Resource Management: Progressive Ent v. Nth Shore City

Resource management applications and appeals extending over nearly two decades in a commercial dispute between competing supermarkets added weight to arguments for less red tape over planning issues.  It was alleged Progressive Enterprises was using a planning appeal simply to stall the opening of a new supermarket by competitor Pak ‘N Save.

The business complaint is that competitors are using public benefit criteria in resource management legislation to mask their own private benefit.

After preliminary legal skirmishes in the 1990s,  Pak ‘N Save was refused permission by the North Shore Council for a supermarket covering some 6300 square metres.  In 2002, an appeal to the Environment Court was unsuccessful.  The major issue concerned traffic volumes and the difficulty of access off a main road.

Pak ‘N Save revamped its proposal, reducing the size of the proposed supermarket by about 20 per cent.  This, together with changes to the surrounding road network, saw Council approval given to the project.  Progressive appealed to the Environment Court.  It lost.  It then appealed on to the High Court claiming the Environment Court had not properly considered the effect on traffic of this revamped proposal and that giving approval damaged the integrity of the District Plan.  The High Court dismissed the appeal.

The High Court ruled that the Environment Court’s 2002 decision was not to be treated as a binding precedent in later hearings.  The Environment Court is not bound by its previous decisions.  And, in any event, the facts were different – Pak ‘N Save had put forward a different proposal.  The High Court also ruled that effects on traffic had been properly considered.  While some increased traffic congestion was expected, this was small in magnitude and limited in duration.

Progressive elected not to appeal the High Court ruling.  Pak ‘N Save was then in a position to officially open its supermarket, in a building which had been completed considerable time previously.   

Progressive Enterprises v. North Shore City – High Court, Auckland (25.02.09)

08.09.001