DRIVE HOLDINGS LTD v AUCKLAND COUNCIL [2022] NZHC 3620

DRIVE HOLDINGS LTD v AUCKLAND COUNCIL [2022] NZHC 3620 [23 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-2062[2022] NZHC 3620UNDER the Resource Management Act 1991("RMA")IN THE MATTER of an appeal under s 299 RMA against adecision of the Environment Court on anappeal under s 120 RMABETWEEN DRIVE HOLDINGS LIMITEDAppellantAND AUCKLAND COUNCILRespondentHearing: 15, 16 June 2022Appearances: D Allan for the AppellantD Hartley and A Buchanan for the RespondentG K Chappell for the s 301 PartyJudgment: 23 December 2022JUDGMENT OF HARVEY JThis judgment is delivered by me on 23 December 2022 at 10ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:Ellis Gould, AucklandDLA Piper, AucklandCounsel:Lara Burkhardt, Barrister, TaurangaG K Chappell, Barrister, AucklandIntroduction[1] Drive Holdings Ltd (DHL) sought resource consents on 16 August 2018 fromAuckland Council for a multilevel apartment and retail development on its land on thecorner of Tāmaki Drive, Patteson Avenue and Marau Crescent in Mission Bay. Theapplication was declined 3 October 2019.1 DHL then appealed that decision to theEnvironment Court. Following mediation, on 1 September 2020, DHL reduced thescope of its original proposal. Further changes were made in May and June 2021 whilethe appeal was in progress.[2] In its judgment, the Environment Court considered that, in the context ofDHL's application for restricted discretionary activity resource consents, the core issuewas DHL's ongoing pursuit of over-height residential apartments "contrary to theopposition from residents, the Council and relevant experts". While considering thata re-design was required and that there could be a "consentable proposal," the Courtwas not satisfied that, as currently framed, the proposals were capable of approval.The appeal was dismissed on 14 October 2021.2[3] DHL now appeals that judgment to this Court. It seeks orders that the decisionbe set aside, and that the application be remitted back to the Environment Court for arehearing by a differently constituted Court. In reply, the Council's position is thatthat there was no error in law, and that DHL was simply dissatisfied with the decisionand is seeking to re-examine the merits of the Environment Court's judgment.[4] Ms Nathan, a resident who owns an affected property, has filed submissions asa s 301 party opposing the appeal. I have taken those submissions into account in mydecision.Grounds of appeal: alleged errors of law[5] DHL alleges six errors of law, that the Environment Court:1 The development concerns a proposed mixed-use, multi-level development at 75-79, 81-87 and89-97 Tamaki Drive, 6, 8-10, 12 and 14 Patteson Avenue, 26, 28, and 30 Marau Crescent, MissionBay. The site is zoned Business-Local Centre in the Auckland Unitary Plan.2 Drive Holdings Limited v Auckland Council [2021] NZEnvC 159.(a) failed to provide any or adequate reasons;(b) failed to make findings required of it under ss 104 and 104C of the ResourceManagement Act 1991 (RMA);(c) applied an incorrect legal test, or had regard to an irrelevant consideration inthe decision by requiring DHL to justify that the additional height sought was"warranted" or "justified";(d) erred in its interpretation of the Auckland Unitary Plan (AUP);(e) took into account irrelevant and incorrect considerations; and(f) misapplied s 290A of the RMA by placing undue reliance on the outcome ofthe Council's first instance decision.[6] DHL claimed that these errors are material as omissions because by failing toprovide reasons or findings regarding key issues, the Environment Court deprived itof an understanding of the rationale for the decision and consequently how it mightamend its proposal to secure approval. Further, DHL claimed that, regarding the errorsstated at (c) to (f), they erode any sense that the decision is reliable and collectivelysuggest a flawed understanding of the AUP and the historic change it marked forallowing intensification.[7] DHL sought that the decision be set aside and the matter remitted to theEnvironment Court for rehearing or reconsideration.Background[8] On 16 August 2018, DHL applied to the Council for resource consents. Thisprocess included public notification on 12 September 2018. Over the following year,the Council requested further information on 13 September and 4 October. A hearingbefore commissioners on the notified proposal was held between 30 July 2019 and 6August 2019. Then on 3 October 2019, the Council issued its 83-page decisionrefusing the resource consents.[9] The Council noted that the proposal involved the demolition of all existingbuildings and the construction of two levels of basement and seven detached andsemi-detached buildings above, ranging in height from four to eight storeys, arrangedaround an internal, raised plaza space. The proposed buildings were to provide forcommercial units, some 100 individual residential dwellings, carparks and a cinema.The decision recorded that following public notification, a total of 699 submissionshad been received: 626 in opposition to the application, 3 neutral and 70 supportingthe application. In making its decision the Council considered specialist reports, theevidence of the applicant, the evidence of the submitters and specialist peer reviews.[10] Ultimately, the Council considered that the application should be declined andresource consents refused but noted that it was "not an easy decision to make" and that"we hasten to add that there may well be scope for some additional height on the site".It recorded that "the effects generated by the development sit close to the point ofbalance between being appropriate and inappropriate". In giving a summary ofreasons for their decision, the Council stated:Reasons for the decisiona. In terms of section 104(1)(a) of the RMA and having regard to any actual andpotential effects on the environment of allowing the activity it has been determinedthat overall, the adverse effects of the proposal to construct a new multi-levelmixed use development would be unacceptable. The excess height of the proposalwill result in adverse visual and dominance effects on the amenity of thesurrounding environment, including the local centre environment itself, nearbyresidential areas that overlook the site, and the wider landscape.b. In terms of section 104(1)(b) of the RMA, the proposal is considered inconsistentwith some of the key objectives and policies of the AUP(OP), particularly thoserelated to:i. the scale and intensity of development within the local centres being inkeeping with planned outcomes identified in the AUP(OP) for the surroundingenvironment;ii. managing the height and bulk of development to minimise adverse effects onadjoining residential sites and developments.c. In terms of section 104(1)(c) of the RMA, there are no other matters consideredrelevant and reasonably necessary to determine the application.[11] On 21 October 2019, DHL filed a notice of appeal of the Council's decisionwith the Environment Court. This was on the basis that the Council's decision wouldnot promote the sustainable management of resources and was otherwise inconsistentwith the purpose and principles of the RMA and sound resource managementprinciples and practice. Unsuccessful mediation between the parties was then held on5 February and 16 March 2020. Following that, DHL filed and served a revisedproposal on 3 September 2020 which reduced the overall scope of the development(the Revised Proposal).[12] The Environment Court hearing initially commenced on 24 and 28 May 2021.Additional revisions were made by the applicant in a further proposal which was filedand served on 1 June 2021 (the June Proposal). The hearing resumed on 28 June and2 July 2021. As foreshadowed, the Environment Court issued its decision refusing theappeal on 14 October 2021. The present appeal was filed on 3 November 2021.The Environment Court decision[13] The Environment Court began by noting at the outset of its decision that thelarge amounts of expert evidence adduced during the hearing did little to assist indetermining the appropriate height, scale and bulk for the development beyond thatimplied by the AUP. Moreover, the Court highlighted its conclusion that theCommissioners had adopted a well-balanced approach to the application. Despite thechange in proposal, the concerns the Commissioners identified remained the issues forthe Environment Court.[14] In addition, the Environment Court noted the major difference was themodification of the application both prior to and during the hearing, of which the mostrecent was the June Proposal which had been introduced three days into the hearing.It was suggested to the Court that if neither alternative were appropriate it shouldindicate the level of development and controls that should be in place. The Courtrecorded, "We are in a quandary as to the outcome in this case, particularly whetherthere may be a clearly consentable proposal".3 It was not willing to consider such awide range of design parameters that the Court would in effect "design the proposal".43 At [8].4 At [6].However the Court was satisfied that on the evidence it had received the "keyparameters" and "essential attributes" of the development.5[15] The Court began by recording the features/character of Mission Bay and theapplicable AUP zoning. The site subject to the application is zoned Business-LocalCentre. The Court recorded that at the Council hearing the application was for adiscretionary activity because a new movie theatre was proposed. The theatre hadsince been removed for the appeal hearing, meaning the application was for a restricteddiscretionary activity. While it was not formally reinstated into the proposal, all partiesagreed that the theatre would be of particular benefit to the Local Centre. There wereno issues identified with any additional criteria were the theatre re-instated so theappeal progressed on the basis of the proposal being restricted discretionary (with thepossibility the theatre would be within the consented development).[16] At [28], the Court gave a list of factors derived from the restricted discretionarycriteria under the AUP. It considered these factors generally encompassed the parties'and the Court's concerns and that the grant of consent would turn on them. In selectingthe factors, the Court referred to the amount of evidence it had considered:[28] The restricted discretionary activity criteria were the focus of a great deal ofevidence, both as to meaning and achievement in this case. These were extracted fromthe AUP but contained in different parts of the plan – sometimes reflected with minorwording differences[17] The list contained a series of factors set out under the headings "GeneralFactors", "Local Centre Factors", "Public Area Factors" and "Residential AreaFactors", some of which (but not all) directly referenced an AUP policy.[18] The Court then proceeded to describe the proposal, noting that there wereseveral aspects of the designer's approach which were inconsistent with the AUP,particularly in relation to height, of which they said the result was:6an extremely large building, occupying the footprint to the outer boundaries of thissite except on Marau Crescent and on the eastern side of the site facing the housingarea. The resulting building is well over 18 m high on Tamaki Drive and Patteson5 At [7].6 At [33].Avenue, except where it approaches the other zones to the east on Tamaki Drive andfacing Marau Crescent.[19] The Court considered that the Revised Proposal was very similar to that givento the Commissioners, with the exception of some redesign to the building as a wholeand the glazing of the penthouse roof to create a floating roof concept and "lighten thedesign". Following that, and commenting on the June Proposal, which was presentedthree days into the hearing as an alternative where the overall height and scale hadbeen reduced, the Court noted that the key features were:7(a) most of the buildings are five floors and over 18 m high but not by asignificant margin (less than 1 m);(b) the significant over-height floors are carried in the north westerncorner with Patteson Avenue and Tāmaki Drive to around 27RL8 forthe penthouse. There is a sixth-floor part way along Patteson Avenuefrom the corner to Marau Crescent. The other intrusions are relativelyminor, such as the lift overruns. They are, nevertheless, all over 16 moccupiable floor area and the total height over 18 m above groundlevel; and(c) there has been relocation of the plant from Building 4 to Building 5on Marau Crescent. This is now within the 18 m height limit and onbalance there was an acceptance that this was a better outcome thanthat originally proposed. Nevertheless, nearby residents on MarauCrescent opposite the site noted that this outcome may have lost manyof the professed advantages to them of relocating bulk elsewhere onthe site.[20] Under a heading titled "The Core Issue", the Environment Court recorded itsconclusion that the real issue in this case was the appellant's continued pursuit ofover-height residential apartments on the site, notwithstanding clear opposition byresidents, the Council and relevant experts. The Court noted there were persistentover-height and bulk elements in the proposal which were an over-intensification ofthese sites beyond that anticipated in the AUP. The Court agreed that the Council hadcorrectly applied the AUP approach, which balanced the various issues in the area andwith particular consideration given to the height relationships between the headlands,the residential areas, the reserve areas on the foreshore and the Local Centre.97 At [41].8 RL stands for reduced level, and is usually measured from ground level: see Auckland UnitaryPlan, Chapter J.9 At [44].[21] The Court considered that the same issues of height and bulk arose in this case,and that faced with the same proposal the Council was at first instance, they too wouldhave refused consent. The question for the Court was whether the new proposals wentfar enough to addressing those issues.10[22] The Environment Court then recorded its findings on key issues. First, itconsidered whether the development reinforced the centre as a focal point. It foundthat it would not, as it would disrupt the existing focal point of the Local Centre.Secondly, it considered the proposal's prominence, making a neutral finding that theheight of the proposal served little purpose for marking out the Local Centre purposebut if retail such as a restaurant or bar were placed on the first floor, this could justifyan over-height building if it did not detract from the Local Centre role. Thirdly, itconsidered public area outcomes and found that the public and retail space providedwas low compared to the significant intensification of the area because of the proposal.[23] Fourthly, and importantly, the Court considered height standards. The LocalCentre description in the AUP sets a "clear expectation as to outcome" with buildingsbeing generally four to five storeys with a height limit of 16 m (allowing up to 18 mfor building form fluctuations).11 The 16 m limit is for occupiable space, to the ceilingof the occupied floor. If five storeys were desired, level two and above would havelow ceiling heights. The 18 m provision is "not a de facto height for the overallbuilding". Once the 16 m occupiable space height provision is breached, the planmakes all activity above that area restricted discretionary activity. The 18 m "totalbuilding height" provides for discrete articulated areas, primarily to avoid the constantuse of flat roofs. The Court concluded:[68] We conclude this demonstrates the overall intent of the AUP was toallow a generous four-storey development in general, while acknowledgingthere may be occasions where a five-storey development might be appropriate.That generality does not mean, of course, that in some circumstances lowerbuildings may not be appropriate or that higher buildings are appropriate.[24] After recording findings on key issues, and considering case law provided bycounsel, the Environment Court determined, that the core issue, as foreshadowed, was:10 At [48].11 At [61].what extra occupiable height over 16 m and total height of building can this LocalCentre zoning carry to achieve the outcomes envisaged under the AUP and the RMA?The Court noted that the AUP provisions that apply to this zone in Mission Bay, inparticular the height provisions, were carefully constructed by the IndependentHearing Panel (IHP) after a fine-grained analysis of the specific features of the area,such as historical connections to buildings, its position as a major thoroughfare, nearto a public reserve and significant residential housing on the upper layers of the hillsbehind. It found that DHL was still seeking to maximise the height along the balanceof the frontage on Tāmaki Drive, which increased impact on these residents. "Building1" was a significant two storeys, or eight metres, over the occupiable limit. Therewould be shadowing effects on the public space and amenity of the road. There wasno justification for extra height for the private residential development on floors threeto five as there was no commensurate public benefit.[25] After noting the issues, the Court concluded that while issues of height werenot insurmountable, neither proposal was currently consentable as there was no designto justify the height intrusion. The Court also noted that there was a palpablefrustration by various residents who gave evidence including resident groups whoconsidered that the proposal was clearly a significant increase in impact over thatenvisaged after a hearing before the IHP Commissioners.12[26] In concluding, the Court found that neither the Revised Proposal nor the JuneProposal was acceptable. In summary, refusing the appeal, the Court recorded:[120] Although there are two variations to this proposal, we conclude neitherachieve nor implement the AUP or meet the wider purpose of the Act. We note contextof the issues that were clearly identified from the very first meetings between thedeveloper and the Council, reflected both in the decisions of the IHP and AUP and thedecision of the Commissioners on this application.[121] It must follow that it is not for this Court to redesign a consentable proposaland we refuse to do so. We conclude that a redesign is required but there are manyissues that are affected by such a redesign. On the basis of the applications put to thisCourt, we refuse consent and at this stage are not satisfied there is currently aconsentable proposal before us.12 At [112].Legal principles[27] Section 299 of the RMA provides:Appeal to High Court on question of lawA party to a proceeding before the Environment Court under this Act or any otherenactment may appeal on a question of law to the High Court against any decision,report, or recommendation of the Environment Court made in the proceeding.[28] Regarding s 299, Ms Hartley and Ms Buchanan for the Council pointed to therecent summary of the principles in Speargrass Holdings Ltd v van Brandenburg (astrustees of the Flax Trust).13 DHL referred to the summary of principles in AyrburnFarm Estates Ltd (as trustees of the Millhouse Trust) v Queenstown Lakes DistrictCouncil.14 The Court's approach on appeal from a decision of the Environment Courtis well settled.[29] In Countdown Properties (Northlands) Ltd v Dunedin City Council, it wasconfirmed that the Court will only interfere with decisions of the Environment Courtif it considers that latter has:15(a) applied a wrong legal test;(b) concluded without evidence or one to which on the evidence it could notreasonably have come; or(c) considered matters which it should not have taken account of; or(d) failed to consider matters which it should have taken into account.[30] Allowing for the specialist nature of the Environment Court, this Court willgive it "some latitude in reaching findings of fact within its areas of expertise".16 Thequestion of weight to be given to the relevant considerations is for the EnvironmentCourt alone. Any identified error of law must be material – in the sense that it hasmaterially affected the result of the Environment Court's decision. In this context,13 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009. See alsoSpeargrass Holdings Ltd v Van Brandenburg [2019] NZCA 18.14 Ayrburn Farm Estates Ltd (as trustees of the Millhouse Trust) v Queenstown Lakes DistrictCouncil [2012] NZHC 735.15 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.16 At 153.Wylie J's comments in Guardians of Paku Bay Association Inc v Waikato RegionalCouncil, cited in Speargrass Holdings Ltd, are also apposite:17[31] Relief ought not to be granted unless an identified error of law has materiallyaffected the Environment Court's decision. The Environment Court is the soledecision maker responsible for the balancing process required under the Act, and thatprocess is an integral part of the consideration of resource management consents unders 104. The weight to be given to the assessment of relevant considerations is for theEnvironment Court and is not for reconsideration by this Court as a point of law.[32] It was also common ground that the Court must be vigilant in resistingattempts by litigants disappointed by Environment Court decisions to use appeals tothe High Court in an endeavour to re-litigate factual findings made by theEnvironment Court. This Court can only intervene in such situations where theEnvironment Court has come to a decision to which, on the evidence, it could notreasonably have come. This can be described as a situation in which there is noevidence to support the determination, or as one in which the evidence is inconsistentwith and contradictory to the determination, or as one in which the true and onlyreasonable conclusion contradicts the determination. It is trite law however that thesufficiency of evidence, rather than the want of it, cannot amount to a point of law.[31] In Waterfall Park Developments Limited v Queenstown Lakes District Councilthis Court underscored that Environment Court decisions may depend on planning,logic and experience "and not necessarily evidence."18 That Court may also expressa view on a matter of opinion within its expertise from which no question of law willarise.19 Moreover, the weight to be attached to a planning policy will generally be forthat Court to determine.20Did the Environment Court fail to provide any or adequate reasons or fail tomake findings under ss 104 and 104C RMA?DHL's submissions[32] Mr Allan submitted that the Environment Court failed to provide any oradequate reasons that identified the basis on which it distilled the AUP restricteddiscretionary activity provisions into the list of factors set out in [28] of the decision.Counsel contended that, in addition to the implied criticism of the appellant for"persisting" with the proposal, the Environment Court rejected the expert evidence as17 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271.18 Waterfall Park Developments Limited v Queenstown Lakes District Council [2022] NZHC 376,citing Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 17, at [33].19 Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 17, at [33].20 At [33]."providing little assistance" without explaining in detail how it engaged with thatevidence and how it was of limited assistance. Mr Allan argued that the EnvironmentCourt also failed to record its assessment regarding the nature, location, scope andsignificance of the relevant potential adverse environmental effects and evaluate theproposal in terms of relevant matters over which the AUP restricted its discretion.[33] Turning to the "factors" mentioned in [28] of the decision, Mr Allan contendedthat the Environment Court's list of factors deriving from the AUP restricteddiscretionary activity assessment criteria was not explained. According to counsel,the list used "loose and generic" wording which can be contrasted with the applicableAUP provisions that specify the extent to which a matter is relevant. Mr Allan arguedthat the decision does not explain how and to what degree the list reflects thoseprovisions. Further, counsel submitted that there is no explanation as to whether, andif it did, the Court assessed the proposal in terms of the list.[34] Moreover, Mr Allan contended that while some of the matters in the list arecross-referenced to specific provisions, they were the exception. There is noexplanation from the Court as to how it derived the list from matters set out in theflowcharts provided to the Court of applicable instruments and provisions. In arestricted discretionary activity context, the scope of the Court's enquiry is limited bythe legislation to those matters identified in the AUP provisions. The EnvironmentCourt, according to counsel, by replacing precise wording of the AUP provisions witha broadly expressed list of factors departed from the form of analysis necessary underss 104 and 104C of the RMA and the AUP.[35] Mr Allan underscored that at [29] of its decision, the Environment Court didnot return to the factors identified in that paragraph or evaluate the application againstthem. Accordingly, he argued that DHL is prevented from understanding the degreeto which the list influenced the outcome and therefore whether the Court took anirrelevant consideration into account and/or failed to confine itself to the mattersrequired by the legislation in the AUP. The Court, having identified those matters thatneeded to be examined both specifically and generally was then required to do so andexplain reasons for its findings. Unfortunately, Mr Allan contended that the decisiondoes not do so with the result that the appellant cannot understand the link betweenthe AUP provisions and the list, and the list in the refusal of consent.[36] On the issue of rejecting expert evidence, Mr Allan submitted that 10 witnessesgave evidence – three urban designers, four landscape architects and three planners.They were highly qualified, experienced and respected, appearing before theEnvironment Court on a number of occasions. Counsel contended that, despite this,the Environment Court's decision does not engage with the expert evidence regardingmatters in contention while dismissing its usefulness at [2], [7], and [118(e)]. Moreimportantly, according to Mr Allan, the decision does not contain any substantiveanalysis or evaluation of any of the evidence. There is also a lack of engagement withevidence of any particular witness. There is no reference to the Environment Court'sreliance upon expert evidence concerning relevant potential adverse effects includingvisual effects.[37] Overall, counsel contended that the decision contains no reasons for theEnvironment Court's rejection of the relevant technical evidence on the key issues fordetermination. In any event, Mr Allan argued that the fact that the expert witnessesheld different opinions should come as no surprise, given varying approaches as aresult of the AUP. Equally concerning, according to Mr Allan, the Judge and one ofthe Commissioners even questioned the relevance of urban designer and landscapearchitects' evidence generally. While those views did not find their way into thedecision, the appellant's impression is that they did influence the Court's judgmentregarding that evidence.[38] Mr Allan submitted that the Environment Court failed to make findings, referto the evidence and provide reasons as it was obliged to do under ss 104 and 104C ofthe RMA regarding three matters. First, the nature, scope and significance of relevantpotential adverse environmental effects of the proposal. Secondly, evaluating theproposal in terms of the relevant matters over which the AUP restricted its discretion.Thirdly, the Court's evaluation of the effects of the proposal on the environmentregarding the assessment criteria in the AUP concerning restricted matters ofdiscretion.[39] Moreover, according to counsel, the decision failed to address the matters ofdiscretion in any detail and instead sought to rely on the conclusions in the Panukucase.21 Mr Allan submitted that the Court also failed to clarify the relationshipbetween the AUP provisions and the factors set out at [28]. Counsel then referred to[101], [103]–[108] and [114]–[121] of the decision as "arguably" instances of theCourt discussing the effects of the proposal before levelling criticisms at each examplecited.[40] For instance, regarding whether an alternative proposal might be granted theCourt stated that "even minor deviations from the AUP requirements can have impactson the surrounding properties and landowners". According to Mr Allan this was atbest a "generic statement" which failed to identify whether the Court considered thatsuch impacts arise and if so, to what extent and regarding which properties. Counselcontended that the Court also failed to evaluate the location, scale and severity of suchimpacts. It did not make findings on the extent to which those impacts amount todeterminative adverse effects on the environment. It also failed to evaluate the impactsagainst the applicable AUP restricted discretionary activity criteria.The Council's submissions[41] Ms Hartley submitted that, while a general principle exists that it is expected acourt or tribunal will give reasons for its decisions, citing Murphy v Rodney DistrictCouncil, 22 it does not necessarily follow that a court must give a reason for every pointthat may have been argued. In Auckland Council v Cable Bay Wine Ltd this Courtdetermined that, while the Environment Court gave reasons on one point that could bedescribed as "overly abbreviated", nonetheless the reasons given could not bedescribed as being "so inadequate to constitute an error of law."23 In any event,counsel contended that the appellant's proposals needed to be considered as restricteddiscretionary activities.21 Panuku Development Auckland Ltd v Auckland Council [2020] NZEnvC 24.22 Murphy v Rodney District Council [2004] 3 NZLR 421 at [26]. See also Contact Energy Ltd vWaikato Regional Council (2007) 14 ELRNZ 128 (HC) at [65].23 Auckland Council v Cable Bay Wine Ltd [2021] NZHC 3290 at [67].[42] Counsel submitted that from the commencement of the hearing theEnvironment Court circulated a draft list of factors which no party including theappellant objected to at the time. In this context, at [28] the Environment Courtgrouped those factors into four categories: general, local centre, public area andresidential area. Ms Hartley argued that while the appellant claimed that it had threecore concerns with this list, the Environment Court had identified from the start of thehearing that the key issue on appeal was the "bulk and scale" of the proposed buildingsover multiple sites. She further submitted that "all parties who took part in the hearinghad agreedwith that proposition". Ms Hartley thus underscored that this first groundof appeal must be considered against the background that the bulk and scale across thesite was the principal issue for consideration.[43] Moreover, counsel contended that the list was derived from the restricteddiscretionary activity criteria in different parts of the AUP. The Environment Courtcomments at [28] and [29] confirmed that the Court decided that the factors in the listencompassed those concerns raised by the parties. In addition, Ms Hartley argued thatthe Court noted that the AUP restricted discretionary criteria were the focus of muchevidence both as to meaning and achievement. Counsel then submitted that at [30] ofthe decision, while there were other relevant issues concerning the Revised and JuneProposals, they were not contested in evidence. Equally importantly, counselcontended that there are sufficient reasons at [28] to [30] of the judgment that identifythe basis on which the Court distilled the AUP restricted discretionary activityprovisions into the list of factors contained in [28].[44] As to the appellant's criticism over the claimed use of "loose and genericwording" Ms Hartley argued that the Environment Court decided to adopt a thematicapproach regarding the AUP provisions relevant to the Court's assessment and thisapproach was both reasonable and acceptable. Counsel emphasised that theEnvironment Court was not obliged to engage with every claim allegedly relevant tothe planning documents as asserted by the appellant. As to the distillation of the listof factors, Ms Hartley submitted that there are more than sufficient reasons at [28] to[30] identifying the basis for the Court having distilled the AUP restricteddiscretionary activity provisions into the list of factors referred to at [28].[45] Regarding the claim that the decision is devoid of an explanation as to whetherthe Court assessed the proposal in terms of the list, this too is unsustainable accordingto Ms Hartley. Counsel highlighted that the decision engages with the central anddeterminative issues arising from the general, local centre, public area and residentialarea factors set out at [28].[46] Turning to the assertion that the Environment Court did not provide any oradequate reasons for rejecting the evidence as providing "little assistance" whenreferring to [2] and [118] of the decision, Ms Hartley submitted that this claim is alsonot sustainable. The Council contended that the appellant overstated the EnvironmentCourt approach to the expert evidence because the comments in those two paragraphsdo not suggest all the evidence was rejected.[47] Instead, Ms Hartley argued, some of the expert evidence was considered by theEnvironment Court to be of limited assistance to help in the assessment of the relevantissues. In addition, other parts of the decision make it plain that the Court did takeinto account the evidence. For example, counsel cited the reference to whether thecorner of Tāmaki Drive and Pattison Ave was a key focal point. Ms Hartley referredto [49] where the Environment Court prefaced its conclusion with the statement "afterconsidering all of the evidence, the AUP provisions, the Commissioners' decision andour own inspections...".24[48] Counsel also cited [89] and [90] of the decision as further examples of theEnvironment Court referring expressly to the evidence of the parties and thenexplaining why it considered some of the evidence of limited benefit to its assessment.Moreover, counsel contended that the Environment Court at [90] underscored itsearlier criticism in the Panuku case that where experts use different points of referencein their evidence, that approach will not assist the Court in its assessments.25Accordingly, Ms Hartley argued that it cannot be said that the Court rejected "all ofthe expert evidence" as asserted by the appellant. The Court was also entitled to decidethe weight it would give to any of the evidence and the extent it would rely on its ownexpert knowledge as a specialist court.24 Drive Holdings Ltd v Auckland Council, above n 2, at [49].25 Panuku Development Auckland Ltd v Auckland Council, above n 21.[49] Ms Hartley submitted that the appellant has mischaracterised the EnvironmentCourt's obligations under ss 104(1) and 104C since the legislation is devoid of anyrequirement that the Court is obliged to specify in its judgments the nature, location,scope and significance of a proposal's potential adverse effects. Instead, the Councilcontended that all the Court was required to do was to consider the merits of theproposals and have regard to their effects and the relevant parts of the AUP insofar asthey concerned the issues over which the Court's discretion was confined. Counselunderscored that there is nothing in the Environment Court's decision that suggests itsconsideration of the relevant effects and matters of discretion departed from thatapproach.[50] As to the appellant's criticism of a lack of clarity in the decision on the linkbetween the assessment criteria at [55] and the factors at [28], Ms Hartley contendedthat this was also unjustified. As mentioned, the factors at [28] were derived from theCourt's thematic approach when considering the points raised by the AUP matters ofdiscretion and assessment criteria. Put another way, counsel argued that contrary tothe appellant's view, the Court was not required to engage with all of the relevant AUPprovisions. Further, Ms Hartley submitted that there was nothing unreasonable in theCourt citing one of its own decision for a comparable analysis of the particularprovisions of the AUP relevant to the appeal.[51] Moreover, counsel contended that the alleged errors cited by the appellant mustbe viewed in context, notwithstanding that some of the appellant's comments appearto simply revisit the merits. At [42] and [101] of its decision the Environment Courtunderscored that the core issue were the over-height and over-bulk elements of theproposal. This then confirmed, according to Ms Hartley, that the decision does haveregard to and provide conclusions on the adverse effects of the proposals concerningthe central issues while recording reasons for those conclusions. As examples, counselreferred to [106]–[108] and [114] of the decision, highlighting that the Court did reachconclusions about both proposals, the Revised and the June versions.[52] In addition, Ms Hartley refuted the appellant's contention that private viewsare not protected under the legislation, citing the decision of Whata J, Ennor vAuckland Council, in support.26 According to counsel, the impairment of views canbe a relevant consideration when assessing the effects of the "bulk of a proposeddevelopment" where it infringes development standards, unless the relevant planexpressly excludes consideration of private views. Ms Hartley pointed out that nosuch exclusion exists here and so the Environment Court was correct to consider theimpairment of private views issue in its decision when assessing the appellant'sproposals.Anna Nathan's submissions[53] Ms Chappell submitted that her client supported the position of the Council onthe point of law appeal question, citing Vodafone New Zealand Ltd v Telecom NewZealand Ltd27 and Bryson v Three Foot Six Ltd in support.28 Counsel underscored thatfor an appeal of this kind to succeed, an express misdirection of law was required.Alternatively, the decision under appeal must be one that no Environment Courtproperly directing itself could have reached. Therefore, according to Ms Chappell, ifthe Environment Court has stated the law correctly or if the error was not material,this Court cannot intervene. If, however, the error was material then this Court coulddo so. Similarly, intervention is permitted where, regardless of how the Courtappeared to direct itself on the law, no Court that had properly directed itself couldhave arrived at that decision.[54] In this case, according to counsel, the alleged error of law goes to style andmanner or "thoroughness" as to expression of the Environment Court's understandingof the law that do not amount to an error of law. Accordingly, there are no grounds forthis Court to intervene, Mr Chappell argued.Discussion[55] In summary, I do not accept the appellant's argument that theEnvironment Court failed to give reasons or that if it did, those reasons wereinadequate. In Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings26 Ennor v Auckland Council [2018] NZHC 2598 at [40].27 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2012] 3 NZLR 153.28 Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC).Panel the Court of Appeal affirmed the principle that, while there is no invariableobligation, a court or tribunal should give reasons for its decisions.29 The SupremeCourt in Shirley v Wairarapa District Health Board also confirmed that, even where adiscretion is being exercised by a court, it must be on a principled basis, or the decisionwill be unacceptably arbitrary.30[56] However, I also agree with Ms Hartley's submission that, despite the confusionthat can arise from time to time between the authorities, it is not essential for theEnvironment Court to provide a detailed discussion on every element of an appellant'scase and every aspect of its evidence to a level of minutiae and granularity that wouldbe both impractical and unreasonable.31 While it could be suggested that at times theEnvironment Court's decisions were brief, nonetheless, I consider that it is notaccurate that on the relevant issues that were before that Court it failed to give reasonsin arriving at its principal conclusions.[57] In relation to the list of factors set out at [28] of the decision, there is nosuggestion that those factors were irrelevant and therefore wrongly taken into account.All that is alleged by DHL is that the Court did not give reasons for selecting thosefactors. However, the factors are quite clearly derived from the applicable AUPpolicies and objectives, as stated by the Court. In particular, they have an obviousconnection to Chapter H11 of the AUP, focussing as a whole on the relationship of theproposal to the Local Centre and its features. To the extent the factors are furtherarticulated and/or simplified beyond the AUP, that is part of the specialist role of theEnvironment Court to interpret and apply the plethora of planning instruments.Additionally, the origin of some factors is expressly identified.[58] I also accept the argument that the core issue before the Environment Court,and the Council prior, concerned the scale, height, and bulk of the proposeddevelopment as a whole across the appellant's land. Both parties agreed with this, andthe list of factors was accordingly designed to encompass the parties' and the Courts'29 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, at [46]citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75].30 Shirley v Wairarapa District Health Board [2006] 3 NZLR 523 at [16]. See also NgātiHurungaterangi, Ngāti Taeotu me Ngāti Te Kahu o Ngāti Whakaue v Ngāti Wahiao [2017] 3 NZLR770 (CA) at [97] to [107].31 See Contact Energy Ltd v Waikato Regional Council, above n 22, at [65].concerns. This was clearly stated by the Court at [29] of its decision. Accordingly,the claim that the Environment Court did not justify the factors set out at [28] of itsdecision is rejected.[59] Moving to the claim that the Environment Court erred by failing to givereasons for rejecting expert evidence, I do not accept that this was the case. First, theEnvironment Court stated that some of the evidence was not helpful or of limitedassistance because it either did not go beyond the guidelines implied in the AUP orwas irreconcilably in conflict. In particular the Court found that the use of multiplescales for landscape assessment meant the evidence was of limited usefulness.32Second, the Environment Court is not required to expressly refer to all of the evidenceand make a finding in relation to every aspect of it.33 Such an approach would becumbersome in the context of appeals which often have lengthy bundles of evidence.As was stated in Contact Energy v Waikato Regional Council:34There is no error of law by failing to articulate all of the reasoning provided itis clear that the Court turned its mind to the relevant statutory provisions andhad evidence to justify a conclusion: Takamore Trustees v Kapiti CoastDistrict Council. The depth of reasoning that must be expressed will varydepending on the subject matter, but here it is clear that the Court, faced withconflicting expert opinions, made its decision based on the evidence it heardand its own expertise.[60] Accordingly, the claim that the Environment Court erred by failing to givereasons for rejecting expert evidence is rejected.[61] Finally, under this heading is the claim that the Environment Court failed tomake findings or give reasons under ss 104 and 104C of the RMA. This claim wasrepeated under both the first and second grounds of appeal so I deal with it once here.Again, there is no basis for this claim. First, I have already found above that at [28]the Environment Court highlighted the relevant factors derived from the AUP thatwere most pertinent to the appeal. Because they are derived from the AUP, theyengage s 104(b) and s 104C(1)(b), and findings on those factors are findings under32 At [90].33 Contact Energy Ltd v Waikato Regional Council, above n 22.34 At [92] (citations omitted).those sections. As I have summarised above at [21]–[22], the Environment Court setout its finding in relation to key issues with reference to these factors.[62] In general, these grounds of appeal fail to appreciate the context of the Court'sdecision. The Environment Court had before it the granular decision of the Council.That decision was adopted (so far as it was relevant to the Revised and JuneProposals):[46] Section 290A of the Act requires us to have regard to the decision atthe Council level. We do not consider a full recitation or analysis of theCouncil Commissioners' decision on this application is either helpful ornecessary. There was little, if any, criticism of the methodology or legalapproach of the Commissioners, and we endorse their analysis and summaryof the issues.[63] The task for the Court, having agreed with and referred to the Council'sanalysis, was to assess whether either of the new proposals changed that analysis. Theclear issue was the over-height nature of the proposal which was a common feature ofevery iteration of the proposal. In my assessment, the rationale was clear and so thesegrounds of appeal must fail.Did the Environment Court apply an incorrect legal test and require DHL tojustify the additional height sought?DHL's submissions[64] Mr Allan submitted that the Environment Court had applied an incorrect legaltest or had regard to an irrelevant consideration by requiring the appellant to justifythe additional height sought above the zone height standard. According to counsel, at[57], [109]–[111] and [118], it appeared that the Court had assessed the proposals onthe basis that it was the appellant who was required to justify how, in a trade-offbetween height infringement and additional benefits, the change was warranted.[65] In addition, Mr Allan contended that that approach by the Environment Courtwas inconsistent with the scheme of the legislation because there is no "justification"threshold in ss 104 and 104C. Further, counsel argued that the AUP provisions do nothave a justification requirement. More importantly, s 104 requires regard to be had tothe effects on the environment of the proposal. Mr Allan submitted that any heightinfringement must be assessed only in the context of matters where the Court'sdiscretion is restricted and the relevant AUP provisions.The Council's submissions[66] Ms Hartley submitted that there was no error of law because the appellant hassimply referred selectively to parts of the decision which are not read in context.According to counsel, the Court was not requiring the appellant to meet an additionalstatutory test. Instead, Ms Hartley contended, the references made by the appellant toparts of the decision demonstrate that the Court was considering whether the proposedheight of buildings in the proposals was appropriate in the overall context of the site,the zoning and relevant AUP provisions.[67] Equally relevant according to counsel, was the point that the Court was wellaware of the central appeal issue, as set out at [1], [7] and [42] of its decision, beingthe acceptability of the scale, height and bulk of the proposed development as assessedagainst the relevant considerations including the AUP. Moreover, Ms Hartleyemphasised that the critical issue was the proposed level of intensification. This isalso discussed at [61], [62] and [68]. Counsel then pointed out that the Court assessedmany of the appellant's revised proposals as acceptable while noting that the heightissue remained central.[68] The Court confirmed that, even with certain changes proposed by the appellant,the effects of the height infringement were not mitigated. There was also a risk ofpotential shadowing effects from the Marau Crescent buildings which might affectpublic spaces. The Court confirmed such an approach was to benefit "the appellantover the public and residential amenity" which counsel contended were relevantmatters for consideration. In the end the Court concluded that the proposals could notbe consented with the result that the appeal was dismissed.Discussion[69] I consider that the Court did not impose an incorrect legal test. It was entitledto consider how the proposal gave effect to the objectives and policies of the LocalCentre Zone under the AUP. Although the over-height aspect of the proposal did notgive effect to the objectives and policies of the zoning, other features may have. Inundertaking its analysis, it would have been open for the Court to find that on thewhole, other features of the proposal meant that, overall, it achieved policies andobjectives for the Local Centre Zone, notwithstanding the over-height. That is all thatmy reading of the paragraphs cited by Mr Allan provides. I conclude that no error oflaw arises so this part of the appeal must fail.Did the Environment Court err in its interpretation of the AUP or take accountof irrelevant and incorrect considerations when considering height?DHL's submissions[70] Mr Allan submitted that the Environment Court wrongly took a height "limit"or "control" approach to the application. He contended that Rule 11.6.1 is not a height"limit" but rather a standard that, where breached by a proposal, triggers an additionalresource consenting process under the restricted discretionary activity approach. As aresult, he submitted that the Environment Court erred in law by referring to the heightstandard as a "limit", "control" or "restriction" and not a "standard".[71] Secondly, Mr Allan argued that the Environment Court wrongly includedexceptions, for example for plant rooms, within the 16 m occupiable height standard,rather than within the overall 18 m building height standard.[72] Thirdly, Mr Allan submitted that the Environment Court took into accountirrelevant and incorrect considerations in its decision. The Court incorrectlyconsidered, in Mr Allan's submission, that the Independent Hearings Panel (IHP) thatheard the submissions on the proposed AUP: (a) adopted a fine grain approach to theheight standards applying to the site at Mission Bay and (b) adopted a height variationcontrol for the site at Mission Bay.[73] Mr Allan submitted that "height variation control" is a site-specific heightstandard that deviates from the general standard. It does not apply in Mission Bay, sothe default height controls apply as set out in Standard H11.6.1. The publicly notifiedversion of the AUP applied the (then) default Local Centre Zone height standard toMission Bay. There is no reference, in Mr Allan's submission, in the IHPrecommendation reports or subsequent Council decisions to the detailed analysis forMission Bay height standards as referred to by the Environment Court.[74] Accordingly, Mr Allan argued that the Environment Court erred by referringto the IHP's fine grained approach and "height variation controls" in Mission Bay.The Council's submissions[75] Ms Hartley submitted that the appellant's criticism of the use of the termsheight "limit", "control" or "restriction" rather than "height standards" as set out inChapter H11 of the AUP is also misplaced. The Court's references to these alternativesdoes not amount to an error of law, according to Ms Hartley. This is because, sheargued, the plain and ordinary meaning of Standard 11.6.1 confirms that it imposes aheight "limit" which the Environment Court applied correctly in its decision. Further,when read as a whole, counsel reiterated that the Court was clearly aware that arestricted discretionary activity resource consent and assessment were needed if theheight standard was infringed, which it was in this case.[76] In addition, counsel contended the parties and the Court were aware thatMission Bay is not subject to a height variation control in the AUP with the result thatthe standard default Business-Local Centre Zone occupiable height standard of 16 mand total building height of 18 m applied. The Court was aware of the defaultBusiness-Local Centre Zone occupiable height standard of 16 m and total height of 18m applicable to the site. The Court was also aware that a restricted discretionaryactivity resource consent and assessment were required where the height standard wasto be infringed. All of which was evident from the parties' evidence and from thedecision when read as a whole, according to Ms Hartley, citing paragraphs [61] to [68]of the decision. Any error would be of a technical nature only.[77] Ms Hartley submitted that there was evidence before the Environment Courtindicating that the appropriate height limits for the Mission Bay local centre had beenthe subject of consideration by the IHP. Counsel contended that the Court's finding at[44] that the Mission Bay height limits were the subject of objective submissions tothe IHP, who gave consideration to the height of the local centre of Mission Bay, wasa finding available to the Court on the evidence. Moreover, Ms Hartley submitted theCourt was simply observing it had agreed with the height limits in question as beingappropriate when viewed at a fine grain.Discussion[78] I do not accept the appellant's arguments that the Environment Courtmisinterpreted the AUP. The wording of Standard H11.6.1(1) is that buildings "mustnot exceed the height in metres specified in Table H11.6.1.1". Under the purposesection the standard refers to "allow[ing] an occupiable height component to the heightlimit". The Environment Court's use of "limit" terminology is entirely consistent withthe standard. As I have explained above at [69], it anticipated that an over-heightbuilding could be consented but exercised its discretion against that given the overalleffect of the proposal(s).[79] In addition, I consider that the Environment Court correctly interpretedStandard H11.6.1. The two metre "buffer" above total occupiable height allows foronly "roof form, roof terraces, plant and other mechanical and electrical equipment".This list envisages discrete elements that sit atop the roof of the building. Nothing in[60], [66] or [103] of the Environment Court's decision is inconsistent with thatapproach. The point it was making is that occupiable space exceeding a height of 16 mis noncomplying, notwithstanding it is under the total 18 m building height. Theadditional two metres cannot be used for occupiable space if the building is to complywith Standard H11.6.1. Accordingly, this does not give rise to an error of law.[80] Speculation as to the process undertaken by the IHP when updating the AUP isnot relevant nor an appropriate challenge to the Environment Court's decision. Thepoint was subject to some discussion during the Environment Court hearing. TheCourt put to counsel that the IHP received submissions that the height standard oughtto be lower but nonetheless it retained both the "default" height standard and thezoning which included that standard. The subsequent finding it made in the decisionthat the height standard was purposefully applied for Mission Bay was available to iton the evidence.[81] I am not satisfied that there is any substance to DHL's contention that the Courterroneously referred to "height variation control". As Ms Hartley submitted, theparties and the Court were clear as to what height standard applied. If the languagewas slightly imprecise this was not material to the decision in any way. This elementof the appeal must therefore fail.Did the Environment Court err in its interpretation of the Local Centre Zonepurpose?DHL's submissions[82] Mr Allan submitted that the matter raised in the fourth alleged error of law isthat the Environment Court erred in its interpretation of the AUP in concluding at [60]that, "the primary purpose of the Local Centre intensification is to provide retailactivity at a level commensurate with other development". DHL considers that theassertion is not reflective of the AUP provisions. Residential dwellings are a permittedactivity in the Local Centre Zone, and the zone provisions make no direction as to themixture of uses, beyond constraining residential development at ground level.[83] Mr Allan contended that at [60] of the decision the Court focussed on thephysical extent of retail activity in a centre. In doing so, he says it ignored the evidencefor DHL that the retail space proposed will be of high quality. While the June Proposalincludes some retail at Level 2 on the Tāmaki Dr/Patteson Ave corner, Mr Allansubmitted DHL cannot economically increase the Level 2 retail in a new purpose-builtstructure.The Council's submissions[84] In light of Chapter H.11.1 regarding the local centre intensification, Ms Hartleyargued that it was reasonable for the Court to anticipate there would be an increase inretail or other services congruent with the scale of the expansion of residentialactivities in the appellant's proposals. Paragraph [60] of the decision addresses thispoint, according to counsel. Moreover, Ms Hartley submitted that the reference to"expansion" in Chapter H11.1 refers to expansion in a general sense and not one thatis limited to geographical expansion in a manner argued by the appellant. TheBusiness-Local Centre Zone general and specific objectives and policies also makereference to centres being reinforced as community focal points which provide for thecommunity's social and economic needs.[85] As to DHL's contention that the Court ignored quality of retail space evidenceand focused instead to the physical extent of the retail activity, counsel pointed outthat the Court also had evidence from the parties' experts expressing the view thatfurther changes were needed to the appellants' June proposal to, for example, enhancethe character and social and economic function of Mission Bay, which would ensureconsistency with the policy framework. In any event, Ms Hartley contended that theconclusions reached by the Environment Court on this matter were available to it basedon all the material before the Court.Discussion[86] As a preliminary observation, this ground goes to the heart of the EnvironmentCourt's specialist jurisdiction to interpret and apply planning policy and give what itdetermines to be appropriate weight to policies and objectives. Mr Allan's challengeto the Court's emphasis on retail and public space over dwellings is a challenge to itsspecialist interpretation of the applicable Local Centre Zone AUP provisions andaccordingly is not a point on which it is appropriate for this Court to intervene.35[87] Having carefully considered counsels' submissions, I am not persuaded thatthere is any error. I agree with the Council that Chapter H11 emphasises thecommunity's social and economic needs (while recognising that areas above and awayfrom the street can be used residentially). Moreover, my conclusion is that its findingthat the proposal did not contribute to these needs sufficiently to meet the purpose ofthe zone is an evidential finding available to it.Did the Environment Court take account of an irrelevant consideration byreferring to previous litigation?DHL's submissions[88] Mr Allan took issue with the Court's statements that:36There was a palpable frustration by various residents who gave evidenceincluding resident groups. The series of cases and disputes relating to theappropriate building heights within Mission Bay has still not led to anyresolution of this issue. In their view, this proposal is clearly a significant35 Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 17, at [31] and [33].36 Drive Holdings Ltd v Auckland Council, above n 2, at [112] (emphasis added).increase in impact over that envisaged after a significant hearing before theIHP Plan Commissioners.And:37Drive Holdings' position has been argued multiple times, and the IHP outcomeis an appropriate approach to the height on this site.[89] In addition, Mr Allan submitted that it is DHL's understanding that the issuesraised by the Revised and June Proposal and addressed in the decision have notpreviously been considered, let alone argued on multiple occasions. He underscoredthat the proposal is the first publicly notified resource consent application by DHL onthe site and the first on the site which seeks to exceed the zone height standard.Counsel contended that DHL cannot be criticised for exercising its right to appeal.The Environment Court hearing was the first and only occasion on which consent wassought for a proposal with the characteristics of the Revised and June Proposals.The Council's submissions[90] As to the claim that the Environment Court took account of an irrelevantconsideration that the appellant's position had been argued multiple times, Ms Hartleysubmitted that the appellant had mischaracterised the Court's remarks at [112] of thedecision. In short, she argued that the Court was simply making an observationregarding the evidence given by residents in the appeal. Ms Davies' evidence referredspecifically to the residents' association's submission on the proposed AUP.[91] In summary, Ms Hartley contended that the Environment Court was againentitled to make the findings that it did, while noting that the height limits in MissionBay were the subject of a previous planning change hearing that involved theappellant. Further, the criticism of the Environment Court's decision at [118] ismisplaced since what the appellant was proposing was for the Court to redesign theappellant's proposal. Ms Hartley contended that nothing turned on those points sincethe key issue was the height, bulk and scale of the proposals.37 At [118(a)].Discussion[92] I agree with the Council's submissions. The statements of the Court refer tomembers of the community's opposition to increased height standards which haspersisted through the IHP process. DHL's opposing view that buildings of 16 m (ormore) are appropriate in Mission Bay is the "position" referred to at [118(e)] of thedecision. It was open to the Court to find that in this case the "default" height standardsresulting from the IHP process should not be breached.[93] This ground of appeal must fail.Did the Environment Court misapply s 290A by placing undue reliance on theoutcome of the Council's decision?DHL's submissions[94] Mr Allan submitted that the Environment Court misapplied s 290A of the RMAby placing undue reliance on the outcome of the Council's first instance decision(which declined the publicly notified version of the proposal) and failing to evaluatethe consequences of the changes made to the proposal to address the finely balancedconclusions in the Council decision.[95] In addition, counsel contended that the Environment Court placed unduereliance on the negative outcome of the Council decision giving no consideration tothe analysis which led to the finely balanced conclusions nor the specific matters ofconcern to the Commissioners.The Council's submissions[96] Ms Hartley submitted that the phrase "must have regard to" in s 290A wasconsidered in the context of s 104 of the legislation in Unison Networks Ltd v HastingsDistrict Council.38 Counsel contended that the weight a first instance court gives toevidence or other relevant considerations is a matter for that court and cannot beimpeached as an error of law citing Guthrie v Queenstown Lakes District Council39 in38 Unison Networks Ltd v Hastings District Council CIV-2007-485-896, 11 December 2007 at [70].39 Guthrie v Queenstown Lakes District Council [2022] NZHC 532 at [43].support. Ms Hartley argued that it is evident the Environment Court gave attentionand thought to the Council's decision while acknowledging that it did not need to reachthe same conclusion about the threshold at which a modified proposal might beacceptable.[97] It is also clear, Ms Hartley submitted, that the Court knew it was dealing withtwo different proposals compared with what had been considered by theCommissioners. Moreover, counsel contended that it is for the Court to decide whatweight to give to the Council's decision. Even if the appellant's submission that theCourt gave the Council decision too much weight was correct, which is not accepted,that in itself is not an error of law.Discussion[98] First, it is clear that the Court did consider the Council's decision. It in factendorsed its analysis as set out at [46] of its decision. Accordingly, I conclude thatthere is no basis for the claim that the Court merely considered the outcome of thedecision.[99] Secondly, the Court also recognised that it needed to specifically assess thenew proposals and keep in mind their impact on the detailed analysis undertaken bythe Council.[100] This ground of appeal seeks to challenge the outcome of the EnvironmentCourt decision because DHL's view is that the new proposals should have tipped the"finely balanced" conclusions of the Council. However, the Environment Court foundneither proposal did so. That is a factual finding this Court will not interfere with.This ground of appeal also fails.Conclusion[101] As I have found there were no errors of law in the Environment Court'sdecision, I do not need to consider DHL's submissions as to the materiality of thealleged errors.Decision[102] The appeal by Drive Holdings Limited against the judgment of theEnvironment Court dated 14 October 2021 is dismissed.[103] Costs memoranda can be filed and exchanged by the end of February 2023,taking account of the holiday period.____________________________Harvey J