PRIMEPROPERTY GROUP LIMITED v WELLINGTON CITY COUNCIL [2022] NZHC 1282

PRIMEPROPERTY GROUP LIMITED v WELLINGTON CITY COUNCIL [2022] NZHC 1282 [1 June 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-715[2022] NZHC 1282UNDER the Resource Management Act 1991IN THE MATTER of an appeal under section 299 of the RMAagainst a decision of the Environment Courton appeal under section 12 of the RMABETWEEN PRIMEPROPERTY GROUP LIMITEDAppellantAND WELLINGTON CITY COUNCILRespondentHearing: 18 May 2022Appearances: S F Quinn and W M C Randal for the AppellantN M H Whittington for the RespondentJudgment: 1 June 2022JUDGMENT OF COOKE J[1] The appellant currently has advertising billboards at its site adjacent to StateHighway 2 between Wellington and Petone. It does so in accordance with an existingresource consent. In December 2019 it lodged an application to vary the consent toenable the existing static billboards to be replaced with LED digital displays. Theapplication was declined by the respondent in June 2020. The appellant appealed tothe Environment Court, but by decision dated 29 October 2021 its appeal wasdeclined.1 The appellant now appeals on the basis that the Environment Court madeerrors of law in dismissing its appeal.1 Primeproperty Group Ltd v Wellington City Council [2021] NZEnvC 169.Relevant facts[2] The relevant facts can be described briefly. Those who undertake the drivebetween Wellington City and Petone will be familiar with the site. The appellant hasadvertising billboards on the left-hand side of the highway while travelling north.There are four large billboards — one facing the northbound traffic at one end, anotherfacing the southbound traffic at the other end, and two further signs in a V-shape inthe middle. They are static billboards illuminated by lights at the top.[3] The appellant seeks to amend its resource consent in accordance with ss 104and 127 of the Resource Management Act 1991 (the RMA). It wishes to replace thetwo billboards at either end of the site with digital billboards of about the same size.These digital billboards will still display static digital images but those images willregularly change. The proposal before the Environment Court was that not only theexisting billboards at each end would be replaced with digital billboards, but the V-shaped billboards in the middle would also be removed.[4] Waka Kotahi New Zealand Transport Agency (Waka Kotahi) was an interestedparty under s 274 of the RMA. It opposed the application for road safety reasons. TheWellington City Council declined the application after a hearing, essentially becauseof road safety issues arising from additional driver distraction. On appeal to theEnvironment Court, Waka Kotahi assumed the principal role in opposing theappellant's appeal.[5] As indicated the Environment Court dismissed the appeal. It focused on theeffects of the application in accordance with s 3(d) and (f) of the RMA. Its conclusionswere summarised in the following way:Conclusions[46] We are conscious of course that there are existing static billboards,and that they will have some degree of attention taking and possibledistraction. We do not need to offer any view as to whether we might havegranted consent for them, if they had been the subject of the application. Whatthis matter is about is the proposed change to something different.[47] Bringing all of the material together, there are a number of factorswhich, taken together, strike us as being decisive. First, in considering trafficon this stretch of road, it is perhaps easy to over-emphasise cyclists and theirsafety. Certainly they are more vulnerable in the event of a collision and theirsafety is a factor – but they should be considered as one (numerically rathersmall) part of the whole traffic picture. As it is now, the northbound lane ofthis stretch of highway – Ngaraunga to Petone is in the top 10% of roadwaynetworks with the highest deaths and serious injuries in the country.[48] Secondly, the sole purpose of advertising billboards is to attract theattention of those who come within viewing range of them, and to hold thatattention for long enough to instil in the viewer the notion that the productbeing advertised is attractive and is something to be put on the viewer's to-dolist.[49] Thirdly, the proposed change is to a medium that will change theimage on screen many times during the course of each 24 hours. They willchange while a vehicle is on the stretch of road in which they are visible –meaning that there will, in that instance, be two messages to be seen andconsidered. Even if the image does not change while any one driver is passingthrough the visibility range, it will be likely that on subsequent passagesthrough the range, that driver will see a different message, and there will notbe a seen that before dismissal of interest.[50] Fourthly, it may be reasonably assumed that the owner of a digitalbillboard will be prepared to pay the cost of acquiring it, and the cost ofinstalling it, because advertisers will be prepared to pay the cost of using adigital billboard because of the expectation that it will attract the attention ofthe viewers more than might be expected of a static billboard.[51] Fifthly, while drivers of passing vehicles are looking at, and thinkingabout, the advertisements on the billboard, they are not paying full attentionto the task of driving safely on a stretch of road that is one of the mostdangerous roads in the country.[52] Further, if there was to be a crash where digital billboard distractionwas identified as being a contributory factor, we find that the proposedamended monitoring and reporting conditions cannot be relied on to preventsubsequent distraction related crashes from occurring unless the billboards areturned off. This is not offered in the conditions. If the billboards were tocontinue to operate, the risk of further distraction related crashes wouldremain.[53] In terms of the two components of risk, probability and consequence,while the evidence is that the probability of a digital billboard distractionrelated highway crash is low, we find the potential consequences of a crashattributed even in part to this cause to be unacceptable on a 70,000 plus vehicleper day state highway where the crash record from other causes is already ata very high level.Section 290A RMA[54] Section 290A requires the Court to ... have regard to ... the decisionwhich is the subject of the appeal. That does not mean that there is apresumption that the decision is correct, or that an appellant has an onus toshow it to be incorrect. It simply means that we must give the decision, andits reasoning, genuine consideration in coming to our own view. The essenceof the Commissioner's decision is, we think, captured in paragraphs [95] and[96] of his decision of 30 October 2020:[95] ... I consider the conversion of static billboards to digital formatat this site carries an increased risk of adverse road safety effects ....[96] I find that, on the evidence, this is not an appropriate location forintroducing a new element of potential distraction to motorists.Overall, I concur with Ms Kelly that this is a situation where it isappropriate to take a precautionary approach.Result[55] On our review of the material put before us which, while essentiallysimilar, had some variations and additions to what was put before him, wehave come to the same conclusions as did Mr Rae, and for essentially the samereasons. In short, the proposed billboards will add a further element of risk toan already high-risk piece of the road network, without providing any publicbenefit. The resource consent should be declined.[6] The appellant has a right of appeal under s 299 of the RMA Act on a questionof law. There is no material difference between the parties on the scope of such anappeal.2 The appellant here raises five alleged errors of law, namely that there was:(a) a failure by the Environment Court to provide adequate reasons;(b) an error, or failure to take into account a relevant consideration, inrelation to the removal of the V-shaped billboards;(c) a finding based on an assumption despite conflicting expert evidence(or a failure to take into account a relevant matters) on the key issuesconcerning driver distraction;(d) a misapplication of the correct legal test under ss 104 and 127 of theRMA, or taking into account irrelevant considerations, including by:(i) not limiting its findings to the effects of the change; and(ii) considering the public benefit when this was not part of the legaltest; and2 See Otago Fish & Game Council v Otago Regional Council [2021] NZHC 3258 at [47]–[54];Speargrass Holdings Ltd v Van Brandenburg [2021] NZHC 3391 at [110]–[116].(e) a breach of natural justice by the Court relying on certain expertevidence without giving the appellant the opportunity to challenge thatevidence by cross-examination.[7] The respondent to the appeal is now the Council. Waka Kotahi took no part onthis appeal.Analysis[8] Although the appellant raised five suggested errors of law (with the fourth onefurther broken down into sub-issues) many of the grounds overlap and I am able toaddress the alleged errors reasonably concisely.Adequacy of reasons[9] It is well established that a failure to give adequate reasons can be an error oflaw. That is so of decisions under the RMA. In Murphy v Rodney District CouncilBaragwanath J explained:3The Privy Council in R v Taito [2003] 3 NZLR 577, 599 para [17] endorsedthe observations of the Chief Justice in Lewis v Wilson & Horton Ltd [2000]3 NZLR 546, 565-567 paras [74-82] as to the duty of a decision-maker to givereasons. Of present relevance are the points that failure to give reasons meansthat the lawfulness of what is done cannot be assessed by an appellate Court;and that the duty to give reasons requires the decision-maker to outline theintellectual route taken, which provides some protection against error. Thereasons may be succinct; in some cases they will be evident without expressreference.[10] In a similar vein in Maungaharuru-Tangitu Trust v Hastings District Councilthe Court more recently said:4The standard for the duty to give reasons depends on the particularcircumstances and the statutory context. Where there is a straightforwardfactual dispute, no more may be required than simply stating whether theJudge believes one witness over another.5 Where the dispute is more complexwith reasons and analysis on either side, the Judge must engage with theissues, analyse the evidence and make reasoned findings. Reasons might beabbreviated and evident without express reference.6 But generally, reasons3 Murphy v Rodney District Council [2004] 3 NZLR 421 at [25].4 Maungaharuru-Tangitu Trust v Hastings District Council [2019] NZHC 2576 at [21]–[22].5 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA) at 382.6 Housing New Zealand v Auckland Council [2018] NZHC 288, (2018) 20 ELRNZ 441 at [81].ought to state the material findings of fact and evidential support and must tellthe parties why they lost or won.7 The reasons should be sufficient to enablethose affected to understand why the decision was made and to be satisfied itwas lawful.8Whether or not sufficient reasons are given depends on the legal question, andcomplexity of the legal issue. In some contexts a court or tribunal is requiredto engage in a particular analysis. It is only by the reasons given that it can beseen that the required analysis has been undertaken. [11] Mr Quinn said there has been a failure to properly engage with the issues inthe present case. The issue concerning alleged driver distraction was a complex one.Two experts had been called by the appellant addressing scientific research on safetyeffects of billboards and the road safety considerations more broadly. Such an experthad also been called by Waka Kotahi addressing the effects of billboards, theirinfluence on accident records, and the operational characteristics of digital billboards.These experts prepared a joint witness statement recording the areas of agreement anddisagreement. There was also evidence from human behaviour experts, one called byWaka Kotahi, and one from the appellant, and they had also prepared a joint witnessstatement with the areas of agreement and disagreement identified. Mr Quinn arguedthat the Environment Court engaged in very little examination of this evidence, andmade no attempt to engage in the complexities of road safety and human behaviourthat had been raised by the parties. It was not possible to understand why the Courthad reached the conclusions in light of the conflicting evidence, and the Court did notexplain why it preferred the views of some experts over others. It didn't enter into theissues addressed by the expert evidence by analysing them, weighing or evaluatingthem, and then explaining why it preferred one expert over the other.[12] I do not accept these arguments. As the authorities explain, the duty to givereasons, or to engage in a particular line of analysis, is contextual. Unlike some RMAcases the issue here was a limited one. Did the digital billboards involve a materiallygreater risk of driver distraction leading to a greater risk of an accident? If it did thenthe application could properly be declined, particularly given the dangerous nature ofthis stretch of road, including because of the existence of cyclists.7 Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 at [70], citing Stanley DeSmith, Harry Woolf and Jeffrey Jowell Judicial Review of Administrative Action (5th ed, Sweet &Maxwell, London, 1995) at 9-049.8 At [73], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [80].[13] In addressing that matter the Environment Court can have been expected toapply judgment, and its expertise. The Environment Court Judge and theCommissioner can be expected to apply their knowledge and experience. The Courthas reached its conclusions on the key issues without addressing the very detailed roadsafety and human behavioural expert evidence in the conclusions. But given the natureof the issue it cannot be said that it was essential that it address those more detailedmatters. It was able to form its views for the more robust reasons set out in thejudgment. It cannot be a requirement that the Environment Court descend into theanalysis conducted by experts simply because they are called by a party. It dependson the context of the issues. Short judgments that get straight to the point are to beencouraged.[14] There is also no doubt about the reasons for the Court's conclusions. To usethe language applied by Baragwanath J the "intellectual route taken" is clear. Thatroute does not rely on an analysis of the expert evidence, but that is apparent. Theparties know why the Court has reached its conclusions because this is explained inthe reasons. It is set out in paragraphs [46]–[55] quoted above, although there areearlier paragraphs that also contribute to the reasoning. The parties know why theyhave won and lost.[15] This ground of appeal is not made out.Error concerning application[16] The second alleged error of law arises from an alleged misunderstanding of thebasis of the application. There had been a modification of the proposal originally madeto the Council. The appellant changed the application so that it would remove the twobillboards in the V-shape in the middle when replacing the two billboards at each endwith LED billboards. This meant there was a reduction in the total number ofbillboards being seen by motorists if the application was granted.[17] Mr Quinn argued that the Environment Court had failed to understand this, andthat this involved error of fact, and a failure to take into account a mandatory relevantconsideration.[18] This submission was based on paragraph [5] of the decision under appealwhich states:In brief, the proposed amendment to the consent would allow the northernmostand southernmost billboards to be replaced by digital billboards of about thesame size as the existing ones. They will display (as do the existing staticbillboards) commercial third-party advertising. The applicant, Prime,suggests that the existing V-shaped billboards towards the middle of thesite may be removed if the proposal is granted consent - this being amodification of the proposal after the Commissioner's decision. There isalso a suggestion by Prime that it might create a separate cycleway along itsland - separate from the roadway and inside the existing guard rail - to lessenpossible risk to cyclists.(Emphasis added)[19] Mr Quinn argued that the use of the word "may" involved a misunderstanding— it was not a question of the billboards in the V-shape possibly being removed, ratherthat they were definitely being removed as part of the proposal. The word "may" waserroneous. This flowed through into the reasoning of the Court — for example atparagraph [49] the Court addressed the change in the number of times motorists wouldsee images without addressing the fact that the number of signs was being reduced.[20] I accept that a fundamental misunderstanding of an application might in somecircumstances be a misdirection that amounts to an error of law. But I do not acceptthere has been such a misunderstanding here. The removal of the two V-shaped signsin the middle was repeatedly referred to in the materials before the Court, so it isinherently unlikely that the Court did not understand this, or thought that removal wasin some way optional. That would have been a very unusual misunderstanding. AsMr Whittington submitted the word "may" in paragraph [5] can be read as meaning"can", rather than it suggesting that removal was optional. That is reflected in the laterreasoning. In paragraph [55] the Court identifies that there were variations andadditions to the proposal. At [49] the Court has focused on the question of whetherdigital billboards are more distracting than the existing billboards. In context theEnvironment Court did not think the removal of the two billboards in the middle wasmaterial. It may have been better for it to say so expressly, but I do not accept itinvolves a fundamental misunderstanding of the application.[21] This ground of appeal is not made out.Improper assumption[22] Mr Quinn argues that the Court was in error because its decisive conclusionwas based on an assumption rather than a finding on the conflicting expert evidence.He focused on paragraph [50] in which the Court had found that it could be"reasonably assumed" that the additional costs of installing LED billboards weregoing to be met because they would be more likely to attract attention than staticbillboards such that advertisers would pay more.[23] Again I do not accept this criticism. I do not agree that the Court has reachedits conclusion based on assumptions. It has reached its conclusion based on itsfindings on the key questions of fact. As indicated above it seems to me that the keyissue here was a reasonably straightforward one, and that the Court has reached arobust conclusion on it. It was not necessary for the Court to descend into a detailedanalysis of expert evidence in order to reach that conclusion.[24] I accept that paragraph [50] can be criticised. As I understand it the point beingmade — that the very reason the appellant would be prepared to pay the cost ofinstalling LED billboards was that advertisers would pay more for the additionalattention involved — was not raised by any parties, or by the Court at the hearing.Had that point been raised there may have been a answer to it — that there would beadditional revenue for other reasons, such as the greater number of advertising imagesthat could be displayed. But in any event, the Court's comment on this matter was notcentral to its reasoning. It explained why it had found that the digital billboards wouldbe more distracting for drivers in the other paragraphs. Paragraph [50] was anadditional observation. I see it as no more than that.[25] This ground of appeal is not made out.Incorrect test[26] The fourth alleged error involves a series of alleged failures in relation to theappropriate test to be applied under ss 104 and 127. Section 104 provides theconsiderations the consent authority must have regard to when consideringapplications for a resource consent. Section 127 provides for changes or cancellationsof consent conditions. I focus on two of the specific arguments advanced by Mr Quinnunder this head.[27] First Mr Quinn argued that the Court had failed to limit its consideration to theeffect of the change in the consented activity as required,9 and that much of itsreasoning centred on the distracting nature of billboards in themselves which was notthe proper focus.[28] I do not accept this. I agree that the application is concerned with the effect ofthe change. But the Court makes it clear that it understands that it is dealing with anapplication to change the existing consented activity, and that the existing staticbillboards "will have some degree of attention taking and possible distraction".10 Inthe following paragraphs it focuses its findings on the effect of the change from staticto digital billboards. That focus is particularly evident from paragraph [49]. The factthat it has analysed the existing environment, and the nature of distraction bybillboards generally, is a necessary aspect of analysing the impact of the change. Forexample the findings that this is an inherently dangerous stretch of road is a necessaryaspect of considering the implications of the change.11 I do not see that there has beenany error in the Court's approach.[29] Secondly Mr Quinn argued that there was an erroneous reference in paragraph[55] to the public interest. The Court found that the proposed billboards added afurther element of risk "without providing any public benefit". Mr Quinn argued thatpublic benefit was not in issue in this case, and that this was not part of the statutorytest.[30] But public benefit is not an irrelevant consideration under that test. If therehad been some public benefit arising from the proposed activities then they could havebeen added into the mix in assessing this application. So there is nothing erroneous inthe Court noting there were no countervailing considerations of this kind.9 Relying on Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196,(2019) 21 ELRNZ 539 at [181].10 Primeproperty Group Ltd v Wellington City Council, above n 1, at [46].11 At [47].[31] Mr Quinn generally argued that the Court had not properly understood thestatutory test to be applied by it, raising some other more subtle points. But generallyI do not accept that the Court misunderstood the legal test.[32] This ground of appeal is not made out.Breach of natural justice[33] Finally Mr Quinn argued that there had been a breach of natural justice in theway the hearing had proceeded. At an earlier judicial telephone conference concerningthe appeal an Environment Court Judge (not the Judge that heard the appeal) indicatedthat the Court would not be greatly assisted by hearing oral evidence from the expertplanning witnesses. The parties subsequently advised the Court that the planningwitnesses would not be called, and that their evidence could be taken as read. Thosewitnesses, who addressed the safety effects, cumulative effects and the applicabilityof the precautionary principle were accordingly not called and cross-examined. Yet inthe consideration of the effects of the application in paragraphs [29]–[31] of thedecision the Court indicated it agreed with the evidence of Waka Kotahi's planner.Mr Quinn argues that that was inherently unfair given the Court's earlier indication.[34] I see no substance to this point. The appellant elected not to cross-examine theplanning witnesses who gave evidence in opposition. There was no breach of naturaljustice in the Court failing to allow cross-examination because no such applicationwas made. The earlier observation by a different Judge was made for the assistanceof the parties, and cannot be criticised. The appellant was free to seek to cross-examine any of the witnesses at the hearing. The appellant must live with the tacticaldecisions it has made. Moreover the evidence was duly placed before the Court eventhough there were differences between the planners. There can be no criticism of theCourt relying on aspects of that evidence to the extent it found it of assistance.[35] This ground of appeal is not made out.Conclusion[36] This was a relatively straightforward application to amend the conditions of aresource consent. The Environment Court agreed with the decision made by theCouncil that replacement LED billboards were more distracting for drivers in thecontext of a stretch of road that is regarded as a dangerous one. It declined theapplication as a consequence. It was not a complicated issue and the decision wasplainly open to the Environment Court to make. The suggestion that the decisioninvolved errors of law is artificial. None of the grounds of appeal are made out.[37] The appeal is accordingly dismissed. The respondent will likely be entitled tocosts on a 2B basis. If this cannot be resolved I will receive memoranda.Cooke JSolicitors:DLA Piper, Wellington for the Appellant