Fox centre's legality again before court

The Fox outlet at Akoranga Drive, centre of a long-running dispute between Westfield and Discount Brands. Picture / Brett Phibbs

Mall-owner Westfield NZ returns to the High Court at Auckland today to challenge the right of Josephine Grierson's $15 million Fox Outlet Centre to operate.

The long-running dispute between the Australian shopping giant - which has 11 malls here - and two New Zealand entities is over the legality of Fox's planning approval, which allowed the 4000sq m factory outlet centre to open on November 13 last year.

Westfield is taking the case against the North Shore City Council and Fox owner Discount Brands, a joint venture between Auckland property investor Dominion Funds and Grierson, an Auckland economist.

The case involves a challenge to planning consent which allowed Fox to open.

Grierson says Westfield's action was "an anti-competitive use of the Resource Management Act".

Discount Brands' defence will be its provision of extensive information on aspects of the centre and resource consent, she said.

These would include assessments of the centre's socioeconomic effects.

Lobby group Northcote Mainstreet has joined Westfield in the action, which follows a legal challenge which went through the High Court, Court of Appeal and then the Supreme Court and ultimately ended in victory for Westfield.

In April the Supreme Court allowed an appeal by Westfield and Northcote Mainstreet against the council and Discount Brands.

The court held then that the council was wrong not to notify Discount Brands' resource consent application to open the centre, and that it failed to ascertain the potentially adverse effects of the shopping centre.

Although the centre was outside the council's retail area and would cause high traffic activity, the council decided not to notify Discount Brands' application.

The centre already had a second resource consent approved by the council which the owners then used to keep the complex open.

That second resource consent, which was also non-notified, is the basis for the latest court challenge.

In December, Westfield's lawyer, Jim Farmer QC, said the council did not have enough information on which to base its decision about whether to publicly notify the resource consent application.

The case beginning today is set down for three days before Justice Raynor Asher.