CHRISTCHURCH CITY COUNCIL V EMMA JANE LIMITED AND ANOR HC CHCH CIV-2008-485-000280

CHRISTCHURCH CITY COUNCIL V EMMA JANE LIMITED AND ANOR HC CHCH CIV-2008-485- 000280 27 August 2008IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2008-485-000280UNDER the Resource Management Act 1991 IN THE MATTER OF an appeal under s299 of the Act BETWEEN CHRISTCHURCH CITY COUNCIL Appellant AND EMMA JANE LIMITED First Respondent AND P D SLOAN Second Respondent Hearing: 30 June 2008 Appearances: J J Hassan and C J Sinnott for Appellant P A Steven & R M Wolt for Respondents Judgment: 27 August 2008RESERVED JUDGMENT OF HON. JUSTICE FRENCH[1] This is an appeal under s299 of the Resource Management Act 1991 against a decision of the Environment Court ("the Court"). [2] The Court's decision was itself a plan appeal from a decision of the Christchurch City Council. It concerned land zoning issues arising out of a Variation to the proposed Christchurch City District Plan, known as Variation 86.Factual background[3] The City Plan contains a number of business zonings including B1 (Local Centre/District Centre Fringe), B2 (District Centre Core) and B4 (Suburban Industrial).[4] Variation 86 sought to introduce and amend objectives, policies and rules in the Plan associated with retail distribution. In particular, it sought amongst other things to restrict retail development in the B4 zone. It also introduced a new zone called BRP (Business Retail Park) Zone for large retail format development. [5] The key differences between the various zones that are relevant for present purposes can be conveniently summarised as follows:ZONE B1(Local Centre/ District Centre Fringe)B2(District Centre Core)B4(Suburban Industrial)BRP(Business Retail Park introduced by Variation 86) Coverage rate/Plot ratio permitted 1.0 1.5 1.0 0.5 (other than Moorhouse Central) Maximum height 12m to 20m 11m to 15m Controls on amount of retail activity allowed Controls apply regulating type of retail activity and gross floor area Residential activity Permitted Permitted Only one residential unit per business permitted associated with on-site security or management[6] The first respondent (Emma Jane) and the second respondent (Sloan) both own land at Ferrymead. The Emma Jane property consists of some 1.3 hectares, and the Sloan property some 5.9 hectares. [7] Prior to the introduction of Variation 86, the Sloan land was zoned B4 (Suburban Industrial). Under Variation 86, it was rezoned BRP (Business Retail Park). This zoning was confirmed in the City Council's decisions on Variation 86. Sloan appealed that decision to the Environment Court, applying for the land to be zoned B2 (District Centre Core). [8] The Council opposed the B2 zoning for the Sloan site. It maintained that position at the hearing until closing submissions when it agreed to a B2 zoning subject to the Environment Court imposing certain controls. Its concern therefore related to the scale of the activity on the site rather than the zoning per se. [9] As regards the Emma Jane land, it was zoned B4 (Suburban Industrial) under the City Plan both before and after Variation 86. Prior to the Variation, the Council had granted resource consent for some retail development on the Emma Jane land(the extent of which was in dispute) but there were no consents authorising residential development. The Council's decision on the Variation confirmed a post Variation B4 zoning with restricted retailing rights. Emma Jane appealed that decision to the Environment Court. [10] Originally, like Sloan, Emma Jane had been seeking a B2 zoning. However, at the hearing before the Environment Court, Emma Jane opted instead for a hybrid B1 zoning with some particular controls in place. These controls related to the amount of retail which could be provided on the site, whether commercial and residential could be provided as permitted, together with issues of site coverage and height. [11] One of the main issues in contention between the parties concerned potential traffic effects, particularly those arising out of retail development, and at the hearing much of the evidence appears to have been devoted to this issue. The evidence included expert evidence of traffic modelling designed to predict traffic conditions in the future. Both the Emma Jane and Sloan sites are located off a minor arterial road called Ferry Road. It was common ground Ferry Road has existing congestion problems and that the Emma Jane site, located on Waterman Place, was particularly problematic because Waterman Place is a cul de sac. [12] Because of its concerns about traffic generation, the Council sought the inclusion of a new discretionary activity rule in the Plan which would empower it to assess the traffic network effects of retail, commercial and residential development proposals for both sites and, in appropriate circumstances, exercise a discretion to decline those proposals with unacceptable traffic network effects.The decision of the Environment Court[13] In relation to the Sloan site, the Court held: (i) The area should be zoned B2 (District Centre Core).(ii) The site should be developed for a diverse mixed use district centre, involving elements of community, commercial and residential uses to which retail areas are complementary. (iii)A 1.5 to 1 plot ratio should apply. (iv) All retail should be at ground level and limited to 30,000m2 .(v) A 20m building height limit across the whole site would be allowed. (vi) The parties to agree on an outline development plan for the site, with the terms to be finalised by the Court in the event of the parties being unable to reach agreement. The plan to provide an outline in general terms of what type of development will occur, including the mix of activities, where they will occur on the site and the associated public aspects (ie access, gathering areas, landscaping). [14] In relation to the Emma Jane site, the Court held: (i) Because of the traffic issues, B4 zoning should be retained. (ii) Ground floor retail should be permitted of up to 6500m 2 (the parties disputed whether the existing consents authorised 3200m 2 of retail space or 5500m2 ). (iii)A further 6500m 2 of commercial and residential use would also be permitted. (iv) The parties to agree to an outline development plan on the same basis as detailed above for Sloan. [15] The Court declined to accede to the Council's request for a new discretionary activity rule to enable it to assess traffic effects. It did so on the grounds such issueswere already adequately addressed by an existing rule known as the High Traffic Generator Rule, and no useful purpose would be served in adding another rule or modifying the existing one. The Court also rejected a Council submission there should be an avoidance of effects on the roading network, as opposed to mitigation of them. The Court considered traffic generation was a necessary consequence of Variation 86 and regarded the Council as having effectively agreed to accept increases in traffic.The appeal to this Court General principles[16] An appeal to this Court under s299 is an appeal limited to questions of law. Appellate intervention is therefore only justified if the Environment Court can be shown to have: (i) applied a wrong legal test; or, (ii) come to a conclusion without evidence or one to which on the evidence it could not reasonably have come; or, (iii)taken into account matters which it should not have taken into account; or, (iv) failed to take into account matters which it should have taken into account. [17] Further, not only must there have been an error of law, the error must have been a "material" error, in the sense it materially affected the result of the Environment Court's decision.Grounds of appeal[18] In appealing the decision, the Council alleged several errors of law. These can be conveniently summarised as follows:(i) the finding the Council was prepared to accept increases in traffic caused by the development of district centres was a finding based on a misinterpretation of Variation 86 and made without any evidential basis, (ii) the Court misinterpreted the existing High Traffic Generator Rule, (iii)the Court failed to apply the correct legal test for determination of district plan rules, (iv) In relation to the Sloan land, it failed to take into account whether the effect of the height allowance could result in uniform 20 metre high "boxes" of development across the site. [19] The first three errors were said to be material because individually and/or in combination they contributed to the Court's choice of development controls for both sites. In particular, they contributed to the decisions: (a) to allow the Emma Jane land to be developed to a significantly greater density than B4 zoning and the status quo would have otherwise allowed, (b) to reject the Council's request for a new discretionary rule to allow assessment of the traffic network effects of the development proposals and if necessary to decline those proposals, (c) to allow 20 metre high development across the Sloan site. [20] As regards the issue of building height on the Sloan land, the Council submitted it was unclear whether the Environment Court considered its decisions on height limits and plot ratio would still be subject to the outline development plan process. If they were still subject to that process, the Council saw no need for appellate intervention. (For completeness I should add the appeal originally includedthe Court's ruling on the plot ratio but at the hearing before me the Council elected not to pursue that issue.) [21] On my interpretation of the decision, the Environment Court did not intend the parties to be able to re-litigate the rulings on plot ratio and height limits through the outline development plan process. It follows the only way in which the Council can overturn those rulings is through the appeal process. [22] For their part, the respondents contend this entire appeal is a thinly disguised attempt to reargue the merits of the decision under the guise of questions of law. They submit the Council's real complaint is the fact that on most issues the Environment Court preferred the respondents' expert evidence to that called by the Council. That was something clearly open to the Court and cannot be the subject of an appeal under s299. [23] I turn now to consider each of the alleged errors of law in detail.Assumed acceptability of traffic effects[24] According to the Council's submissions, the Environment Court interpreted Variation 86 as providing any distribution of traffic caused by a centres-based approach must be considered as "acceptable" – a proposition which the Court found the Council itself accepted. This ruling is said to be a misinterpretation of Variation 86, while the finding about the Council's position is alleged to have been made without any evidential basis. [25] References to the issue appear throughout the decision, and counsel for the City Council pointed me to the following statements:[14] Accordingly, it can be seen that Variation 86, by introducing district centres, will have an impact on roads and traffic in the vicinity of such a centre [15] Variation 86 essentially confirms that this concentration of traffic is an acceptable effect given the wider benefits to the entire roading system [16] It was therefore particularly curious to this Court that, notwithstanding the clear emphasis upon concentrating traffic around districtcentres, extensive evidence was given for the City Council as to this very eventuality in relation to Ferrymead being zoned as a district centre. the evidence the Council was giving was as to the particular consequences of the very variation they had introduced. [17]we cannot accept that the intention of Variation 86 is that every time a district centre is being considered, an increase in traffic levels will be seen as a basis on which to refuse to make any provision for such a centre. we consider the following points are clear from a reading of the Plan: (a) that district centres will generate localised high traffic demands around the centre; (b) that those should be accommodated wherever possible on arterial or minor arterial roads and should avoid local roads; (c) that (given that the network as a whole should have lower levels of demand) works and improvement to accommodate such extra traffic will be focussed around reducing (but not avoiding) those local impacts. [57] ... The Court observes that in introducing Variation 86 with its centres-based approach the City Plan must anticipate traffic conditions will deteriorate around retail centres as they expand. It follows Council is prepared to accept increases in traffic and will presumably plan mitigation measures appropriately. [93] it is not our view there must be no adverse effects from a district centre on the roading network. We consider it inevitable that there will be some increase in traffic due to natural growth and the development of the district centre. The impact on the roading network will depend on the level of increase and mitigation measures adopted [94] Mr Hassan suggests that there should be an avoidance of network effects. We disagree entirely with this approach... Quite clearly the Plan envisaged a local impact on roads as a result of district centres, and the objectives are to mitigate these effects rather than avoid them[26] In my view, the Council's criticism of the Court on this issue is misconceived. [27] As noted by the Court, the Sloan and Emma Jane cases represented the last of the zoning issues arising out of Variation 86. It followed that in considering the cases, the objectives and policies of the Plan incorporating Variation 86 had to be taken as settled and no longer open for debate.[28] That meant it was not open to the Court to debate the relative merits of what are called the "dispersion" and "district-centred" approaches to business activity. Variation 86 favours the latter approach – concentrating business activity into particular areas described as district centres – rather than a dispersed approach. [29] This was the context of the Court's comments about the acceptability of traffic effects. [30] For, as the evidence established, each of the models has different traffic effects. By operating a district centre, as opposed to a dispersion model, traffic movements will of necessity be focused around the district centre. The effect will be to intensify traffic in those areas but at the same time reduce the traffic impact on other sections of the roading network. There are thus significant advantages in terms of overall trip miles and traffic generation to be gained in concentrating businesses in one area. The aim is that overall a better result is achieved. As a whole, the roading network is "better off". [31] That increasing localised traffic would be an inevitable consequence of adopting a district centred approach would seem to be a matter of logic and common sense. But in any event, the transcript shows the Court putting the proposition to a Council witness, Mr Chrystal, who accepted it:HIS HONOUR: So it recognises that those [centres] should really be located on like, collector roads or arterial roads of some sort. Do you agree? MR CHRYSTAL: Yes. HIS HONOUR: Because it recognises they are going to have to create traffic? MR CHRYSTAL: Yes. HIS HONOUR: And you would agree with me entirely, wouldn't you, that it couldn't be an argument to prevent such new centre that it will create an adverse effect on traffic? MR CHRYSTAL: I think you'd have to look closely at that traffic effect. If you had an effect which was so bad that the road network didn'tfunction anymore – which was the result of a centre – then I think you'd have to look very seriously at it. HIS HONOUR: And that's recognised in the policy by saying that the level of demand can be accommodated? ["The expansion of existing centres, or the creation of new ones, should occur in locations and on routes that minimise adverse effects on amenity, are served by public transport, and where the level of demand on the road network can be accommodated." (City Plan, Volume 2, Section 6, Policy 6.2.2)] MR CHRYSTAL: Yes, there has to be - - - HIS HONOUR: So there is an upper test but nevertheless it's not saying that there will be no effect on the road network? MR CHRYSTAL: No, I don't think so. HIS HONOUR: You couldn't create a district centre and have no effect on a road network, could you? Not that I'm aware of anyway. MR CHRYSTAL: It would have to be a brand new road I would have thought. A brand new arterial and a centre was created beside that I guess.[32] At the hearing before me, counsel submitted the Court's findings were contrary to the evidence of another Council witness, a Mr Bonis. The Court was not of course bound to accept Mr Bonis' views as to the meaning of Variation 86. In any event, even Mr Bonis provides some support for what the Court was later to write in its judgment.HIS HONOUR: But it acknowledges immediately, because it says it becomes unstable around malls that the district centre itself becomes a major generator of traffic? MR BONIS: That's correct, sir, you're concentrating traffic in particular locations. HIS HONOUR: So it seems to me to follow with respect as night follows day that it can't be that you can never have a district centre that has traffic effects, because every district centre must have traffic effects? MR BONIS: I agree with that entirely, sir and the policies and objectives in section 7.2 indicate that change is inevitable, but they simply indicate that the network and adjoining land uses must be symbiotic, there must be some relationship between how they function and what is the role of that particular road network. HIS HONOUR: Yes, you couldn't set one up on a local road if that's the point you're making?MR BONIS: Yes, sir.[33] It follows I do not think it can validly be said there was "no evidential basis" such as to constitute an error of law. [34] Nor do I consider the statements in issue – in particular the Court's summary of the plan provisions quoted above – can be considered to amount to a misinterpretation of Variation 86. Counsel was unable to point me to any particular Plan provision other than those quoted in the decision itself which negates the Court's construction. [35] I am satisfied the Court did not fall into error in making the observations it did about the acceptability of traffic effects. [36] I am also not satisfied that even if there was an error, it was material in the sense argued for by the Council. The Council submits the error was material because it meant the Court failed, for example, to consider what the traffic generating effects would be of allowing general residential development on the Emma Jane land, or what the traffic generating effects would be of allowing retail development in excess of the level already consented. The Court is criticised for just assuming the traffic generating effects of those developments must be considered acceptable and in any case could be picked up under the High Traffic Generator Rule. [37] Putting to one side the issue about the scope of the High Traffic Generator Rule considered below, I consider the submission represents too simplistic an interpretation of the decision and the Court's reasoning. [38] At the hearing, the Council's opposition to the re-zoning was primarily based on potential traffic effects predicted by numerical modelling and then evaluated by its traffic expert, Mr Abley. The respondents called their own traffic expert, Mr Smith. Mr Smith was strongly critical of the models and described almost all the conclusions drawn by Mr Abley as being without any foundation. Mr Smith's opinion was that if the land was re-zoned as sought by the respondents, the trafficeffects would not in fact be significantly different from those that would arise as a result of developments already permitted as of right under the existing consents. [39] It is clear the Court shared some of Mr Smith's concerns and had significant reservations about the validity of the traffic predictions. The Court articulated the reasons for those concerns. They are reasons which the Council accepts cannot be impugned on appeal under s299. When discussing the traffic evidence, the Court also expressly noted Mr Abley's analysis was based upon an assumption the area would be used exclusively for retail and did not appear to include any assumptions based upon commercial business or residential uses. Yet the evidence established the latter uses had minimal effects in terms of peak hour traffic. [40] Having noted those points, the Court then went on to make the following statements all under the heading "Traffic effects (Ferrymead Sites)":[63] When considering the Sloan site it can therefore be concluded that the potential adverse effect on peak hour traffic derives from the retail area which is permitted [64] Mr Abley accepted that at some 30,000m2 of retail area the traffic generated would be at an acceptable level. He agreed that added areas of residential or commercial office space would not significantly alter traffic generation figures so as to compromise the acceptability of the traffic effect [65] [In respect of Emma Jane] It was Mr Abley's view, supported by Mr Smith... that there would be significant traffic effects from the development currently consented to.And at [92]:To the extent that there may be some remaining questions in respect of the traffic generation [traffic effects not able to be addressed through the High Traffic Generator Rule], we prefer the evidence of Mr Smith on this matter.[41] In light of the above, I do not see how it can be said the Court failed to consider the traffic generating effects of the proposed developments, or just assumed they were acceptable because of its view of the implications of Variation 86. To a significant extent, the case in fact turned on the expert evidence.Interpretation of the existing High Traffic Generator Rule[42] As mentioned above, the Plan contains a provision known as The High Traffic Generator Rule (City Plan, Volume 3, Part 13, Rule 2.3.8). The High Traffic Generator Rule requires any business activity which may generate more than 250 vehicles per day to obtain a consent where consideration can be given to relevant matters. [43] In its decision, the Court considered the Rule was sufficiently wide to accommodate the inevitable traffic effects caused by the development of district centres. [44] This I am prepared to accept was material because it influenced the Court to decline the Council's request for the introduction of a new or modified Rule to address network effects. [45] The existing Rule states2.3.8 High traffic generators(a) Any activity on a site which is not in the Central City Zone which generates more than 250 vehicle trips per day and/or provides more than 25 parking spaces shall be a discretionary activity with the Council's discretion limited as follows: • retail activities in B3, B3B, B4, BRP, Central City Edge, and Special Purpose (Wigram) (Areas B and B1) zones: matters associated with any traffic effects of the activity. (Plan Change 12) • other activities and other zones: matters associated with vehicular access. (b) Any activity on a site in the Central City Zone which generates more than 250 vehicle trips per day and/or provides more than 25 parking spaces shall be a controlled activity with the exercise of the Council's discretion limited to vehicular access.[46] On the face of it, the Rule draws a distinction between "matters associated with any traffic effects of the activity" and what would appear to be a narrower concept, "matters associated with vehicular access". The Council's discretion as regards "matters associated with any traffic effects" applies only in respect of retail activities (ie not commercial and residential) and even in the case of retail activities,only to specified zones including B4 but not B2. Thus, if Emma Jane were to retain its B4 zoning, the Council could consider "any matters associated with any traffic effects" of retail activities and impose resource consent conditions in respect of those matters. However, as regards residential and commercial activities on Emma Jane land, and in respect of all activities on the Sloan land (B2), the Council's discretion would be limited to "matters associated with vehicular access". [47] However, the Court held the difference between "matters associated with any traffic effects" and "matters associated with vehicular access" was more apparent than real because of the breadth of the assessment matters applicable to either. In particular, the new criteria inserted by Variation 86 which read:(b) The extent to which the traffic using the access, either alone or in association with other nearby activities, will adversely affect the traffic function and/or the safety of the surrounding road network. (j) The proximity of the access to other high traffic generating landuse access points and intersections.[48] The Court concluded that for all practical purposes there was no particular distinction between how traffic effects will be considered for each of the various zones available for the sites. Or to put it another way, the Court found the second bullet point of the High Traffic Generator Rule (matters associated with vehicular access) was sufficient to allow the Council to consider traffic effects of a proposed use of the respondents' land on the local road network. [49] Council challenged this construction, relying on the definition of "access" under the Plan and on the general principle of interpretation that where a distinction between two things has been deliberately and carefully drawn in a document, a Court ought to adopt an interpretation which affords the distinction and the fact of its existence some meaning. [50] According to the Council's submission, correctly interpreted the assessment criteria do not blur the distinction. Assessment criterion (b) expressly relates only to the adverse effects of use of an access on the function and/or safety of the road network – that is to say, whether the act of coming in and out of that access will per se have effects on function or safety. It does not allow for wider traffic effects of aproposal on the local road network to be considered. Nor, the Council argues, does assessment criteria (j), because it only relates to the distance between the access and an intersection. [51] The Plan defines the word "access" as:that area of land over which vehicular and/or pedestrian access to legal road is obtained and includes:• an access strip;• an access lot;• a public access way.[52] It is well established that when interpreting the provisions in a Plan, the words are to be given their plain ordinary meaning unless this is clearly contrary to the statutory purpose, or the social policy, behind the Plan and Rules, or otherwise produces some injustice, absurdity, anomaly or contradiction. The test is "what would an ordinary reasonable member of the public examining the plan have taken from the document." (Powell v Dunedin City Council [2005] NZRMA 174 (CA)). [53] Applying that test, I am satisfied the Court's interpretation is the correct interpretation. I find the Council's construction in contrast to be somewhat artificial and strained. Had assessment criterion (b) said "The extent to which the use of the access will adversely affect", then the Council's argument might perhaps have greater force, but that is not what the criterion says. It says "The extent to which the traffic using the access". The phrase is a descriptor of what traffic it is that is under consideration – it is those cars coming in and out, ie the traffic attracted to the centre, and the effect they will have on the traffic function and the safety of the surrounding road network. I also find it significant the provision includes the phrase "either alone or in association with other nearby activities". [54] As for assessment criterion (j) ("the proximity of the access to other high traffic generating landuse points and intersections"), I consider it ideally suited to allow the Council to, for example, consider traffic effects on the Ferry Road and Waterman Place intersection.[55] In my view, the definition of access in the Plan does not detract in any way from the Court's interpretation, and I note that while the Council made an assertion to the contrary, the submission was not elaborated or explained in any detail. [56] I do, however, acknowledge the existence of a general principle of interpretation along the lines suggested by the appellant. However, the principle is not an absolute one and in appropriate cases must yield to the plain and ordinary meaning of the words. In this case of course, the two assessment criteria relied on by the Court were not part of the original Rule but were recent amendments. Significantly, they were introduced by Variation 86 which, as already discussed, favours a model which has as one of its necessary consequences, an increase of traffic on the local network. [57] In my view, the Court was correct to hold the terms of the existing Rule do enable a consideration of network effects.Applied the wrong legal test for determination of district plan rules[58] Under the heading of "the Court's approach", the Court held the starting point for its deliberations was the principles established in Eldamos Investments Limited v Gisborne District Council Environment Court Wellington W47/2005, 22 May 2005. The Court then summarised the relevant principles. [59] Mr Hassan acknowledged the Court was correct to identify Eldamos as a leading authority in zoning cases, and he also acknowledged the Court did direct itself in terms of that decision. [60] However, he submitted the Court was required to go beyond the Eldamosformula. In particular, the Court was also required to have regard to s76(3), which it failed to do. [61] Section 76(3) provides:In making a rule, the territorial authority shall have regard to the actual or potential effect on the environment of activities including, in particular, any adverse effect.[62] According to the Council, the correct legal test under the Act including s76(3) was for the Environment Court to take each of the issues (ie plot ratio, height limitation, amount of retail and residential development, inclusion of new Rule), identify the options in respect of each issue, determine the actual and potential effects of the various options, identify the differences between the effects arising out of each option and then take that difference into account in selecting the option. [63] It is common ground the Court did not expressly advert to s76(3), nor did it adopt the formulaic approach advocated by the appellant. [64] However, counsel for the respondents contended no such legal test as postulated has ever been applied in these sorts of circumstances. Ms Steven stated Council had not cited any case where such an approach had been taken and nor could it "because there are none". She further submitted that not only was the Council's argument unsupported by any authority, it would impose "an impossibly onerous" task on the Court, lengthen hearings and render the decision-making process unduly prolix. [65] Ms Steven pointed out the Court was faced with the differing opinions of the parties' respective planning witnesses. For example, the Council's planning witness preferred a 12 metre building height, while that called by the respondents, a 20-metre height. After considering the experts' views and associated reasons, which of course included adverse effects, achievement of plans and policies, statutory purposes etc, the Court preferred the evidence of one party to another and gave reasons why. That was a planning judgment and no question of law can arise from that. [66] I agree with those submissions. As Ms Steven stated, the Court undertook the necessary evaluation of each of the possible outcomes before it, that evaluation being informed by the evidence, and based on the evidence it made an overall judgment as to what was the most appropriate planning outcome under the Act and the Plan. In my view, it did not thereby fall into error.Failed to take into account a matter which it should have taken into account[67] This final ground of appeal relates to the Court's decision to allow a 20-metre building height limit across the whole of the Sloan site. [68] The Council submits that in reaching this decision, the Court failed to take into account a relevant factor: namely that allowing 20 metres could potentially result in uniform 20 metre high boxes of development across much of the land. This was said to be a particularly important oversight given the Court's ruling the site should be developed for a "diverse mixed use" district centre – uniform 20 metre height buildings being the antithesis of the desired diversity. [69] The reason for allowing a 20-metre limit was that in the Court's considered opinion a lower height limit would restrict development options. The Court wanted to encourage commercial and residential areas above ground level and a 20-metre height was seen as providing the necessary flexibility to enable that to happen. [70] The Council acknowledges this, but says what the Court should have done was not impose a blanket rule but reserve the issue of height for individual buildings as a matter for the outline development plan in order to ensure a diverse mixed use outcome. [71] I accept the Council's argument has some merit. However, this is an appeal on a question of law and I am unable to characterise the Court's decision on this issue as a material error of law justifying appellate intervention. Essentially, it is a planning judgment by a specialist Court.Outcome of appeal[72] I am satisfied the Council has failed to demonstrate any material error of law. There is no reason to interfere with the Court's decision, and the appeal is therefore dismissed.Costs[73] At a pre-trial conference, the parties agreed the appropriate costs category for the appeal was Category 2. Subject to any submissions which the parties may wish to file, my provisional view is costs should follow the event and the first and second respondents be entitled to costs on a 2B basis with disbursements to be fixed by the Registrar. [74] If counsel wish to make submissions on costs, then memoranda should be filed within 10 days by the appellant and any reply submissions by the respondents within 10 days thereafter.Solicitors: Chapman Tripp, Wellington Goodman Steven Tavendale Reid, Christchurch