NORTH EASTERN INVESTMENTS LIMITED AND HERITAGE LAND LIMITED v AUCKLAND COUNCIL [2018] NZCA 629

NORTH EASTERN INVESTMENTS LIMITED AND HERITAGE LAND LIMITED v AUCKLANDCOUNCIL [2018] NZCA 629 [21 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA287/2018[2018] NZCA 629BETWEEN NORTH EASTERN INVESTMENTSLIMITED AND HERITAGE LANDLIMITEDAppellantsAND AUCKLAND COUNCILFirst RespondentHOUSING NEW ZEALANDCORPORATIONSecond RespondentHearing: 13 November 2018 (further submissions received19 November 2018)Court: Asher, Lang and Moore JJCounsel: J W Maassen for AppellantsH J Ash and W M Bangma for First RespondentC E Kirman and A K Devine for Second RespondentJudgment: 21 December 2018 at 10 amJUDGMENT OF THE COURTA The appeal is allowed.B The Panel's recommendations dated 22 July 2016 (provided in its Reportto Auckland Council July 2016, Changes to Rural Urban Boundary,Rezoning and Precincts, Annexure 4 Precincts North, at page 158), andsubsequent Council decision dated 19 August 2016 to accept thoserecommendations, are both set aside, insofar as they relate to:(a) the Council's decision not to adopt the Albany 5 Precinct; and(b) the Council's decision not to zone the land within the proposedAlbany 5 Sub-Precinct B Business — Mixed Use.C The Panel is directed to make new recommendations pursuant to s 144 ofthe Local Government (Auckland Transitional Provisions) Act 2010 inrespect of the matters set out in orders B(a) and (b), following a processthat addresses the error identified in this judgment.D Following receipt of the Panel's recommendations on the matters set outin orders B(a) and (b), the Council is directed to make a new decisionunder s 148 of the Local Government (Auckland TransitionalProvisions) Act.E The costs orders made in the High Court as between the appellants andthe first respondent are set aside. Costs are to be determined by theHigh Court as between those parties in accordance with the outcome ofthis appeal.F The costs order made in the High Court as between the appellants and thesecond respondent is not disturbed.G The appellants must pay the second respondent costs for a standardappeal on a band A basis and usual disbursements. We certify fortwo counsel.H The first respondent must pay the appellants one set of costs for astandard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] This appeal raises issues regarding the procedure adopted in relation to ahearing conducted by a sub-committee of the Auckland Unitary Plan IndependentHearings Panel (the Panel) on 20 April 2016.[2] Following the hearing the Panel made a recommendation to theAuckland Council (the Council) relating to the zoning of two blocks of land situatednear Albany on Auckland's North Shore. The land in question is owned and beingdeveloped by the appellants in this proceeding (together referred to as North Eastern).1The Panel also recommended that the Council reject North Eastern's proposal that theland be designated a precinct for planning purposes. The Council subsequentlyadopted both recommendations.[3] North Eastern contends the Panel breached important principles of naturaljustice in making its recommendations because it took into account material providedby a Council planner, Ms Terry Conner. North Eastern says it was entitled to concludeas a result of events that occurred prior to and at the hearing that neither the Councilnor the Panel would be relying on the material from Ms Conner. As a result,North Eastern contends it did not have an opportunity to challenge the material or tomake submissions in relation to it.[4] North Eastern applied to the High Court for judicial review of the Panel'srecommendations and the Council's decision. Woolford J dismissed North Eastern'sapplication in a judgment delivered on 2 May 2018.2 North Eastern appeals againstthe Judge's decision.Overview[5] The hearing before the Panel took place using the procedure adopted to hearsubmissions from parties affected by a combined planning instrument known as theProposed Auckland Unitary Plan (the proposed plan). The Council prepared thisdocument following the amalgamation of the Auckland City Council with severalother local councils in the Auckland region. It did so pursuant to its obligations underthe Resource Management Act 1991 and the Local Government (AucklandTransitional Provisions) Act 2010 (LGATPA). The Council publicly notified theproposed plan on 30 September 2013, and provided affected parties with theopportunity to make submissions on the plan until July 2014.1 Heritage Land Ltd owns the land and North Eastern Investments Ltd is developing it.2 North Eastern Investments Ltd v Auckland Council [2018] NZHC 916.[6] North Eastern proposes to develop approximately 7.8 hectares of land situatedat 56 Fairview Avenue and 129 Oteha Valley Road near Albany. The proposed planprovided for North Eastern's land to be zoned Residential — Mixed Housing Urban(MHU) and Residential — Mixed Housing Suburban (MHS).[7] North Eastern lodged a submission challenging the proposed zoning of its landin February 2014. It sought a rezoning of most of its land to Residential — TerraceHousing and Apartment Buildings (THAB). This type of zoning permits asignificantly more intensive form of residential development than MHU and MHS.North Eastern sought a Business — Mixed Use zoning in relation to the balance of itsland. This comprised a strip of land approximately 350 metres in length fronting ontoOteha Valley Road. Oteha Valley Road is a main arterial route leading from theNorthern Motorway towards the Albany Town Centre.[8] North Eastern also sought the overlay of a precinct for the land(the Albany 5 Precinct). It said this would provide a supplementary planning methodthat would enable the Council to provide objectives and policies specific to the specialfeatures of North Eastern's land. These would recognise the potential of the land forresidential development to a higher intensity than that set as a general benchmark forresidential development within a THAB zone. This could occur, for example, throughbuilding height controls permitting residential buildings considerably higher thanwould ordinarily be permitted on land with a THAB zoning. North Eastern viewedthe precinct method as providing a mechanism that would ensure an integrateddevelopment of its land.The procedure adopted by the Panel[9] The Council received 9,400 primary submissions relating to the proposed plan.From these it identified 93,600 primary submission points. These were summarisedin a report entitled "Summary of Decisions Requested Report". After this report hadbeen circulated, submitters were given an opportunity to make further submissions.The Council then received 3,800 further submissions containing 1.4 millionsubmission points. In relation to zoning alone, the Council received more than 20,000rezoning requests that related to more than 80,000 properties.[10] The procedures adopted in relation to the hearing and determination of issuesraised in the submissions were prescribed primarily by the LGATPA. Section 115 ofthat Act provides a convenient overview of the procedures to be adopted:115 Overview of this Part(1) This Part sets out the following process for the preparation of the firstAuckland combined plan:(a) the Auckland Council prepares a proposed plan for Aucklandthat meets the requirements of a regional policy statement, aregional plan, including a regional coastal plan, and a districtplan:(b) the plan is prepared in accordance with this Part and, to theextent provided for by this Part, the RMA:(c) the plan is not required to include district plan provisions inrelation to the Hauraki Gulf Islands (the district plan provisionsof the former Auckland City Council in relation to those islandswill become operative as part of an existing separate process):(d) the Council prepares its reports on the proposed plan undersections 32 and 165H(1A) of the RMA and makes themavailable for public inspection, and provides the reports to theMinistry for the Environment for audit:(e) the Council notifies the proposed plan and calls forsubmissions:(f) the Council notifies a summary of submissions and calls forfurther submissions:(g) the Council then forwards all relevant information obtained upto this point to a specialist Hearings Panel appointed by theMinister for the Environment and the Minister of Conservation:(h) the Hearings Panel holds a Hearing into submissions on theproposed plan by means of hearing sessions conducted inaccordance with the procedural and other requirements of thisPart:(i) the Council must attend the hearing sessions and otherwiseassist the Hearings Panel with the task of the Hearing:(j) no later than 50 working days before the expiry of 3 years fromthe date the Council notifies the proposed plan, theHearings Panel must make recommendations to the Council onthe proposed plan (unless that period is extended by theMinister for the Environment by up to 1 year):(ja) the Hearings Panel may make recommendations to the Councilin respect of a particular topic once it has finished hearingsubmissions on that topic:(k) after it has received all of the Hearings Panel'srecommendations, the Council must make decisions on therecommendations within 20 working days (unless that period isextended by the Minister for the Environment by up to a further20 working days) and publicly notify the recommendations ofthe Hearings Panel and the Council's decisions on therecommendations:(l) the proposed plan is amended in accordance with the Council'sdecisions on the recommendations and is deemed, subject to theappeal rights of submitters, to be approved or adopted, as thecase may be:(m) submitters on the proposed plan may appeal to theEnvironment Court on those recommendations of theHearings Panel that the Council rejects:(n) submitters on the proposed plan may appeal to the High Court,on a point of law only, on those recommendations of theHearings Panel that the Council accepts:(o) once all appeals are determined, the Council must then publiclynotify the operative date of the proposed plan.(2) This section is only a guide to the general scheme and effect ofthis Part. It does not affect the interpretation or application of the otherprovisions of the Part.[11] Section 136 prescribes the procedure to be adopted at each hearing conductedbefore a Panel. It provides as follows:136 Hearing procedure(1) At each hearing session, no fewer than 2 members of theHearings Panel must be present.(2) If the chairperson is not present, he or she must appoint anothermember as chairperson for the purposes of the hearing session.(3) At the hearing session, the Hearings Panel—(a) may permit a party to question any other party or witness; and(b) may permit cross-examination; and(c) must receive evidence written or spoken in Māori, in whichcase the Te Ture mō Te Reo Māori 2016/the MāoriLanguage Act 2016 applies as if the hearing session were legalproceedings before a tribunal named in Schedule 2 of that Act.(4) Otherwise, the Hearings Panel must establish a procedure for hearingsessions that—(a) is appropriate and fair in the circumstances (including inrespect of the granting to a person of any waiver of therequirements of the Hearings Panel); and(b) avoids unnecessary formality; and(c) recognises tikanga Māori where appropriate.(5) The Hearings Panel must keep a full record of the hearing sessionsand any other proceedings.[12] In addition to these procedural directions, s 138(1) of the LGATPA providesthat several provisions in the Commissions of Inquiry Act 1908 are to apply to eachhearing session as if the Panel were a Commission of Inquiry and the hearing were aninquiry under the Commissions of Inquiry Act. These include the power under s 4Bto receive such evidence as the Panel thinks fit whether or not it would be admissiblein a court of law. The Panel was also given the power under s 4D to summonwitnesses.[13] Sections 139 and 140 give the Panel the power to make directions relating tothe provision of briefs of evidence within specified time limits and the power to directthe manner in which hearing sessions are to be conducted.[14] Section 146 requires the Panel to provide its reports to the Council no laterthan 50 working days prior to the expiry of three years from the date on whichthe Council notified the proposed plan. Section 148(1) then requires the Council toconsider the recommendations made by the Panel and decide whether to accept orreject each recommendation. It is required to publicly notify its decisions no laterthan 20 working days after it was provided with the last of the reports from the Panel.33 Local Government (Auckland Transitional Provisions) Act 2010, s 148(4).[15] Section 164 provides the Panel with functions and powers as follows:164 Functions of Hearings PanelThe Hearings Panel has the following functions and powers for the purposesof holding a Hearing into the submissions on the proposed plan and anyvariation permitted by section 124(4):(a) to hold hearing sessions; and(b) for the purposes of paragraph (a),—(i) to hold or authorise the holding of pre-hearing sessionmeetings, conferences of experts, and alternative disputeresolution processes; and(ii) to commission reports; and(iii) to hear any objections made in accordance with section 154;and(c) to make recommendations to the Auckland Council on the proposedplan and any variation; and(d) except as expressly provided by this Part, to regulate its ownproceedings in the manner it thinks fit; and(e) to carry out or exercise any other functions or powers conferred bythis Part or that are incidental and related to, or consequential upon, anyof its functions and powers under this Part.[16] The Panel also published its own Procedures Manual setting out the proceduresthe Panel would follow. This incorporated both matters contained in the Act as wellas those that the Panel had itself determined as being appropriate using the discretionvested in it to establish its own procedures.[17] The LGATPA did not specify how documents and other information relevantto hearing sessions were to be provided to and by the Panel and other parties.The Procedures Manual dealt with these issues, including the service of documentsand delivery of communications to and from the Panel. The Panel used its website asa primary mechanism for communications between the Panel and individualsubmitters as well as for submitters wishing to communicate with each other.This meant the Panel did not communicate directly with most submitters. Instead,the procedure placed the onus on parties affected by the submissions to keep abreastof procedural developments that may affect or be of interest to them.[18] North Eastern does not take issue with the general procedures adopted bythe Panel in relation to the hearing and determination of submissions. This reflectsour own view that the procedures adopted by the Panel were entirely consistent withthose prescribed by the Act. The use of the website as the primary means ofcommunication was also essential given the vast number of parties with whomthe Panel was required to communicate throughout the submissions process.[19] The issues that have arisen in the present case are not generic to all cases heardby the Panel. They stem from a series of events that occurred before North Eastern'ssubmissions were heard by the Panel on 20 April 2016. They continued because ofthe manner in which the hearing on that date proceeded, and culminated in the mattersthe Panel relied on in its decision. We emphasise that the issues raised by the presentcase do not call into question in any way the procedures generally used by the Panelto carry out its statutory functions.Ms Conner's evidence[20] Ms Conner provided a statement dated 26 January 2016 regarding submissionsreceived by the Council in relation to proposed zoning in the Albany and Greenhitheareas. Ms Conner did not support the rezoning of North Eastern's land to THAB assought by North Eastern because of concerns she held regarding access to this area.Instead, Ms Conner proposed that the existing Residential — MHU zone be retainedbecause she considered it was the most appropriate way to give effect to the RegionalPolicy Statement.[21] Ms Conner was also a co-author of a report to the Panel(dated 26 January 2016) on submissions received by the Council in relation to requestsfor new precincts. These included the precinct that North Eastern proposed for itsland. The report concluded that the proposed precinct provisions would conflict withthe intent of the underlying zones by permitting a greater intensity of residentialactivities in circumstances where the effects of those activities were not governed byappropriate provisions of the proposed plan to manage effects.[22] Ms Conner's statement was uploaded to the Panel's website on28 January 2016. From that point it could be accessed by all parties who visited thewebsite. At that point it formed part of the evidence the Council was likely to call athearings of the Panel involving zoning issues in the Albany and Greenhithe areas.A major issue arises[23] A major issue arose in late January and early February 2016 after the Councilposted the evidence it proposed to adduce in relation to the submissions it hadreceived. At this point it became clear that the Council had proposed zoning changesthat had not been raised in submissions on the proposed plan. This issue, and theconsequences that flowed from it, undoubtedly played a significant role in the eventsthat have led to the present proceedings.[24] The Council's approach attracted widespread comment and considerablecriticism. This resulted from the fact that parties who had filed submissions in relationto the proposed plan considered they had been denied the opportunity to makesubmissions on the new zoning proposals.[25] The Council endeavoured to deal with the issue by resolving at anExtraordinary Meeting held on 24 February 2016 to withdraw certain evidence it hadprovided to the Panel in relation to the new zoning proposals. These became knownas "out of scope" residential zoning changes. Zoning changes that were contained inthe proposed plan were referred to as "in scope" residential zoning changes.[26] On 29 February 2016, the Council filed a memorandum with the Panel seekingleave to withdraw its evidence to the extent that it related to out of scope residentialzoning changes. The report provided by Ms Conner in relation to the underlyingzoning for North Eastern's land did not fall within this category. Her report did,however, make out of scope recommendations in relation to other land on Auckland'sNorth Shore.[27] The Panel responded to the Council's memorandum on 1 March 2016.It directed that parties could present their cases as they wished, and noted that expertwitnesses would be giving evidence on an independent basis and unaffected by theposition of the parties by whom they had been called. This led some submitters toseek to rely for their own purposes on recommendations made by Council employeesand experts in relation to out of scope proposals.[28] This development raised a further issue for the Council. It was not comfortablewith the concept of its own employees or experts giving evidence that was effectivelyon behalf of other parties. In addition, such evidence was likely to conflict withthe Council's stated policy position in relation to zoning issues.[29] The Panel began hearing submissions on the topic of rezoning and precincts(designated as Topic 081) on 8 March 2016. The Council dealt with the issue that hadarisen in relation to out of scope zoning in its opening submissions as follows:2.3 At this point, it is appropriate to record that a number of statements ofevidence were filed on the Council's behalf on or after26 January 2016. The Council's decision to withdraw those parts ofthe evidence as they relate to the out of scope residential zoningchanges, except evidence addressing minor changes coveringtechnical errors and anomalies (Out of Scope Residential Changes)has meant that the authors of those evidence reports have had tocarefully consider whether they can appear in support of theRemaining Evidence. They have determined that they cannot. Theywill accordingly not be called to confirm that evidence.2.4 We acknowledge therefore that the weight the Panel can give to thatevidence is a matter for it to determine. We do however note that theLocal Government (Auckland Transitional Provisions) Act 2010enables the Panel, inter alia, to receive any information and advicethat is relevant and reasonably necessary to make itsrecommendations under s 144. As such, it would be open to the Panelto consider the Remaining Evidence as such information or advice forseveral reasons:(a) First, it is submitted that the Remaining Evidence provides athorough summary of the themes raised in submissions and ananalysis of those themes and submission points against therezoning principles developed by the Council and addressed inMr Duguid's rezoning evidence. To the extent that that analysisis not challenged in the evidence of submitters, we submit thatit is information on which the Panel may decide to place somereliance. We acknowledge that this is a matter for the Panel.(c) Thirdly, the evidence may be seen by the Panel procedurally asan important reference point, keeping in mind that manysubmitters may have referred to aspects of it in their subsequentevidence filed in response.(Footnote omitted.)[30] North Eastern was not represented at the hearing on 8 March 2016. In commonwith other parties, however, it could access the Council's submissions on the Panel'swebsite. It is noteworthy, however, that the submissions dealt with the issue ofwhether the Panel could have regard to out of scope zoning evidence. North Easterndid not need to confront that issue because Ms Conner's statement, insofar as inconcerned North Eastern's land, related to in scope zoning issues.[31] On 9 March 2016 the Council filed a further memorandum with the Panel.This recorded that the Panel had requested a list of witnesses whom the Council wouldnot be calling as part of its rezoning evidence for Topic 081. The memorandum listedthe names of the witnesses the Council no longer proposed to call. Ms Conner's namewas on that list.[32] Parties who wished to rely on evidence given by Council witnesses who wouldnot be called to give evidence were now required to decide how to protect theirinterests. The second respondent, Housing New Zealand Corporation (HNZC),wished to rely on statements made by Ms Conner in relation to out of scope zoningissues. It therefore applied to the Panel for a witness summons to be issued compellingMs Conner to produce her statement containing her recommendations on those issuesin relation to HNZC's submission. This issue was ultimately resolved by agreementbetween HNZC, the Council and the Panel. It resulted in Ms Conner filing herstatement with the Panel on 18 March 2016. The Panel then posted the statement onits website under the file dealing with HNZC's submission.[33] In the High Court, North Eastern challenged the validity of the witnesssummons obtained by HNZC. Woolford J held the summons to be valid.4 That issueis of significant practical importance to HNZC and it is anxious to obtain this Court'sopinion regarding the validity of the summons. During the hearing before us, however,4 North Eastern Investments Ltd v Auckland Council, above n 2, at [33].Mr Maassen effectively abandoned this ground of appeal so it is no longer before us.As a result, the finding of the High Court on this point remains intact.Further events leading up to the hearing on 20 April 2016[34] Prior to the hearing on 20 April 2016 several other noteworthy events alsooccurred.[35] On 29 February 2016 North Eastern filed a request with the Panel seekingleave to cross-examine four of the Council's witnesses, including Ms Conner.On 7 March 2016, North Eastern received an email from the Panel seekingconfirmation that it still required time to cross-examine the Council's witnesses at thehearing on 20 April 2016.[36] The Council filed separate legal submissions relating to rezoning andprecincts on or about 3 March 2016. The rezoning submissions did not rely onMs Conner's statement and made no direct reference to the appellants or their land.[37] The Council's legal submissions in relation to the proposed Albany 5 Precinctrelied, however, on Ms Conner's report on rezoning. It also relied on a report preparedby another Council planner, Mr Ewen Patience. Mr Patience's report relied in part onfindings contained in Ms Conner's statement on rezoning.[38] On 9 March 2016 Judge Kirkpatrick granted North Eastern's application tocross-examine Council witnesses subject to express time limits. This was the sameday that the Council filed its memorandum with the Panel advising that Ms Connerwould not be called at hearings to confirm her statement.[39] On 18 March 2016 Ms Erin Woolley, who was acting as counsel for theCouncil in relation to the precinct issue, filed a memorandum with the Panel seekinga direction that Ms Conner would not be required for cross-examination as she wasnot a co-author of the joint statement relating to the proposed Albany 5 Precinct.Mr Maassen filed a memorandum in response pointing out that the Panel had alreadygranted North Eastern's request to cross-examine Ms Conner. He also pointed outMs Conner was the author of a report on the THAB zone submission point.Ms Julie McKee, the Unitary Plan Hearings Team Leader, advised Ms Woolley andMr Maassen by email on 20 March 2016 that Judge Kirkpatrick had determined thatNorth Eastern could cross-examine Council witnesses at the hearing but would needto observe the time limits imposed on 9 March 2016.[40] Mr John Farquhar, a consultant for North Eastern, contacted Ms McKee on5 April 2016 to discuss the proposed cross-examination of Council witnesses.Ms McKee told Mr Farquhar that Ms Conner would not be attending the hearing on20 April. Based on this advice Mr Farquhar told Ms McKee that North Eastern wouldnot be cross-examining Ms Conner at the hearing.[41] Following this discussion Mr Farquhar sent an email containing the followingadvice to the team responsible for making North Eastern's submission to the Panel:I attach a memorandum of AC [Auckland Council] containing a list of ACPlanners that HAVE NOT BEEN CALLED in relation to rezoning 081.This list includes:Joseph JefferiesTerry ConnerEwen Patience.NOTE: Ewen Patience evidence for Albany 5 PRECINCT has been presented.What this means (following a conversation with Julie McKee) is:1. We may not cross examine Terry Conner for Rezoning2. The Panel will rely on the Planning Evidence filed by the submitter(the AC evidence remains on the AUP [Auckland Unitary Plan]website, it has been read but that is the extent of it).3. As far as she is aware, AC did not put forward any experts forrezoning;4. AC have structured their Planning response to be fed through legalsubmissions and legal counsel.[42] It is apparent that from this point, North Eastern's team proceeded on the basisthat the Council was no longer relying on Ms Conner's report on the issue of zoningtheir land. It took that approach based on Ms McKee's advice that Ms Conner wouldnot be attending the hearing on 20 April 2016.[43] Ms McKee was cross-examined before Woolford J at the hearing in theHigh Court. The Judge accepted Ms McKee's evidence that she did not tellMr Farquhar that the Panel would only be relying on the evidence provided byNorth Eastern at the hearing on 20 April.5 Ms McKee also acknowledged, however,that she told Mr Farquhar North Eastern would not be able to cross-examineMs Conner because she was not attending the hearing. She said she told Mr Farquharthis as a statement of fact.The hearing on 20 April 2016[44] The sub-committee of the Panel that heard North Eastern's submission on20 April 2016 comprised Messrs Des Morrison, Les Simmons and Alan Watson.North Eastern was represented by Mr Maassen and Ms Woolley appeared as counselrepresenting the Council.[45] In his introductory remarks the Panel Chairperson, Mr Morrison, advisedMr Maassen that the Panel considered its role was to focus on the precinct issue.Mr Maassen confirmed this was consistent with his view of matters.[46] On two occasions during his opening submissions Mr Maassen drew theattention of the Panel to the fact that Ms Conner's evidence had been withdrawn.Those submissions obviously reflected Mr Maassen's belief at that time based on theevents that had occurred prior to the hearing.[47] Mr Maassen then advised the Panel that he proposed to cross-examineMr Patience regarding the precinct proposal. He pointed out that Mr Patience was notput forward by the Council to deal with the issue of zoning although resolution ofthe zoning issue in North Eastern's favour underpinned its argument for a precinct.At the beginning of his cross-examination Mr Maassen asked Mr Patience to answerquestions about the proposed precinct based on the assumption that the Panel wouldagree THAB and Mixed Use zonings were appropriate. Later in the cross-examinationMr Patience said he disagreed with the assumption that Mixed Use zoning wasappropriate for the strip of land fronting Oteha Valley Road. Neither Mr Maassen nor5 At [44]–[45].Mr Patience referred at any stage during the cross-examination to Ms Conner'sstatement.[48] At no stage during the hearing did Ms Woolley advise the Panel that theCouncil still relied on Ms Conner's statement regarding the zoning issue.Furthermore, the Panel did not raise with Mr Maassen the possibility that the Panelmight take Ms Conner's statement into account in making its recommendation tothe Council regarding the issue of either zoning or the precinct.The Panel's recommendation[49] Despite this background, the material contained in Ms Conner's reportfeatured in the Panel's recommendation in the following passage:3. Key issuesThe key issue between the Council and North Eastern Investments Limitedrelated to the zoning of the land and the height and intensity of futuredevelopment.The Council's position was summarised in the joint planning evidence onprecincts (Albany 1, 3, 4, 5 etc) dated 26 January 2016 in the table at paragraph7.9, as set out below:The underlying zone of the proposed new precinct under the notifiedPAUP is MHS and MHU. The MHS and MHU zones provide for amaximum building height of 8m and 11m respectively, and yardcontrols ranging from 1.3m to 2.5m.The proposed new precinct would more than double the maximumbuilding height limits from those proposed in the underlying zones.The zone controls for building height and yards are set at levels thatare appropriate for the zone.A proposal to exceed the height limits can be pursued through aresource consent application. The resource consent process wouldinvolve assessment of any dominance, privacy and shading effects onthe surrounding neighbourhood.The evidence of Terry Conner (Topic 081) explains why the change ofzoning sought by the submitter from MHS and MHU to THAB is notsupported. In summary, it is inappropriate to encourage moreintensive residential development in this area without appropriateassessment of the effects.Ms Conner's evidence also dated 26 January 2016 on Rezoning —North Shore — Albany and Greenhithe on page 32, as set out below.Do not support change to THAB of either site, due to access concernsbut support an alternative change for 39 Fairview Ave from SH/MHSto solely MHS to avoid split zoning. MHS is an appropriate zone forproperties not close to centres and the RFN to recognise the plannedsuburban built character of the area. MHU is proposed to be retainedon 56 Fairview. Access to much of this area is constrained by a 1 lanebridge and is not conducive to a safe pedestrian walk to publictransport. Retention of the respective zones and the proposed changeto MHS are the most appropriate ways to achieve the objectives of theMHS and MHU zones and gives effect to the RPS.The outcome of the Environment Court hearing of the proposed ATrequirement for improvements at the Medallion Road, currentlyunderway, may have a material impact on this issue.(Emphasis added.)[50] The Panel did not accept Ms Conner's views regarding the issue of zoning forthe bulk of North Eastern's land. It accepted North Eastern's submissions in relationto that issue. The Panel did not, however, accept North Eastern's submissionsregarding the Business — Mixed Use zone for the strip of land frontingOteha Valley Road or the proposed precinct. The Panel observed:The Panel agrees with the submitter that this site has considerable potentialfor residential development but was not convinced by the evidence that aprecinct as proposed is necessary or appropriate. The Panel supports theevidence on behalf of the Council in opposing the precinct provisions.The Panel has instead agreed with the submitter that a more intensive zoningis appropriate and has recommended that the entire eight hectare site berezoned Residential — Terrace Housing and Apartment Buildings Zone.The proposed Business — Mixed Use Zone for a portion of the land is notsupported in this location which is relatively close to but physically separatedfrom the nearby metropolitan centre at Albany. If any future specific proposalseeks to exceed the height provisions of that zoning the Panel considers thatsuch a proposal would need to be tested by way of a resource consentapplication.The Panel is confident that the Auckland-wide provisions, together with theprovisions of the Residential — Terrace Housing and Apartment BuildingsZone, will appropriately enable the future development of this site, give effectto the regional policy statement and achieve the purpose of the ResourceManagement Act 1991.[51] This led the Panel to make the following recommendation:The Panel having regard to the submissions the evidence andsections 32 and 32AA of the Resource Management Act 1991, recommendsthat the Albany 5 Precinct not be adopted. The rezoning of the land within theproposed precinct to Residential — Terrace Housing and Apartment BuildingsZone is considered the most appropriate way to enable the development of theproposed precinct site and to give effect to the regional policy statement andachieve the purpose of the Resource Management Act 1991.The appeal[52] Mr Maassen's overall submission was that the Panel breached the principles ofnatural justice by relying upon material from Ms Conner's report in circumstanceswhere North Eastern was entitled to believe the material was not being relied upon bythe Council and would not be relied upon by the Panel.[53] Mr Maassen also developed a more technical submission to the effect thatMs Conner's statement was never available to the Panel as evidence becauseMs Conner had not appeared before the Panel to confirm it. We do not consider thatsubmission to be tenable because the Panel had a wide power under s 4B(1) ofthe Commissions of Inquiry Act to receive as evidence: any statement, document, information, or matter that in its opinion mayassist it to deal effectively with the subject of the inquiry, whether or not itwould be admissible in a Court of law.We have already recorded that Ms Conner's report had been posted on the Panel'swebsite on 28 January 2016 as part of the Council's response to issues raised bysubmitters. It therefore constituted a statement, document, information or matterthe Panel was entitled to receive under s 4B regardless of whether it would have beenadmissible in a court.[54] Mr Maassen also advanced a submission that it was unfair for the Panel to takeMs Conner's report into account after it had been posted on the Panel's website as aresult of the summons obtained by HNZC. He pointed out that North Eastern was notinvolved in the submission made by HNZC and could not reasonably expect to haveknown the Panel would also use the report to assist it in determining North Eastern'ssubmission. This submission overlooks the fact that the report was already onthe Panel's website before it was re-posted after HNZC obtained its summons.We consider the fact that the report was subsequently posted on the website on asecond occasion is immaterial to the issues raised by the present appeal.[55] We take the view that the appeal should instead be determined on the widerground advanced by North Eastern. The key issue under that ground is whetherthe Panel was obliged to put North Eastern on notice that it might rely on materialcontained in Ms Conner's statement even though she did not appear at the hearing.The Judge's decision[56] The argument relating to procedural unfairness was one of four groundsadvanced by North Eastern at the trial in the High Court. It is not necessary to referto the remaining grounds because they have not been pursued on appeal. The Judgeexpressed his conclusion in relation to the argument based on procedural unfairness asfollows:6[47] Mr Farquhar seems to have assumed that because Ms Conner's reportwas no longer being relied upon by the Council as part of its case, then it couldnot be evidence before the Panel or have any relevance to the hearing. I amof the view that assumption was mistaken, but that mistake was not the resultof anything said by Ms McKee or other Panel staff, but because of amisapprehension on Mr Farquhar's part about the nature of the hearingprocess. This misapprehension continues when NEIL [North Eastern] submitsthat it was significant that the Panel never advised NEIL that it intended torely on Ms Conner's evidence. I am of the view that as a matter of principleit is not the responsibility of a decisionmaker to advise a submitter or a partyof the evidence to which it must respond. Rather, it is for the submitter orparty to inform itself as to the issues which it may wish to address in terms ofits own evidence or submissions.[48] I am therefore of the view that any reliance by the Panel onMs Conner's report was, in all the circumstances, not unfair. I am also notpersuaded that if Ms Conner was cross-examined the Panel may have made adifferent recommendation to Council. The Panel did not in fact agree withMs Conner on the underlying zone, preferring the evidence of theNEIL experts who sought a Terrace Housing and Apartment Buildings zonefor most of the land. It stated:The Panel has instead agreed with the submitter that a more intensive zoningis appropriate.6 North Eastern Investments Ltd v Auckland Council, above n 2.[49] The Panel did not support NEIL's position only in respect of part ofthe land — the rezoning of a strip of the land fronting Oteha Valley Road asMixed Use. The Panel gave reasons which had nothing to do withMs Conner's evidence. She favoured retention of the Residential — MixedHousing Urban zoning.The Council's argument[57] Ms Ash for the Council supports the Judge's reasoning. She also submits thatthe email sent by Mr Farquhar to other members of the North Eastern team on5 April 20167 demonstrates that North Eastern knew the Panel had read the material,including Ms Conner's statement, on the Panel's website. She submits North Easternshould also have known the Panel might take the material into account in making itsrecommendation.[58] Ms Ash points out that Ms Conner's statement did not contain out of scoperecommendations in relation to North Eastern's submission. She says North Easternshould therefore have known the Council had never withdrawn the material tothe extent that it related to North Eastern's submission. In addition, North Easternought to have known the Panel had the power to receive material that would not beadmissible as evidence in a court. These facts should have alerted North Eastern tothe prospect that the Panel might receive and take into account the material inMs Conner's statement.[59] Ms Ash is also critical of the steps, or lack of steps, taken by North Eastern tokeep abreast of events that occurred prior to the hearing on 20 April 2016. She pointsout that North Eastern had an obligation to check the Panel's website regularly toensure it knew what evidence the Council proposed to rely on at the hearing. Had itdone so, it would have realised the material remained on the website and was thereforeavailable for the Panel to take into account. Ms Ash contends that North Eastern onlyhas itself to blame for not anticipating the Panel might take that step.[60] HNZC supports the stance taken by the Council although its focus is on theissues relating to the witness summons it obtained to enable it to use Ms Conner'sstatement in support of its own submission.7 Set out above at [41].Our assessment[61] We begin by observing that the only reasonable conclusion to be drawn fromthe whole of the evidence is that by the time of the hearing on 20 April 2016the Council was no longer relying on Ms Conner's statement in relation to the issue ofzoning. Were that not the case, the Council would have referred to her statement in itslegal submissions regarding that issue, and it would also have complied withthe Judge's direction that she be available for cross-examination at the hearing.[62] More importantly, Ms Woolley would have corrected Mr Maassen when hereferred twice during his opening submissions to the fact that the Council hadwithdrawn Ms Conner's evidence. Ms Woolley was prepared to object onone occasion during Mr Maassen's cross-examination of Mr Patience when sheconsidered he was asking questions that were not relevant to the issues beforethe Panel. We have no doubt she would similarly have corrected Mr Maassen if sheconsidered he was providing the Panel with an incorrect statement of the Council'sposition regarding Ms Conner's statement.[63] The events that occurred between 9 March and 5 April 2016 persuade us thatthe Council decided at some stage during this period not to rely on Ms Conner'sstatement in relation to the issue of zoning. It signalled that fact, albeit not overtly, byadvising Ms McKee that Ms Conner would not be attending the hearing even thoughJudge Kirkpatrick had already given North Eastern leave to cross-examine her.We therefore take a different view to the Judge on the issue of whether Mr Farquharwas mistaken in his assumption that the Council was no longer relying on Ms Conner'sstatement by the time of the hearing. We consider Mr Farquhar was correct to reachthat conclusion.[64] We accept that the Panel had the power under s 4B of the Commissions ofInquiry Act to receive Ms Conner's statement even though she did not appear as awitness to confirm it. We also accept, in general terms, the correctness of Woolford J'sobservation that it is not for a decisionmaker such as the Panel to advise a submitterof the issues to which it should respond.8 It will ordinarily be the responsibility of8 North Eastern Investments Ltd v Auckland Council, above n 2, at [47].the submitter to make its own decision regarding those issues. We consider theposition changes, however, where a party such as the Council decides not to rely onthe evidence of its own witness. If the Panel considered it might rely on the evidenceeven though the Council did not, it had an obligation to advise North Eastern of thatpossibility. This would have enabled North Eastern to take such steps as it consideredappropriate to protect its position.[65] Had he appreciated what might occur, Mr Maassen could have asked additionalquestions of his own witnesses and he could have addressed Ms Conner's statementin his submissions. He may also have insisted on exercising the right to cross-examineMs Conner in accordance with the permission given by Judge Kirkpatrick on9 March 2016. Woolford J was clearly of the view that cross-examination ofMs Conner would probably not have caused the Panel to alter the recommendation itultimately made to the Council. That may well be the case but the focus in judicialreview proceedings is on process rather than substantive outcome. The real point forpresent purposes is that North Eastern was denied the opportunity to take appropriatesteps because it did not know the Panel might take into account Ms Conner'sstatement.[66] We consider this amounts to reviewable procedural unfairness.Should relief be granted?[67] The issue of whether relief should be granted is more problematic. On oneview, the Panel may not have placed weight on Ms Conner's statement. The Panelclearly rejected her view regarding the THAB issue and favoured in large part theoutcome advanced by North Eastern. Furthermore, it did not accept either party'sargument in relation to the precinct issue and chose a middle ground instead.Its decision regarding the precinct issue also appears to have been grounded largely, ifnot exclusively, on the proximity of North Eastern's land to the Albany Town Centrerather than the factors relied upon by North Eastern and the Council. We thereforeaccept it is arguable that the procedural error may not have had any appreciable effecton the ultimate outcome.[68] The problem, however, is that it is now not possible to say with any degree ofcertainty that the error did not affect the ultimate outcome. The Panel clearly tookMs Conner's views into consideration because it cited them in its recommendation.The zoning and precinct issues are also clearly intertwined. This is demonstrated byMr Maassen's cross-examination of Mr Patience and the fact that Mr Patience reliedon Ms Conner's zoning conclusions in preparing his report on the precinct issue.These factors persuade us there is a real risk the Panel's decision regarding the precinctissue was influenced by information contained in Ms Conner's statement regardingzoning issues. We therefore consider North Eastern should be granted relief.Form of relief[69] Counsel advised us during the hearing that the Panel remains in existence andcould re-hear North Eastern's submission if the appeal was to succeed. At the end ofthe hearing we asked counsel to endeavour to reach agreement regarding the orderswe should make should that be the case. Regrettably counsel have not been able toagree. The issue in dispute relates to the terms on which the Panel is to re-hearNorth Eastern's submission.[70] Mr Maassen submits we should direct the Panel to re-hear the submission inthe following terms:1. The Panel's recommendations dated 22 July 2016 (provided in itsReport to Auckland Council July 2016, Changes to Rural UrbanBoundary, Rezoning and Precincts, Annexure 4 Precincts North, atpage 158), and subsequent Council decision dated 19 August 2016 toaccept those recommendations, are both set aside, insofar as theyrelate to:(a) The Council's decision not to adopt the Albany 5 Precinct;and(b) The Council's decision not to zone the land within theproposed Albany 5 Sub-Precinct B Business — Mixed Use.2. The matters in 1 are to be reheard by the Panel and procedural matters,and the parameters of that hearing are matters to be determined bythe Panel in the light of this decision.[71] Ms Ash submits the Court should make the following direction:2. The Panel is directed to make new recommendations pursuant tosection 144 of the LGATPA in respect of the matters set out inparagraphs 1(a) and (b), following a process that addresses the errorsidentified by the Court of Appeal.[72] We prefer the approach suggested by the Council because we consider it ismore certain in its terms but still provides the Panel with a significant degree offlexibility regarding the procedure it will use to re-hear North Eastern's submission.Result[73] The appeal is allowed.[74] The Panel's recommendations dated 22 July 2016 (provided in its Report toAuckland Council July 2016, Changes to Rural Urban Boundary, Rezoning andPrecincts, Annexure 4 Precincts North, at page 158), and the subsequent Councildecision dated 19 August 2016 to accept those recommendations, are both set aside,insofar as they relate to:(a) the Council's decision not to adopt the Albany 5 Precinct; and(b) the Council's decision not to zone the land within the proposed Albany5 Sub-Precinct B as Business — Mixed Use.[75] The Panel is directed to make new recommendations under s 144 of theLGATPA in respect of the matters set out in paragraphs [74(a)–(b)], following aprocess that addresses the errors identified by this judgment.[76] Following receipt of the Panel's recommendations on the matters set out inparagraphs [74(a)–(b)], the Council is directed to make a new decision under s 148 ofthe LGATPA.Costs[77] The costs orders made in the High Court as between North Eastern and theCouncil are set aside. Costs are to be determined by the High Court as between thoseparties in accordance with the outcome of this appeal.[79] HNZC was required to prepare submissions and participate in the presentappeal because it validly assumed North Eastern maintained its ground of appealrelating to the validity of the summons issued by HNZC for the purpose of ensuringMs Conner's statement was before the Panel when it heard a submission by HNZC.As recorded earlier,9 Mr Maassen's abandonment of that ground effectively evolvedduring the hearing. For that reason the costs order in the High Court as betweenNorth Eastern and HNZC is not disturbed. HNZC is entitled to an award of costs inthis Court against North Eastern. North Eastern must pay HNZC costs for a standardappeal on a band A basis and usual disbursements. We certify for two counsel.[78] The Council must pay North Eastern one set of costs for a standard appeal ona band A basis and usual disbursements.Solicitors:Wadham Partners, Palmerston North for AppellantsSimpson Grierson, Auckland for First RespondentEllis Gould, Auckland for Second Respondent9 At [33].