Fox wins in court against Westfield

Attempts by Australian mall owner Westfield to have the Fox Outlet Shopping Centre in Auckland closed have been dismissed by the High Court.

Westfield NZ and Northcote Mainstreet had issued proceedings against North Shore City Council, Discount Brands Outlet Centre and Discount Brands over planning issues which allowed Fox to open at its Northcote location.

But Justice Graham Lang has just delivered a decision dismissing the claims. He said Fox's resource consent was valid and although Westfield and Northcote claimed the centre generated negative effects, these had not eventuated.

Westfield and Northcote had not brought the legal proceedings "as an altruistic act or as self-appointed guardians of the public good". Instead, they had painted Fox's potential adverse effects in the gloomiest colours possible yet neither the centre's owners nor its tenants had acted unreasonably.

Although Westfield's lawyer, Jim Farmer, QC, had suggested Justice Lang rule that Fox should apply for a new resource consent, the judge refused, saying he did not want to prolong the "agony" of Fox's owners, who needed to know what their future held.

Fox founder and half-owner Josephine Grierson was delighted and said her centre could now operate free from the strain and uncertainty created by extensive legal proceedings.

The centre, also half-owned by Dominion Funds, had done well since opening in November 2004.

The latest court ruling is just one of many issued over Fox's planning consent which Westfield claimed should never have been granted because the council had not taken full account of negative effects, particularly traffic, generated by the centre.

In April last year, the Supreme Court ruled in Westfield's favour, saying the North Shore City Council had insufficient information on which to issue the consent and upholding an earlier High Court decision which said the impact of the Fox centre had not been assessed correctly.

Westfield has large malls near Fox, at Takapuna and Glenfield, and has just begun building a new Albany mall, two years behind schedule.

Fearing that its first resource consent could be challenged through the courts, Fox had applied for a second back-up resource consent which was at the centre of the latest proceedings.