HOSPITALITY NEW ZEALAND, CANTERBURY BRANCH v CHRISTCHURCH CITY COUNCIL [2017] NZHC 1360

HOSPITALITY NEW ZEALAND, CANTERBURY BRANCH v CHRISTCHURCH CITY COUNCIL [2017] NZHC 1360 [20 June 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2014-409-1165[2017] NZHC 1360UNDER THE Judicature Amendment Act 1972IN THE MATTER of an application for review of a decisionunder section 84 of the Sale and Supply ofAlcohol Act 2012BETWEEN HOSPITALITY NEW ZEALAND,CANTERBURY BRANCHPlaintiffAND CHRISTCHURCH CITY COUNCILDefendantHearing: 22 March 2017Appearances: J G H Gardner-Hopkins for PlaintiffP M S McNamara and T R Fischer for DefendantInterim Judgment: 20 June 2017INTERIM JUDGMENT OF NICHOLAS DAVIDSON JCONTENTSA INTRODUCTIONB DEVELOPMENT OF A LOCAL ALCOHOL POLICY ("LAP")C CRDP AND DECISION 43D QUESTIONS RAISED ON THIS JUDICIAL REVIEWE DISPOSITIONABBREVIATIONSARLA . : Alcohol Regulatory and Licensing AuthorityCouncil : Christchurch City CouncilCRDP.. : Christchurch Replacement District PlanDecision 43 .. : Decision 43 released 20 September 2016.DLAP .. : Draft Local Alcohol PolicyHigh Street Block .... : Lichfield Street, Madras Street, St Asaph Streetand Manchester StreetHNZ : Hospitality New Zealand, Canterbury BranchIHP . : Independent Hearing PanelLAP : Local Alcohol PolicyLURP . : Land Use Recovery PlanNorth Victoria Street .. : Victoria Street north of Salisbury Street(including Carlton Corner)Officers' Memorandum . : Officers' Memorandum dated27 September 2016Order in Council : Order in Council(the) Working Party : Provisional Local Alcohol Policy AppealsWorking PartyPLAP .. : Provisional Local Alcohol PolicyReconsideration Decision ... : Reconsideration decisiondated 29 September 2016RMA .. : Resource Management Act 1991South Victoria Street . : Victoria Street south of Salisbury StreetSSAA : Sale and Supply of Alcohol Act 2012VNA . : Victoria Neighbourhood AssociationINTRODUCTION[1] The motivation for this judicial review is the differentiation in the maximumor "latest" closing time of on-licence premises between the north and south parts ofVictoria Street in Christchurch."North Victoria Street" and "South Victoria Street" are delineated at the intersection of Salisbury and Victoria Streets.[2] The differentiation arose in a decision (the "Reconsideration Decision") made by the Christchurch City Council ("the Council") during the development of aLocal Alcohol Policy ("LAP") under the Sale and Supply of Alcohol Act 2012("SSAA"). That decision is under appeal by the plaintiff, Hospitality New Zealand,Canterbury Branch ("HNZ"), to the Alcohol Regulatory and Licensing Authority("ARLA") and due to be heard later in 2017. This judicial review is a collateral challenge to the Reconsideration Decision.[3] The Reconsideration Decision provides for a 3:00am maximum closing time for on-licence premises in South Victoria Street, and a transitional 3:00am maximum closing time for North Victoria Street, which will cut back to 1:00am after three years. HNZ says that the 1:00am maximum closing time is unreasonable having regard to the object of the SSAA, and wrongly "splits" Victoria Street.[4] Mr Gardner-Hopkins, counsel for HNZ, says that the appeal to the ARLA will not suffice for those licensed interests it represents. This judicial review is brought to regularise what is said to be a flawed process by which the Council reached the Reconsideration Decision. HNZ says it should be revisited by the Council, this time correctly having regard to the development of a new District Plan for Christchurch, and in particular a decision made in the course of that development ("Decision 43")which addressed Victoria Street licensed premises.[5] This Interim Judgment holds that the Council did not have such regard, and should have, and so too should the ARLA on any appeal which addresses the differentiation, or any other element to which Decision 43 and the new District Plan, proposed or operative, is relevant."District Plan"[6] HNZ says that when making the Reconsideration Decision the Council failed to follow the direction that it "must have regard to the objectives and policies ofthe District Plan" under s 78(2) of the SSAA.[7] HNZ says the "District Plan" for these purposes includes, or should be takento include, the Christchurch Replacement District Plan ("CRDP") amended by Decision 43 of an Independent Hearing Panel ("IHP") chaired by retired High Court Judge, Sir John Hansen. The IHP was established to hear submissions on the CRDP, which was developed in response to the Canterbury Earthquakes in 2010 and 2011. Decision 43 was released on 20 September 2016 and was not operative when the Reconsideration Decision was made on 29 September 2016, but the time for appeal was running. In the result no appeal was filed. Decision 43 has not yet been made operative by the Council, but that is a formality.[8] Decision 43 addressed the extent and importance of entertainment facilities in the city, including the protection of existing investment and the relationship of licensed premises and their customers with nearby residents. HNZ says the Council should have had regard to the CRDP and Decision 43 expressly within the definition of a District Plan for which it contends, or otherwise by implication. In the alternative, it says it was unreasonable not to bring it to account, as it was relevant and may have influenced the Reconsideration Decision.[9] An underlying theme of this judicial review is the relationship between the Resource Management Act 1991 ("RMA"), which governs the development of a District Plan, and the SSAA which governs alcohol licensing. The two processes bear on one another when a territorial authority decides to develop a LAP under the SSAA. A LAP may be more restrictive, but it cannot licence the sale of alcohol where that is prohibited by a District Plan.Council's position[10] The Council says that it was under no obligation to have regard to anyDistrict Plan when it made the Reconsideration Decision. It says that obligation wasspent after it developed a Provisional Local Alcohol Policy ("PLAP"), the next step in the chain after a Draft Local Alcohol Policy ("DLAP") was adopted and publiclynotified by the Council.[11] If that is wrong, it says the District Plan was out of date but still the Operative Plan, and did not include the CRDP or Decision 43. If that is wrong, it says Decision43 was brought to account. If it is wrong in all respects and it should have had regard to Decision 43, it says that no relief should be granted as HNZ's concerns willbe adequately addressed on the appeal(s) which lie before the ARLA.The pleadingFirst cause of action - failure to have regard to a mandatory relevant consideration[12] The statement of claim pleads:61. In making its reconsideration decision, and adopting the Victoria Street Split and 3-year cut off, the Council erred in law by failing to have regard to the objectives and policies of its district plan as amended by the IHP in its Decision 43.Particulars:(a) In making its reconsideration decision, the Council was required to consider the relevant objectives and policies of its district plan under s 78(2) of the SSAA, which applies pursuant to s 79(1) of the SSAA.(b) Decision 43 amended relevant objectives and policies, and explained the reasons for those amendments, including as summarised in paragraphs [57] to [59] above.(c) The reasons for the Council's reconsideration decision arecontained in the reasons table.(d) The reasons table does not refer to Decision 43.62. Had the Council had regard to Decision 43, it could not have adopted the Victoria Street split and the 3 year cut off for North Victoria Street.63. This error was material to the reconsideration decision, including because the objectives and policies (and other district plan provisions) had changed (including through Decision 43) since the Council first produced its draft LAPs and its provision LAP.Second alternative cause of action – unreasonableness/rationality[13] The statement of claim pleads:66. If the Council did have regard to Decision 43 in making its reconsideration decision, it erred in law by acting unreasonably and irrationally in adopting the Victoria Street Split and 3-year cut off in light of Decision 43.Particulars:(a) Decision 43 amended relevant objectives and policies, and explained the reasons for those amendments, including as summarised in paragraphs [57] to [59] above.(b) The nature of the findings and observations in Decision 43, strongly support treating all parts of Victoria Street (and Carlton Corner) equally, given:(i) their identification within the same Entertainment Precinct;(ii) that the precinct rules protect community amenity (if that were to be more of a concern for some parts of Victoria Street than others);(iii) the deliberate strong policy encouragement to the entertainment and hospitality industry to focus on establishing within the entertainment precinct (not just some parts of it);(iv) the very significant investment recognised in the Victoria Street Precinct, including North Victoria Street; and(v) the significant adverse consequences on existing and future investment of adopting the Victoria Street Split and 3-year cut off in North Victoria Street.(c) The Council's district plan team were well aware ofDecision 43, and had, in fact participated in the relevant hearings and generally supported the outcomes that were confirmed in Decision 43.(d) Despite the position identified in paragraph (c) of the pleadings above, the Council adopted a contrary position in its amended PLAP.(e) The Council could not have had sufficient time to take appropriate advice in respect of Decision 43 (issued on 20 September 2016) before making its reconsideration decision (on 29 September 2016), just seven working days after the release of Decision 43.67. Had the Council acted reasonably and rationally, including in a manner consistent with its position in respect of Decision 43, and having taken time to take appropriate advice, it could not have adopted the Victoria Street Split and the 3-year cut off for North Victoria Street.Statement of defence[14] The Council denies that Decision 43 should have been brought to account for any of the reasons pleaded by HNZ and also pleads:1 that different statutory considerations applied to Decision 43 made by theIndependent Hearings Panel on the one hand, and the defendant's decision inrelation to the PLAP on 29 September 2016 on the other;"have/had regard to"[15] At times in this Interim Judgment the concept of "have regard to" Decision 43 and the CRDP will be reflected in expressions such as "considered" and "brought to account". Each for the purpose of this Interim Judgment comprehends giving genuine attention and thought to various instruments.B DEVELOPMENT OF A LOCAL ALCOHOL POLICYThe statutory scheme[16] This is conveniently set out in the statement of claim, which I adopt with some alterations:Statutory FrameworkKey elements of a LAPUnder s 75(1) of the SSAA, the Council has a discretion to have a LAP.Under s 75(3) of the SSAA, a LAP must be produced, adopted and brought into force, in accordance with sub-pt 2 of the SSAA (comprising ss 75 to 97).Under s 75(2), of the SSAA, a LAP may:(a) provide differently for different parts of its district –s 75(2)(a); and(b) apply differently to premises for which licences of different kinds are held or have been applied for – s 75(2)(c).Further, under s 77(1) of the SSAA, a LAP may include policies on any or all of the following matters relating to licensing (and no others):(a) location of licensed premises by reference to broad areas:1 Paragraph 66(b) Statement of Defence dated 21 December 2016.(b) location of licensed premises by reference to proximity to premises of a particular kind or kinds:(c) location of licensed premises by reference to proximity to facilities of a particular kind or kinds:(d) whether further licences (or licences of a particular kind or kinds) should be issued for premises in the district concerned, or any stated part of the district:(e) maximum trading hours:(f) the issue of licences, or licences of a particular kind or kinds, subject to discretionary conditions;(g) one-way door restrictions.Under s 77(3) of the SSAA, a LAP must not include policies on any matter not relating to licensing.Preparing a draft LAPUnder s 78(1) of the SSAA, a territorial authority that wishes to have a LAP must produce a draft policy ("draft LAP").Under s 78(2) of the SSAA, when producing a draft LAP, a territorial authority must have regard to:(a) the objectives and policies of the district plan; and(b) the number of licences of each kind held for premises in its district, and the location and opening hours of each of the premises; and(c) any areas in which bylaws prohibiting alcohol in public places are in force; and(d) the demography of the district's residents; and(e) the demography of people who visit the district as tourists or holidaymakers; and(f) the overall health indicators of the district's residents; and(g) the nature and severity of the alcohol-related problems arising in the district.In respect of the district plan, under s 93(1) of the SSAA, a LAP may contain a policy more restrictive than the relevant district plan.Producing a provisional LAPUnder s 79(1) of the SSAA, if, after producing a draft LAP, a territorial authority continues to wish to have a LAP, it must produce a provisionalpolicy ("provisional LAP") by using the special consultative procedure toconsult on the draft policy.Under s 79(2) of the SSAA, when producing a provisional LAP, a territorial authority must (again) have regard to the matters stated in s 78(2) of the SSAA.Under s 80 of the SSAA, if, after producing a provisional LAP under s 79, a territorial authority continues to wish to have a LAP, it must then give public notice of:(a) the provisional LAP; and(b) rights of appeal against it; and(c) the ground on which an appeal may be made.Appealing a provisional LAPUnder s 81(1) of the SSAA, a person or party, who or which made submissions as part of the special consultative procedure on a draft LAP may, within 30 days of the public notification of the resulting provisionalLAP, appeal to the licensing authority ("ARLA") against any element of thatprovisional LAP.Under s 81(4) of the SSAA, the only ground on which an element of a provisional LAP can be appealed against is that it is unreasonable in the light of the object of the SSAA.Under s 4(1) of the SAA, the object of the SSAA is that:(a) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and(b) the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.Under s 4(2) of the SSAA, the harm caused by the excessive or inappropriate consumption of alcohol includes:(a) any crime, damage, death, disease, disorderly behaviour, illness, or injury, directly or indirectly caused, or directly or indirectly contributed to, by the excessive or inappropriate consumption of alcohol; and(b) any harm to society generally or the community, directly or indirectly caused, or directly or indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness, or injury of a kind described in paragraph (a).Under s 207 of the SSAA:(a) ARLA may receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectually with any matter before it, whether or not the statement, document, or matter would be admissible in a court of law.(b) Subject to paragraph (a), the Evidence Act 2006 applies to ARLA, in the same manner as if ARLA were a court within the meaning of that Act.Under s 201(1) of the SSAA, ARLA must, within the scope of its jurisdiction, be treated as being a Commission of Inquiry under the Commissions of Inquiry Act 1908; and that Act, with any necessary modifications, applies accordingly.Consideration of a provisional LAPUnder s 83(1) of the SSAA:The licensing authority must dismiss an appeal against an element of a provisional local alcohol policy if it –(a) is not satisfied that the element is unreasonable in the light of the object of this Act; or(b) is satisfied that the appellant did not make submissions as part of the special consultative procedure on the draft local alcohol policy concerned.Under s 83(2) of the SSAA, if ARLA is satisfied that:(a) the appellant made submissions as part of the special consultative procedure on the draft LAP concerned; and(b) an element of the provisional LAP is unreasonable in the light of the object of the SSAA;then ARLA must ask the territorial authority concerned to reconsider that element.Under s 83(4) of the SSAA:(4) The appellant has no right of appeal against the decision of the licensing authority.Under s 84(1) of the SSAA, if ARLA asks a territorial authority to reconsider an element of a provisional LAP, the territorial authority must:(a) resubmit the LAP to ARLA with the element deleted; or(b) resubmit the LAP to ARLA with the element replaced with a new or amended element; or(c) appeal to the High Court against ARLA's finding that theelement is unreasonable in the light of the object of this Act; or(d) abandon the provisional LAP.Resubmission of an amended PLAPUnder s 86 (1) of the SSAA, if the territorial authority resubmits the LAP to ARLA with the element replaced or with a new or amended element("amended PLAP"), ARLA must deal with amended PLAP as if it were anappeal against every new or amended element that has replaced an earlier element appealed against it.Decision on an amended PLAPUnder s 87 of the SSAA, if ARLA is satisfied, in respect of an amended PLAP, that every element it asked the territorial authority to reconsider has been replaced by a new or amended element that is not unreasonable in the light of the object of the SSAA, the amended PLAP is adopted when ARLA makes its decision.Review of a LAPUnder s 97 of the SSAA, a territorial authority that has a LAP must review it, using the special consultative procedure:(a) no later than 6 years after it came into force; and(b) no later than 6 years after the most recent review of it was completed.Narrative of the LAP process[17] The Council decided to develop a LAP by resolution dated 14 February 2013, although work had begun in late 2012. The parties agree on this bare narrative.The Christchurch City Council LAP processThe draft LAPsIn mid-late 2012, the Council began to prepare a draft LAP.The Council produced four iterations of its draft LAP.Each draft LAP identified an area as Christchurch Central Area A ("Central Area A").Within Central area A, a maximum closing time of 3am for on-licence premises was to be allowed.Outside of Central Area A, in Central Area B, on-licence premises were to be limited to a maximum closing time of 1am.In the first three iterations of the Council's draft LAP:(a) Central Area A corresponded with those areas identified as Entertainment Precincts in the District Plan.(b) Central Area A included Victoria Street (as a whole).The fourth iteration of the draft LAP excluded Victoria Street (as a whole) from Central Area A, with the result that trading hours for on-license premises on Victoria Street were to be limited to a maximum of 1am.The Carlton Corner was not included in Central Area A in any of the iterations of the draft LAP.The provisional LAPIn May 2013, the Council called for submissions on its draft LAP, through the special consultative procedure under the Local Government Act 2002.In July and August 2013, the Council held public hearings on the draft LAP, producing a report in late 2013.On 28 May 2015, the Council provided notification of its decision to adopt a provisional LAP.Appeals to ARLAIn June 2015, nineteen appeals were made to ARLA in respect of the provisional LAP, including an appeal by HNZ.In May 2016, the parties to the appeals attended mediation.Reconsideration of the provisional LAPIn June 2016, the Council advised ARLA that it considered 13 elements of its provisional LAP to be unreasonable in light of the object of the Act.On 21 September 2016, ARLA directed the Council to reconsider those 13 elements of its provisional LAP ("ARLA reconsideration direction").On 29 September 2016, the Council met to reconsider its provisional LAP("reconsideration meeting").The Council had the following information before it at its reconsideration meeting:(a) an officer report, authored by Vivienne Wilson, Senior Solicitor;(b) a memorandum containing additional legal advice, from Vivienne Wilson, Senior Solicitor;(c) the ARLA reconsideration direction;(d) an amended version of the provisional LAP, showingchanges ("amended PLAP"); and(e) a table showing changes to the provisional LAP, whichincluded a column headed "reasons for change" ("reasons table").The Council, at its reconsideration meeting, decided to adopt the amendedPLAP for resubmission to ARLA ("reconsideration decision").The amended PLAP, in respect of Victoria Street:(a) includes the area of Victoria Street between Salisbury Streetand Kilmore Street ("South Victoria Street") within CentralArea A, and therefore within the 3am maximum closing time area (the area was previously within Central Area B);(b) continues the area of Victoria Street between SalisburyStreet and Bealey Avenue ("North Victoria Street") withinCentral Area B but provides for that area to have a maximum 3am closing time for a 3-year transitional period and the maximum closing time to be 1am thereafter ("3-year cut off"); and(c) includes the Carlton Corner within Central Area B and applies the 3-year cut off to it.Victoria Street - 2013[18] The first preliminary draft of the LAP placed Victoria Street in Central Area 1, with maximum on-licence trading hours of 8:00am to 3:00am. There was asection on "Legal Considerations" which set out the provisions of s 78(2) of the SSAA.2 A report made to the Planning Committee referred to the "Goals of the LAP" and "Objectives of the LAP", and Appendix 1 referred to "Liquor licensing policy in the District Plan" and Policy 4.2.15, "Sale of Liquor". The report reads:The background to the City Plan liquor related rules can be found in the liberalised regime for licensed premises resulting from the passage of theSale of Liquor Act 1989, and the Council's experience with theintensification of adverse effects of late hour operations on residential amenities. These adverse effects stem from a range of activities directly associated with the sale of liquor for consumption on the premises. They include marked noise impacts from large gatherings, related musical or entertainment activities, from traffic entering and leaving the premises and from noise in carparks.The rules (methods) cannot and do not, purport to control all adverse effects associated with licensed premises, particularly as they do not apply outside late hour operations.The adverse effects that the rules are designed to mitigate are: Reduction in potential noise effects associated with vehicles and people entering leaving and within carparks.2 Paragraph 14. Reduction in potential noise effects associated with late hour sale of liquor and associated music and entertainment activities.The rules recognise the period during which activities have the greatest potential to create disturbance to residents, and more importantly, the"amenities" implications of sale of liquor. (11am – 7pm). This is a specific matter which can be addressed under the Resource Management Act, and which cannot be adequately addressed under the Sale of Liquor Act. The rules, in order to adequately address adverse effects, apply to existing or proposed licensed premises proposing to have late hour sales both within and adjoining living zones.[19] Delegations were made to the Council by HNZ, the Police District Commander, the Medical Officer of Health, the Victoria Neighbourhood Association("VNA"), and a licensee. The VNA outlined the concerns of residents about thenegative impact of new late-night bars in the neighbourhood, which was the only largely intact residential area in the Central City following the February 2011 earthquake.[20] Victoria Street was placed in Central Area A, with the same licensing hours. The Planning Committee reported to the Council with this second iteration of the DLAP, and the matters to which the Council was required to have regard under s 78(2) of the SSAA. The objectives and policies of the operative Christchurch City Plan and the Banks Peninsula District Plan were included, as they further comprehended the City Plan.[21] A third draft had been tabled, entitled "Version 1: draft statement of proposaland other material as per the Planning Committee's recommendations of8 May 2013". On 16 May 2013, the Council resolved to adopt a fourth (and final) DLAP, called Version 2. Public notice was given on 29 May 2013. The Council had regard to matters in s 78(2) of the SSAA, referred to in Attachments 3 and 4 of thePlanning Committee's report to the Council, and paragraph 32 of that report. Victoria Street was in Central Area B with maximum trading hours of 8:00am to 1:00am. A policy option of 3:00am closing was considered, but not adopted, because:Strong feedback from nearby residential community about problems arising from current 3am closing of some premises, and one premise closing at 5am.[22] The DLAP was adopted for public consultation on 16 May 2013, and a committee of the full Council was delegated authority to hear submissions and decide on the form and content of the next stage of a LAP process, the PLAP. 4,060 submissions were received. Changes were made to the DLAP, enlarging the area within the Central City where on-licences can trade until 3am. The Committee had regard to the matters in s 78(2) of the SSAA, and submissions.[23] The Council resolved to make changes to the DLAP and to produce a PLAP. It is clear where contest was joined. The hospitality sector opposed reduced trading hours and wanted 3:00am, and some 5:00am, closing times. The VNA, Police and other residents strongly supported 1:00am closing on Victoria Street which the Police considered a post earthquake hotspot for alcohol related crime. A report on the hearings referred to the range of submissions for Victoria Street:The exclusion of Victoria St from Area A drew vigorous and opposing submissions. Individual residents and the local neighbourhood association strongly supported provision 2.2.2 as in their view it recognises the long-standing and highly-valued residential character of the area and the spatial unsuitability of it as a late night entertainment area (proximity of premises to residential living and the consequential negative behaviour and unpleasant effects, loss of sound buffers, inadequate space for public transport options). However, premises operating on Victoria St submitted that they operate very well-run premises and are working collaboratively with fellow licensees to address matters of amenity and good order. In their opinion, the inclusion of the area in the Christchurch Central Recovery Plan as an entertainment precinct, and resource consenting decisions to take, vindicate their location and current trading hours there. They felt that the presence of the Casino on Victoria St (with 24 hour opening) is a further endorsement of the area as appropriate for late-night trading. Victoria St was seen by many submitters as a successful and popular late-night area to visit, offering a welcome bar scene for younger people post-earthquake.[24] The Committee enlarged the late night area (Central Area A), but made no change to the 1:00am maximum closing time on Victoria Street.Delay in PLAP process[25] After local authority elections on 12 October 2013, the process was on hold while the results of some appeals to the ARLA became known. It was not until 28 May 2015 that the Council resolved to notify the PLAP.[26] 19 appeals to the ARLA were filed, with notice of interest by eight parties. On 10 December 2015, the Council approved the establishment of the Provisional Local Alcohol Policy Appeals Working Party ("the Working Party") to which fiveCouncillors were appointed. The Working Party agreed to go to mediation, funded by the Council, and a two stage process was established, for on-licence and off-licence issues. Mediation took place on 11 May 2016 for on-licence issues. The Working Party was briefed by New Zealand Police about alcohol related harm in Victoria Street and across Christchurch City.Reconsideration[27] The Council received a report on the mediation and negotiation, and on 14 June 2016 resolved to request the ARLA to ask it (the Council) to reconsider specific elements of the PLAP, which it by this stage considered unreasonable in light of the object of the SSAA. This, in my view, practical process was established by the ARLA Practice Note of 19 March 2015, and it bears on this Interim Judgment, as to what relief should be ordered.[28] The Council was directed by the ARLA to file a memorandum summarising the reasons why it considered a number of elements of the PLAP were unreasonable in light of the object of the SSAA, and a joint memorandum was filed dated 23 August 2016.[29] Clause 16 of the joint memorandum provided as follows:Provisional Local Alcohol Policy – Map 1 (which shows Christchurch Central Area A and Christchurch Central Area B)This element is a map of the central city showing the boundaries of Christchurch Central Area A and Christchurch Central Area B, which are referred to in clauses 2.2.3, 2.2.4 and 2.2.5 relating to maximum on-licence trading hours. The Council considers this element to be unreasonable in light of the object of the Act because:Changes to Christchurch Central Area A(a) Exclusion of Victoria Street south of Salisbury Street from Central Area A pays insufficient regard to its relative proximity to the Central business District which is in Christchurch Central Area A, the presence of the Christchurch Casino as a focus for late night activity, the impact 1 am closing would have on holders ofon-licences in this location, and evidence that non-regulatory measures have been effective in reducing certain types of alcohol-related harm experienced by residents living close to Victoria Street;(b) Exclusion of parcels of land bounded by Manchester Street, St Asaph Street and High Street, and by High Street, Lichfield Street, Madras Street and Tuam Street, from ChristchurchCentral Area A could create a "black spot" after 1 am between adjacent areas subject to 3 am closing, in which "side-loading" orother inappropriate consumption of alcohol could occur in the absence of active or passive surveillance. 1 am closing is also unreasonable now that there is greater certainty as to future land use in the South Frame than was the case when the PLAP was adopted in 2013;Change to Christchurch Central Area B(c) Exclusion of land occupied by the Carlton Bar and Eatery on the corner of Bealey Avenue and Papanui Road from Christchurch Central Area B pays insufficient regard to this land being functionally part of the Victoria Street Precinct, meaning it should be subject to the same maximum trading hours as other on-licensed premises on Victoria Street between Bealey Avenue and Salisbury Street. It also pays insufficient regard to the impact 1 am closing would have on the holder of the on-licence for these premises, if effective immediately rather than after a transitional period of some duration.[30] On 21 September 2016, the ARLA made an order by consent directing that the Council reconsider 13 elements of the PLAP, which necessarily meant that they were thought to be unreasonable, and otherwise resolved all appeals, bar one. The 13 elements included provisions relating to Victoria Street.[31] The full Council addressed the 13 elements of the PLAP which the ARLA asked it to reconsider. A report to Council detailed the recommended changes and explained the reasons for them. The recommended changes included:(a) Recategorising the stretch of Victoria Street between Salisbury Street and Kilmore Street from Christchurch Central Area B to Christchurch Central Area A i.e. changing the maximum closing time in that area from 1am to 3am (4am for nightclubs);(b) Providing that the stretch of Victoria Street between Salisbury Street and Bealey Avenue, including Carlton Corner, would have a 3am maximum closing time for a 3 year transitional period (and 1am thereafter) – as compared to the position under the original PLAP where there was no transitional period and the 1am time limited applied immediately.[32] The reasons for these changes were given in Attachment C to the report prepared for the Council meeting on 29 September 2016:The 3 year transitional period before 1am closing is required recognises (sic) the slower than expected rebuild of the City Centre in Christchurch Central Area A where it had been anticipated that late night trading would occur. The transitional period alleviates the impact of the shift to 1am maximum closing on affected licence holders.3am closing for a transitional 3 year period recognises evidence that non-regulatory measures have been effective in reducing certain types of alcohol related harm experienced by residents living close to Victoria Street.The 1 hour reduction to the default national maximum trading hours (which provide for 4am closing) for the 3 year transitional period will prevent the potential for alcohol related harm caused by on-licence sales after 3am.1am closing after 3 years will reduce certain types of alcohol related harm experienced by residents living close to Victoria St, and concentrate late-night trading within Central Area A which will be more manageable for enforcement purposes.After the three year transitional period expires, those wishing to purchase and consume alcohol in a safe and responsible manner will still have opportunities for late-night consumption until 3am in Central Area A.Carlton Corner is functionally part of the Victoria Street Precinct and should be recognised as such.[33] On 29 September 2016, the Council resolved to change the 13 elements of the PLAP it had been asked by the ARLA to reconsider, and the PLAP was resubmitted to the ARLA on 26 October 2016.Appeals to the ARLA[34] Two appeals were filed, one by HNZ and the other by Caliente KitchensLimited, Papanui Road Limited and Stealth Hospitality Limited ("Caliente"). The appeals relate to the on-licence trading hours and other elements of the PLAP relevant to this judicial review. 15 parties filed interested party notices. HNZ advised its intention to bring judicial review proceedings on 24 November 2016.HNZ appeal[35] The HNZ appeal referred to the grounds of appeal advanced by Caliente. HNZ appealed against the maximum trading hours for on-licence premises, latenight areas proposed by the Council, and exclusion of Victoria Street from Central City Area A. Brief reference is required to consider the potential relevance of Decision 43 in the context of the appeals.[36] HNZ appealed the PLAP on the following grounds:(a) The elements of the PLAP appealed against are unreasonable in lightof the object of the Sale and Supply of Alcohol Act 2012 ("SSAA")being that:(i) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and(ii) the harm caused by the excessive or inappropriate consumption of alcohol should be minimized.(b) There is no probative evidence that the sale and supply, and consumption of alcohol is not being undertaken safely and responsibly in Christchurch;(c) There is no probative evidence that harm is being caused by the excessive or inappropriate consumption of alcohol in Christchurch;(d) The Council's reasons for adopting the PLAP are unclear, uncertain and unreasonable in light of the object of SSAA;(e) The PLAP does not appropriately respond to the local characteristics of the alcohol related harm in Christchurch;(f) The PLAP fails to respond to or recognise Christchurch's evolvingplanning framework, and is inconsistent with the Christchurch Central Recovery Plan and the Entertainment precincts identified in the Addendum dated December 2014 to the Central City Plan;(g) The PLAP is a disproportionate or excessive response to potential harm in the Central City; and(h) The PLAP is partial and unequal in terms of its treatment of land in the Central City.[37] The notice of appeal then particularises the effect on profitability of the hospitality industry and negative flow-on effect into the Christchurch economy if licensing hours are constrained to a 1:00am closing time. The PLAP is said to be inconsistent in the location of late-night entertainment areas and their proximity to residential development, given that 940 townhouses will potentially be established in the Eastern frame central to Christchurch, as close as 20 metres from the late-nightentertainment precinct areas, whereas in other areas of the Central City residential development is, in most cases, in excess of 50 metres from such areas.[38] The exclusion of parts of Victoria Street from Christchurch Central Area A is said to be unreasonable in light of the objects of the SSAA, because it is a commercial zone in the Central City Plan, and represents a successful and long established late-night economy that has flourished post-earthquake. A large number of resource consents for 3:00am and 4:00am trading have been approved in Victoria Street. The detriment to businesses and the Christchurch economy by revocation of rights to late-night trading are raised on appeal.[39] Under "Christchurch Rebuild", the grounds of appeal record:8.27 Christchurch has an evolving planning framework and accordingly is unique to any other environment in New Zealand. The PLAP fails to recognise this framework and, accordingly, is inconsistent with the Canterbury Regional Policy Statement, the Proposed Replacement District Plan, the Christchurch Central Recovery Plan, and in particular, the Entertainment Precincts identified in the Addendum dated December 2014.8.28 Given the evolving planning framework, the Council has not been able to have regard to the matters set out in section 78 of the Act because those matters are evolving as Christchurch is being rebuilt. The inability of the council to have regard to the matters set out in section 78 means that the PLAP is unreasonable in light of the object of the Act.8.29 Significant investment decisions have been made in reliance on the Christchurch Central Recovery Plan. The PLAP undermines those investment decisions without providing any alcohol related harm reduction benefits.8.30 The differentiation in trading hours between on-licences will create a clear economic advantage to some on-licence businesses. Furthermore, a reduction in operating hours will lead to a decrease in the hospitality industry and will ultimately impact on the Christchurch economy.[40] It seems that HNZ at this point treated the CRDP as important but outside the scope of the District Plan under s 78(2)(a) of the SSAA.Caliente[41] The notice of appeal by Caliente states that the amended PLAP is unreasonable in light of the object of the SSAA. It says that the amended PLAP has"split" Victoria Street into two parts, and the appeal is brought against the NorthVictoria Street maximum 1:00am closing after the first three years of the LAP, with reference to the High Street Block.[42] It pleads that it is unreasonable in light of the object of the SSAA to differentiate between North and South Victoria Streets and other parts of Central Area A, and that it has been held not necessary to limit on-licences to earlier than a 3:00am closing time for South Victoria Street and other parts of Central Area A inorder to minimise harm. Harm is "something significant" and goes beyond "amenity" which is addressed under the RMA 1991, and the District Plan adopted under the RMA.[43] It asserts a lack of evidence that after three years of a transitional 1:00am closing time, a 3:00am closing time would cause harm over and above that from 3:00am closing time for South Victoria Street and other parts of Central Area A, and that fairness and equal treatment is a fundamental requirement of justice.[44] The Entertainment Precincts and Victoria Street (as a whole), were considered by the IHP in Decision 43, which made no distinction in objectives and policies between North and South Victoria Street, and "there is no real distinction between North and South Victoria Street". Decision 43 is described with referenceto Objective 15.1.5 and Policy 15.15.2.6.7, discussed in detail in Question (2) of Part D to this Interim Judgment.[45] Caliente seeks relief that the ARLA ask the Council to reconsider the amended PLAP to the extent it limits North Victoria Street to a maximum of 1:00am closing time after the first three years of the LAP, and includes the High Street Block, with one exception, within Central Area A.[46] The notice of appeal asserts that the CRDP process and decisions under it should be brought to account in the appeal to the ARLA. Hitherto, there had been no such reference that I can identify.C CHRISTCHURCH REPLACEMENT DISTRICT PLAN AND DECISION 43[47] At the heart of this judicial review is the extent to which, if at all, the LAP process should have had, and should now have, regard to the CRDP and Decision 43.[48] HNZ pleads Decision 43 in this way:A review process to replace the then operative district plan with a"Replacement Plan" was established under the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014 ("OIC"), which waspromulgated under s 71 of the Canterbury Earthquake Recovery Act 2011.Clause 6 of the OIC, directed the Council to "undertake a full review of the operative provisions of the existing district plans" and to develop a replacement plan by preparing and notifying proposals ("Proposals").An Independent Hearings Panel ("IHP") was established to hear and determine a replacement district plan for Christchurch ("Christchurch Replacement Plan").Clause 12(1) of the OIC directs the IHP to hold a hearing on submissions on a Proposal and make a decision on a Proposal.Clause 14(1) of the OIC sets out what the IHP must and may consider in making its decision on a Proposal.Clause 5 of the OIC qualifies how the Resource Management Act 1991("RMA") is to apply and modifies some of the RMA's provisions, both as toour decision-making criteria and processes.The Statement of Expectations contained in Schedule 4 of the OIC records, in respect of objectives and policies:The expectations of the Minister for Canterbury Earthquake Recovery and the Minister for the Environment are that the replacement district plan – (b) contains objectives and policies that clearly state the outcomes that are intended for the Christchurch district.In its first decision, Decision 1, the IHP found that the evidence satisfied it, in order to achieve the purpose of the RMA:(a) The expedited recovery and future enhancement of Christchurch as a dynamic, prosperous and internationally-competitive city was the overarching outcome that the Replacement Plan should serve for the district; and(b) That outcome objective needed to be accompanied by one focussed on process efficiency and clarity of language, framed to reflect what the Statement of Expectations identifies on these matters.In a later decision, Decision 43, the Independent Hearing Panel addressed, among other things:(a) The extent of the Entertainment Precinct in respect of Victoria Street, and in particular whether the Entertainment Precinct should include Carlton Corner.(b) The objectives and policies that apply to the EntertainmentPrecinct and address the "late night" sale of alcohol.The evolution of Decision 43[49] Mr Alan Matheson is the Team Leader, District Plan (Planning and Strategic Transport) at the Council, and has been since November 2012. He described the history of the District Plan, and the CRDP.[50] The Christchurch City Plan became operative on 21 November 2005 and the Banks Peninsula District Plan became operative on 15 October 2012. Review of both Plans was underway before the Canterbury earthquake sequence which commenced on 4 September 2010, as the Plans were outdated and needed to be combined into one Plan. There was no Proposed District Plan for Christchurch City, so at that time the only District Plans were those operative for Christchurch City and Banks Peninsula.[51] The earthquakes meant the District Plan review did not progress to notification of a Proposed District Plan under the RMA and instead the CRDP was initiated. This was the governmental response and it required swift and comprehensive completion. Christchurch was on its knees. A tight timetable was established so all decisions would be made by April 2016, later extended to 16 December 2016. Three stages to the proposals for the CRDP were established, in sequence.[52] The IHP issued decisions on all proposals which made up the CRDP. Appeals were restricted to questions of law to the High Court. There have been few. Decision 43 was issued on 20 September 2016, nine days before the Reconsideration Decision.[53] Public notice of Decision 43 was given on 27 September 2016 and the appeal period expired on 26 October 2016, with no appeal lodged. Under clause 15 of theOrder in Council ("OIC"), a proposal is deemed to have been approved by the Council under clause 17(1) of Schedule 1 of the RMA from the date the appeal period expired in this case, 26 October 2016. However, under clause 16 of the OIC, the proposal does not become operative as part of the CRDP until public notice is given by the Council in accordance with Clause 20 of Schedule 1 of the RMA. The Council has not yet given public notice, although other decisions of the IHP have been made operative. Once the proposal is operative, it replaces parts of the"existing District Plans", being the Operative Plans as at 7 July 2014.[54] When the PLAP was reconsidered by the Council on 29 September 2016, Decision 43 was not, and could not have, been operative because the appeal period had not expired.[55] HNZ says Decision 43 makes no distinction between "North" and "South"Victoria Street, and the only boundary change to the overall precinct was to add in the Carlton Corner precinct. The IHP decided that there is no reason for different levels of entertainment and hospitality within the (overall) Victoria Street Entertainment Precinct, compared to other areas, and precinct rules protect community amenity. It referred to the significant investment in the Victoria Street precinct, and expressed concern if that investment was put at risk. Decision 43 states that there is:3a strong policy encouragement to the entertainment and hospitality industry to focus on establishing within the precincts.3 At [129].[56] The Decision addresses the relevant objective and policy provisions relating to entertainment and hospitality in the Commercial Zones. It is concerned with the following provisions of the CRDP:15.2.5 Objective – Diversity and distribution of activities in the Central Citya. A range of commercial, community, cultural, residential and guest accommodation activities are supported in the Central City to enhance its viability, vitality and the efficiency of resources, whileencouraging activities in specific areas by iv. Encouraging entertainment and hospitality activity (including late-night trading) in defined precincts and managing the extent to which these activities occur outside the precincts.15.2.6.3 Policy – Amenitya. Promote a high standard of amenity and discourage activities from establishing where they will have an adverse effect on the amenity values of the CentralCity byvi. identifying entertainment and hospitality precincts and associated noise controls for these and adjacent areas, and encouraging such activities to locate in these precincts;15.2.6.7 Policy – Entertainment and Hospitality Precincta. Provide for an entertainment and hospitality precinct, including late night trading, in the Central City, by:i. encouraging entertainment and hospitality activities to locate within the identified area;ii. protecting the viability of existing entertainment and hospitality investment, particularly that investment which has occurred in the Central City since the Canterbury earthquakes;iii. providing certainty to investors that residential amenity effects related to late night trading will be managed by rules relating to noise and off site effects.15.2.7.1 Policy – Diversity of activitiesa. Enhance and revitalise the Commercial Central CityMixed Use Zone by enablingvii. entertainment and hospitality activities of a scale, type and duration that do not conflict with or undermine existing and future residential activity, not undermine the identified hospitality and entertainment precincts.[57] The IHP made observations and findings:4There is nothing in the plain wording of the CCRP to suggest there should be different levels of entertainment and hospitality activities within the Category 1 and Category 2 zones. The lower level noise simply reflects that Victoria Street is closer to residential areas than the others. It does not carry with it, in our view, the presumption that Mr Willis gave it that it must mean differing activity, ie more for restaurants and cafes and not late night entertainment. we are satisfied the precinct rules brought in by the CCRP amendmentsprotect community amenity. It also needs to be recognised, however, that following the earthquake much of the Central City was in no position torespond to citizens' hospitality and entertainment needs. Victoria Street did,to the benefit of the City. They invested significant capital. Mr Osborne acknowledges that if that investment was at risk, that would be a matter ofconcern from an economist's perspective. CCC and submitters seem to setthis to one side.it would be a matter of concern if the existing investment in theentertainment precincts was at risk.The evidence we have shows there is a very significant investment in the Victoria Street precinct which relied on the CCRP and its amendments. It is also clear that, despite the CCRP, at least those three witnesses managed to interpret it in a way that is contrary to the plain words. In those circumstances there is a real risk other planners could do the same.We see as significant the addition of the words "and encouraging such activities to locate in these precincts." As is the ability of allowing PA status for these activities that meet noise and other relevant standards. Elsewhere in the Central City a resource consent may need to be sought where more stringent noise standards apply. We read the additional words as a strong policy encouragement to the entertainment and hospitality industry to focus on establishing within the precincts.4 At [97], [114], [120], [128] and [129].[58] Mr Thorne, in evidence for the Council, says the objectives and policies introduced by Decision 43 maintain the approach of ensuring entertainment and hospitality precincts are not undermined.[59] Decision 56 is a separate and subsequent Decision of the IHP, which determined some matters relating to the sale of alcohol. It decided that objectives, policies and rules should be included to address the sale and/or supply of alcohol in all zones, with one exception. The sale and/or supply of alcohol between the hours of 11:00pm and 7:00am from any site located within 75 metres of a Residential Zone is a restricted discretionary activity, with five exemptions including Victoria Street. I need only mention this, as it may or may not have bearing on what follows this Interim Judgment.D QUESTIONS RAISED ON THIS JUDICIAL REVIEW[60] The pleading requires answers to the following questions.Question (1): In making a Reconsideration Decision which comes after a DLAP, PLAP, and the filing of an appeal to the ARLA, is a Council required to have regard to a "district plan" (howeverdefined), or is that obligation spent by that stage?Question (2): If a Reconsideration Decision requires that the Council have regard to the District Plan, is that only an operative plan, or does it expressly or impliedly include a proposed plan, in this case the CRDP and Decision 43?Question (3): If the Council was expressly or impliedly required to have regard to CRDP and Decision 43, was it so unreasonable not to have regard to it, that it should vitiate the Reconsideration Decision?Question (4): Did the Council have regard to the CRDP which includes Decision 43?Question (5): Should this Court order relief by requiring the Council to reconsider given that HNZ has appealed to the ARLA and seeks the same relief which motivates this judicial review?[61] The Answers to each question are developed to fit the factual settings, to which they have application.Question (1): In making a "Reconsideration Decision" which comes after aDLAP, PLAP, and the filing of an appeal to the ARLA, is a Council required to have regard to a "district plan" (howeverdefined), or is that obligation spent by that stage?[62] Consideration of the Operative Plan(s) is evident, at least in a referential way,in the DLAP and PLAP processes. HNZ submits that "reconsideration" is not ajurisprudential island separated from mainstream considerations which are required to be brought to account in the decision making for a DLAP and PLAP. In the end it is for the Council to decide in what way the District Plan should bear on the decision making if it must have such regard.5[63] The Supplementary Agenda for the meeting of the Planning Committee on 3 April 2013 included a report on relevant objectives and policies of the two Operative District Plans. The report by the Chairperson of the Planning Committee, dated 8 May 2013 recorded the obligation to have regard to such Operative Plan(s),but goes no further. The Committee's recommendation was to:[d]etermine that regard has been given to the matters in s 78(2) of the Act inpreparing the draft LAP, namely: the objectives and policies of its districtplan.[64] This has a somewhat hollow ring to it without evidence of the regard that was had. The law requires sufficient regard that a fully informed decision may be made. HNZ submits that at a meeting of 16 May 2013, when the 8 May 2013 report and recommendations were considered, there was no discussion by the Council of s 78(2) matters, or the objectives and policies of the District Plan. There was reference to the effects of noise from activities involving the sale of liquor, on the residential5 Glenharrow Holdings Ltd v Attorney-General [2004] UKPC 42, [2005] 2 NZLR 289 at 304.neighbourhood, but the objectives and policies of the two Operative Plans did not provide much policy guidance, and the Operative Plans, HNZ says, were outdated.[65] The Council says the "District Plan", however defined, applies only to the DLAP and PLAP processes and when a PLAP is before the ARLA by way of appeal the focus narrows to whether an element is unreasonable in light of the object of the SSAA. Mr McNamara submits that this is a discrete exercise and that the obligation to have regard to s 78(2) considerations, whatever they are, is spent. By this route, the Reconsideration Decision, the product of an appeal to the ARLA, does not require any regard to be had to the District Plan. He says that the substance of a LAP, and the policies it may include are contained in s 77 SSAA:77 Contents of policies(1) A local alcohol policy may include policies on any or all of the following matters relating to licensing (and no others):(a) location of licensed premises by reference to broad areas:(b) location of licensed premises by reference to proximity to premises of a particular kind or kinds:(c) location of licensed premises by reference to proximity to facilities of a particular kind or kinds:(d) whether further licences (or licences of a particular kind or kinds) should be issued for premises in the district concerned, or any stated part of the district:(e) maximum trading hours:(f) the issue of licences, or licences of a particular kind or kinds, subject to discretionary conditions:(g) one-way door restrictions.(2) Paragraphs (a) to (d) of subsection (1) do not apply to special licences, or premises for which a special licence is held or has been applied for.(3) A local alcohol policy must not include policies on any matter not relating to licensing.[66] The location of licensed premises in "broad areas", and the maximum trading hours is pertinent to Victoria Street, and proximity to residential buildings.Section 75 allows for the application of a LAP to different parts of a district, and different kinds of licence.[67] Mr McNamara says the only other relevant provisions concerning thesubstance of a LAP are ss 93 and 94:93 Relationship of local alcohol policies and district plans(1) A local alcohol policy may contain a policy more restrictive than the relevant district plan.(2) A local alcohol policy does not authorise any thing forbidden by the relevant district plan.94 Local alcohol policies to be consistent with general law(1) A local alcohol policy must be consistent with this Act and the general law.(2) Subsection (1) is subject to section 93(1).[68] He submits that ss 78 and 79 ensure that District Plan objectives and policiesare given "genuine consideration when producing a DLAP or PLAP", but once thosematters are addressed, ss 93 and 94 make it clear that the District Plan does not further influence the LAP, except to mark the boundary of prohibition of an activity under the District Plan.[69] He thus submits that the 13 elements for "reconsideration" had to be addressed simply in terms of the object of the SSAA, and that HNZ has mischaracterised the Reconsideration Decision which is governed by ss 83 and 84 of the SSAA. Section 83(1) provides that the ARLA must dismiss an appeal if it is not satisfied that it is unreasonable. It must first decide if it is satisfied that it is unreasonable, and did so here. Mr McNamara submits that HNZ is treating the reconsideration decision as if it was made under s 84(1)(b), which is the decision to resubmit the policy to the ARLA with element(s) deleted. He submits no express considerations apply to that decision, just that those elements be tested against the object of the SSAA.[70] Mr McNamara says that s 79 of the SSAA applies when a PLAP is produced, but the PLAP process ended with its public notice, which is required under s 80:If, after producing a provisional policy [PLAP] under section 79, a territorial authority continues to wish to have a local alcohol policy, it must then givepublic notice[71] There is said to be a policy-making phase which runs through to the production of the PLAP, then an appeals phase when the focus is on the substance of the appealed elements measured against the object of the SSAA. Parliament is submitted to have turned its mind to when s 78(2) elements must be considered, and there is no sound basis to imply the same obligation during the appeal phase. The process under s 84 may address new or amended elements, but it is not a "general reconsideration ab initio" of the PLAP, or an element of that.[72] Mr McNamara says that the process involves "progressively narrowing andresolving elements which are in dispute", and not a "broadening out" to encompassconsideration of material which had to be considered earlier in the process. He says it is not odd that there is no specific requirement as to how the Council should reconsider elements of the PLAP, because the information base is set by s 78(2) toproduce what he calls a "robust document". To specify mandatory relevantconsiderations again would serve no useful purpose and would replicate policy levelinput at "early stage" development of the DLAP, then the PLAP. Reconsideration is submitted to be more "fact dependent" and centres on the ARLA's reasons why itis satisfied that an element of a PLAP is unreasonable for reconsideration. Mr McNamara says that if HNZ is right, then on reconsideration all the matters in s 78(2) would have to be looked at. That would require, in effect, a re-gathering of information, and anything new or different in the District Plan may affect reconsideration, and go beyond what the ARLA is concerned about on appeal.[73] HNZ's response, through Mr Gardner-Hopkins, is that it is obvious thatsomething said to be "unreasonable" on appeal to the ARLA may be so because of the objectives and policies of a District Plan. He submits that the District Plan must always be had in mind and a reconsidered PLAP is still a PLAP, and requires reference to s 78(2) considerations where they are relevant. Their relevance may be found in the thread of the process from the outset of the DLAP. It may have arisenduring the LAP process, with a new Operative Plan. It does not lose its relevance by the time of an appeal, but it may not be a focus on appeal. After all, the object of the SSAA is fundamental from the outset, through all stages of development of a LAP and there are many considerations which must be at least considered.Analysis[74] Question (1) is directed to an Operative District Plan and at what stage it must be brought to account. I consider it is clear that if the District Plan must be brought to account in the development of the DLAP, then it is obvious that it mayreflect in the DLAP, and the PLAP in some way and thus in any appeal reconsideration. It may or may not, in different degrees, case by case, but regard must be had to it, for its objectives and policies.[75] Even without a new Operative District Plan, in whole or in part, if the objectives and policies of the District Plan are relevant to the DLAP, the PLAP and whether an element is unreasonable, then they will remain so. Testing the reasonableness of an element against the objectives and policies of the District Plan will remain relevant throughout the whole LAP process. An appeal may include a consideration which has been embedded in the process from the DLAP onwards. The objectives and policies of an Operative District Plan may increase or diminish in importance over time as the lens becomes more focused on competing considerations, and other s 78(2) considerations may have different import too, but they are not spent.[76] Further, the SSAA cannot be interpreted to set in concrete the factual and legal setting when a DLAP process is initiated through to the point where the ARLA is involved, and sends a PLAP back for reconsideration, or hears an appeal. Otherwise history will enshrine the answer, or at least the field for consideration. If a new Operative District Plan comes into force, in whole or in part, that must have reference in the LAP process, at whatever stage, or the eventual outcome would be based on obsolete foundations.[77] In this case, the Operative District Plan had not changed by the time of the Reconsideration Decision, but if its objectives and policies are relevant toreasonableness given the object of the SSAA, they remain so. They are not for ab initio reconsideration along with other s 78(2) elements. Their relevance depends on the competing contentions as to reasonableness in light of the object of the SSAA as the process develops.Answer to Question (1)[78] On appeal to the ARLA, and on reconsideration as part of that process, the objectives and policies of an Operative District Plan are matters to which the Council must have regard. The objectives and policies of the Operative District Plan are not set in concrete. For example, if there is a new Operative Plan in whole or in part, regard must be had to that. It cannot be the case that a once Operative Plan which is no longer operative should hang ghost-like over the appeal and reconsideration process. If Decision 43 and the CRDP become operative then they must be had regard to, to the extent they are relevant to meeting the object of the SSAA.[79] Otherwise, once the objectives and policies in the District Plan have been had regard to, and been reflected in the DLAP and PLAP development, then they must be brought to account in the Reconsideration Decision and on appeal to the extent that they bear on the issues which are in contest, having regard to the object of the SSAA.[80] The Council on reconsideration did not have to revisit the objectives and policies of the Operative District Plan ab initio, but rather have regard to them, to consider the extent to which they were relevant to the grounds of appeal and the reasons some element(s) of the PLAP were sent back for reconsideration. This answer is not at the date of this Interim Judgment determinative of this judicial review but is consistent with the Answers which follow, that the LAP process at all stages must reflect consideration of relevant objectives and policies as they evolve.Question (2): If a Reconsideration Decision requires that the Council have regard to the District Plan, is that only an operative plan, or does it expressly or impliedly include a proposed plan, in this case the CRDP and Decision 43?HNZ submissions[81] "District Plan" is not further defined in the SSAA, but the RMA defines it as"an operative plan". HNZ says that Parliament has chosen not to further define it in the licensing context, and expressly or by implication the "District Plan" must include Decision 43 as part of the CRDP, or that it was otherwise unreasonable not to have regard to it (Question (4)), as it is a decision reached by the IHP on the CRDP and directly relevant to Victoria Street licensing.[82] The meaning of "District Plan" is drawn from the text and the purpose of thelegislation. Mr Gardner-Hopkins submits that the purpose of s 78(2), in requiring regard to be had to the objectives and policies of the District Plan, is instructive in the interpretation exercise.[83] A LAP and a District Plan (whatever "District Plan" means), combine in thecontrol or influence each can and may bring to the location, hours of operation and other conditions which apply to licensed premises. Different perspectives can be identified in the two legislative schemes. The SSAA is focused on the responsible sale of alcohol and minimisation of harm, and the RMA is focused on "wider amenity" issues, which include the same considerations of responsibility, and harm. Mr Gardner-Hopkins submits the two regimes do not stand in isolation one from the other, which is obvious as the Council is required to at least have regard to the objectives and policies of the District Plan, while in a resource management context,the Council may consider "any other matter", which could, for example, include a LAP under s 104(1)(c) RMA.[84] Mr Gardner-Hopkins says the reference to the District Plan in s 78(2) is to ensure consistency in decision making which submission in itself must be correct, but in my view reflects the complementary roles of the two statutory processes in shaping and determining licensing outcomes. While the RMA function will be concerned with planning outcomes, and may address licensing issues such as thelocation of licensed premises and their operation, the LAP function of the consent authority is to develop policies which are directed specifically to alcohol provision and consumption. Each regime will have regard to the effects of activities, having regard to the purposes of their parent legislation.[85] Mr Gardner-Hopkins submits that it is illogical that regard must be had only to an Operative District Plan. Under Question (1), I held that it must be had regard to at all stages of the LAP development, including appeal, where it is relevant to any element for decision.[86] The often protracted RMA process sees new Plans emerging, sometimes in parts, and there are changes and variations to Plans over years. A Plan may be renewed in part, or in whole, every 10 years. Legal processes can add many years. Mr Gardner-Hopkins puts it this way. If there is no regard had to the objectives and policies of a proposed plan that would mean having regard only to a "current" oroperative plan, and that would be illogical as a highly developed proposed plan, lacking only the formality of being made operative, would not be brought to account. Planning policy evolves, and here the Canterbury earthquakes dictated a policy response. Thus, Mr Gardner-Hopkins says the Operative Plan might well have included, and indeed now will, include the CRDP and Decision 43 as they are clearly relevant to the Council's decision making. The CRDP was so far developed, and directly by Decision 43 addressed Victoria Street licensing issues, after full consideration by a highly experienced Panel.[87] If the reference in the SSAA to a "District Plan" is only to an Operative Plan, then mandatory consideration of Decision 43 is otherwise submitted to arise through implication, based on the proposition enunciated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation:6The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion they must have regard to those matters.6 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) 2 All ER 680 (CA) at 682.[88] The latest iteration of the District Plan, as expressed by Decision 43 is something that HNZ says logically had to be considered by the Council in the reconsideration decision just as it would on appeal because of the combined effect of the different statutory schemes. A District Plan and its development may have status in different ways under the RMA. The stage of development of a Plan influences its status and weight for RMA purposes. For example, s 104(1)(b)(vi) of the RMA provides that when a consent authority considers an application forresource consent it must "have regard to" a plan or proposed plan. The relevance and importance of a Proposed Plan in an RMA context will depend on the extent to which it has proceeded through the objection and appeal process,7 and will be determined on a case by case basis. That will include the extent to which the proposed measure has been exposed to testing and independent decision making, circumstances of injustice, and the extent to which a new measure, or the absence of one, might implement a coherent pattern of objectives and policies in the Plan. An example given by the authors of Brookers Resource Management, is that of Mapara Valley Preservation Society Inc v Taupo DC,8 where the Court placed substantial weight on recently notified plan changes relating to growth management and rural land use.9[89] While a proposed plan may influence an RMA outcome, Mr McNamara says it cannot influence an outcome under the SSAA. The idea that proposed provisions of a District Plan are relevant in the licensing context is submitted illogical, because it would not reflect in any certainty about the Plan, and a proposed plan may not survive an appeal. The wording of the SSAA is clear, and Mr McNamara submits a District Plan refers to an Operative District Plan, as anything short of that is not a District Plan as it is still uncertain and does not replace the Operative Plan.[90] Mr McNamara says that there may be consideration of a proposed plan, but that does not mean it must be considered, and there can be no implication when the District Plan is the Operative Plan.7 Keystone Ridge Ltd v Auckland City Council HC Auckland AP24/01, 3 April 2001.8 Mapara Valley Preservation Society Inc v Taupo DC EnvC Auckland A083/07, 1 October 2007.9 Brookers Resource Management (online looseleaf ed, Brookers) at [A104-09].Analysis[91] In this case, some HNZ members have interests in North Victoria Street. HNZ says the CRDP provides strong policy support for hospitality operators in the Victoria Street precinct or area as a whole, and does not differentiate between"North" and "South", whereas the revised PLAP adopted in the reconsiderationdecision differentiates and disadvantages licensed premises in North Victoria Street.[92] The answer to Question (1) assists analysis of Question (2). I have held that an Operative Plan may change in the LAP process and that means its objectives and policies must be considered, whatever stage the process has reached. It is still, however, an Operative Plan. The prohibitive provisions of s 93(2) of the SSAA, whereby a LAP yields to a District Plan, must refer to an Operative Plan as there can be no prohibition by something which is not of full effect.[93] It would be curious if Decision 43 did not have to be brought to account in the Reconsideration Decision but had to be on appeal because in the interim it had become operative. The answer in my view, turns on whether a proposed plan which has potential relevance to a LAP should logically be brought to account at any stage of the process, from its inception. That requires a purposive inquiry into what Parliament intended by reference to the "District Plan", without more, unlike the RMA which defines it.[94] I interpret the District Plan in the SSAA as including the Operative District Plan and a Proposed Plan, reminding myself that it is only for the purpose of having regard. Only by addressing the full planning context can the Council, involved in both planning and licensing processes, have all the information it needs before it. To interpret "District Plan" more restrictively seems to me to build in obsolescence,to ignore vital and responsive proposed plans and Decisions of territorial authorities, and here the IHP.[95] Whether that interpretation is right or not, this seems to me a case when it must be implied, that there should be regard had to the CRDP and Decision 43. Decision 43 was a fully reasoned decision at the time of consideration and was destined to become operative, bar appeal. The appeal period has passed, although thedecision has not yet been made operative. It is clearly relevant to the question whether the PLAP is reasonable having regard to the object of the SSAA. It is still at Interim Judgment "proposed", but the time for appeal has long passed, and by 21 June 2017 it will be operative if there is no appeal against another part of the Proposed Plan.[96] Decision 43 recognises the provision of the licensed amenity, and the concern for other amenities, in particular residential. It is the product of consideration by the IHP of the reasons for a distinction in the licensing hours for different parts of Victoria Street, and puts those in the context of other licensing provisions in the Central City. It is manifestly something to which regard should at least be had in the development of the LAP. Whether by express reference or by implication, it should have been brought to account as it was the up-to-date, likely outcome of a relevant part of the CRDP, now enhanced by the fact it was not taken on appeal, and will at some point become operative. It is a lucid, reasoned consideration of objectives, policies, amenities and effects with direct application to Victoria Street, and the matters to be considered on appeal to the ARLA under the object of the SSAA.[97] It cannot be the intention of Parliament that something so relevant and reasoned should be brought to account simply and only by incident of timing as to when a proposed plan becomes operative.Answer to Question (2)[98] The Answers are:(1) The term "District Plan" in the SSAA interpreted expressly or by implication includes a proposed Plan.(2) The Council should have had regard to the CRDP and Decision 43 as would the ARLA on appeal.(3) Decision 43 will be, or will soon be, operative and that would negate any residual argument whether it should be had regard to.Question (3): If the Council was not expressly or impliedly required to have regard to CRDP and Decision 43, was it so unreasonable not to have regard to it, that it should vitiate the Reconsideration Decision?Analysis[99] This question reflects the second alternative cause of action. Mr Gardner-Hopkins refers to the four year process of advancing the LAP to this point, that the Operative Plans were out of date at the start of the process, withlimited policy guidance in respect of licensed premises, and that "a new stronger and more detailed policy framework" was notified and strengthened by the IHP decision.Answer to Question (3)[100] The test of unreasonableness or "absurdity" as Mr Gardner-Hopkins puts it, in my view essentially duplicates the argument for the implication of the need for mandatory consideration of the CRDP and Decision 43. It adds nothing. In my view, it would have been unreasonable if CRDP and Decision 43 were not brought to account. They have been held to be express or implied relevant mandatory considerations.Question (4): Did the Council have regard to the CRDP which includes Decision 43?[101] Mr Gardiner-Hopkins says the evidence is clear that no regard was had. I agree, but for completeness address the Council's argument.[102] Mr McNamara says there is some indication that Decision 43 may have been considered in the Reconsideration Decision. An officers' memorandum of27 September 2016 was given to the District Plan Sub-Committee on 28 September 2016, for consideration at its meeting on 29 September 2016, which was held immediately after the Council had made its Reconsideration Decision that day.[103] Some Council members who made the Reconsideration Decision were not members of the District Plan Sub-Committee. The officers' memorandum wastherefore "in the wind", putting it neutrally, but Mr McNamara submits it wasknown, or should have been known to some of the Council through membership of the District Plan Sub-Committee, and therefore implicitly was regarded by those Councillors ("a clear majority of Council") who had been briefed the day before.[104] The memorandum given to the District Plan Sub-Committee discusses Decision 43, and is instructive, as while addressed in the planning contest, there is a clear overlap with licensing considerations.4. Entertainment and Hospitality Precincts and late Night Saleof Alcohol4.1 The Panel decision supported inclusion of the Entertainment andHospitality Precincts introduced by the CCRP and signalled that it will likely support the noise and sale of alcohol provisions proposed by the Council in its forthcoming decision on Chapter 6 General Rules, generally as proposed by Council officers.4.2 However, the Panel also included an additional policy (referred to as the "Investment Protection Policy") which was proposed in closing legal submissions by Pacific Park Ltd. The policy reads as follows:Policy 15. 1. 6. 7 - Entertainment and Hospitality PrecinctProvide for an entertainment and hospitality precinct, including late night trading, in the Central City, by:i) encouraging entertainment and hospitality activities to locate within the identified area;ii) protecting the viability of existing entertainment and hospitality investment, particularly that investment which has occurred in the Central City since the Canterbury earthquakes;iii) providing certainty to investors that residential amenity effects related to late night trading will be managed by rules relating to noise and off site effects.4.3 Council officers and evidence of the Crown opposed this policy in both the Central City and General Rules hearings on the grounds that:a. there is already sufficient objective and policy support in the Plan recognising the importance of investment to the recovery and the desirability of encouraging late night activities to locate in identified precincts;b. it is not appropriate for the Panel to single out a particular industry for protecting investment, even within the precincts. The policy could be interpreted as discouraging activities other than entertainment and hospitality activities in the precincts;c. there is no evidential basis for preferring existing activities in the precincts to potential future activities and there is an insufficient evidential basis for a policy that would discourage the location of late night activities in any other location in the District; andd. residential amenity effects are managed for a range of reasons, not only to provide certainty to investors.4.4. Officers have instructed Legal Counsel to prepare a legal opinion on potential grounds for appeal in respect of this policy and any implications that this decision may have for the Local Alcohol Policy appeals process. That opinion will be provided to the Council as soon as possible, noting that the deadline for appeals on the decision is the 26th of October.[105] The existence of the memorandum does not mean that the Council (being the Reconsideration Councillors) had regard to Decision 43. Only some Councillors had it and was made available only one day before the Reconsideration Decision and it was produced for a different purpose. It is not shown on the record as being drawn to the attention of all the Councillors, for the Reconsideration Decision.[106] Mr Gardner-Hopkins says that the "oblique reference to 'implications' for the LAP process is not enough". He submits that if Decision 43 had to be considered, then the Council must be sufficiently informed about it, so it could have "proper regard". The Council officers' knowledge or even consideration of Decision 43 takes the matter no further, as there is no evidence that they considered Decision 43 to berelevant to the Council's Reconsideration Decision. It is not the knowledge and regard of the Council officers which is in issue, but those who made the Reconsideration Decision.[107] In any event, HNZ says that the Reconsideration Decision did not have such regard, as the reconsideration report of 29 September 2016 to the Council Sub-Committee made no reference to any of the considerations required under s 78(2). He submits that the reasons given by the Sub-Committee for changes to the PLAP make no reference to the objectives and policies of the District Plan, theCRDP, or Decision 43. Mr Gardner-Hopkins says the SSAA's reference to theDistrict Plan should be interpreted on this judicial review to recognise the focus on enabling entertainment and hospitality activities, including late-night sale of alcohol from on-licences within specific precincts, and constraining them outside their boundaries.Analysis[108] The Court cannot speculate that a report which was "in the hands" of someCouncillors for another (planning) purpose was considered by them and drawn to the attention of other Councillors for another purpose. That is a stretch too far. Even those members of the planning Sub-Committee who had the report on Decision 43 cannot be taken to have brought it to account, although that is a possibility. All Councillors would have had to have been aware of Decision 43, and understood it, and had regard to it in the context of reconsideration. The ARLA made no reference to the CRDP when it sent the PLAP back for reconsiderations.Answer to Question (4)[109] The Council did not in the Reconsideration Decision, as a matter of fact and law, have regard to the CRDP which includes Decision 43.Question (5): Should this Court order relief by requiring the Council to reconsider given that HNZ has appealed to the ARLA and seeks the same relief which motivates this judicial review?[110] HNZ does not say that there is an obligation to apply the "District Plan"when it produces a LAP, PLAP, and when it reconsiders an element of a PLAP. Instead, it says that the discretion of the Council is not unfettered, and it must have regard to the objectives and policies of the District Plan, for each of those steps, as they are mandatory relevant considerations, express or implied as the Answer to Question (5) provides.[111] Mr Gardner-Hopkins submits that the CRDP and Decision 43 make nodistinction between North and South Victoria Street licensed activity, and that a different Reconsideration Decision cannot be discounted. The rationale for sendingsomething back to the decision maker is for reconsideration on the correct legal basis, which will recalibrate the decision maker's reasoning. Mr Gardner-Hopkins rightly points out that there is a strong presumption in favour of such relief if an error is made out, which can only be rebutted if there are strong reasons to decline that relief.10[112] The Council says that if the Reconsideration Decision was in error in failing to have regard to the CRDP, including Decision 43, then no relief should be granted, as an error must be material, and here it is not because it can otherwise be rectified on the appeal to the ARLA.[113] The relief sought by HNZ is that North and South Victoria Street be treated in the same way in the LAP. Mr McNamara submits that does not truly reflect an attempt by HNZ to "clarify the extent of a Council's obligations to have regard to theobjectives and policies of both an operative and any proposed plan in the LAPprocess" (HNZ submission). However, while this judicial review goes to licensing in a particular area, it does have wider ramifications.No amendment to the PLAP by this Court[114] If the Council erred in a way which warrants relief being ordered, then Mr McNamara submits that should extend only to order reconsideration of the relevant elements of the PLAP, rather than the Court amending the PLAP as requested in paragraph 69(d) of the statement of claim.(d) In the alternative to (c), an order replacing the amended PLAP with a version that includes North Victoria Street and Carlton Corner within Central Area A, and does not include the Victoria Street Split or 3-year cut off.[115] That outcome is not tenable. The disputed elements of the PLAP are not for this Court, unless the outcome of the process is certain, and to avoid unnecessary time and cost impost. That is far from the case.10 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]; GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, {2010] NZAR 518 at [67]; Rees v Firth[2011] NZCA 668 [2012] 1 NZLR 408 at [48]; Te Runanga-Ā-Iwi O Ngati Kahu v Far North District Council (2011) 16 ELRNZ 708 (HC), 29 September 2011, at [124]; Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA, [2011] 2 NZLR 442, 513 at [141].Does the impending appeal to the ARLA make a remedy unnecessary?[116] The ARLA will focus on the object of the SSAA and as a specialist tribunal may consider any matter which the Council should have considered in the test of reasonableness. It has the powers of a Commission of Inquiry which include summary of witnesses and requiring documentation for its consideration. This would include the CRDP and Decision 43, whether Proposed or Operative.[117] The Council through Mr McNamara says judicial review and the outcome sought are unnecessary, and should not jeopardise or delay the appeal. If the Council has made an error, Mr McNamara says it can and will be cured on appeal. The"reasonableness" of the PLAP elements include the reasons for the differentiation between North and South Victoria Streets and they are squarely before the ARLA. The Council submits that HNZ is simply trying to delay the beginning and end of the three year transitional period for on-licence trading hours in North Victoria Street, with potential for a revived process, leading to another appeal to the ARLA.[118] HNZ rejects the submission that its concerns can be addressed on the appeal before the ARLA. HNZ says it does not by this review seek delay, to give it the benefit of the current closing hours for a longer period. Mr Gardner-Hopkins submits that the reconsideration decision, if made in error, significantly affects HNZ, and has forced HNZ to appeal to the Authority. It considers it has the burden of proving the elements of the PLAP are unreasonable in light of the object of the SSAA. If theCouncil had approached the matter "properly", then the position may have beenreversed, so that HNZ would be defending a PLAP, with the onus on others to show the provision which made no closing hours differentiation is unreasonable. The appeal to the ARLA is not a rehearing. Section 83(1) of the SSAA is expressed negatively, that the ARLA "must dismiss an appeal" unless it is satisfied that anelement of the decision is unreasonable.Analysis[119] Neither the Council nor the ARLA can resist the tide of relevant resource management outcomes so as to lock the LAP process into an operative planning regime, here substantially out of date. A new operative provision, and theimminence or potential imminence of highly developed planning decisions becoming operative, without question bear on the development of a LAP, from inception of the process. The law is forever developing and responding to events, changes in social thinking, and reasoned decisions which reflect these developments.[120] This Interim Judgment is not concerned with the position prior to Decision 43, which would reflect on the CRDP in its proposed form, although the principles behind this Interim Judgment would have application. However, by the time of the Reconsideration Decision, Decision 43 was subject only to appeal to the High Court on a question of law and was an up to the minute result of a reasoned quasi judicial process, by an expert panel. A different decision may be reached by the Council and/or the ARLA once regard has been had to the CRDP and Decision 43, and now it knows that they will become operative, removing any doubt in that regard.[121] The sequence of events to date is relevant. The ARLA responded to theCouncil's request that it be required to reconsider 13 elements of the PLAP because it thought those unreasonable in light of the object of the SSAA, after mediation and negotiation. The ARLA agreed, which meant that in principle it was satisfied that those elements were unreasonable – s 83(2) of the SSAA. The Council then reconsidered in light of that request, which it had induced, and incorporated elements in the PLAP against which Caliente and HNZ have now appealed. This process did not include any regard to the CRDP and Decision 43, and they have not featured in the development of the LAP.[122] Once the CRDP and Decision 43 have been had regard to under s 83(1) of the SSAA, the ARLA must dismiss an appeal against an element of the PLAP if it "is notsatisfied that the element is unreasonable in the light of the object of this Act; ". If so, it must ask the Council to reconsider those element(s). The wording in s 83(1) suggests the presumptive correctness of the PLAP, given the double negative "is notsatisfied that the element is unreasonable". The ARLA must inevitably decide whether an element is reasonable by this route.[123] I do not consider that an appeal would cure the flawed process. The ARLA would know that Decision 43 and CRDP were not brought to account when the Council made its Reconsideration Decision, and by this Interim Judgment that they should have been. It would look at the Reconsideration Decision and the PLAP in that light and in light of this Interim Judgment, whether or not Decision 43 is operative by the time of appeal. However, it would thus vault over the evolutionary development of a LAP and be compelled to address the appeal de novo, which is not what the SSAA provides.[124] The former course is set by the correct process of reconsideration. If HNZ does not get the result it wants on reconsideration, a fresh appeal process is available. If HNZ is successful in the Reconsideration Decision, the appeal process will be available for other parties whose interests are preserved by s 81(1) of the SSAA, if they made submissions on the DLAP. I cannot anticipate the outcome of reconsideration by the Council. It has the lead role in the long development phase of the PLAP. It administers the District Plan. It was I think caught out by the timing of Decision 43 and the Reconsideration Decision. It is not difficult for it to reconsider having regard to Decision 43 and the CRDP and it must now do so. A quite different result may follow but whether that is the case or not, an error of the kind found to exist here should be corrected to reach a decision as the law requires, and to reset any appellate process.Relief[125] The Judicial Review Procedure Act 2016 re-enacts Part 1 of the Judicature Amendment Act 1972, and sets out procedural provisions for a judicial review associated with the exercise of a statutory power. It does not alter the interpretation or effect of those provisions as they appear in the Judicature Amendment Act 1972.11[126] Section 16 provides:16 Relief that court may grant(1) The High Court may, by order, grant an applicant any relief that the applicant would be entitled to in proceedings for—11 Section 3(2) Judicial Review Procedure Act 2016.(a) a writ or an order of, or in the nature of,—(i) mandamus; or(ii) prohibition; or(iii) certiorari; or(b) a declaration or an injunction.(2) If an applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the court may, instead of making that order, set aside the decision.(3) This section applies even if—(a) the applicant has a right of appeal in relation to the subject matter of the application:(b) the person who has exercised, or is proposing to exercise, a statutory power to which the application relates was not under any duty to act judicially.[127] In addition to any relief that may be granted under s 16 of the Act, a court may direct any person whose act or omission is the subject matter of the application to reconsider and determine the whole or any part of the matter to which the application relates. This applies generally, or in respect of any specified matters.12There must be reasons given for such direction, and such directions as appropriate for the purpose of reconsideration.13 Any reconsideration must have regard to theCourt's reasons for giving that direction, and the Court's directions.14[128] Pursuant to s 17(6), if a matter is referred back under s 17(3), then the act or omission that is to be reconsidered continues to have effect, but subject to any interim order, unless and until it is revoked or amended by that person. That I consider requires a stay of the appeals before the ARLA until it, or this Court, further directs. Interim orders may be made pursuant to s 15.[129] I have regard to these provisions and make provisional orders and directions pending further submissions by the parties to make this Interim Judgment final in its12 Section 17(3).13 Section 17(4).14 Section 17(6).effect. My concern about a declaration of invalidity is that it would extend beyond the elements under review, so I reserve that issue.E DISPOSITION(1) Those parts of the Reconsideration Decision of the Christchurch City Council of 29 September 2016 which this Interim Judgment holds should have had regard to the objectives and policies of the Christchurch Replacement District Plan, and Decision 43, are set aside. These include the exclusion of Victoria Street from Central Area A, and the different treatment of North and South Victoria Streets. This may require further definition by the Court.(2) The Council is directed to address the Reconsideration Decision afresh, to the extent of Order 1 above, this time having regard to the objectives and policies of the Christchurch Replacement District Plan and Decision 43, whether operative, or proposed.(3) It is for the Council to determine the relevance and weight of Decision 43 and the CRDP in the Reconsideration Decision directed.(4) The appeal before the ARLA is in the interim stayed pending further order of this Court.(5) Leave is reserved for applications for further directions and orders as necessary to implement this Interim Judgment.(6) Costs are reserved.Nicholas Davidson JSolicitors:Berry & Co, OamaruSimpson Grierson, AucklandCopy to counsel:J D K Gardner-Hopkins, Barrister, Wellington