) applies to trade competitors. It states that the RMA must not be used to oppose trade competitors.
1.10 This confirms the previous statutory position that trade competition effects must be disregarded. The terms "trade competitor" and "trade competition" are not defined by statute and have been variously defined in case law. Accordingly, it is appropriate to take a purposive interpretation of the statute and consider the mischief that Parliament intended to address.
1.11 Parliament has been prescriptive in stating that a consent authority must not have regard to trade competition or the effects of trade competition in preparing or changing district plans (s74(3)).
1.12 As signalled orally during the opening of the Applicant's case, clause 29(1B) of the First Schedule to the RMA applies to a private plan change request) and it provides that:
A trade competitor of the person who made the request may make a submission only if directly affected by an effect of the plan or change that- (a) Adversely affects the environment; and
(b) Does not relate to trade competition or the effects of trade competition.
1.13 Section 308B of the RMA limits the ability of a trade competitor to make a submission in the following way:
(1) Sub-section (2) applies when Person A wants to make a submission under section 96 about an application by Person B.
(2) Person A may make a submission only if directly affected by an effect of the activity to which the application relates, that -
(a) Adversely affects the environment; and
(b) Does not relate to trade competition or the effects of trade competition.
1.14 Persons A and B are defined in s308A. Part 11A also applies to
"surrogates" (defined as Person C), who essentially act as a front to litigation assisted behind the scenes by third party trade competitors.
This was previously covered by the torts of champerty and maintenance, now effectively subsumed into statute through Part 11A of the RMA.
1.15 The RMA also contains extremely punitive provisions that allow for full indemnity costs to be awarded against parties who breach Part 11A of the RMA. Sections 308G provides that proceedings may be brought in the Environment Court for a declaration that either Person A or C (as the case may be) has contravened Part 11A, aided or abetted a contravention, conspired with any other person or was in any other way knowingly concerned in the contravention of any of the provisions of the RMA. Such action may be taken at any time during the RMA process, provided that proceedings are commenced within six years after the contravention.
1.16 Recent experience has shown that this sometimes leads to opponents devising sophisticated planning arguments or establishing complex corporate structures to disguise their anti-competitive motives, but this usually fails to provide the level of protection that is hoped for by an opponent.
1.17 Parliament has clearly intended by the recent amendments to the RMA to prevent anti-competitive behaviour from delaying the establishment of otherwise meritorious developments. It is this very
type of behaviour that is meant to be curtailed by the 2009 RMA amendments.
1.18 This potentially arises as an issue in relation to the submitters represented by Mr McFadden.
1.19 In relation to Mr Davies, the question of clarification posed during the hearing confirmed that Mr Davies is a director of companies with an interest in the Richmond West area (which is an area that is proposed to be developed for a range of activities, including commercial/retail).
Mr Davies also confirmed for the record his role as a trustee/shareholder in a commercially zoned property at 174 Queen Street in the Richmond town centre (occupied by a retail unit). In relation to the other two submitters represented by Mr McFadden, attached is a letter dated 4 November 2013 seeking clarification of the interests of these submitters. As at the date of these supplementary submissions, no response has been received.
1.20 The normal procedure is that such matters are addressed in reply by the Requestor. However, it is noted that the panel is seeking some guidance at this stage in the proceedings as to how to treat any submitters who may be identified as trade competitors.
1.21 It is open to a consent authority to consider as part of the deliberations on a particular proposal whether it is necessary to determine whether any parties to a proceeding fall foul of Part 11A of the RMA and the express prohibition contained in clause 29(1B) of the First Schedule.
If such a determination is made (and that is not mandatory), options include striking out an offending submission and/or limiting the weight to be afforded to the submission in question.
1.22 However, at this stage, the Requestor is not seeking that any submissions be struck out (at least not at this stage). In fact, it may well be that Foodstuffs make a formal request that you not make any finding on whether or not these submitters ought to be identified as trade competitors. This will be addressed further in reply as appropriate. Any potential classification of these submitters as trade competitors is likely to be something that the Requestor will be separately pursuing at the appropriate time, if required.
1.23 In any event, I submit that this issue is moot in the present case as the submitters in question have failed to produce any expert technical evidence to support the concerns they have raised about wider effects on the district. This goes to the issue of weight. The further Joint Statement of the two expert economists has reaffirmed that there is no evidence of significant adverse economic impacts or retail distribution effects in this case. It is simply not an issue. That, I submit, is the key finding that you are entitled to make, and should make, in this case.
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J M Crawford
Counsel for Foodstuffs (South Island) Properties Limited 11 November 2013
BM-845262-27-534-V1:mtb
4 November 2013
For: Nigel McFadden McFadden McMeeken Phillips Barristers & Solicitors
P O Box 656 NELSON
Dear Nigel
Proposed Plan Change 49 - Three Brothers Corner Commercial Zone
1. As you are aware, we act for Foodstuffs (South Island) Properties Limited.
2. As the hearing of PC49 on 1 November 2013, the Hearing Commissioners directed that any further questions of clarification of your clients be put in writing as they were not present to give evidence at the hearing.
3. Accordingly, the question of clarification for your client Mr John Gourdie is whether he has any interest (either personally or through any related entity including a trust or company) in the property at 215 Queen Street, Richmond which we understand is currently occupied by a pharmacy. We also seek clarification from your clients Messrs Miles, Davies and/or Gourdie whether they have any role or association with company Wadsworth & Dick Group Limited.
4. We look forward to confirmation in writing from you on these questions shortly.
Yours faithfully Anderson Lloyd
Jen Crawford Partner Owner P: 03 335 1265 M: 027 436 6040
Copy to: Shelagh Noble, Tasman District Council (for the attention of Commissioners McMahon and Rae)
