BEFORE THE ENVIRONMENT COURT

Decision No. [2016] NZEnvC
IN THE MATTER

20 $

of the Resource Management Act 1991
(the Act)

AND

in the matter of a road stopping proposed
under

Schedule

Government Act

10

of

the

Local

1974 by AUCKLAND

TRANSPORT
(ENV-2016-AKL-000040)
AND
IN THE MATTER

of an appeal under s 120 of the Act

BETWEEN

AUCKLAND ARCHITECTURE
ASSOCIATION
(ENV-2016-AKL-000035)
Appellant

AND

AUCKLAND COUNCIL and
AUCKLAND TRANSPORT
Respondents

AND

PRECINCT

PROPERTIES

HOLDINGS

. LIMITED
Applicant
AND

AUCKLAND ARCHITECTURE
ASSOCIATION
URBAN AUCKLAND INCORPORATED
WALK AUCKLAND INCORPORATED
PRECINCT PROPERTIES HOLDINGS
LIMITED
CIVIC TRUST AUCKLAND
AUCKLAND CBD RESIDENT'S
ADVISORY GROUP INCORPORATED
(Parties variously to be heard under s 274
in 035, and s 291 in 040)

 2

Hearing:

18, 19,20,21 and 22 July 2016

Court:

Principal Environment Judge LJ Newhook
Environment Commissioner RM Dunlop
Environment Commissioner K Wilkinson
Deputy Environment Commissioner D Kernohan

Appearances:

PMS McNamara & WMC Randal for Auckland Council and
Auckland Transport
DA Nolan QC & SH Pilkinton for Precinct Properties Holdings
Limited
BC Parkinson & RH Ashton for Auckland Architecture Association
and Urban Auckland Inc.
A Matson for Civic Trust Auckland under s 274
T Hannah for Auckland CBD Resident's Advisory Group Inc. under
s 274

Date of Decision:

'l..f

October

2016

Date of Issue:

2.1

October

2016

DECISION OF THE ENVIRONMENT COURT CONCERNING PROPOSED ROAD
STOPPING AND INTERIM CONCERNING PROPOSED PLAN CHANGE

A:

Stopping of Queen Elizabeth Square refused.

B:

Appeal concerning Plan Modification 79 adjourned for clarification of

amendments, hopefully to be agreed.

C:

Costs reserved on stopping proceeding.

 3
REASONS

Introduction

[1] The Court conducted a hearing into two distinct, but somewhat related matters as
follows:
(a) the stopping of a road, Queen Elizabeth II Square (QES) under s 342 and
Schedule 10 of the Local Government Act 1974 (LGA); and
(b) an appeal by Auckland Architecture Association (AAA) against a decision of
Auckland Council on Plan Modification 79 (PM79) to the Auckland District Plan:
Central Area: 2005, privately requested and promoted by Precinct Properties
Holdings Limited (Precinct).

[2] The cases relate to the same piece of land and neighbourhood, but the statutory
tests and considerations are quite different as the Court recognised in a Minute: 1

It is the Court's expectation that all inputs from the parties (evidence,
submissions, cross examination etc) will clearly identify matters of relevance
to the road stopping and of relevance to the Plan Change, separated where
necessary on account of differing legislative thrust.

[3] The tensions that can arise when the Court is hearing multiple matters have been
encapsulated in an observation of the High Court in a Resource Management contexf:
"when applying regulatory law it is important to ask the right questions at the right time."

[4] Precinct has accepted that if QES is not to be stopped as a road, then the
amendments sought by the Plan Change, would not be appropriate. 3 Our response is
that this should almost go without saying.
[5] We will deal with each case separately, starting with the road stopping, dealing with
the Plan Change in light of that first decision.

1

2
3

Minute of the Environment Court following Pre Hearing Conference, dated 11 April 2016 at para [6].
Queenstown Central Limited v Queenstown-Lakes District Council [2013] NZHC 817 at [21].
Precinct legal submissions 20 July 2016 para [11.7].

 4
ROAD STOPPING PROPOSAL

Introduction to road stopping proposal

[6] Auckland Transport has the power of a territorial authority under s 342 LGA, to stop
roads by virtue of s 46(1 )(c) of the Local Government (Auckland Council) Act 2009.
[7] "Road" is defined in s315 of the Local Government Act 1974 to include:

... (g) every square or place intended for use by the public generally ...

[8] QES is an area of land of 1892m2 on the western side of Lower Queen Street (LQS)
within a downtown Auckland block bounded by Quay Street, Lower Queen Street,
Customs Street West and Lower Albert Street ("the downtown block"). We will record a
little more of the description and historical origins of QES at later points in this decision.
[9] The proposal was publicly notified (we will record details shortly), and three
objections were received, one from the Appellant AAA, another from Urban Auckland
Incorporated, and a third from Walk Auckland Incorporated. An Independent Hearings
Commissioner was appointed by Auckland Transport, the objections heard, and
disallowed.
[10]

The case as first presented on the papers contemplated that the Court should

reject the road stopping proposal, or modify it. By the time the Court received a
Statement of Agreed Facts, modification was no longer in contemplation and the parties
were now seeking either that the road stopping be confirmed or refused. 4
[11] The two objectors to present a case before us, AAA and Urban Auckland
Incorporated, are bodies of some longstanding. Walk Auckland Incorporated did not
present a case, and Urban Auckland Incorporated did not separately circulate evidence,
adopting that called on behalf of AAA.

AAA was formed in 1965 as an advocate for

architecture and quality design in Auckland, and its aims as recorded in its constitution
include the promotion of informed opinion on the arts of architecture and city planning,
and to influence public opinion concerning matters affecting architecture and city
planning and to encourage interest therein.

4

Paragraph [3.3] of Statement of Agreed Facts.

 5
[12] Urban Auckland Incorporated commenced in 2000, initially to take court action
concerning a high rise building subsequently consented and built on the corner of Quay
Street and Lower Albert Street. More recently it successfully challenged proposals for a
high rise building on Queen Street south of Wellesley Street, and Ports of Auckland
expansion proposals.
[13] Very properly, AAA recorded in evidence and through submissions of its counsel
that in the 1960s it had opposed development in Lower Queen Street (the building at 1
Queen Street now known as HSBC House) on the grounds that it would damage the
amenity of QES. 5 It nevertheless offered other reasons why QES should not now be
stopped, including as to the potential for improving and enhancing that amenity despite
the presence of HSBC House. In very summarised form, AAA and Urban Auckland
Incorporated advanced the submission that it was critical that redevelopment of the
downtown block retain all of QES and the adjoining LQS to meet a need for open space
now and in the future. 6 We shall see in due course the extent to which that assertion
meets the parameters of the matters that we must consider under Schedule 10 LGA.

Descriptive background

[14] We have already recorded the geographical location of QES. We were
considerably assisted by descriptive material in the Statement of Agreed Facts? and a
Joint Witness Statement filed by the amenity witnessesB•
[15] QES has very recently been fenced off and become the site of major works to
enable the City Rail Link (CRL) to extend westwards underground from the Britomart
rail station. That was the state in which we saw it when conducting our site and locality
inspection during the hearing, but its state prior to that time was reasonably well known
to us and, uncontroversially confirmed in the documents just referred to.
[16] QES primarily functioned as a public open space and pedestrian forecourt to the
Downtown Shopping Centre located in the downtown block. The urban design,
architecture, visual and landscape experts agreed that its then functions included:
(a) every day use including pedestrian through access and general gathering and
"hanging out"

5
6

7
8

As recorded in its objection to the road stopping proposal.
Submissions of their Counsel 21 July 2016 para [1.19].
Statement of Agreed Facts 17 June 2016, Common Bundle volume 2, tab 79.
Common Bundle volume 2, tab 81.

 6
(b) providing service access
(c) cafe and outdoor dining
(d) entry and forecourt to the Downtown retail complex
(e) art installations

(f) occasional events
(g) an opportunity for viewing historic heritage buildings and the harbour.9

[17] Those witnesses agreed that the future functions of QES, if not stopped, would be
broadly similar.10

[18] The extent to which QES was or would be used for those functions was hotly
disputed during the hearing, and the opponents added 4 complaints about prospective
functionality that they said would be missed if QES were not retained with LQS added
to it as public open space. The opponents regarded the space (in summary) as a highly
important open space in the heart of downtown Auckland, while the other parties were
strongly critical of its amenity and consequent functionality and the importance placed
on it by the objectors. Of some note, the amenity witnesses described above
acknowledged that aspects of QES were "inhospitable".11

Resolved issues: road stopping

[19] The parties succeeded prior to the hearing, in resolving three major issues: 12

(a) In the event that PM79 is confirmed, the amendments to the operative
district plan proposed are appropriate.
(b) The 6m wide through-site east-west pedestrian laneway is of sufficient width
for safe and efficient pedestrian movements between Britomart Transport
Centre and Lower Albert Street
(c) No party is seeking a modification to the road stopping proposal under which
the eastern boundary of the road that is proposed to be stopped aligns with the
HSBC building.

At paras [6] and [7], p 563.
At para [10], P 564.
11 Urban Design JWS at para [9], p 564.
12 See para [3] of Statement of Agreed Facts.

9

10

 7
Issues not resolved: road stopping

[20] By the commencement of the hearing, an issue raised by the objectors concerning
consultation requirements of the LGA, had been withdrawn. That left four key issues
unresolved that the parties said required determination by the Court, as follows:

(a) What are the relevant considerations for the Court under clause 6 of Schedule
10?
(b) Is there a need for QES to remain as a road for public use for now and into the
future?
(c) Is there reasonable cause to justify the proposal to stop QES?
(d) Whether the public benefit gained by the proposed stopping is outweighed by
the public benefit of QES continuing to have the status of road?13

[21] That resolution of (a) is necessary, is in our view trite.

[22] Items (b) and (c) are indeed at the heart of the issues we must resolve.

[23] Item (d) needs to be approached with care, having regard to the matters to be
considered under (a) and (b) as interpreted from time to time by the courts, and further
considered in this decision.

Legal considerations for the proposed road stopping

[24] Clause 6 of Schedule 10 of LGA 1974 sets out the matters that the Court is
required to consider concerning a proposal for road stopping. We have broken it into
bullet points for ease of reading, but otherwise retained its wording, as follows:

• The District Plan;
• The plan of the road proposed to be stopped;
• The Council's explanation under clause 1 of the Schedule;
• Any objection made thereto by any person;
• [Either] confirm, modify, or reverse the decision of the Council which shall be final
and conclusive on all questions

13

Refer Statements of Agreed Facts 17 June 2016 at [4.1]- [4.5].

 8
[25] As already noted, no party seeks modification of the proposal.
[26] It will be helpful at this juncture if we set out some principles described in decisions
of the Environment Court in recent years, because they describe some important
approaches to undertaking the task set by clause 6.
[27] While considering the decisions, in particular aspects of them urged upon us by
various parties in the case before us, we are conscious that the nature of various kinds
of roads and other public places that come within the purview of the Schedule 10, and
the facts and circumstances surrounding each proposal, can vary considerably. In
particular, the situation in the present case is quite unusual, the proposal being to stop
a public open space with very limited vehicular access functions.
[28] The primary statement of the task is often drawn from the decision of the
Environment Court in Re Ruapehu District Council,14 wherein five matters are recorded.
[29] Various decisions of the Environment Court have accepted the statement from
Ruapehu, notably Re Buller District Council,15 and Re Grey District Council. 16 We have

reorganised the order of the matters to be considered, placing the last of the five stated
in Ruapehu at the top of our list, because it is the prime issue. Our list is therefore as
follows:
(a) The central issue is the need for the road (or place) for public use; not any
need for the stopping;
(b) There must be reasonable cause to justify the proposal (however, the Court
should not enquire into the best method of achieving the objectives of a road
stopping, or weigh alternatives);
(c) The Court must consider the merits of the proposal in relation to the road itself
and whether the public benefit to be gained by the proposed stopping is
outweighed by the private injury which would follow from the proposal; [We
consider this matter to be subsidiary to (a) and (b) above and to require great
care in its handling];
(d) While it may be necessary to consider the desirability of the purpose to which
the stopped road will be put, the Court has no power to make a binding
declaration that the stopped road be put to a particular purpose; and
14
15
16

(2002) 8ELRNZ 144 at [38].
[2015] NZEnvC 134.
[2016] NZEnvC 26.

 9
(e) Adequate access to land in the vicinity of the road (after the stopping) is a
relevant consideration.
We will set out our preliminary consideration of what needs to be addressed under each
of those 5 factors, before moving to address the evidence on each.

The need for the road for public use
[30] We turn in a preliminary way to this, the central issue. In the Ruapehu decision the
Court made the following statement, to which we subscribe: 17
[43] We are of the view that in considering the need for a public road we should ask
ourselves - is there a public need? An important factor in considering this question is the
uses to which the road is being put to, now and in the future, and by whom. There is
nothing in the legislation proscribing the type of use that should be taken into account.
[44] The public need is a question of fact which includes a consideration of:
• the present and future uses;
• whether those uses are such that one would reasonably expect the public to use
the particular road; and
• the degree of community involvement.

[31] Other decisions have tended to be divided amongst situations in which roads are
either formed and in use, or not. The latter situation does not arise in the case of QES,
but reference may usefully if briefly be made to recent decisions of the Environment
Court Re Palmerston North City Council18 and Re Christchurch City Council19 , where
the question of need was primarily addressed through consideration of adequacy of
alternatives. In the Palmerston North case the Court, of some relevance in the present
case, held (emphasis supplied):
[14] There can be no dispute in this case that the section of Milson Line which is to be
closed (sic) is needed. It is one of the main access roads between Palmerston North and
Feilding and presently carries something in the order of 7,000 vehicles per day (vpd).
However, we do not consider that means that the road cannot be closed (sic), but rather
that if it is to be closed (sic), we must be satisfied that the need which the road
presently fulfils is adequately met by some alternative means.
[15] Whether or not a roading/access need is adequately met by an alternative will
be a question of fact in any given case. There must be some flexibility available to
roading authorities when managing and planning their road networks. It may be the
case that a road realignment or closure will involve a degree of disadvantage such as

At paras [43] and [44].
Decision number W098-2009.
19 [2015] NZEnvC 215.
17

18

 10
increased travel times for some road users which will be counterbalanced or outweighed
by advantages to another group of road users or by improvements to the wider roading
network. Those are matters to be assessed in any given instance.

[32] Somewhat similar factors were at large in Re Tasman District Council. 20

[33] In the context of the present case we should focus on past functions fulfilled by
QES and potential future functions, in terms of addressing the public need for
pedestrian access to and from surrounding buildings, limited vehicular access, and
public open space functions; and as to whether those future functions can adequately
be met by alternative means. The third of the questions of fact identified in Ruapehu for
consideration is the degree of community involvement, about which we heard
considerable competing evidence about the extent of past pedestrian thoroughfare,
public open space functions of various kinds, and access to public transport, some of
them allegedly affected by climatic conditions in this space.

The plan of the road to be stopped (the second clause 6 factor)
[34] The plan of the road to be stopped was attached to the affidavit of Ms OS
Godinet, Group Manager Property and Planning at Auckland Transport. It was simple
and apparently uncontroversial in itself, showing the area of 0.1892 Ha, the titles to
surrounding properties owned by Precinct on three sides and Queen Street as a legal
road on the east side.

[35] The parties in support of the proposal clearly considered the plan to be adequate.
The objectors however noted,21 that clause 6 of Schedule 10 refers to clause 1 which
reads as follows:
1. The Council shall prepare a plan of the road proposed to be stopped, together with an
explanation as to why the road is to be stopped and the purpose or purposes to which the
stopped road will be put, and a survey made and a plan prepared of any new road
proposed to be made in lieu thereof, showing the lands through which it is proposed to
pass, and the owners and occupiers of those lands so far as known '" .

[36] Lower Queen Street is not a road proposed to be made in lieu of QES; and while
the proposed new pedestrian passage ways are not shown on the plan, they are
described in the accompanying explanation. It would be artificial to separate the plan of

20

21

Decision number C65/2007.
In paras [5.2]-[5.4] of Ms Parkinson's opening submissions 21 July 2016.

 11
the road proposed to be stopped, and the explanation on the public notice, in assessing
compliance with Clause 6.

The Council's explanation (the third Clause 6 factor)

[37] The explanation offered by Auckland Transport in its public notice published on 17
and 24 June 2015 in the NZ Herald was as follows:
It is proposed to stop Queen Elizabeth II Square as part of the wider redevelopment of the
Downtown Shopping Centre block including the construction of the underground tunnels
for the City Rail Link.
In order to provide on-going access, a 5m wide right of way through Queen Elizabeth II
Square and the Downtown Shopping Centre site will be secured between Lower Queen
Street and Lower Albert Street and also a north-south right of way from Quay Street to
Customs Street.

[38] The High Court in Huia Resorts v Ashburton District Council22 held that the purpose
of the clause 1 explanation is to inform interested parties and the Environment Court as
to why the road is to be stopped and the purpose to which the stopped road would be
put. Counsel for AC/AT submitted that the summary form that one would expect from a
public notice, served these purposes in the present instance. 23

[39] Counsel for the objectors Ms Parkinson was critical of both the primary
explanation, and the plan, as already mentioned. As to the explanation, she submitted
that that which appeared in the public notice must stand to be considered on its own
merits and that AC and AT cannot subsequently change it. She was equally critical of
the evidence in chief of Mr G Milner-White,24 on the basis that she considered it an
acknowledgement that the stopping is not a pre-requisite for the CRL tunnel
construction, noting Mr Milner-White's statement that the proposed road stopping
process was an integral part of the overall redevelopment arrangements agreed with
Precinct which facilitated the construction of the CRL and secured necessary property
rights of the tunnel strata. She asserted 25 that all of the necessary planning approvals
had been separately in place to authorise the underground work, and that therefore the
mention of CRL in the explanation was "just a backdrop to the proposal".26 She
submitted 27 that if the Court accepted that the stopping was not required to facilitate the

[2005] NZRMA 449 at [25].
Opening submissions of AC/AT 18 July 2016 para 7.14.
24 At his para [5.4].
25 At para 7.7 of her opening submissions.
26 At para 7.8 of her opening submissions.
27 At para 7.9.
22

23

 12
CRL tunnels, the only reason remaining was to allow QES to be incorporated in the
"wider redevelopment of the Downtown Shopping Centre block."
[40] For Precinct Mr Nolan submitted that the public notice was factually correct; that
the proposal to stop QES relates to the proposed wider redevelopment of the
Downtown block that includes it, intended to be constructed concurrently with the CRL
tunnels as a single integrated project. He submitted that the agreement overall
concerning the stopping and the basket of changed property rights, enable the CRL
construction to take place without the need for a Public Works Act process. 28 We
consider that submission to be correct.
[41] Mr Nolan then submitted, rather similarly to AC/AT, that the Court is entitled to look
beyond the explanation in the public notice, to evidence that has been put forward on
the matter, noting a similar approach having been taken in Re Wellington City
Council29 .

[42] Taking all these submissions holistically, we find that a public notice will almost
never offer anything more than a summary of matters, and that evidence may expand
on that. The public notice should establish the essence, and the evidence support that
in detail. That is what has occurred in the present instance.
The District Plan

[43] We agree with the parties that the relevant plan is the operative district plan. That
agreement apart, there was a marked divergence of what, from the operative plan, is
relevant for present purposes. The approach taken by counsel and the witnesses for
the opponents was narrower than the other parties in one sense (the extent of
provisions of the plan considered to be relevant), and broader in others (the implication
of a RMA concept of "existing environment", and consideration of documents beyond
the contents of the district plan).
[44] Remembering that our task is primarily to be framed in terms of finding the need for
the road, and whether there is reasonable cause for it to be stopped, we find that the
approach taken by the proponents to be the more accurate.

28

29

Opening submissions for Precinct at paragraphs 7.10-7.12.
[2015] NZEnvC 37 at [11].

 13
[45] The planners collectively appear to be on sound ground with their agreement,30
that provisions of Parts 3,4.2, 10, 12 and 14.2 of the district plan are relevant. Counsel
and planning witnesses for the opponents however maintained a focus on the
provisions of Part 14.2, objectives and policies in relation to open spaces,31 in contrast
to the planners called by Precinct (Mr K Cook) and AC/AT (Mr M Vinall) who maintained
a broader focus in arriving at an overall conclusion that the stopping of QES would be
consistent with relevant aspects of the plan. 32 The opponents' witnesses focus was for
us too selective.

[46] We are of the view that Mr Putt's evidence paid insufficient attention to the benefits
to be gained by the proposed stopping, which the parties had agreed in the Statement
of Agreed Facts (at para 4.5) to be an issue. We consider the agreement to be correct
and in line with the Ruapehu finding on the point. 33 We were also concerned at the
extent of willingness of Mr Putt as a planner experienced in RMA matters, to look at
documents outside of the district plan, for instance the City Centre Master Plan (CCMP)
which we consider to be beyond the purview of the direction in clause 6 of Schedule 10
to consider the district plan.

[47] We do not go as far as the joint witness statement in finding that there is a
cascading hierarchy of provisions in the district plan, from Part 3 (Resource
Management) to Part 4.2 (Harbour Edge Strategic Management Area) to Part 10
(Heritage), to Part 12 (Network Utility Services), and Part 14.2 (Public Open Space
Precincts). For the purpose of consideration of the plan in connection with the stopping,
we find they are all relevant as submitted by counsel for AC/AT. 34

[48] Returning to the finding that we have made that, in line with the Ruapehu decision,
it may be necessary to form some opinion about the purposes to which the stopped
road will be put, we accept the evidence of Mr Vinall and Mr Cook that the road
stopping should be assessed against objectives 3.5.1, 4.2.3.2 and 4.2.3.3 relating to
the issue of quality of the environment in the Central Area. Drawing on evidence from
other experts, they considered that the poor quality of the public realm and surrounding
built environment could be improved by the developments enabled by the road
stopping, and that these objectives and their supporting policies would therefore be

 14
met. 35 Again in line with the approach taken in Ruapehu, with which we agree, we
accept their advice that this would be appropriate to consider.

[49] Mr Vi nail also considered that objectives 3.5.2 and 4.2.3.4, concerning accessibility
to and throughout the central area, and to and from the harbour edge and the Britomart
Transport Centre respectively, were relevant. Drawing again on evidence of other
experts, he considered that these objectives would be met by improvements in
passenger transport service, creating new street and pedestrian connections of safe,
attractive and legible quality.36 Once again, we consider that it is relevant to consider
these matters, and stress once again that our enquiry should focus on need for the road
and reasonable cause for the stopping.

[50] In similar vein we accept that Mr Vinall was right to opine positively about the
proposal judged against objective 3.5.3 (creation of an appealing and distinctive centre
with a variety of attractions) and objective 4.2.3.1 (provision of a wide range of
activities, in particular recreational, retail, tourist, office and residential activities).
Similarly with objective 3.5.4 (promotion of the status of the central area at the top of
the hierarchy of centres in Auckland and ensuring it be acknowledged as an
outstanding location for business, culture, entertainment and living)37.

[51] We turn now to the debate about the objectives in part 14.2 of the district plan. We
set them out as follows:
Objective 14.2.3.1: to maintain, protect and augment the open space, public squares and
parks of the Central Area and to maintain and protect where appropriate open spaces in
the form of public streets.
Objective 14.2.3.2: to retain and enhance the open spaces, including streets, in the
Central Area as places where pedestrians can move safely, easily and comfortably.
Objective 14.2.3.3: to provide for appropriately located areas of public space and to
continue to upgrade existing public space.
Objective 14.2.3.4: to maintain, protect and enhance the streets in the high pedestrian
orientated area.

[52] The question that arises for us from these provisions is as to whether it can be
argued that they provide the high level of retention and protection argued for by the
objectors, even for a space that is acknowledged in many ways to be of poor quality.
We must also remember that we are not undertaking a Resource Management Act type
35
36
37

See for instance EIC of M Vinall at [9.14].
EIC M Vinall at [9.23].
EIC M Vinall at [9.29].

 15
assessment (as for instance under s 104), but an assessment of the road stopping
proposal focussing on need for the road and reasonable cause to stop. To do otherwise
would in our view elevate these provisions beyond what is appropriate in the context of
the road stopping proceedings. Instead, we agree with the proponents that the district
plan provisions should be seen more broadly as Mr Vinall and Mr Cook have done, and
in the context of the correct purpose of our present enquiry. We therefore, find the
approach taken by the objectors, with their considerable focus on the provisions of part
14.2, to be too narrow.
[53] When all relevant matters from the district plan are considered, we consider it (the
plan) ultimately to be relatively neutral in the context of the key issues we must
consider. That is because some are to positive effect and some negative, with none
requiring to be considered in ascendency over others for present purposes.

The need for the space for public

use: the law and analysis of the evidence

[54] Quite considerable guidance can be obtained from earlier decisions of the
Environment Court, but in the context of the present case, we consider that some care
is needed when referring to some of the findings. It needs to be remembered that each
case will turn largely on its own facts, so some statements in earlier decisions should
not be read too literally into the context of the present case.

[55] We agree with the Court in the Ruapehu decision that the need for the road [or
space as the case may be] for public use is the central issue in road stopping
proceedings. All parties in the present case agreed this.

[56] We also accept from the Ruapehu decision and others that the need for a road [or
space] is a question of fact that would include consideration of the present and likely
future uses of it.
[57] We reiterate that the Court very carefully set out its understanding of relevant law
in paragraph [38] of the Ruapehu decision. As noted above it recorded five
propositions, focussing particularly on the issue of need of the road for public use, and
whether there is reasonable cause to justify the proposal.

[58] In connection with the "reasonable cause" factor (to which we will come next), the
Court held that Clause 6 does not require the Court to enquire into the best method of
achieving the Council's objectives, or the weighing of alternatives. Those were held to

 16
be matters within the discretion of the Council. We consider that those caveats are
applicable as well in connection with the central issue of need for the road [space] for
public use.

[59] We are inclined however to slightly question the Court's findings in Ruapehu in
paragraph [44]38 in one respect. We set out the whole of that paragraph as follows:
[44] The public need is a question of fact which includes a consideration of:
•

The present and future uses;

•

Whether those uses are such that one would reasonably expect the public to use
the particular road; and

•

The degree of community involvement.

Our concern is that the second bullet point might unduly water down the strong quality
of the word "need" in the phrase "public need", at least in the circumstances of the
nature of the subject space, a public square.

[60] Drawing together our comments about methods of achieving Council's objectives,
weighing of alternatives, and our concern about the last description of the task of
assessing public need, we have formed an understanding of the differing ways in which
the two groups of parties approached the issue of public need.
[61] For instance, Ms Parkinson 39 was very much inclined to stress the second bullet
point above. The evidence she called, and the manner in which she constructed her
submissions, then rather strongly, and in our view inappropriately, sought to pitch
alternatives

of

various

kinds

against

the

proposal

advanced

by

Auckland

Council/Auckland Transport and supported by Precinct. This occurred in a way that
raised extremely detailed analyses of recent past public activities in an area her
witnesses labelled "Queen Square", a union of QES and LQS; urban design issues
such as the extent of enclosure by buildings that might be thought desirable or even
required for a civic space to be successful; that a bigger civic space would likely be
better, and that the full conjoint space should be retained to better appreciate heritage
buildings in its vicinity.40 We will make reference in somewhat summary form to the
extensive evidence called from the witnesses just footnoted, but will refrain from
analysing it in great detail, because of the dangers we have identified of purporting to
Which Ms Parkinson cited as being at paragraph [38] in her opening submissions.
In paragraph 9.4 of her opening submissions.
40 These matters were extensively covered in the evidence of Ms Gilbert, Mr Scott and Mr Gibbs, and were
much compared and contrasted in evidence for other parties called from Mr Falconer, Mr Lough, and Ms
de Lambert.
38
39

 17
enquire into best methods, weighing alternatives, and taking account of "reasonable
expectations of public use of particular road or space".
[62] We accept the submission of Ms Parkinson 41 that in order to understand "current
functions" of the area to be stopped, one actually needs to examine past functions; this
being simply because current normal operations in that space have been completely
disrupted by construction works established for CRL and demolition of the existing
Downtown shopping centre.

[63] Extensive evidence from some of the witnesses just mentioned, described various
studies and surveys over the years. We do not consider that we need to go into those in
detail, although we have considered them. It was plain from all evidence, indeed largely
agreed, that the space suffered significant amenity defects during its life, which could
probably only be remedied to any degree by demolishing the very large building at 1
Queen Street - as to which we find there is no evidence of likelihood 42 .

[64] The space undoubtedly had its uses, variously for passing through to access the
Downtown Shopping Centre and public transport, and to some degree for sitting out
and other passive recreation. It was the latter aspect that would seem to have
particularly suffered on account of the amenity problems.

[65] We have given consideration to the studies and surveys mentioned primarily in the
evidence in chief of the witnesses called by the opponents. It is not part of our task to
make findings on detailed analyses on the comparative qualities of various CBD public
spaces as for instance undertaken by Ms Gilbert. We have no difficulty in finding
however that there is a relative shortage (very hard to quantify) of public open spaces in
the CBD. This led Mr Falconer amongst others to place some importance on the
suggested enhancement of 3 small waterfront spaces, utilising the proceeds of sale of
QES. As to that, we accept the submission of Ms Parkinson 43 that there cannot be any
certainty that those spaces will be developed "any time soon" because of consenting
and funding uncertainties.

Commencing at her paragraph 9.11.
This is an appropriate place to record the Court's deep concern about the repetitive and prolix nature of
much of the evidence by most parties. The approach taken by the major parties was inefficient and no
doubt costly for all concerned, and poor practice. We find it remarkable that parties can arrive at a
reasonably robust and helpful statement of agreed facts, and then almost ignore that document and
descend into a significant war of words about many of those matters, and others both relevant and
irrelevant.
43 For instance in her paragraph 9.21 of her opening submissions.
41

42

 18
[66] Those submissions, and the apparent importance placed on the waterfront spaces
by some witnesses, caused us to put a number of questions to the parties about how
the development of them could be secured, but we have now reflected further on the
issue, and find that the factual matrix before us results in the focus being instead on the
need for QES in the context of its juxtaposition with Lower Queen Street, proposals to
pedestrianise most of that street, and the proposal to provide pedestrian accessways
east-west and north-south through the site to enable access to commercial premises
and more importantly to public transport.
[67] Precinct adopted an approach to "need for the road for public use" in a manner
that, after careful reflection and comparison to all of the arguments, we found
convincing, subject to needing some considerable care about a small number of the
propositions it advanced.
[68] Precinct correctly identified the parameters for consideration of matters under
Clause 6 in the broad sense, particularly in relation to the issues of need for the road for
public use, and reasonable cause. Counsel cited paragraphs [14] and [15] from the
Palmerston North decision, already recorded in this decision, but for ease of reading

and given their importance, we set them out again complete with emphasis placed on
them by Counsel:
[14] There can be no dispute in this case that the section of Milson Line which is to be
closed (sic) is needed. It is one of the main access roads between Palmerston North and
Feilding and presently carries something in the order of 7,000 vehicles per day (vpd).
However, we do not consider that means that the road cannot be closed (sic), but
rather that if it is to be closed (sic), we must be satisfied that the need which the
road presently fulfils is adequately met by some alternative means.
[15] Whether or not a roading/access need is adequately met by an alternative will
be a question of fact in any given case. There must be some flexibility available to
roading authorities when managing and planning their road networks. It may be the
case that a road realignment or closure will involve a degree of disadvantage such as
increased travel times for some road users which will be counterbalanced or outweighed
by advantages to another group of road users or by improvements to the wider roading
network. Those are matters to be assessed in any given instance.

[69] We agree with those statements to the extent they are findings of law, and agree
with the emphasis placed.
[70] We consequently agree with the submission of Counsel for Precinct that followed,
that the issue of whether QES needs to remain as a road now and in future must go

 19
past the fact that QES is "used by the public". The public has used QES in the past (in a
manner limited by amenity conditions), and the public would no doubt do so in the
future. However this does not demonstrate there is a need for QES to remain. We
agree with their submission that the enquiry for the need for QES must necessarily be
informed by the functions QES performs now (or rather, in the recent past) and is
expected to perform in the future. Quite simply, if the functions of QES can be
performed in the future by alternative means, there might be no need to retain QES. We
have already set out the findings of the relevant group of experts, by agreement, as to
the current and future functions of QES. Counsel posed the question as to whether the
redeveloped Lower Queen Street public space would perform the future functions that
could be expected of QES if retained, and submitted that this would occur in a far
superior way.

[71] Mr Nolan was critical of the approach taken by witnesses for the opponents,
particularly Ms Gilbert, in examining "labels" rather than "functions". She had employed
what she considered to be certain "typologies", particularly in relation to something she
considered could be identified historically called Queen Square as a "major public open
space", that is as previously identified QES and LQS combined. Mr Nolan typified this
as an almost academic approach, drawing on evidence from the landscape witness
called by him, Ms de Lambert to that effect.

[72] Ms de Lambert having examined such description of the locality, and contrasted it
with what she considered to be Auckland's prime civic space, Aotea Square, she
strongly criticised the utility of Ms Gilbert's typology approach for the purposes of
determining whether there was a need to retain QES.44 We agree with Ms de Lambert's
framing of the key question as being whether the redeveloped Lower Queen Street can
fulfil the functions required of public space in this part of the CSD, or whether those
functions would require QES to be retained. 45

[73] We agree with Precinct and its witnesses, that the exercise required of us is as
framed by Ms de Lambert above.

[74] We recall paragraphs [6] and [7] of the jOint witness statement from the urban
design, architecture, visual and landscape expert conference, as to the current public
space functions of QES as being:

44
45

See particularly rebuttal statement of Ms de Lambert at paragraph [3.4] and [5.2].
Refer to rebuttal statement of Ms de Lambert. paragraph [5.3].

 20
• Every day use including pedestrian through access and general gathering and
"hanging out"
• Providing service access
• Cafe and outdoor dining
• Entry and forecourt to the Downtown retail complex
• Art installations
• Opportunities to view historic heritage and the harbour
• Occasional events
We recall also the agreement at paragraph [10] of their statement that the future
functions of QES would be broadly similar.

[75] The opponents put forward 4 areas of disagreement about future functions of QES.
Drawn from the statements of evidence of Ms Gilbert, Mr Scott, and Mr Salmond, the 4
points were: that QES could provide a desirable location for tranquil green spaces and
children's play facilities; that both QES and Lower Queen Street should be retained as
public open space because of a suggested need for successful public spaces to have
enclosure on more than two sides; the new public space should be large enough to be
memorable; and QES should be retained to better appreciate the nearby CPO and ferry
buildings, important heritage items in the locality.

[76] A great deal of evidence was offered by these witnesses on these 4 points, and
countered variously by Ms de Lambert, Mr GR Mcindoe, Mr BD Johnstone and Ms AM
Brown called by Precinct and Mr SMN Lough called by Auckland Council/Auckland
Transport. It would be tedious in the extreme for us to record detail from the evidence of
those witnesses, whether evidence in chief, rebuttal statements or answers to
questions during the hearing. We have considered all of the evidence carefully, and
have no difficulty coming to some clear views which generally accept the opinions and
advice offered by the witnesses for the proponent parties.

[77] First, shading and general climatic conditions are in our view most unlikely to result
in provision of tranquil green spaces and children's play areas in QES if retained. This
comes back to the problem presented by the presence of the very substantial HSBC on
the immediate northern side of the square. In particular we agree with the opinion of Mr

 21
Mclndoe,46 that there are much better opportunities for tranquil green space in parks
such as Emily Place, Albert Park and St. Patrick's Square in Auckland's CBD; and Ms
de Lambert's view that children's play facilities in QES would not be attractive or
desirable. 47 We make this finding while being fully cognizant of the trend in the Central
Area to increased apartment living.

[78] As to whether a large public open space at the northern end of the CBD would be
the better, including as to memorability, from having enclosure on more than two sides,
and or for being large such as from a combination of QES and Lower Queen Street, we
consider that these were extremely long bows drawn by the opponents' witnesses.
Importantly, the evidence on these matters steps outside the parameters for our
enquiry, by comparing ideas or philosophies, rather than adequacy of functionality.

[79] Similarly, the debate amongst the heritage witnesses about the extent to which
views of the CPO and heritage buildings might be better obtained if QES were retained,
come down to a rather fine and almost irrelevant analysis into competing ideas and
qualities. We accept the submissions of the proponents that loss of such views would
be minimal at worst, and that there will remain good views of those buildings from
various places in Lower Queen Street and Quay Street.

[80] Submissions offered on behalf of Precinct beyond that point need to be considered
with care. 48 These submissions in places came close to falling into the trap of
comparing alternatives in the sense of endeavouring to identify that one might be better
than another. We remind ourselves that we have agreed with the Court in the

Palmerston North decision that the issue is as to whether a need which is presently
fulfilled will be adequately met by some alternative means; a question of fact in any
given case; and allowing some flexibility to the relevant authorities when managing and
planning their [facilities].

[81] It will be apparent from what has gone before, that we consider the setting up of
the large Lower Queen Street area as major public open space (subject only to two
small bus accessways in the north eastern and south eastern corners, which council
witnesses agreed might be studied for possible removal to improve the space further),
to meet the test of need being adequately fulfilled by alternative means.

 22
[82] We agree with the submissions of the proponents, both in opening and in reply,
that the pedestrian access ways through the Downtown development, including over
part of the area of QES if stopped, will provide (more than) adequately for the future
access function presently only partly offered by QES. In particular we note the
submission on behalf of Auckland Council/Auckland Transport,49 that the previous
provision of a 5 metre wide east-west laneway has been agreed amongst the
proponents now to be 6 metres, with a new clause placed in the Sale Agreement
requiring its protection by an easement to ensure that the public will have access to it
from the date on which the construction of the Downtown Shopping Centre works have
been completed. We regard those matters as important.

[83] We agree with the proponents in opening submissions and replies that the public
open space functions of QES can be adequately accommodated in the intended newly
refurbished Lower Queen Street space. We do not feel the need to enter the debate
amongst the witnesses, as to whether such new facility would be of a superior
standard. The LQS provision as advanced to us in evidence will comfortably meet the
test of adequacy. We record once again that we have considered carefully the evidence
of the amenity witnesses named above, in coming to this view. In addition, we have
been attracted to the evidence of Mr RA Nelson called by Precinct, a noted architect
from Melbourne with work experience in Auckland between 1987-1991, as to
comparative qualities of the LQS space and three comparably sized significant
Australian public spaces, one in Sydney and two in Melbourne.

[84] Counsel for Precinct ultimately brought matters into proper focus by submitting, as
we now record we accept, that the question of need as discussed in the cases,
particularly Palmerston North, can be satisfied on the basis that the functions which
QES presently fulfils will be more than adequately met by the LQS space, and that
there is therefore no need to retain QES as road.

[85] We should now touch briefly on the issue of the proposed new waterfront spaces to
be funded by the price agreed to be paid by Precinct for acquisition of QES if stopped.

[86] As already recorded in this decision, we wondered for a time during the hearing,
based on some evidence from Mr Falconer and others whether adequacy of fulfilment
of future functions presently met by QES, would require the inclusion of the proposed
three waterfront spaces, developed as public open spaces, to meet the test. It will be

49

Reply submission paragraph [3.5].

 23
apparent from our foregoing findings that after careful consideration of all the evidence
and submissions, we are of the view that the waterfront spaces are not required for this
strict statutory purpose. Inclusion and development of the waterfront spaces would on
its face appear desirable for the improvement of general amenity in downtown
Auckland, but we should take matters no further than that in case any consenting of
those spaces should become the subject of appeal to this Court in the future. All we are
recording for present purposes is that we have decided against endeavouring to impose
mechanisms that ensure fulfilment of the idea as part of any consideration of
alternatives to QES as a public space.
The fourth unresolved question: whether the public benefit gained from the
proposed stopping is outweighed by the public benefits of retaining QES

[87] While the parties agreed that this was a question in the case, we find that it should
be addressed with the greatest of care, particularly having regard to a finding in the
Ruapehu decision with which we agree 50 that we should not enquire into best methods

for achieving the Council's objectives, or weigh alternatives, which are matters within
the discretion of the Council. We hold that the approach taken by the opponents,
seeking to persuade us that the public benefits to be gained from retaining QES would
outweigh the public benefits to be gained from its stopping, and that hence there would
be a need to retain it, is not the correct approach. This topic once again generated what
could colloquially be described as a great deal more heat than light, with significant
assertions being made by amenity witnesses and those addressing matters of retailing
and economics, that one or other of the "proposals" would be better than the other. We
have considered all such evidence with care, but are not going to unduly extend the
length of this decision, having regard to the finding we have just made.

Is there reasonable cause to justify the proposal to stop QES?
[88] This was the second key question before us. To a considerable extent, the answer
to it actually flows from the answer to the previous question about need; and once
again elements of previous decisions are relevant and with which we find ourselves in
agreement. The decisions in Re Ruapehu,51 Re Auckland City Councif2 and Re
Tauranga City Councif3 underline once again the limits to our enquiry, to the effect that

the Court is not to choose between competing proposals; but rather under this head is
50
51

52

53

Ruapehu decision at paragraph [38(i)].
Re Ruapehu District Council (2002) BELRNZ144.
Re Auckland City Council (1980) C847.
Re Tauranga City Council (1983) A90/84.

 24
to decide whether to confirm the proposal to stop the road or not. The reasoning for our
finding in the present case that there is reasonable cause, can clearly be gained from
our findings in relation to the need issue, because the two go very much hand in hand
on this occasion.
The cases for other parties

[89] Mr T Hannah, Interim Chair of the executive committee of the Auckland CBO
Residents' Advisory Group, and a CBO resident himself, provided us with two very
detailed statements. The group takes an active interest in CBO affairs and community
issues and acts as a voice for "first quality residential living in the Auckland City
Centre".54

[90] Through Mr Hannah, the group sought to offer us extensive information and advice
about public spaces in the CBO (quantity, quality, usage etc), and commentary about
QES in particular. The group was also critical of various surveys about reserves and
open spaces in the area and evidence of council and Precinct witnesses which we have
held entered into issues (in answer to matters raised by the opponents including their
group) which strayed well beyond the parameters of the case before us. The group are
clearly knowledgeable and passionate about their living environment to which very
large numbers of other members of the public, and visitors, are attracted. We accept
too their statement that resident numbers in the CBO are growing strongly.
[91] The information and commentary they offered us about QES was extensive and
detailed. They strongly supported its retention, upgrading, and addition to the LQS
pedestrianised and public open space.
[92] The group will be disappointed at the outcome of the case, however, the present
proceedings were not about council policy settings for public open spaces in the CBO,
or about site selection or planning of them in the general sense. We are confined to
identifying, interpreting, and administering the law as we find it. We hope the group will
understand from reading our findings above, that we cannot assist them.
[93] Civic Trust Auckland made a statement through its current president Mr A Matson.
The statement was expressed to be directed at the provisions of PM79, but as will be
seen from the flavour of the next section of this decision, its content seemed more

@ directed at the question of whether QES should be stopped or not. For instance he said

 25
in his conclusion 55 that the removal of Queen Elizabeth Square from the public realm
would not be the loss of a failed space so much as loss of an opportunity to remedy its
underperforming nature.
THE APPEAL AGAINST PLAN MODIFICATION 79 (PM79)

[94] The evidence and submissions concerning PM79 were, to our surprise, extremely
extensive. We have in mind particularly the evidence of the planners, notably Mr
Serjeant for the opponents. The context for our surprise is as follows. The parties
appeared to agree that if QES was not stopped as road, then PM 79 should be
declined, and that the existing provisions of the existing plan (for instance as to the
open space qualities of QES) should remain in place. Further, the statement of agreed
facts and issues recorded in paragraph 3.1 that in the event PM79 was confirmed, the
amendments put forward to the operative district plan by PM79 would be appropriate;
also that no party was seeking a modification to the road stopping proposal (we infer,
such that there might be a need for some of the provisions of the plan change to be
imposed, and some of the provisions of the operative plan to remain).
[95] We agree with the submission of Mr Nolan in opening,56 that it would not be
appropriate to maintain plan provisions about public open space, for land in private
ownership, where that zoning is not sought by the land owner. 57
[96] The opponent's planning witness Mr Serjeant did not advance any alternative to
PM79 in the event that the stopping of QES was confirmed. We are at something of a
loss to understand the extent of the vigorous debates about PM79, other than to
perceive them in the context of arguments offered to bolster the opposition to the road
stopping.
[97] In the interests of getting this decision to the parties as early as possible
concerning the road stopping, we will not presently spend time on analysing the PM79
debates. We have an understanding that the Auckland Unitary Plan might itself require
change given the confirmation of the road stopping. The focus of the case before us
was however of course on the operative plan.

Mr Matson, para 4
At para 11.8.
57 Dilworth Trust Board v Auckland City Council (1980) 7NZTBA 198.
55
56

 26
[98] We seriously wonder whether, in light of the confirmation of the road stopping, the
parties might now be able to come to agreement on the provisions of PM79. If however
they request us to analyse the evidence and submissions about PM79, we will be duty
bound to do so, but we seriously doubt the utility of that at this stage. When responding
on this point, we invite the parties to consider the points that were the subject of
questions by Commissioner Dunlop at the hearing, which we understand have been
accepted by Precinct and Auckland Council.

[99] We ask that the parties provide a memorandum containing their joint response to
these matters, within 10 working dates of the date of this decision.

[100] Costs concerning the road stopping proceedings (and necessarily also the PM79
proceedings) are reserved. Given that the two sets of proceedings have travelled
closely together, we will not set a timetable for the exchange of submissions about
costs in the road stopping proceedings, until the PM79 aspects are finalised.

DATED at Auckland this

2! If

For the court:

LJ Newhook
Principal Environment Judge

day of

October

2016