Glenpanel Development Limited v The Expert Consenting Panel under the Covid-19 Recovery (Fast Track Consenting) Act 2020
[2023] NZHC 2069
•4 August 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-811
CIV-2022-485-812 [2023] NZHC 2069
BETWEEN GLENPANEL DEVELOPMENT LIMITED
Appellant/Applicant
AND
THE EXPERT CONSENTING PANEL UNDER THE COVID-19 RECOVERY (FAST TRACK CONSENTING) ACT 2020
Respondent
Hearing: 2–3 May 2023 Appearances:
V L Heine KC and D A C Bullock for Appellant/Applicant S M Kinsler for Respondent (abiding the Court’s decision) K G Reid as Counsel to Assist the Court
Judgment:
4 August 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 4 August 2023 at 4.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
GLENPANEL DEVELOPMENT LIMITED v THE EXPERT CONSENTING PANEL UNDER THE COVID-19 RECOVERY (FAST TRACK CONSENTING) ACT 2020 [2023] NZHC 2069 [4 August 2023]
Contents
Introduction........................................................................................................... [1]
The Project............................................................................................................. [3]
Referral of the project............................................................................................ [6]
The FTC Act.......................................................................................................... [8]
The planning context........................................................................................... [18]
The expert consenting panel................................................................................ [31]
The decision-making process.............................................................................. [34]
The Decision........................................................................................................ [36]
Glenpanel’s challenge to the Decision................................................................. [37]
The appeal............................................................................................................ [41]
Approach to appeal [41]
The grounds of appeal......................................................................................... [46]
Error in application of s 104D of the RMA [46]
Discussion [51]
Errors in application of s 104D(1)(b) “objectives and policies” test [62] Discussion [75]
Errors in application of the s 104D(1)(a) “adverse effects” test [87] Discussion [96]
Errors in application of sch 6 cl 31 [102]
Discussion [114]
The application for judicial review.................................................................... [123]
The Court’s approach on judicial review........................................................... [124]
Did the Panel err by failing to have, or seek, appropriate technical expertise? [126] Discussion [133]
Was the Panel’s decision affected by apparent bias and predetermination? [142]
Discussion [153]
Was there procedural unfairness?...................................................................... [161]
Discussion [165]
Outcome............................................................................................................ [170]
Introduction
[1] Glenpanel Development Limited (Glenpanel) sought resource consents for a housing development in the Queenstown Lakes District (the Project), by applying to have it referred to an expert consenting panel convened under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTC Act).
[2] The application was accepted as a referred project. On 10 August 2022, Glenpanel applied for the necessary consents under the FTC Act. However, consent for the Project was declined by the expert consenting panel (the Panel) on 30 November 2022. Glenpanel now appeals that decision and seeks to have it judicially reviewed on the grounds that the Panel erred in law or otherwise failed to conduct the hearing fairly and impartially.
The Project
[3] The Project comprises a subdivision of 15.49 ha of land on State Highway 6 between the Shotover River and Lake Hayes, in an area known as Ladies Mile.
[4]Glenpanel notes the following characteristics of the Project:
(a)the Project could be developed in two possible ways: one involving approximately 179 residential units and a primary school, and another involving up to 384 residential units without a primary school; and
(b)three small reservoir tanks and a small number of buildings would be developed on the Outstanding Natural Feature (ONF) on Slope Hill, covering approximately 0.1 per cent of the ONF and which would be designed in a way that once the full housing development is in place, the buildings on the ONF would be obscured almost entirely.
[5] Glenpanel says the Project was estimated to make a significant contribution to employment and housing in the Queenstown Lakes District, noting the district is facing significant pressure for housing due to a rapidly increasing population and
limited land available for residential developments.1 The Project was described in the assessment of environmental effects as contributing “to the economy by at least 387-739 FTEs with a value-added contribution of $51.5-98.3 million to GDP”.
Referral of the project
[6] On 8 June 2021, Glenpanel applied for a direction that the Project be treated as a referred project under the FTC Act and, on 27 September 2021, the Minister for the Environment (the Minister) accepted the application. On 22 November 2021 an Order in Council was issued amending the COVID-19 Recovery (Fast-track Consenting)
Referred Projects Order 2020 to include the Project as a referred project.2
[7] The reasons given by the Minister for accepting the application were as follows:3
· the project will help to achieve the purpose of the Act:
· the project will have positive effects on social well-being by providing additional housing in an area that has a housing shortage and by providing public open space:
· the project will generate employment by providing approximately 181 full-time equivalent jobs per year over a 5-year construction period:
· the project will increase housing supply through the construction of approximately 384 residential units or (if a proposed primary school is constructed) approximately 179 residential units:
· the project is likely to progress faster than would otherwise be the case under the Resource Management Act 1991 standard processes:
· any actual and potential effects on the environment, and proposed measures to mitigate adverse effects, can be appropriately tested by an expert consenting panel against part 2 of the Resource Management Act 1991 and the purpose of the Act.
1 As identified in the Queenstown Lakes Spatial Plan [Spatial Plan] dated July 2021.
2 The order was issued on 22 November 2021 but came into force on 26 November 2021.
3 COVID-19 Recovery (Fast-track Consenting) Referred Projects Amendment Order (No 15) 2021.
The FTC Act
[8] As the decision was made under the FTC Act, it is important to set out how this Act modifies the usual process for obtaining resource consents under the Resource Management Act 1991 (RMA).
[9]Section 4 of the FTC Act sets out the Act’s purpose as follows:
The purpose of this Act is to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19 and to support the certainty of ongoing investment across New Zealand, while continuing to promote the sustainable management of natural and physical resources.
“Sustainable management” is given the same meaning as in the RMA and is a direct reference to the purpose of the RMA as set out in s 5(2) of that Act.4
[10] To effect the purpose of the FTC Act, it provides for procedural fast-tracking provisions which are discussed below at [13]. However, those fast-tracking provisions only apply to projects which have been listed in sch 2 of the FTC Act or which have, as here, been referred to an expert consenting panel by the Minister in accordance with the provisions of the FTC Act.5
[11] Section 19 provides guidance for the Minister when considering whether a project will help to achieve the purposes of the FTC Act:
… the Minister may have regard to the following matters, assessed at whatever level of detail the Minister considers appropriate:
(a)the project’s economic benefits and costs for people or industries affected by COVID-19:
(b)the project’s effect on the social and cultural well-being of current and future generations:
(c)whether the project would be likely to progress faster by using the processes provided by this Act than would otherwise be the case:
(d)whether the project may result in a public benefit by, for example,—
(i)generating employment:
4 COVID-19 Recovery (Fast-track Consenting) Act 2020 [FTC Act], s 7(1) definition of “sustainable management”.
5 Section 14.
(ii)increasing housing supply:
(iii)contributing to well-functioning urban environments:
(iv)providing infrastructure in order to improve economic, employment, and environmental outcomes, and increase productivity:
(v)improving environmental outcomes for coastal or freshwater quality, air quality, or indigenous biodiversity:
(vi)minimising waste:
(vii)contributing to New Zealand’s efforts to mitigate climate change and transition more quickly to a low-emissions economy (in terms of reducing New Zealand’s net emissions of greenhouse gases):
(viii)promoting the protection of historic heritage:
(ix)strengthening environmental, economic, and social resilience, in terms of managing the risks from natural hazards and the effects of climate change:
(e)whether there is potential for the project to have significant adverse environmental effects, including greenhouse gas emissions:
(f)any other matter that the Minister considers relevant.
[12] Schedule 5 of the FTC Act governs the constitution of the expert consenting panels for both listed and referred projects. The Minister must appoint a panel convenor who is a current or former Environment Judge.6 The panel convenor’s functions include appointing members to the panels to determine consent applications under the Act.7 Further requirements for membership of panels include:
(a)Up to four persons may be appointed as members of a panel.8
(b)A panel has a quorum of three members.9
(c)A panel must include one person nominated by the relevant local authorities and one person nominated by the relevant iwi authorities.10
6 Schedule 5 cl 2(1).
7 Schedule 5 cl 2(5)(a).
8 Schedule 5 cl 3(1).
9 Schedule 5 cl 4(5).
10 Schedule 5 cl 3(2).
(d)The panel convenor has a discretion to appoint more than four members to a panel if warranted by the circumstances, including the scale of the application or the need for sufficient collective knowledge and experience on the panel.11
(e)The panel convenor must appoint a Judge or retired Judge as one of the members to be the chairperson of the panel, although, if circumstances require it, a suitably qualified lawyer with experience in resource management law may be appointed as the chairperson.12
(f)The members of a panel must collectively have knowledge, skills and expertise relevant to resource management issues; technical expertise relevant to the project; and expertise in tikanga Māori and mātauranga Māori.13
(g)While panel members must be accredited to conduct hearings under s 39A of the RMA, the panel convenor has a discretion to appoint a panel member who is not accredited if the member has the requisite expertise under cl 7(1).14
(h)A panel may, at any time, appoint technical advisers as it thinks appropriate.15
[13] Schedule 6 sets out the process for dealing with resource consent applications under the FTC Act.16 The following key features of the process are noted:
(a)Public notification and limited notification are not permitted.17 Instead, there is a process where comment must be sought from identified parties. The relevant groups from whom comment is sought is larger
11 Schedule 5 cl 3(6).
12 Schedule 5 cl 4(1) and (3).
13 Schedule 5 cl 7(1).
14 Schedule 5 cl 7(2)–(3).
15 Schedule 5 cl 10(4).
16 See sch 6 cl 1.
17 Schedule 6 cl 17.
for referred projects and includes listed public interest and advocacy groups interested in environmental issues.18
(b)The applicant can respond to any comments received.19
(c)Hearings are not required but are at the discretion of the panel. Where a hearing is held, notice provisions and hearing processes are abbreviated.20
(d)Abbreviated timeframes are given for the processing and determining of an application.21
[14]The requirements of the written report of the decision are also simplified:22
The written report of the decision must–
(a)state the decision made by the panel; and
(b)state the panel’s reasons for its decision; and
(c)include a statement of the principal issues that were in contention; and
(d)include the main findings of the panel on those issues.
[15] In comparison, s 113(1) of the RMA also requires the written report of the decision to summarise the evidence given, and to set out the relevant statutory provisions and provisions of the relevant planning documents which were considered.
[16] The decision-making framework for all consent applications under the FTC Act is set out in sch 6 pt 2. For referred projects, the relevant provisions are cls 31 and 32.
[17]The following aspects of the process are the same as under the RMA:
18 Schedule 6 cl 17(4) and (6).
19 Schedule 6 cl 19.
20 Schedule 6 cls 20 and 21; compare Resource Management Act 1991 [RMA], ss 95–103B.
21 Schedule 6 cls 3, 17(2), 18, 19 and 37; compare RMA, ss 88–98.
22 Schedule 6 cl 37(6).
(a)in practical terms, the matters which the panel must have regard to when considering an application;23
(b)the panel must have regard to the status of the activity, whether controlled, restricted discretionary, discretionary or non-complying;24
(c)the panel may decline a consent on the ground that the information provided by the applicant is inadequate;25 and
(d)ss 104A–104D, 105–107, and 138(1), (2), (5) and (6) of the RMA apply with all necessary modifications, including that a reference to a consent authority must be read as a reference to a panel.26
The planning context
[18] The planning context is also important. Glenpanel emphasises the relative complexity of the planning environment in this case. The Queenstown Lakes District Council Operative District Plan (ODP) has been largely superseded by provisions in the Queenstown Lakes District Council Proposed District Plan (PDP).27 Counsel agree that for the aspects of the Project which required consent, the relevant provisions were those in the PDP rather than the ODP.
[19] Also of relevance to the planning context are the steps taken by the Queenstown Lakes District Council (QLDC) to implement the National Policy Statement on Urban Development 2020 (NPS-UD). The NPS-UD came into force on 20 August 2020 and was subsequently amended in May 2022. As a national policy statement, the NPS-UD sets out objectives and policies on matters of national significance relevant to achieving the purpose of the RMA.28
23 Schedule 6 cl 31(1); compare RMA, s 104(1).
24 Schedule 6 cl 31(7) which includes the classes of activity described in s 87A of the RMA, other than permitted activities which do not require resource consents; compare RMA, s 104(3).
25 Schedule 6 cl 31(8); compare RMA, s 104(6).
26 Schedule 6 cl 32(1)–(2).
27 Queenstown Lakes District Council Proposed District Plan – Decisions Version (updated September 2022) [PDP].
28 RMA, s 45(1).
[20] The NPS-UD applies differently to different local authorities.29 The QLDC is defined as a tier 2 local authority under the NPS-UD,30 and so is subject to all the objectives and policies set out in pt 2 of the statement except for policies 3 and 4.
[21] The NPS-UD requires local authorities to plan for growth and ensure a well-functioning urban environment for all people.31 Every local authority is required to assess the demand for housing and for business land in urban environments, and the development capacity that is sufficient to meet that demand in its region or district in the short, medium and long term.32
[22] Tier 1 and 2 local authorities are required to prepare and make publicly available a Future Development Strategy (FDS) for that authority’s urban environment.33 The purpose of an FDS is, among other things, to provide sufficient development capacity to meet expected housing demand over the next 30 years.34
[23] Tier 1 and 2 local authorities are also required to prepare and make publicly available a Housing and Business Development Capacity Assessment (HBA) every three years, in time to inform the relevant local authority’s next long-term plan.35 Such local authorities also have obligations to insert a housing bottom line into the relevant plan for the short-medium term and for the long term “as soon as practicable after an HBA is made publicly available”.36
[24] The NPS-UD also provides timeframes for implementation of the NPS-UD.37 Specifically, the QLDC had to implement the intensification requirements in policy 5 no later than two years after the NPS-UD commenced on 20 August 2020.
29 National Policy Statement on Urban Development 2020 [NPS-UD], cl 1.3(2).
30 Appendix table 2.
31 Clause 2.1 objective 3.
32 Clause 3.10(1).
33 Clause 3.12.
34 Clause 3.13(1)(a)(ii).
35 Clause 3.19(1).
36 Clause 3.6(2).
37 Clause 4.1.
[25] The QLDC published a HBA on 15 September 2021. It then proceeded to amend the PDP, as required, to give effect to the objectives and policies of the NPS-UD.
[26]Relevantly, ch 4 of the PDP on urban development addresses this, saying:38
This chapter gives effect to the National Policy Statement on Urban Development (NPS-UD), which requires that local authorities provide sufficient development capacity to meet the current and future needs of the District’s community. This chapter provides the strategic planning framework to achieve effective and efficient urban environments that can meet demand for the development of land for housing and businesses. Provision is made for a range of dwelling types and locations and business environments and for the District’s urban areas to [develop] and change over time in response to the changing needs of the District’s community.
[27] The urban development chapter sets out the housing bottom lines for the Queenstown Lakes District’s urban environment, including the number of additional houses needed in the Wakatipu Ward (where the Project is proposed), over the short-medium and long term.39 The chapter includes a map which shows the existing Urban Growth Boundary (UGB) and, in green, the “Indicative Future Expansion Area” which includes land along Ladies Mile.
[28] The identification of Ladies Mile as an indicative future expansion area was supported by two other planning documents, albeit neither had formal status under the RMA. The first was the Queenstown Lakes Spatial Plan (Spatial Plan), published in July 2021. The Spatial Plan was driven by a partnership involving the Crown, the QLDC and Ngāi Tahu, and involved extensive public consultation. Its purpose was to align decision-making and promote collaboration on the long-term direction of growth in the Queenstown Lakes District. The Spatial Plan is driven by a central goal of “grow[ing] well”,40 and one of its strategies is to increase density in appropriate locations.41 The Spatial Plan highlights Ladies Mile as a “priority development area”, being a “new transit-oriented neighbourhood offering new housing choices”,42 and one of the maps in the Spatial Plan identifies Ladies Mile as being zoned “Future urban”.43
38 PDP, cl 4.1
39 Clause 4.1.2.
40 Spatial Plan at 4.
41 At 66.
42 At 66.
43 At 68.
[29] The second document is the Te Pūtahi Ladies Mile Masterplan (TPLM Masterplan).44 This document was the outcome of extensive public consultation by the QLDC as a way of ensuring a holistic approach to planning for this area of the Wakatipu basin.45 The TPLM Masterplan was developed to consider how best to use Ladies Mile for future residential or urban development and it was intended to form the basis for a proposed variation to the PDP.46
[30] On 30 June 2022, the QLDC resolved to approve the final text of the TPLM Masterplan as well as a proposed variation to the PDP to give effect to it (PDP Variation).47 The PDP Variation was publicly notified in April 2023 and is now being progressed using the streamlined planning process under ss 80B and 80C and sch 1 pt 5 of the RMA, with the closing date for submissions being 9 June 2023.48
The expert consenting panel
[31] The panel which heard Glenpanel’s application for resource consent was convened by the panel convenor, Laurence Newhook, formerly the Chief Environment Court Judge. The panel he appointed comprised three members: Mr Matthew Allan, Ms Lisa Mein, and Mr Hoani Langsbury.
[32] Mr Allan is a partner at Brookfields Lawyers with expertise in resource management law. He has also previously been appointed to a panel under the FTC Act. Ms Mein is a qualified planner and urban designer who was nominated by the QLDC. Mr Langsbury was nominated by Te Rūnunga o Ngāi Tahu because he has a good understanding of the Ngāi Tahu takiwā and resource management issues, as well as having experience as a FTC Act panel member.
[33] On 31 August 2022, the panel convenor confirmed the appointment of the three panel members noting that in lieu of a judge or retired judge being appointed as
44 The final draft report of the Te Pūtahi Ladies Mile Masterplan [TPLM Masterplan] was published in June 2022.
45 At 2.
46 At 2 and 4.
47 Queenstown Lakes District Council Te Pūtahi Ladies Mile Draft Masterplan and Plan Variation adoption (30 June 2022).
48 Queenstown Lakes District Council Variation to Queenstown Lakes Proposed District Plan: Te Pūtahi Ladies Mile (27 April 2023).
chairperson of the panel, he was able to appoint a suitably qualified lawyer and he had chosen to do so in this case taking into account the “non-availability of Judges and the expertise required for the Panel”.
The decision-making process
[34] In accordance with the requirements of the FTC Act process, the Panel proceeded from appointment to a decision within a space of three months, with the following timeline:
(a)on 15 September 2022, the Panel conducted a site visit and held an in-person meeting of the Panel members only;49
(b)on 20 September 2022, the Panel invited comments from parties under sch 6 cl 17(6)–(7) of the FTC Act, with further comments requested from Glenpanel on 7 and 21 October and from QLDC, the Otago Regional Council and Waka Kotahi in October and November 2022;50
(c)on 22 September 2022, Glenpanel asked the Panel for an opportunity to have input into the terms of reference for the appointment of any expert advisors to the Panel, but it says this request was dismissed on 6 October 2022;
(d)the Panel sought advice from experts on landscape and visual effects, transport, Three Waters and legal matters;51
(e)the Panel decided not to hold a hearing in accordance with sch 6 cl 20 of the FTC Act;52 and
(f)the Panel held online meetings in October and November 2022.53
49 Expert Consenting Panel decision 30 November 2022 [Panel Decision] at [30].
50 At [32] and [37]–[38].
51 At [40].
52 At [44].
53 At [31].
[35] Glenpanel notes that aside from the comments requested from Glenpanel in October 2022, the Panel did not confer with Glenpanel, nor give it any other opportunity to respond to the Panel’s views on the issues which were determinative of the application.
The Decision
[36] The Panel issued its decision declining consent for the Project on 30 November 2022 (the Decision). The Decision refusing consent is succinctly explained in the executive summary. In particular, the Panel noted the following factors which were critical to its decision:
[4]The Panel accepts that the Project would have a number of positive effects, such as the provision of additional housing in an area that has a housing shortage and, consistent with the purpose of the FTA, the generation of employment. It also accepts that the flat land north of Ladies Mile / State Highway 6, while presently rural, is ear-marked for urbanisation in the near future in both the Queenstown Lakes Spatial Plan dated July 2021 (Spatial Plan) and Te Pūtahi Ladies Mile Masterplan adopted by the Queenstown Lakes District Council (QLDC) on 30 June 2022. It is understood that the QLDC has requested the Minister’s approval to vary its Proposed District Plan (PDP) using the Streamlined Planning Process to introduce a new urban Te Pūtahi Ladies Mile Zone within an extended Urban Growth Boundary (UGB). The new zone and UGB extension would encompass part, but not all, of the present Application site (it would exclude that part of the site that is within the Outstanding Natural Feature (ONF) known as Slope Hill).
[5]While the Panel has been mindful of, and has taken into account, these matters, it is of course required to determine the Application in terms of the current zoning and planning provisions applying to the Flint’s Park site, and the applicable statutory framework. Notably, for a non- complying activity such as the Project, this includes the “gateway test” enshrined in s 104D of the Resource Management Act 1991 (RMA).
[6]In summary, the Panel has determined that:
(a)The Project is contrary to a set of important and directively worded objectives and policies in the PDP. Those provisions inter alia seek to:
(i) Avoid the urbanisation of rural land outside the Urban Growth Boundary (UGB), such as the Application site, until the PDP is changed to amend the UGB and re-zone additional land for urban development purposes; and
(ii) Protect the landscape values of ONFs, such as Slope Hill.
(b)The Project will have adverse effects on the environment that are more than minor. Specifically, the Panel has determined that the Project will have adverse landscape and visual effects and adverse traffic and transport effects that are more than minor, including when taking into account potential mitigation.
(c)Consequently, neither limb of the gateway test in s 104D of the RMA is passed and the Panel cannot grant resource consent for the Project.
[7]The Panel expressly records the following matters:
(a)Even if it had reached the view that the Project’s adverse effects were of a minor nature, it nonetheless would have refused consent due to the Application’s very clear lack of alignment with the important group of (strongly worded) PDP objectives and policies referred to above. The relevant objectives and policies are discussed in more detail in this decision below.
(b)The Panel has assessed the information supplied by the Applicant as being inadequate in relation to geotechnical and stormwater matters, such that the Panel is unable to reach clear conclusions on effects in relation to those matters. Had the Panel been minded to grant consent, it would have explored those matters further with the Applicant. Despite reaching this view, the Panel records that it did not find it necessary to rely on clause 31(8) of Schedule 6 to the FTA as a partial ground for declining consent, in light of its clear findings as summarised above. In other words, the Panel’s concern in relation to the inadequacy of the stormwater and geotechnical information before it was not decisive.
(footnotes omitted)
Glenpanel’s challenge to the Decision
[37] Glenpanel challenges the Decision both on appeal and through an application for judicial review.
[38] Glenpanel originally had 11 grounds of appeal. It expressly recorded at hearing that it did not pursue the fifth ground of appeal (a failure to have regard to precedent effect). In its submissions, it reorganised its grounds of appeal into four main points.
[39] In summary, Glenpanel says the Panel made the following overarching errors of law when interpreting and applying the key legal tests for granting resource consent in sch 6 of the FTC Act:
(a)treating sch 6 cl 32 as importing s 104D of the RMA into the FTC Act as a form of gateway test, when it was intended to be a mandatory relevant consideration only;
(b)erring in its assessment of whether the Project was contrary to the objectives and policies of the PDP under s 104D(1)(b) of the RMA;
(c)erring in its assessment of whether the effects or potential effects of the Project would be more than minor under s 104D(1)(a) of the RMA; and
(d)erring in its overall assessment of whether to grant consent under sch 6 cl 31, including by:
(i)erring in its assessment of the provisions of relevant planning documents under cl 31(1)(c);
(ii)failing to have proper regard to the Spatial Plan and TPLM Masterplan under cl 31(1)(d); and
(iii)declining to have regard to pt 2 of the RMA and failing to give proper consideration to the purposes of the FTC Act.
[40]In its application for judicial review, Glenpanel says that the Panel erred by:
(a)failing to seek technical advice on planning matters in circumstances where the complexity of the planning environment was recognised and the Panel was not itself equipped with sufficient specialist planning expertise among its members; and
(b)the Panel chair failing to disclose and act upon material conflicts of interest arising from his regular work as a resource management partner at Brookfields Lawyers; and
(c)following an improper process by failing to put Glenpanel on notice of what it saw as determinative issues, and failing to give Glenpanel the opportunity to address those issues.
The appeal
Approach to appeal
[41] Glenpanel’s appeal is brought under sch 6 cl 44 of the FTC Act. Such appeals are limited to questions of law. To succeed on an appeal on a question of law Glenpanel must show that the panel has:54
(a)applied a wrong legal test;
(b)reached a conclusion based on the facts that was “so insupportable – so clearly untenable – as to amount to an error of law”;
(c)took into account irrelevant matters; or
(d)failed to take into account relevant matters.
[42] Procedural errors such as a breach of natural justice can also amount to an error of law.55
[43] The fact that a court would have reached a different conclusion does not, of itself, allow interference on appeal if the decision being appealed was a permissible option. This presents a very high hurdle.56
54 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[26].
55 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, [2019] 3 NZLR 345 at [101].
56 Bryson v Three Foot Six Ltd, above n 52, at [27] citing Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 (CA) at 92.
[44] In an appeal on a question of law, it is not the Court’s role to undertake a broad reappraisal of the factual findings or the exercise of evaluative judgments.57 Furthermore, deference should be afforded to determinations made by a specialist court on a subject within its sphere of expertise.58 In the only other decision by the High Court on an appeal under the FTC Act, the Court considered the deference to be accorded to decision-making by specialist courts such as the Environment Court applied equally to an expert panel appointed under the FTC Act.59 That said, I note Glenpanel’s submissions on the relevant expertise of this particular panel and discuss my findings on that issue later in this decision.
[45] An error of law must materially affect the result of the decision before a court will grant relief on appeal.60 Finally, the onus is on the appellant to show an error of law by the decisionmaker.61
The grounds of appeal
Error in application of s 104D of the RMA
[46] Glenpanel says the Panel erred by treating sch 6 cl 32 of the FTC Act as incorporating s 104D of the RMA as a mandatory gateway test. As already noted, cl 32 provides that various sections of the RMA, including s 104D, “apply to a panel’s consideration of a consent application for a referred project”, albeit they are to apply “with all necessary modifications, including that a reference to a consent authority must be read as a reference to a panel”.62
[47] Glenpanel says that when the text of this clause is interpreted in light of its context and the purpose of the FTC Act, it only intended the Panel to refer to s 104D
57 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112].
58 Te Whānau a Kai Trust v Gisborne District Council [2022] NZHC 1462, (2022) 23 ELRNZ 991 at [15]; and Horticulture New Zealand v Manawatu-Wanganui Regional Council [2013] NZHC 2492, (2013) 17 ELRNZ 652 at [28] citing McGregor v Rodney District Council [2004] NZRMA 481 (HC) at [1].
59 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810, (2022) 24 ELRNZ 269 at [34].
60 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at [153].
61 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional Council [2017] NZHC 3080, [2019] NZRMA 1 at [41] citing Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC).
62 FTC Act, sch 6 cl 32.
of the RMA as a relevant consideration and not as a mandatory gateway test. Ms Heine KC submits the text provides a “neutral starting point”. Clause 32(1) does not specify how the listed sections apply. In her submission, the context suggests the listed sections of the RMA apply as relevant considerations only. This is indicated by:
(a)the heading of cl 32 which reads “Further matters relevant to considering consent applications for referred projects”; and
(b)under the wider scheme of the FTC Act, there is already a “mandatory gateway test” because the Minister must decide to refer the project for consideration by a panel, a process which involves assessing the project against the purpose of the FTC Act.63
[48] Ms Heine also submits the Panel was wrong to contrast sch 6 cl 30(7)(b), (which states that s 104D of the RMA “must not be applied” to applications for consent for listed projects) with cl 32 (which says s 104D applies to referred projects) and to conclude s 104D was therefore intended to apply as a gateway test for referred projects. The fact that cl 30(7)(b) specifies that s 104D must not be applied in one context does not shed light on how Parliament intended it to operate in a context where it is stated to apply.
[49] In her submission, the purpose of the FTC Act strongly supports an interpretation that treats the RMA sections listed in cl 32 as relevant considerations only. Section 104D is a blunt instrument which, if not satisfied, prevents the Panel from going on to consider whether to grant consent for the activity taking into account wider considerations including the positive effects of the activity on the environment. If applied strictly under the FTC Act, she submits it would seriously frustrate Parliament’s objective in enacting it to promote employment and support investment. Many of the projects that have been referred under the FTC Act are major developments that involve non-complying activities or are projects which might not otherwise have been granted consent under the RMA.
63 Section 18(2).
[50] Finally, Ms Heine notes the Panel relied on the analysis of other panels on this issue but says this is a neutral factor as such decisions are not binding on this Court and in none of the decisions relied on did the panel conduct a detailed legal analysis of cl 32 in light of the purposes of the FTC Act.
Discussion
[51] As Mr Reid, counsel appointed to assist, explains, all resource consent applications under the FTC Act are considered within the existing matrix of planning documents established under the RMA, including national and regional policy statements, regional and district plans, and proposed plans. This planning framework includes rules in regional and district plans which establish classes of activity ranging from permitted activities through to prohibited activities.64
[52] Sections 104A–104D of the RMA set out the powers a consent authority has when determining an application for resource consent for each class of activity.65 Discretionary and non-complying activities are dealt with in s 104B which provides:
104BDetermination of applications for discretionary or non-complying activities
After considering an application for a resource consent for a discretionary activity or non-complying activity, a consent authority—
(a)may grant or refuse the application; and
(b)if it grants the application, may impose conditions under section 108.
[53] However, for non-complying activities the RMA provides the following additional jurisdictional hurdle in s 104D:
(1)Despite any decision made for the purpose of notification in relation to adverse effects, a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that either—
(a)the adverse effects of the activity on the environment (other than any effect to which section 104(3)(a)(ii) applies) will be minor; or
64 RMA, s 87A.
65 Other than permitted and prohibited activities, which respectively do not require a resource consent and cannot have consents granted for: RMA, s 87A(1) and (6).
(b)the application is for an activity that will not be contrary to the objectives and policies of—
(i)the relevant plan, if there is a plan but no proposed plan in respect of the activity; or
(ii)the relevant proposed plan, if there is a proposed plan but no relevant plan in respect of the activity; or
(iii)both the relevant plan and the relevant proposed plan, if there is both a plan and a proposed plan in respect of the activity.
[54] The Court of Appeal has described paras (a) and (b) as “gateways”.66 An application must be able to pass through one of the gateways before the consent authority has jurisdiction to grant consent under s 104B.
[55] The FTC Act provides a separate framework for making decisions on applications for listed projects than that provided for under ss 104A–104D of the RMA. Specifically, the relevant parts of sch 6 cl 30 provide:
30Further matters relevant to consent applications for listed projects
(1) This clause applies only to consent applications for listed projects.
…
(5)When considering a consent application for a controlled activity or a restricted discretionary activity, the following rules apply:
(a)a panel must grant consent unless any of the grounds described in clause 34 for declining an application apply; and
(b)the power of the panel to impose conditions is restricted by the matters over which control or discretion is reserved in a plan or proposed plan, national environmental standard, or other regulations made under the Resource Management Act 1991.
(6)When considering a consent application for a discretionary activity, a panel must grant consent unless any of the grounds described in clause 34 for declining an application apply.
(7)When considering a consent application for a non-complying activity,—
66 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [5], considering the predecessor to s 104D, being s 105(2A).
(a)a panel must grant consent unless any of the grounds described in clause 34 for declining an application apply; and
(b)to avoid doubt, the test under section 104D of the Resource Management Act 1991 must not be applied.
[56] It is apparent from this clause that for listed projects under the FTC Act, the power of a panel to decline consent is very limited. Furthermore, discretionary and non-complying activities are treated equally. Non-complying activities are specifically not required to meet the additional hurdle of s 104D. This clearly contrasts with the framework for making decisions under the RMA. It also contrasts with the procedure for determining resource consents for referred projects under sch 6 cls 31 and 32. Clause 31 relevantly provides:
Consideration of consent applications for referred projects
Matters 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.
[57] As Mr Reid points out, unlike ss 104A–104C of the RMA and sch 6 cl 30 for listed projects, cl 31 is not the source of ultimate decision-making authority for determining a consent application. The provision setting out the panel’s authority to grant consent is cl 32, and it specifically incorporates the sections of the RMA that provide authority to grant and refuse consent and impose conditions, being ss 104A-104D.
[58] The FTC Act clearly distinguishes between listed and referred projects. In contrast to listed projects, I am satisfied the FTC Act intends to preserve the consequences of activity classification for referred projects, which is why sch 6 cl 32 says the relevant sections of the RMA dealing with activity classification “apply”. If the sections of the RMA dealing with activity classification were not intended to apply in full, the Act would have specified this. This conclusion is reinforced by the fact the source of decision-making authority for referred projects is not found in the FTC Act, so it is necessary to rely on in ss 104A–104D of the RMA. If, as Glenpanel argues, s 104B (like s 104D) was simply a matter to be taken into account, this would negate the role of those sections as providing jurisdiction to the Panel to grant or decline consent. Unlike for listed projects where sch 6 cl 30 gives jurisdiction to grant consents, there is no alternative provision in the FTC Act dealing with jurisdiction to grant consent for referred projects.
[59] I also do not consider that the heading to sch 6 cl 32 (which reads “Further matters relevant to considering consent applications for referred projects”) supports Glenpanel’s argument. The heading is simply a convenient way of listing matters that need to be covered but which have not already been dealt with. The heading does not override the clear and ordinary meaning of the words in cl 32(1) which say that ss 104A–104D “apply to a panel’s consideration of a consent application”.
[60] For these reasons, I am satisfied that the Panel was correct in law to read s 104D of the RMA as applying in the usual way to the determination of an application for consent for a non-complying activity under the FTC Act as was the case here.
[61]This ground of appeal fails.
Errors in application of s 104D(1)(b) “objectives and policies” test
[62] The second ground of appeal advanced by Glenpanel is that the Panel was wrong to conclude the Project was contrary to an important group of objectives and policies in the PDP and therefore did not meet the test in s 104D(1)(b). Specifically,
the Panel held the Project was contrary to a number of objectives and policies relating to urban development and protecting ONFs.67
[63]Glenpanel says the Panel erred in its approach in three main ways:
(a)it interpreted s 104D(1)(b) incorrectly and applied the wrong legal test, including by not interpreting the section in light of the purpose of the FTC Act;
(b)it incorrectly interpreted several objectives and policies in the PDP and failed to have regard to other relevant objectives and policies, including by omitting reference to relevant text and focusing on single policies or small groups of them; and
(c)it failed to carry out a fair appraisal of the Project’s consistency with the objectives and policies of the PDP considered as a whole.
[64] Glenpanel began by submitting that, to the extent s 104D does apply to applications for consent under the FTC Act, it must be interpreted in accordance with the purpose of the FTC Act and not the RMA.
[65] Furthermore, it says the words “contrary to” in s 104D(1)(b) have been held to require that the proposal be repugnant to, or antagonistic to, the objectives and policies in the relevant plan.68 It is not sufficient that the proposal does not comply with the objectives and policies, recognising that all applications for non-complying activities will be in this position.69
[66] Glenpanel also emphasises that in Dye v Auckland Regional Council, the Court of Appeal held that it was sufficient that an assessment under s 104D(1)(b) was a “fair
67 The Panel Decision, above n 49, at [399], [403] and [435]–[436].
68 New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC) at 80.
69 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA) at [17]–[18].
appraisal of the objectives and policies read as a whole”.70 This approach was affirmed in RJ Davidson Family Trust v Marlborough District Council.71
[67] In this case, Glenpanel argues that while the Panel correctly identified Dye as a leading authority, requiring it to make a fair appraisal of the Project against the objectives and policies of the PDP as a whole, the Panel went on to decide that the test could be failed if the Project was contrary to a small number of policies that it deemed to be particularly important in the PDP. Glenpanel is critical of decisions which appear to suggest that being contrary to one or a small number of policies or objectives is sufficient, saying this would contradict the established position in Dye and RJ Davidson.72
[68] Glenpanel also asserts the Panel erred by holding that strongly worded policies needed to be given more weight. In doing that the Panel relied on Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd.73 Glenpanel says that decision concerned different legal provisions and was decided on different facts. There, the requirement that the relevant plan needed to “give effect to” the New Zealand Coastal Policy Statement was held to mean that the plan and the plan change needed to implement the Policy Statement.74 Glenpanel says the obligation on the Panel under s 104D(1)(b) of the RMA was simply to assess whether the Project was not contrary to the objectives and policies of the PDP. It did not, as in King Salmon, require the Panel to implement the PDP, but simply to undertake a “fair appraisal” of the compatibility of the Project with the objectives and policies of the PDP considered as a whole.
[69] Turning to the specific objectives in the PDP which the Panel relied on to reject the Project under s 104D(1)(b), Glenpanel says the Panel erred in:
70 Dye v Auckland Regional Council, above n 64, at [25].
71 RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 at [73].
72 Citing, as an example, Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 817, where the High Court said at [37] that the activity must not be contrary to any of the objectives and policies.
73 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.
74 At [77].
(a)finding the objectives and policies it relied upon to be directively or strongly worded;
(b)failing to interpret the provisions in accordance with the PDP rules on how the PDP is to be read; and
(c)failing to apply the fair appraisal test.
[70] Glenpanel points out that some of the provisions relied on were not directively or strongly worded. In particular:
(a)Objective 3.2.5.2 states that development is inappropriate on ONFs unless the landscape values of the ONF are protected.
(b)Policy 3.3.31 requires avoidance of adverse effects on the landscape values of ONFs from residential subdivision, use and development only “where there is little capacity to absorb change”.
(c)Policy 4.2.1.2 states that urban development should be focused “primarily” on land within and adjacent to the existing larger urban areas and, to a lesser extent, within and adjacent to smaller urban areas.
(d)Policy 4.2.1.3 specifies the need to “[e]nsure that urban development is contained within the defined Urban Growth Boundaries” but allows urban development within the existing towns and rural settlements.
(e)Policy 4.2.2.20 refers to rural land outside the UGBs not being used for urban development until a change to the plan amends the UGB, but Glenpanel suggests that rural land is not the same as “rurally zoned land” and ch 4 of the PDP identifies the Project site (leaving aside the Slope Hill ONF) as earmarked for urban development and so it should not be considered rural land when applying this policy despite its zoning.
[71] In terms of Glenpanel’s assertion that the Panel did not interpret the objectives and policies correctly, Glenpanel relies on expert evidence from Mr Werner Murray and Mr Blair Devlin who give opinion evidence on the correct approach to interpreting planning instruments such as the PDP. In reliance on that evidence, Ms Heine submits that the Panel failed to consider the relationship between objectives and sub-objectives with respect to the key objectives it identified. For example, the Panel emphasised objective 3.2.2 which states that urban growth is to be managed in a strategic and integrated manner but it did not go on to consider objective 3.2.2.1 which explains how urban development is to be achieved in a logical manner. For example, objective
3.2.2.1 says the district’s rural landscapes are to be protected from “sporadic and sprawling urban development”. Here, the Project site was earmarked for urban development and was directly across the road from existing development, so it would not constitute sporadic and sprawling urban development.
[72] Furthermore, she says that while the Panel emphasised policy 3.3.15 which states that the QLDC should “[a]pply provisions that enable urban development within the UGBs and avoid [it] outside the UGBs”, it did not take into account objective 4.2.1 which describes UGBs as a “tool” for managing the growth of urban areas, and policy
4.2.1.1 which talks about UGBs being defined “where required” to identify areas that are available for growth of urban settlements. Furthermore, cl 4.1.2 and the associated map was an example of an alternative means to a UGB of identifying land suitable for urban development.
[73] Glenpanel also says the Panel failed to have regard to policy 6.3.3.3 which was relevant because the Project included a new homestead which was to be a residence for farming and would ensure that the land use on Slope Hill would continue to protect the landscape values of that ONF.
[74] Finally, Glenpanel considers the Panel did not attempt a “fair appraisal” of the Project against the objectives and policies of the PDP considered as a whole. In advancing that argument, Glenpanel says the Panel did not follow the “correct approach” described in Mr Murray’s and Mr Devlin’s expert evidence to conduct an analysis of the relevant objectives and policies in “specified groups”. Rather, it says the Panel identified the objectives and policies it considered the Project was contrary
to in isolation without then considering the objectives and policies which the Project was consistent with and then attempt to weigh those in the round. While Glenpanel acknowledges that the Panel was not under an obligation to refer in its decision to every objective or policy which might have had marginal relevance to its decision, it still had to carry out a fair appraisal of the objectives and policies as a whole, and it failed to do so.
Discussion
[75] The Panel’s analysis of the relevant planning documents is in pt E of the decision. Despite the fact the Panel was not required to set out the relevant provisions of planning documents it considered (unlike a decision on a resource consent application under the RMA),75 the Panel did so in this case. Indeed, its analysis of the planning documents occupied 100 paragraphs of a 450 paragraph decision.
[76] I am not persuaded that the Panel was wrong to take the view that policies using directive terms such as “avoid”, “protect” and “ensure” should be given greater weight than less directively worded policies.76 While the Panel relied on the Supreme Court’s decision in King Salmon as supporting the principle that policies stated in directive terms will carry greater weight, they also noted that the High Court recently observed that the way policies are expressed is important when interpreting their meaning and applying them to consent applications.77 I agree that a policy worded in directive terms gives an indication of the weight to be given to it. Furthermore, if a proposal involves an activity which the plan directs should be avoided, it is more likely to be contrary to the objectives or policies of that plan than when the plan uses less directive language.
[77] I also reject the suggestion that the Panel did not take account of the fact the Project was largely compatible with a number of objectives and policies. Indeed, the Panel was careful to record where it considered the Project was consistent with a
75 FTC Act, sch 6 cl 37(6); and RMA, s 113(1).
76 Panel Decision, above n 49 at [353]–[359].
77 At [353]–[354] citing King Salmon, above n 73, and Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, [2021] 3 NZLR 882 at [79].
policy. For example, at [320] of the Decision, the Panel records its view that the Project was generally consistent with the objectives and policies in the NPS-UD.
[78] In my view, there can be no doubt that the Panel has reviewed the objectives and policies as a whole. Furthermore, it has carefully considered Glenpanel’s experts’ views on the extent to which the Project aligns with the objectives and policies of the PDP and rejects that analysis.78 In doing that, the Panel relied, in particular, on the statements in the PDP as to how its objectives and policies are to be considered when determining resource consent applications.79 The analysis is thoughtful and the conclusions which it reaches are clearly open to it.
[79] By way of example, the Panel considers Glenpanel’s argument that the PDP identifies the site (excluding the ONF) as an urban environment, but rejects that analysis as “strained”.80 It goes on to explain why it considers the PDP is drafted to ensure substantial urban development is to be avoided or rural land outside the UGB until the PDP is changed to extend the UGB and apply an urban zoning.81
[80] Similarly in terms of development on the ONF, the Panel did not ignore the role of the proposed homestead and of the proposed visual mitigation in deciding whether such development was contrary to the objectives and policies of the PDP. However, it found that the development in the ONF would have more than minor adverse visual effects82. This was a factual finding within its area of expertise and the conclusion that the proposal was therefore contrary to objective 3.2.5.2 (which provides that development is inappropriate in an ONF unless its values are protected) followed logically from that finding.83
[81] As an aside, I consider there is little to be gained by adducing evidence such as that of Mr Murray and Mr Devlin for the purposes of an appeal on a point of law. The question is ultimately one of reading the decision and considering whether what has been undertaken is a fair appraisal of the objectives and policies as a whole. That
78 At [362]–[403].
79 At [378]–[379] citing PDP, ss 3.1B and 4.1.1.
80 At [397].
81 At [399].
82 At [401].
83 At [403].
is ultimately a judicial exercise and is not much assisted by the fact that another professional says they would have placed more weight on other policies and objectives and arrived at a different decision.
[82] I do not accept Glenpanel’s submission that the Panel approached its decision on the basis the Project should not compromise any objectives and policies of the PDP. It is evident from the Decision that the Panel took a more nuanced approach than that. The Panel undertook a thorough analysis of all the relevant planning instruments and the various submissions they had received (including from Glenpanel) on the extent to which the Project was consistent or inconsistent with them. The Panel, correctly in my view, identified that directively worded policies such as policy 4.2.1.3 (“[e]nsure that urban development is contained within the defined Urban Growth Boundaries
…”) needed to be given more weight.84 It was also correct to rely on, as it did, the
following passage in Akaroa Civic Trust v Christchurch City Council:85
In all but the simplest cases the second gateway test is very difficult to apply because most district plans have a plethora of objectives and policies. We consider that if a proposal is to be stopped at the second gateway it must be contrary to the relevant objectives and policies as a whole. We accept immediately that this is not a numbers game: at the extremes it is conceivable that a proposal may achieve only one policy in the district plan and be contrary to many others. The proposal may be so strong in terms of that policy that it outweighs all the others if that is the intent of the plan as a whole. Conversely, a proposal may be consistent with and achieve all bar one of the relevant objectives and policies in a district plan. But if it is contrary to a policy which is, when the plan is read as a whole, very important and central to the proposal before the consent authority, it may be open to the consent authority to find the proposal as contrary to the objectives and policies under s 104D. We add that it is rare for a consent authority, or the court, to base its decision either way, on a single objective or policy. The usual position is that there are sets of objectives and policies either way, and only if there is an important set to which the application is contrary can the local authority rightly conclude that the second gate is not passed.
[83] I acknowledge the submissions for Glenpanel which counter the suggestion that being contrary to one single objective or policy would be sufficient to fail the s 104D(1)(b) test. While Glenpanel is critical of this view, the fact is that the Akaroa Civic Trust case has been cited with approval in the higher courts.86 In any event, the Panel did not determine that the Project failed the s 104D(1)(b) test on the basis it was
84 At [353], [355] and [358].
85 At [432] citing Akaroa Civic Trust v Christchurch City Council [2010] NZEnvC 110 at [74].
86 Man O’War Station Ltd v Auckland Regional Council [2011] NZRMA 235 (HC) at [53].
contrary to a single objective or policy. Rather, the Panel assessed the project as being contrary to an important group of PDP objectives and policies, not one single policy. Specifically, the Panel determined that the Project was contrary to the following objectives and policies relating to the strategic direction, urban development, landscapes (rural character) and rural residential and lifestyle chapters of the PDP:87
(a)objective 3.2.2;
(b)objective 3.2.5.2;
(c)policy 3.3.14;
(d)policy 3.3.15;
(e)policy 3.3.30;
(f)policy 3.3.31;
(g)objective 4.2.1;
(h)policy 4.2.1.3;
(i) policy 4.2.2.20;
(j)policy 6.3.2.1;
(k)policy 6.3.3.1; and
(l) policy 22.2.2.2.
[84] Glenpanel submitted that many of these objectives and policies had qualifiers, which meant they were not as directive or strong as the Panel thought, and the proposal complied with these qualifiers. Some of those submissions were premised on the majority of the land being “zoned” urban because it was identified in ch 4 as being earmarked for urban development. As I go on to explain, that is to overstate what ch 4 does in respect of the Ladies Mile land. If the land is not treated as zoned urban, the arguments that it is not contrary to the policies and objectives to develop the land for urban use fall away.
[85] The other key group of objectives and policies which the proposal was held to fail was the protection of the landscape values of the Slope Hill ONF. While Glenpanel
87 Panel Decision, above n 49, at [399].
asserts that its proposal did protect those values, that is a finding of fact that I am not prepared to revisit in an appeal on a point of law.
[86] For the above reasons, I am satisfied that there were no errors in the application of the s 104D(1)(b) test and this ground of appeal is dismissed.
Errors in application of the s 104D(1)(a) “adverse effects” test
[87] The third ground of appeal alleges the Panel erred in its assessment that the actual and potential effects of the Project on the environment would be more than minor under s 104D(1)(a) of the RMA. This is one of the alternate “gateway” tests in s 104D and the Panel concluded the Project did not meet the threshold.88
[88] Glenpanel says the Panel wrongly concluded that, when considering the “environment” for the purpose of s 104D(1)(a), it was not permitted to treat the Project site as already urbanised, having regard to the recent adoption of the Spatial Plan and the TPML Masterplan.89 Instead, the Panel considered the environment in its current state, and with the PDP provisions applying, and concluded that the Project would have landscape, amenity, traffic and transport effects on the environment that would be more than minor.90
[89] In Glenpanel’s submission, taking into account the purpose of the FTC Act, the “environment” against which the effects of the activity must be assessed under s 104D(1)(a) should have been defined with reference not only to the need to achieve sustainable management of resources, but also to the need to urgently promote employment and support investment in light of the particular economic and social impacts of COVID-19.
[90] Ms Heine says that the Panel’s analysis omitted any reference to the purposes of the FTC Act and the pandemic context. Furthermore, the Panel did not refer to the definition of environment in s 2(1) of the RMA in its Decision, which reads as follows:
Environment includes:–
88 Panel Decision, above n 49, at [306] and [427].
89 At [80]–[85].
90 At [136] and [190].
(a)ecosystems and their constituent parts, including people and communities; and
(b)all natural and physical resources; and
(c)amenity values; and
(d)the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters[.]
[91] Here, Ms Heine says the increases experienced in tourism and population growth in the Queensland Lakes District and the associated demand for housing, along with the impacts of the COVID-19 pandemic on commercial activity and employment, should have been factored into the Panel’s consideration of the term “environment” under s 104D(1)(a). Instead, Ms Heine submits the Panel’s decision focused only on the Court of Appeal’s analysis in the decision Queenstown Lakes District Council v Hawthorn Estate Ltd.91 In Hawthorn, the Court held the environment in that case necessarily included the effects of permitted activities under the relevant plans and the effects of resource consents which had been granted at the time of the application and which were likely to be implemented.92
[92] Glenpanel’s position is that the key legal principle emerging from Hawthorn is that a consent authority must, when defining the environment for the purposes of s 104D(1)(a) and where there is relevant evidence on the matter, make a judgement about the likely future state of the environment. This proposition is supported by subsequent decisions, including Queenstown Central Ltd v Queenstown Lakes District Council (Foodstuffs decision)93 and Far North District Council v Te Rūnanga-ā-iwi o Ngāti Kahu.94
[93] In the present case, the Panel was not prepared to define the future environment for the Project as urban in nature, saying that approach “stretches the limits of what is appropriate … having regard to Hawthorn”.95 In reaching these conclusions, the Panel
91 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA).
92 At [84].
93 Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 815, [2013] NZRMA 239 [Foodstuffs] at [85].
94 Far North District Council v Te Rūnanga-ā-iwi o Ngāti Kahu [2013] NZCA 221 at [80].
95 Panel Decision, above n 48, at [78].
placed weight on the fact that the Spatial Plan and the TPLM Masterplan were not documents prepared under the RMA.96
[94] Ms Heine says the Panel erred by treating the Spatial Plan and the TPLM Masterplan as deserving less weight because they were non-RMA documents. They were highly relevant pieces of evidence generated following an extensive process of consultation. They showed an unequivocal movement towards the Ladies Mile area being urbanised and to ignore them was contrary to the legal principle in Hawthorn. Had the Panel taken a “real world” approach to identifying the likely future environment (as was endorsed in the Foodstuffs decision)97 and treated the Ladies Mile area as being urbanised in the future, the assessment of environmental effects would have been quite different. Under those documents, the expanded UGB would encompass the entire southern base of Slope Hill and the effects of the development on the landscape values of the hill would be much less prominent.
[95] Similarly, the Panel held that the potential traffic and transport effects on the environment would be more than minor in a 360 dwelling scenario,98 but Ms Heine points out that some degree of traffic congestion is necessarily anticipated in an urban environment. Furthermore, the Spatial Plan envisages that, when urbanised, Ladies Mile would be serviced by a new integrated transport system.99 Had the Panel considered those factors, its assessment of the traffic related effects of the proposal would have been different.
Discussion
[96] The Panel’s discussion of what constitutes the “environment” is set out in paragraphs [64]–[85] of the Decision. Glenpanel filed memoranda which strongly argued the Spatial Plan and TPLM Masterplan were relevant for the framing of any assessment of effects on the environment. However, the Panel referred to and relied on Hawthorn, saying that “the Court of Appeal expressly found that the ‘environment’ does not include the environment as it might be modified by the implementation of
96 At [82].
97 Foodstuffs above n 91, at [85].
98 At [185].
99 Spatial Plan at 86.
future resource consent applications, because these involve considerations and effects that are too speculative”.100 The Panel considered that to accept Glenpanel’s approach to the future environment meant it would have to make assumptions both as to the outcome of the forthcoming PDP variation process and the outcome of future resource consent applications under the eventual planning framework.101 The Panel was not prepared to assume the Spatial Plan and TPLM Masterplan dictated the future environment for the purpose of an assessment of environmental effects, because to do so “stretches the limits of what is appropriate when determining the future state of the environment”.102
[97] It was open to the Panel to determine it would be speculative and premature to assume the Ladies Mile environment was urban in reliance on the Spatial Plan and the TPLM Masterplan. The decisions relied on by Glenpanel involved future changes to the environment which were more certain in the current case. For example, in Hawthorn, there were granted, but unimplemented, resource consents,103 and in Foodstuffs, a plan change had been notified and a decision on the plan change had been made, albeit it was still subject to appeals.104
[98] In my view, Glenpanel’s submissions overstate the certainty of rezoning the land along Ladies Mile and push the boundaries of what should properly be taken into account as the “environment” for the purposes of s 104D(1)(a). In particular, I do not consider it correct to say that ch 4 of the PDP had already been amended to include land in the Ladies Mile area within the definition of the urban environment. All that ch 4 does is to identify the need to make provision for anticipated growth and to show, on a map, that land along Ladies Mile was an “Indicative Future Expansion Area”. That descriptor makes it clear that no firm decision has been made about rezoning that area and the same chapter retains policies which require urban development to be contained within the defined UGBs.105 Furthermore, the map in ch 4 is small and is not designed to identify the precise boundaries of the “Indicative Future Expansion
100 Panel Decision, above n 49, at [78].
101 At [81].
102 At [78].
103 Hawthorn, above n 89, at [11].
104 Foodstuffs, above n 91, at [5].
105 See policy 4.2.13.
Area”. It does no more than signal the general area where the QLDC thinks urban expansion should occur.
[99] While the QLDC is now advancing the PDP Variation in accordance with the TPLM Masterplan, at the time the Decision issued that variation had yet to be notified, let alone tested through the hearing process. Furthermore, as Mr Reid points out, the submissions made by Waka Kotahi and the Minister of Transport to the Panel indicated concerns about the implications of the TPLM Masterplan, particularly on the capacity of State Highway 6.106 This suggests the outcome of the PDP Variation would not necessarily reflect the TPLM Masterplan. In those circumstances, the Panel’s decision not to treat the environment as already urbanised when no operative or proposed plan provided for that outcome was clearly open to it.
[100] Finally, Glenpanel submits that the test under s 104D(1)(a) should be interpreted in accordance with the purpose of the FTC Act. I have already held that s 104D applies in the ordinary way, just as it does when a consent is considered under the RMA.107 I accept Mr Reid’s submission that there is nothing in the FTC Act indicating the Panel was required to take a more speculative approach to assessing the environment, including the likely future environment, for the purposes of the s 104D(1)(a) analysis than would normally be the case.
[101]Accordingly, this ground of appeal fails.
Errors in application of sch 6 cl 31
[102] The Panel held that as the Project did not meet either gateway test under s 104D it could not grant consent. However, even if it did meet the test, it would nonetheless have declined consent “having regard to the Project’s contrariness to an important set of objectives and policies”.108 Given my finding that there was no error of law in the application of the gateway test, and it was open to the Panel to decline consent on that basis, strictly speaking, it is not necessary to consider the remaining errors of law
106 Panel Decision, above n 49, at [32(i) and (r)].
107 Above at [60].
108 Panel Decision, above n 49, at [449].
advanced by Glenpanel as they are not material to the decision, but for completeness I do.
[103] Glenpanel says that in reaching the conclusion that it would have declined consent to the Project because it was contrary to an important set of objectives and policies, the Panel:
(a)erred in its assessment of the effects of the Project on the environment under cl 31(1)(a);
(b)erred in its assessment of provisions in relevant planning documents under cl 31(1)(c);
(c)failed to give proper weight to the Spatial Plan and TPLM Masterplan as other relevant factors under cl 31(1)(d); and
(d)erred in its assessment of the consistency of the Project with pt 2 of the RMA and the purposes of the FTC Act.
[104] In support of the first of these errors, Glenpanel repeats the submissions it made as set out at [88]–[95] above.
[105] In support of the second error, again, Glenpanel repeats the submissions which are summarised at [67]–[79] above. In addition, however, it says the Panel erred by failing to give proper consideration to other relevant planning documents under sch 6 cl 31(1)(c).
[106] Glenpanel notes that the Panel briefly referred to a number of national and regional planning documents in the Decision. However, Glenpanel says that when assessing the Project against these documents, the Panel only asked whether the Project would be contrary to the objectives and policies. It did not consider whether it would be consistent with them or contribute positively to realising the aims of these documents. That needed to be done to comply with cl 31(1)(c).
[107] Second, Glenpanel says the Panel erred in its assessment of the Project against the NPS-UD. It focussed only on those objectives and policies which specifically referred to planning decisions, but its analysis should have been broader. Had it done so, it would have taken into account other relevant considerations including, by way of example, policy 6(b) which recognises that within “urban environments” the planned urban built environment may result in significant changes to an area including detracting from some amenity values, and that these changes were not, in themselves, an adverse effect on the environment. For the reasons already set out above, Glenpanel maintains that the Project site falls within the relevant definition of urban environment.
[108] Third, to the extent the Panel did consider the Project was consistent with relevant documents, it did not factor this into its assessment of whether it would have granted consent under cl 31. Indeed, Glenpanel goes so far as to suggest that the Panel put planning documents other than the PDP completely to one side. In doing so, it says it was in breach of its responsibilities under cl 31(1)(c).
[109] Glenpanel says that under cl 31(1)(d), the Panel was obliged to take account of the Spatial Plan and the TPLM Masterplan. While the Panel said it had regard to those as relevant matters,109 Glenpanel complains that the Panel did not explain why the commitments in those documents did not counterbalance the Panel’s concerns regarding the consistency of the Project with the PDP under the holistic assessment required by cl 31.
[110] Fourth, Glenpanel says the Panel failed to carry out a separate analysis under pt 2 of the RMA. In that regard, Glenpanel relies on the decision of the Court of Appeal in RJ Davidson Family Trust which says:110
It may be … that a fair appraisal of the policies means the appropriate response to an application is obvious, it effectively presents itself. Other cases will be more difficult. If it is clear that a plan has been prepared having regard to pt 2 and with a coherent set of policies designed to achieve clear environmental outcomes, the result of a genuine process that has regard to those policies in accordance with s 104(1) should be to implement those policies in evaluating a resource consent application. Reference to pt 2 in such a case would likely not add anything. It could not justify an outcome contrary to the thrust of the policies. Equally, if it appears the plan has not been prepared in a manner that
109 At [80].
110 RJ Davidson Family Trust v Marlborough District Council, above n 69, at [74].
appropriately reflects the provisions of pt 2, that will be a case where the consent authority will be required to give emphasis to pt 2.
[111] Here, Glenpanel says the Panel’s view that the outcome of its “fair appraisal” analysis under cl 31(1)(c) was not finely balanced was affected by the material errors Glenpanel submits occurred. Furthermore, Glenpanel submits the Panel was wrong to suggest the PDP had been prepared having regard to pt 2 with a coherent set of policies designed to achieve clear outcomes. It says the PDP was not coherent or clear regarding whether the land on Ladies Mile (which comprised the vast majority of the Project site) should be regarded as urban in nature, noting it had been identified for urban development in ch 4.
[112] In these circumstances, Glenpanel says the Panel should have had regard to pt 2 of the RMA and its purpose to promote the sustainable management of natural and physical resources. If it had, it would have concluded that the Project would contribute significantly to the provision of social and economic wellbeing in the Queenstown Lakes District while having no adverse effects on the environment that would be more than minor, or which would otherwise engage the matters in s 5(2)(a)–(c) of the RMA.
[113] Finally, Glenpanel submits the Panel made an error of law by not properly analysing the application in light of the purpose of the FTC Act. While cl 31(1) does not expressly set out how the Panel needed to consider the purposes of the FTC Act, Glenpanel submits the Panel’s analysis should have considered the kinds of factors which the Minister was required to consider in deciding whether a Project would help achieve the purpose of the FTC Act when deciding to make a referral order. In this case, relevant factors included the:
(a)Project’s economic benefits for people or industries affected by COVID-19;
(b)public benefit by generating employment;
(c)public benefit by increasing housing supply; and
(d)public benefit by contributing to well-functioning urban environments.
Discussion
[114] Many of these arguments reiterate arguments made about the Panel’s approach to s 104D but apply them in the context of making the substantive decision. Glenpanel’s argument that the Panel erred in its assessment of the effects of the Project on the environment under cl 31(1)(a) turns on the same issues that it raised for the purpose of s 104D(1)(a). For the reasons set out [96]–[100] above, I consider the Panel made no error of law in assessing the effects of the Project on the environment under cl 31(1)(a).
[115] Many of Glenpanel’s arguments regarding the Panel’s approach to s 104D(1)(b) are also advanced in relation to the Panel’s assessment of provisions of the relevant planning documents under s 31(1)(c). To the extent those arguments have been addressed in [75]–[85] above, I do not repeat them.
[116] Glenpanel says the Panel also erred by failing to give proper consideration to other relevant planning documents under cl 31(1)(c). However, as I have already noted, the Panel’s discussion of the relevant planning documents went well beyond what was required by the FTC Act.111 I do not consider that the Panel only asked itself whether the Project would be contrary to the objectives and policies. The Panel’s comprehensive discussion included findings such as that the Project would achieve general consistency with the thrust of some objectives of the NPS-UD and would achieve the relevant policy of the regional water plan.112
[117] When the Panel turned to discussing the PDP, it observed that it had considered the relevant PDP objectives and policies as a whole, but focused then on those that were “central to the question of whether or not resource consent should be granted for a proposal such as this”, being the objectives and policies relating to strategic direction, urban development, landscapes and rural character, and rural residential and rural lifestyle.113 The Panel then thoroughly traversed the submissions by Glenpanel on how the Project addressed those objectives and policies.114 However, the Panel
111 Above at [80].
112 Panel Decision, above n 49, at [320] and [332].
113 At [347] and [382]–[385].
114 At [362]–[376].
reached the view that “the Applicant’s approach to assessment would undermine the clear intent of the relevant PDP objectives and policies, read collectively”.115 Those conclusions fed into both the s 104D analysis but also to the broader analysis under cl 31(1)(c).116 Again, I see no error in the Panel’s approach which acknowledged the extent to which the Project achieved certain policies and objectives, but reached an overall view that to grant consent would undermine the integrity of the PDP.117
[118] While, as Glenpanel says, the Panel did not consider policy 6(b) of the NPS-UD, that policy requires decisionmakers, when making planning decisions that affect urban environments, to have particular regard to the fact that:
the planned urban built form [anticipated by RMA planning documents] may involve significant changes to an area, and those changes:
(i)may detract from amenity values appreciated by some people but improve amenity values appreciated by other people, communities, and future generations, including by providing increased and varying housing densities and types; and
(ii)are not, of themselves, an adverse effect[.]
[119] The text of the policy is clearly directed to taking account of the planned urban built form anticipated by RMA planning documents. Given my view that it could not be said that the PDP had determined this area to be urban as it lay outside the UGB and a variation was required to rezone the land, this policy had no application in the present case and the Panel was correct to omit it from its consideration.
[120] In respect of the alleged failure to consider the Spatial Plan and TPLM Masterplan under cl 31(1)(d), it is clear the Panel did take them into account. However, it was not prepared to make assumptions about the future environment based on those plans when a variation to the PDP had yet to be notified and where key provisions of the PDP in its current state militated against the Project.
[121] Finally, Glenpanel was critical of the alleged failure to apply pt 2 of the RMA and the purpose of the FTC Act in reaching its decision under cl 31(1). However, these
115 At [396].
116 At [435] and [447].
117 At [407].
were considered in pt H of the Decision. The Panel noted the requirement, under cl 31(1), to consider both pt 2 of the RMA and the purpose of the FTC Act. I consider the Panel was entitled to reach the view that reference to pt 2 of the RMA would not add anything to the Panel’s evaluation of the relevant planning instruments, including the PDP. While Glenpanel considers this is not a case where the PDP was coherent or clear and so an analysis under pt 2 was required, that stems from Glenpanel’s view that the PDP treated the Ladies Mile area as urbanised, a view I have rejected. The Panel also considered the purpose of the FTC Act and acknowledged that the Project would contribute to advancing the purpose of the Act by promoting employment and supporting New Zealand’s recovery from the economic and social impacts of COVID-19.118 However, it concluded that this contribution did not outweigh the Project’s significant lack of alignment with key PDP objectives and policies and its inadequate protection of the Slope Hill ONF.119 I am satisfied that this was a conclusion it was entitled to reach on the materials before it and it did not omit this consideration in its analysis.
[122]This ground of appeal is dismissed.
The application for judicial review
[123] Glenpanel applies to judicially review the Panel’s decision-making process in three respects:
(a)the Panel’s alleged failure to seek appropriate technical advice in relation to planning issues;
(b)the alleged failure to disclose that the Panel’s chair, Mr Allan, was operating under actual or potential conflicts of interest; and
(c)the alleged failure by the Panel to notify Glenpanel that it took issue with particular features of the application and either request further information or submissions about how those features could be
118 At [446].
119 At [447].
addressed, or give Glenpanel the opportunity to suspend or apply to suspend its application to allow the proposed plan change to proceed.
The Court’s approach on judicial review
[124] There is no dispute that this Court has jurisdiction to review the Decision and the process by which the Panel arrived at it. The Panel is a quasi-judicial body and is exercising a statutory power of decision-making.120
[125] The parties also recognised the limitation of the Court’s powers on review. A decision cannot be set aside simply because the Court, on review, would have come to a different decision. Rather, review is concerned with the process and legality of the decision, that is, whether it was reached “in accordance with the law, fairly and reasonably”.121 As French J said in Aorangi School Board of Trustees v Minister of Education:122
… contrary to popular belief, judicial review is not an appeal. It is not about the Court considering the information afresh and coming to its own views. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision maker being required to start afresh, as opposed to quashing the decision for all time. … it is not my task to assess the wisdom or merits of this decision … My focus must be on process …
Accordingly, I approach the application for review on the basis I am only concerned with whether the decision was made lawfully and in accordance with a proper process.
Did the Panel err by failing to have, or seek, appropriate technical expertise?
[126] Ms Heine prefaces this ground of review by pointing out that the panel convenor recognised that the application raised some complex planning issues. However, at the time of appointing the Panel, he decided against appointing another panel member, considering that these issues could be addressed by the panel seeking independent advice if they needed to.
120 Judicial Review Procedure Act 2016, s 5.
121 New Zealand Fishing Industry Assoc Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
122 Aorangi School Board of Trustees v Minister of Education [2010] NZAR 132 (HC) at [8].
[127] Given the complex planning context of the application Ms Heine submits that the Panel:
(a)did not have sufficient planning expertise itself as required by sch 5 cl 7(1)(b); and
(b)had the power to seek technical advice on planning matters under sch 5 cl 10(4) of the FTC Act but did not exercise that power when it should have.
[128] Ms Heine grounds her submission on this point by referring to the well established principle that decisionmakers must carry out sufficient enquiries before making their decision to ensure those decisions are made on an informed basis. She cites Secretary of State for Education and Science v Tameside Metropolitan Borough Council, where it was said:123
… the question for the court is, did the [decisionmaker] ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?
[129] In this case, Ms Heine argues that the only technical planning evidence before the Panel was supplied by Mr Murray for Glenpanel. The QLDC provided some “comments” on planning issues, which were the subject of responses by Glenpanel. Given what she describes as the “particularly nuanced planning context”, the Panel should have taken independent expert advice if it did not accept the evidence of Mr Murray, as it did for other issues.
[130] Furthermore, Ms Heine submits that none of the Panel had any particular depth of planning expertise. While Ms Mein had planning qualifications, she was appointed primarily for her urban design expertise, and neither of the other Panel members were qualified planners.
[131] This view is further expanded on in the affidavit evidence of Mr Murray who records his view that the Panel lacked planning expertise. Mr Murray considered that
123 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (HL) at 1065; and see Grinder v New Zealand Parole Board [2022] NZHC 3188 at [68].
a critical area of technical expertise relevant to the Project was planning, and, in particular, what he referred to as “planning policy”. He did not consider any of the Panel members, including Ms Mein, had that expertise, noting that her appointment focused on her skills in urban design. He considers even the Panel Convenor did not consider she had the necessary technical planning expertise relevant to the Project to meet the requirement of sch 5 cl 7(1)(b), given his comments that any planning complexity could be addressed by the Panel “seeking independent advice if they need to”.
[132] Ms Heine says the failure of the Panel to seek independent expert planning advice led to the errors of law raised on appeal.
Discussion
[133] Glenpanel raises two issues here. The first is whether the Panel collectively had the skills and experience required by cl 7(1)(b). The second is whether the Panel failed to properly acquaint themselves with all relevant information in order to reach their decision.
[134] In terms of whether the members of the Panel collectively had the technical expertise relevant to the Project, that was the subject of conflicting opinions in the affidavit evidence before me. Mr Newhook, the Panel Convenor, considered the application for consents for the Project were not novel or unusually complex:
[it] appeared somewhat typical of very large numbers of consent applications in the Queenstow-Lakes District over 30 years or more, seeking to extend residential activity across rural areas of this district, sometimes supported by district plan provisions and sometimes not.
[135] He then outlined the process he undertook to appoint the Panel saying he was “very comfortable” with the nomination of Ms Mein and Mr Langsbury given their respective fields of expertise. Furthermore, noting the advice that the application involved “somewhat complex planning issues”, he appointed Mr Allan because of his experience and skills as a specialist resource management lawyer. Mr Newhook had had the experience of reading Mr Allan’s decisions and soliciting his opinions on resource management related matters, as well as having Mr Allan appear before him on complex RMA cases, and he considered him highly qualified to take on this role.
The fact Mr Allan was an associate member of the New Zealand Planning Institute also signalled to him that Mr Allan had a level of interest and involvement in the field of planning.
[136] Mr Murray, however, considered Mr Allan had a lack of planning expertise, saying he had no planning qualifications and his associate membership of the New Zealand Planning Institute did not bestow or recognise any specific expertise in planning. He also noted that while Ms Mein had a planning qualification, she practiced as an urban designer and not, as Mr Murray thought necessary, as a planner.
[137] It is unfortunate that this ground of review prompted evidence of this type. Decisions made on issues where reasonable minds may differ will not be reviewable on that ground alone. In any event, I consider Mr Murray sets the threshold too high for what is required in terms of the technical expertise to meet the requirements of cl 7(1)(b). The Panel should have a balance of expertise and sufficient technical knowledge to be able to assess the Project and the evidence supporting it, particularly if it involves technical evidence of a highly specialised nature. However, the Panel does not need to have expertise in every single area of evidence that might be relied on to support the application. That is emphasised by the fact that under sch 5 cl 10(3) and (4) panels may appoint specialist advisors and technical advisors to assist them.
[138] To suggest that a panel which has a qualified planner such as Ms Mein, and a highly experienced RMA lawyer, did not have sufficient expertise to understand the planning framework and to apply it in this case is an unpromising basis for review. The real issue is whether they made their decision lawfully and following a proper process. Furthermore, having considered the expertise of Mr Allan, Ms Mein and Mr Langsbury, as outlined in the affidavit of Mr Newhook, it was clearly reasonable for Mr Newhook to conclude they had sufficient expertise to understand the planning framework and to consider how well the application met the objectives and policies of that planning framework. It is unsurprising, therefore, that an expert planner was not appointed, whether as a member of the Panel or under sch 5 cl 10(3) or (4).
[139] In terms of the other aspect of this ground of review, this is not a case where the Panel failed to properly inform themselves in respect of the planning framework.
Glenpanel’s views on how the various planning documents should be taken into account was before the Panel and the Panel members clearly took those views into account. The Decision discusses those views at length. However, the Panel did not consider that the Spatial Plan and TPLM Masterplan carried the weight that the expert evidence for Glenpanel said they did. Similarly, the Panel was aware of, and considered, Glenpanel’s experts’ opinion on ch 4 of the PDP, which identified the Ladies Mile area as an indicative urban expansion area, but did not give that the weight which Glenpanel’s advisers considered it should be given.
[140] Accordingly, I am satisfied the Panel collectively had the technical expertise relevant to the Project, and there was no breach of the obligation to obtain all relevant information to make the decision.
[141]This ground of review fails.
Was the Panel’s decision affected by apparent bias and predetermination?
[142] The second ground of review has two aspects to it. Glenpanel says the pre-existing relationships between Mr Allan and his firm Brookfields with Remarkables Park Ltd (RPL), an alleged competitor of Glenpanel, and the Auckland Council (the Council) meant the Panel’s decision was tainted by apparent bias or an appearance of a lack of impartiality.
[143] In respect of the first of these relationships, Glenpanel asserts that RPL, a Queenstown-based property development company, is a longstanding client of Brookfields and is a major competitor of Glenpanel. Counsel for Glenpanel argues, therefore, that it is in RPL’s commercial interests for Glenpanel’s application to be declined, and equally it may be commercially prejudicial to RPL if Glenpanel’s application was granted. For that reason, counsel asserts that Mr Allan, as a partner in Brookfields, has a pecuniary interest in that firm retaining its longstanding client relationship with RPL, along with professional duties to that client to advance its interests. In those circumstances, a “fair-minded, impartial, and properly informed
observer”124 would reasonably consider that Mr Allan might not have been able to bring an open mind to his role in light of Brookfields’ longstanding client relationship with RPL.
[144] Counsel for Glenpanel is also critical of Mr Newhook purporting to give his own views on whether RPL should be seen as a trade competitor to Glenpanel, relying on his own experience acting for RPL when he was a partner at Brookfields more than 20 years ago. In counsel’s view, this evidence has no probative value and should be put to one side.
[145] With respect to the Council, counsel for Glenpanel says the logical connection arises from the fact the Council is an ongoing client of Brookfields and has an interest in its preferred interpretation of key provisions of the FTC Act being upheld. Mr Allan has acted for the Council and advanced the same interpretation of the FTC Act as is embodied in the decision in other proceedings under that Act.
[146] Counsel for Glenpanel goes on to say that a fair-minded, impartial and properly informed lay observer would reasonably take the view that Mr Allan would be more inclined to make a decision which endorses and supports the advice he has previously given to the Council. Indeed, it would undermine his credibility if he were to take a contrary position in his role as a decisionmaker on the Panel to that which he had advanced as an advocate.
[147] Counsel for Glenpanel goes on to say that Mr Allan’s role on the Panel in this matter amounted to a conflicting office to his role as a lawyer for the Council and engaged r 6.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 which require a lawyer not to act in any matter where a significant risk of conflict exists. Counsel says Mr Allan should have declared his role as a specialist advisor to provide legal advice on other expert consenting panels as he did on his conflicts declaration for a previous application where he was on the panel.
124 Being the accepted test for when a decision will be tainted by apparent bias as set out in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [37].
[148] Furthermore, counsel goes on to say that Mr Allan demonstrated an inadequate approach to disclosing conflicts. Counsel says the evidence suggests that Mr Allan gave only the briefest consideration to the question of whether he had a conflict of interest before he responded to an Environmental Protection Authority (EPA) advisor, Ms Cahill, saying that he had no conflicts.
[149] In addition to the alleged conflict in respect of the Council, counsel for Glenpanel submits the same circumstances led Mr Allan to predetermine critical issues on Glenpanel’s application. As counsel for Glenpanel points out, predetermination focuses on whether the decisionmaker prejudged the case or aspects of it.125 If so, a fair-minded person would not have confidence in the decision.
[150] In this case, counsel for Glenpanel submits that a fair-minded lay observer would reasonably apprehend or suspect that the Panel had a closed mind and prejudged several important issues which were determinative of the application. In particular, counsel points to:
(a)the Panel’s views on the application of s 104D of the RMA;
(b)the significance afforded to the small part of the Project which was situated on the Slope Hill ONF;
(c)the application of the objectives and policies test; and
(d)the perceived limited relevance of the Spatial Plan and TPLM Masterplan.
[151] Furthermore, when acting for the Council on various applications under the FTC Act in the Drury area, Mr Allan filed memoranda that addressed issues that arise in the present case. Of particular note, he expressed the following views in the advice tendered:
125 Inform Group Ltd v Fleet Card (NZ) Ltd [1989] 3 NZLR 293 (CA) at 298.
(a)express wording would have been required if Parliament had not intended s 104D to operate in the usual way and as a potential “bar” on consent being granted;
(b)a panel cannot have regard to possible future zonings when assessing the effects on the environment under sch 6 cl 31 of the FTC Act; and
(c)the Akaroa Civic Trust case is a helpful articulation of how a decisionmaker should address the assessment of objectives and policies under s 104D(1)(b).126
[152] Glenpanel says the extent of similarities between the advice given in previous memoranda and the conclusions reached in the Decision is such that a fair-minded lay observer would reasonably suspect that the Panel had not considered the matter with an open mind, but instead had “copied and pasted” the previous conclusions Mr Allan had reached.
Discussion
[153] I put to one side the allegations that Mr Allan was cavalier in his approach to conflicts of interest based largely on the brevity of the exchange Mr Allan had with Ms Cahill from the Environment Protection Authority over whether he had any conflicts. The only issue is whether there was, in fact, a circumstance which would lead a fair-minded, impartial and properly informed observer to have reasonably thought Mr Allan might have been unconsciously biased or have predetermined any issue.
[154] Dealing first with the allegation that RPL is a competitor of Glenpanel, I put no weight on Mr Newhook’s evidence, noting it is somewhat dated and, in large part, relies on his knowledge of RPL’s activities when he was a partner at Brookfields. However, a bare assertion that RPL is a competitor is also insufficient to establish that it is. RPL owns no land on Ladies Mile east of the Shotover Bridge. RPL was not a submitter on the application, nor had RPL engaged Brookfields to make submissions
126 Akaroa Civic Trust v Christchurch City Council, above n 83.
on any of the processes to unlock the development potential of Ladies Mile including the TPLM Masterplan or the PDP Variation. While Mr Tylden of Glenpanel says that RPL did oppose Ladies Mile being included in the Spatial Plan, without further information about the grounds for that opposition it is too tenuous a link to suggest that RPL has a vested interest in thwarting Glenpanel’s Project.
[155] More importantly though, even if there was evidence that RPL would benefit from Glenpanel’s applications being declined (and there is nothing beyond speculation in this regard), the issue would be whether a reasonable observer would think that Mr Allan’s partnership in Brookfields, which acts for RPL, would have some bearing on his role as panel chair. It is not disputed that Mr Allan has not been an advisor to RPL, except for a brief period in 2001 as a staff solicitor. Furthermore, there is no evidence of a connection between declining this application and a financial benefit to Brookfields, such as RPL not using Brookfields as its lawyers as a consequence of this decision. As Mr Reid points out, a mere financial interest in the Brookfields partnership is not sufficient to establish a logical connection between Mr Allan’s decision-making and alleged allegiance to RPL, let alone to give rise to an appearance of bias.
[156] I am satisfied, by some margin, that the mere fact RPL is a client of Brookfields would not lead a reasonable observer to consider Mr Allan might have been unconsciously biased against Glenpanel or have a conflict of interest.
[157] The second aspect of this ground of review is whether the advice Mr Allan has given to the Council, including in respect of the FTC Act, amounts to a conflict of interest or suggests there has been predetermination.
[158] As Mr Reid points out, a reasonable lay observer would understand that a position a lawyer advocates for a client is not a statement of their personal views or an indication of how they would decide an issue if confronted by it as a decisionmaker. Furthermore, there is no suggestion that Mr Allan’s position as a legal advisor to the Council would be affected or jeopardised by any decisions he makes as chair of his Panel. The very fact that the FTC Act permits lawyers to be appointed to panels, including to act as Panel Chair, implicitly acknowledges that there is no conflict of
interest arising simply from the lawyer’s role as an advocate for clients and their role on the Panel.127 Furthermore, it is to be expected that lawyers with expertise in appearing before, advising on, or sitting on expert panels under the FTC Act enhances their suitability for appointment, rather than detracting from it.
[159] The suggestion that Mr Allan predetermined his views on critical issues cannot be sustained when the decision is read in full. It is clear the Panel carefully and thoughtfully considered the evidence and further memoranda filed by Glenpanel, but were not persuaded that Glenpanel’s views on those issues were correct. That is the antithesis of predetermination.
[160] For these reasons, I am satisfied that the allegations of conflict of interest and predetermination cannot be sustained and this ground of review is dismissed.
Was there procedural unfairness?
[161] The final ground of review focuses on the process followed by the Panel and its alleged failure to alert Glenpanel to its concerns and give Glenpanel an opportunity to respond to them or, alternatively, to suspend its application. It says this failure was a breach of natural justice.
[162]Counsel for Glenpanel summarises the relevant principles as follows:
(a)the essence of natural justice is “fairness writ large and judicially”;128
(b)the precise requirements of natural justice will depend on the context and the facts of the case, including the powers being exercised in the statutory context;129
(c)one important aspect of natural justice is that a participant in a judicial process should understand the nature of the case they need to meet and
127 FTC Act, sch 5 cl 4(3).
128 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718.
129 Lyttelton v Police [2016] NZHC 22, [2016] NZAR 493 at [35].
have a fair opportunity to engage with any criticisms or objections and respond to them; and130
(d)in some situations the decisionmaker may be required to provide advance notice of important live issues and raise with the affected person the potential outcomes of the decision so that they can make submissions.131
[163] In the present case, Glenpanel says it did not have a realistic ability to make submissions on the key issues that troubled the Panel in its decision. The principles of natural justice required the Panel to draw these to its attention so that it could make a focused response. This obligation is supported by the context where:
(a)the decision had serious consequences for Glenpanel which had invested approximately $1,500,000 in preparing its application;
(b)Glenpanel was proceeding on the basis that the Minister’s referral decision signalled that, at least on a preliminary basis, the Project would further the purposes of the FTC Act;
(c)the Panel was a quasi-judicial body and was subject to stricter standards of natural justice as a consequence;
(d)the Panel had a general discretion as to its procedure and this discretion needed to be exercised in accordance with the purposes of the FTC Act which included urgently promoting employment and supporting investment to assist in New Zealand’s recovery from the COVID-19 pandemic;
(e)the process under the FTC Act was highly truncated and did not involve a hearing, unlike in other types of application involving defended
130 Furnell v Whangarei High School Boards, above n 126 at 723; and Herewini v Ministry of Transport [1992] 3 NZLR 482 (HC) at 495.
131 Television New Zealand Ltd v W HC Auckland CIV-2007-485-1609, 18 December 2008 at [93]; and Auckland Boxing Association Inc v New Zealand Boxing Association Inc [2001] NZAR 847 (HC) at [54] and [64].
hearings where there were opportunities to engage with the decisionmaker; and
(f)the key issues identified as fatal to the application could have been the subject of more focused submissions or evidence from Glenpanel and/or amendments to the application, or the application could have been withdrawn and a new application lodged.
[164] The Panel’s decision instead took Glenpanel by surprise and did not serve purpose of the FTC Act. That was in breach of fundamental principles of natural justice and so unlawful.
Discussion
[165] In my view, Glenpanel merges the issue of knowing the case it has to meet with the issue of whether the decisionmaker has an obligation to present its preliminary views on those matters to the applicant and allow it a further opportunity to respond.
[166] Clearly, the applicant is entitled to the former but, in the context of the FTC Act, I do not consider the applicant is entitled to the latter.
[167] In respect of the former, the applicant knew the relevant statutory tests which applied as set out in the FTC Act and the RMA. By way of example, while Glenpanel did not accept the Panel’s view on the application of s 104D, it was aware of the divergence of views. Mr Murray says that one of the key analysts for the Ministry for the Environment raised the question of whether the proposal would measure up to the s 104D test under the RMA. While Mr Murray says there was “uncertainty as to whether the s 104D test was to be strictly applied in a [FTC Act] process”, he went on to say that the “s 104D issue was a matter that we considered carefully at the time, including taking legal advice and [obtaining] a planning peer review”. It was also the subject of a specific information request and response to the Ministry in July 2021.
[168] Once Glenpanel lodged its application on 10 August 2022 (having lodged it earlier but withdrawn it on the basis it was unlikely to comply with the statutory requirements), the Panel was required to assess the application and make its decision
within 50 working days.132 This is highly important context as to whether the Panel was obliged to undertake an iterative process with Glenpanel. Given the timeframes in which the decision was made it would be quite impractical for the Panel to revert to the applicant whenever it proposed to make a finding which was adverse to the applicant, and I am not prepared to read in such an obligation into the FTC Act. Glenpanel had extensive consultation with the Ministry for the Environment and then the EPA prior to submitting its application. From that point the strict timeframes of the FTC Act made further consultation impractical, although I note the Panel did still seek Glenpanel’s further views on some issues.
[169]Accordingly, this last ground of review is also dismissed.
Outcome
[170]All grounds of appeal and review are dismissed.
[171] As there was no true opposing party (as the Expert Consenting Panel abided), there is no order for costs.
[172] I record my gratitude to Mr Reid for undertaking the role of counsel to assist. I have already directed his costs to be met under s 178(2)(b) of the Senior Courts Act 2016. For the avoidance of doubt, the costs which are directed to be paid include Mr Reid’s appearance at the hearing of these proceedings.
Solicitors:
Crown Law, Wellington Meredith Connell, Wellington
Copy To:
L C R Burkhardt, Barrister, Mount Mauganui South V L Heine KC, Barrister, Wellington
K G Reid, Barrister, Christchurch
132 FTC Act, sch 6 cls 3, 17(2), 18, 19 and 37.
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