The Environment Court has ruled H&J Smith Ltd cannot join an appeal over a proposed Bunnings store in Queenstown, finding it is a trade competitor.
Bunnings was refused resource consent to construct and operate a store on the Frankton Flats by the Queenstown Lakes District Council in March, a decision it appealed to the Environment Court.
H&J Smith Limited (HJSL) then applied to become a party to the appeal; however, Bunnings argued, among other things, that HJSL was its trade competitor, and sought for the court to strike out HJSL’s application.
In his decision, Judge John Jackson said Bunnings’ products and services were similar to those provided by Mitre 10 Mega Queenstown — also located on the Frankton Flats.
H&J Smith Holdings Ltd (HJSHL) was the parent company of several wholly-owned subsidiaries, all of which shared the same directorship and shareholding.
Those were HJSL; Cross Roads Properties Ltd, owner of the Mitre 10 Mega Queenstown land; H&J’s Hardware Ltd, which traded as "H&J’s Mitre 10 Remarkables Park" until the Mitre 10 Mega Queenstown store opened; and Shotover Hardware Ltd, which owns and operates the new Mitre 10 store.
The parent company also has a 75% share in Corner Trading Ltd, which operates the Mitre 10 Mega store in Invercargill.
Judge Jackson’s decision said HJSL submitted against Bunnings’ original resource consent, but it did not specify any direct effect on it, or make a declaration as to whether or not it was a trade competitor.
However, commissioners found HJSL was a trade competitor and was not directly affected.
HJSL’s application to become a party to the substantive Environment Court appeal stated, in part, it was not a trade competitor and its interest related to "adverse landscape and visual effects" and "the adverse effects on the supply of industrial-zoned land".
HJSL counsel Graeme Todd told the Environment Court the association between Cross Roads and Shotover Hardware Ltd did not mean the parent company was itself a trade competitor.
Judge Jackson, however, said the group was "clearly linked" with Mitre 10, which would compete with a Bunnings in Frankton.
A section of the RMA was intended to ensure the Act was "not used by trade competitors" for commercial gain by "keeping competitors out of the market".
"In light of this, H&J Smith Holdings Limited and HJSL can be considered to be trade competitors of Bunnings on this application.
"If HJSL was truly concerned with the loss of industrial land to retail activities, it is likely that it would also have opposed Cross Roads’ application for the Mitre 10, or the application for the Pak’n Save supermarket nearby."
While that was pointed out by commissioners at the council hearing "no satisfactory explanation was given then or now," Judge Jackson said.
Costs were reserved.
