Original language

English

Country
New Zealand
Date of text
Status
Unknown
Type of court
Others
Sources
Court name
The Environment Court
Seat of court
Auckland
Reference number
[2010] NZEnvC 436
Tagging
Land Use, Evidence, Permits, Property, Remedies
Free tags
Land & soil
Justice(s)
Harland., M.
Abstract
On 24 July 2009 the Auckland City Council ("ACC") granted McDonald's Restaurants (New Zealand) Limited ("McDonald's") resource consent to operate a purpose built McDonald's Restaurant and drive-through takeaway facility with a McCafe, associated parking and signage at the Balmoral village shopping centre, Auckland. The consent, granted by Commissioners, was subject to a number of conditions, including restricting the operating hours to between 6am to 10pm, apart from on Friday and Saturday when the closing time was extended to midnight. The Balmoral Community Group Incorporated ("BCG") represents a number of local residents and has appealed the decision in its entirety to put its concerns about traffic, noise and litter and the impact these would have on homes. McDonald's has also appealed in respect of four of the conditions of consent, the most significant of which relates to extending the opening hours to midnight, 7 days a week. The ACC agrees with McDonald's that two of the conditions and part of another are inappropriate. It however supports the decision under appeal in relation to the restricted hours of operation and the prohibition on erecting a 10 metre high sign at the Balmoral Road entrance to the site. In a reserved decision, the Environment Court has backed the former Auckland City Council's July 2009 granting of resource consent for the 159-seat playground and drive-through operation. However, the Court rejected McDonald's bid to open from 6am-midnight, seven days a week, and approved operating hours of 6am-10pm Sunday to Thursday and 6am-midnight Friday and Saturday. It agreed with residents that the drive-through operation had potential for adverse effects on residents. Restricting hours of operation at night would reduce effects to an acceptable level. The court accepted McDonald's summary that the shopping centre near Wiremu St "has a lively and busy late-night character" with its cafes and the Capitol Cinema. It considered that homes at the eastern end put up with traffic from a childcare facility and the Seventh Day Adventist Primary School, and Wiremu St was already an alternative route for shopping centre patrons, depending on traffic conditions. In making its consent subject to amended conditions, the court allowed a 10m "Golden Arches" illuminated sign, which the council prohibited, but asked for the position of the illuminated sign to be closer to the proposed building near the Balmoral Rd main entrance. The District Plan provides for restaurants, cafes and take-away bars in the Business 2 Zone without distinguishing between the different forms of food outlets. The Court's role is not to evaluate the appropriateness or otherwise of the products and services offered to the public by either McDonald's or any other food outlet, but is to evaluate the effects of the application for land use consent on the environment. Positive effects would be the improved on-site amenity and building design, and the contribution to the centre's services and employment opportunities for a fulltime staff equivalent of 60 people, accepting that there could be up to 150 people on the payroll because of the number of part-time staff.