| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA509/2023 |
| BETWEEN | GLENPANEL DEVELOPMENT LIMITED |
| AND | EXPERT CONSENTING PANEL |
| Hearing: | 20 November 2024 |
Court: | Mallon, Cooke and Collins JJ |
Counsel: | V L Heine KC and D A C Bullock for Appellant |
Judgment: | 8 May 2025 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe Panel is to reconsider its decision in accordance with the directions in [63].
C The appeal from the judicial review challenge is dismissed.
D Costs will lie where they fall.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooke J)
Table of Contents
Para No
Background [4]
The statutory framework [7]
First issue: how do the tests of the RMA apply? [16]
Assessment [20]
Second issue: was the application contrary to the objectives and
policies of the Proposed District Plan? [27]
Assessment [33]
Judicial review challenge[48]
Iterative process [50]
Apparent bias [53]
Assessment [55]
Conclusion [62]
Result [65]
Glenpanel Development Limited (Glenpanel) appeals from a decision of the High Court dismissing its appeal from, and judicial review challenge to, a decision of an Expert Consenting Panel (the Panel) established under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (the Act).[1]
[1]Glenpanel Development Ltd v Expert Consenting Panel [2023] NZHC 2069 [judgment under appeal].
The Panel declined Glenpanel’s application for a resource consent permitting a medium-density residential housing development in an area between Shotover River (Kimiākau) and Lake Hayes (Waiwhakaata) in the Queenstown District known as Ladies Mile.[2] Glenpanel contended that the Panel misinterpreted the Act in declining the application, and that there was procedural impropriety, including because of apparent bias arising from the alleged conflicts of one Panel member. The High Court dismissed these arguments, and Glenpanel now appeals.
[2]Re Flint’s Park, Ladies Mile — Te Pūtahi Project Expert Consenting Panel (30 November 2022) [Panel decision].
Given that there was no party substantially opposing the applications before the Panel counsel to assist was appointed both in the High Court and this Court to advance opposing argument.
Background
The Act was passed in July 2020 as part of a series of reforms directed at enhancing economic recovery from the effects of the COVID-19 pandemic. At the introduction and first reading of the Bill, the responsible Minister referred to the legislation bringing forward significant investment in infrastructure and “speeding up resource consenting and designation processes” under the Resource Management Act 1991 (the RMA).[3] The Act operated for a short period only, and it automatically repealed itself under its own provisions on 8 July 2023.[4] Existing applications, including appeals, remain in effect notwithstanding that repeal.[5] Glenpanel’s application and appeal are accordingly preserved, and if it succeeds it is entitled to have its application reconsidered under the Act’s regime.
[3](16 June 2020) 746 NZPD 18532.
[4]COVID-19 Recovery (Fast-track Consenting) Act 2020, s 3(1).
[5]Schedule 1 cl 1.
Glenpanel’s application related to…
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- AGLC
- GLENPANEL DEVELOPMENT LIMITED AND EXPERT CONSENTING PANEL [2025] NZCA 154
- Case
- [2025] NZCA 154
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Panel correctly applied the relevant statutory provisions in declining consent for the development project. Specifically, the court had to determine whether the Panel properly considered the potential environmental effects of the project and whether the project aligned with the objectives and policies of the Proposed District Plan. Another key issue was whether the Panel provided sufficient reasons for its decision and whether it considered all relevant matters in accordance with the Resource Management Act 1991.
The court examined the Panel’s decision-making process and found that the Panel had correctly applied the statutory provisions in declining consent. The court noted that the Panel was required to consider the potential environmental effects of the project and whether the project complied with the objectives and policies of the Proposed District Plan. The court held that the Panel had adequately considered these factors and had provided sufficient reasons for its decision. The court also found that the Panel had considered all relevant matters and that there was no error in the decision-making process. Accordingly, the court dismissed Glenpanel's application for judicial review.
The court made no orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Panel’s decision-making process is set out in sch 6 of the Act. It provides:31 Consideration of consent applications for referred projectsMatters to which panel must have regard(1)When considering a consent application in relation to a referred project and any comments received in response to an invitation given under section 17(3), a panel must, subject to Part 2 of the Resource Management Act 1991 and the purpose of this Act, have regard to—(a)any actual and potential effects on the environment of allowing the activity; and(b)any measure proposed or agreed to by the consent applicant to ensure positive effects on the environment to offset or compensate for any adverse effects that will or may result from allowing the activity; and(c)any relevant provisions of any of the documents listed in clause 29(2); and(d)any other matter the panel considers relevant and reasonably necessary to determine the consent application.…32 Further matters relevant to considering consent applications for referred projects(1)Sections 104A to 104D, 105 to 107, and 138A(1), (2), (5), and (6) of the Resource Management Act 1991 apply to a panel’s consideration of a consent application for a referred project.(2)The provisions referred to in subclause (1) apply with all necessary modifications, including that a reference to a consent authority must be read as a reference to a panel.(3)To avoid doubt, section 104E of the Resource Management Act 1991 does not apply to a panel’s consideration of a resource consent for a referred project. It is to be noted that there is a difference between the provisions regulating referred projects and those regulating listed projects. Listed projects do not have the equivalent of cl 32(1). In fact, the Act specifically notes that s 104D does not apply to listed projects.[16][16]Schedule 6 cl 30(7)(b). There is no dispute that for referred projects, the Act broadly preserves the two gateways for the grant of a resource consent for non-complying activities contemplated by s 104D the RMA — that the activities have no more than minor adverse effects on the environment,[17] or alternatively that the activities will not be contrary to the objectives and policies of the relevant planning instrument.[18] These gateways are as described by this Court in Dye v Auckland Regional Council.[19] There is dispute, however, over how these gateways apply to the Panel’s decision-making under the Act.[17]Resource Management Act 1991, s 104D(1)(a).[18]Section 104D(1)(b).[19]Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [5]. The Panel issued its decision declining consent on 30 November 2022.[20] The Panel concluded that it was obliged to apply the tests in s 104D of the RMA and that the application should be declined as:[21](a)The project would have more than minor adverse effects on the environment. This was a consequence of adverse landscape, visual, traffic and transport effects, including after taking into account potential mitigation.(b)The project was contrary to a set of objectives and policies in the Proposed District Plan, including the avoidance of urbanisation of rural land outside urban growth boundaries and the protection of landscape values of outstanding natural features.(c)Even if the Panel had reached the view that the project’s adverse effects were minor, consent would have been refused because of the lack of alignment with the provisions in the Proposed District Plan.[20]Panel decision, above n 2.[21]At [6(a)], [6(b)] and [7(a)].