Greenpeace Aotearoa Incorporated v Hiringa Energy Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA649/2022
[2023] NZCA 672

BETWEEN	GREENPEACE AOTEAROA INCORPORATED Appellant
AND	HIRINGA ENERGY LIMITED AND BALLANCE AGRI-NUTRIENTS LIMITED Respondents
AND	ŌKAHU-INUĀWAI ME ĒTEHI ATU HAPŪ, NGĀTI TŪ HAPŪ, NGĀTI TAMAAHUROA-TITAHI HAPŪ AND NGĀTI HAUA HAPŪ Interested Parties

Hearing:	23 May 2023
Court:	Cooper P, Katz and Mallon JJ
Counsel:	I T F Hikaka and K M Hursthouse for Appellant P F Majurey, L P Wallace and R E Eaton for Respondents N R Coates and N A T Udy for Interested Parties
Judgment:	21 December 2023 at 4 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BWe make no order as to costs.

____________________________________________________________________

REASONS

Katz and Mallon JJ [1]
Cooper P [216]

KATZ AND MALLON JJ
(Given by Mallon J)

Table of contents

INTRODUCTION AND SUMMARY [1]

FTCA [10]

REFERRAL [27]

APPLICATION [32]

GREENPEACE’S APPEAL [48]

Introduction [48]

Submission to Panel [50]

The Decision [52]

High Court [70]

Submissions on this appeal [81]

Discussion [82]

Conclusion [102]

NGĀ HAPŪ’S APPEAL [104]

Introduction [104]

Iwi and hapū [107]

Process and views [111]

Landscape and visual effects assessment [143]

The Application [151]

The Decision [157]

High Court [165]

Discussion [174]

Conclusion [212]

COSTS [213]

RESULT [214]

INTRODUCTION AND SUMMARY

Hiringa Energy Ltd (Hiringa) and Ballance Agri-Nutrients Ltd (Ballance), the respondents, propose to construct a hydrogen plant at Kapuni, Taranaki. The hydrogen produced will initially be used as feedstock for synthetic nitrogen (urea) fertiliser, at an existing production facility (the Ballance Plant) before transitioning over a five‑year period to supply hydrogen fuel for commercial and heavy transport (the Project).
A resource consent for the Project was granted under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (the FTCA) by an expert consenting panel (the Panel) established under the FTCA (the Decision). The intended transition to supplying hydrogen fuel for commercial and heavy transport was the key reason the consent was granted. That is because hydrogen used in that way may help to reduce greenhouse gas emissions associated with road transport. However, urea fertiliser can be harmful to the environment. The conditions of the consent required the respondents to report on progress in achieving the transition from its use for urea fertiliser to hydrogen fuel.
The decision of an expert consenting panel under the FTCA may be appealed to the High Court on a question of law.[1] Te Korowai o Ngāruahine Trust (Te Korowai), supported by four hapū (Ngā Hapū), appealed the Decision to the High Court.[2] Te Korowai is the mandated post-settlement governance entity and representative body for Ngāruahine iwi. Ngāruahine iwi includes the hapū with mana whenua over the land on which the Project is sited. Te Korowai and Ngā Hapū’s principal concern was that infrastructure for the Project will include four wind turbines and these structures will impact the relationship of the hapū of Ngāruahine iwi to Taranaki Maunga by obstructing the visual and spiritual pathway to the Maunga from hapū marae. Te Korowai and Ngā Hapū contended that, in granting the consent, the Panel had failed to act in a manner consistent with the Treaty of Waitangi (the Treaty) as required by the FTCA.[3]
[1]COVID-19 Recovery (Fast-track Consenting) Act 2020 [FTCA], sch 6 cl 44(1) and (2).
[2]The Taranaki Māori Trust Board was also an interested party but did not take an active part in the appeal in the High Court. We have recorded the hapū groups in the intituling as they appear in the notice of appearance for Ngā Hapū in this Court. However we note that, without explanation, Kānihi-Umutahi hapū is included in place of Tamaahuroa-Titahi hapū in Ngā Hapū’s submissions.
[3]FTCA, s 6.
Greenpeace Aotearoa Inc (Greenpeace) was also an interested party in the High Court appeal.[4] Its primary concern related to the proposed transition from the use of hydrogen for fertiliser to its intended use as fuel for commercial and heavy road transport. It considered the Panel failed to include any condition requiring the transition to actually occur and that this was an error of law. It also supported the appeal by Te Korowai.
[4]Schedule 6 cls 44(1), 45(6) and 45(8). Under the regime, parties who were invited to comment are served with an appeal and become a party to the appeal if they file a notice of intention to appear. Ngā Hapū and Greenpeace became parties to the appeal through these procedures.
In the High Court Grice J dismissed the appeal.[5] The FTCA also provided a final right of appeal to this Court.[6] Greenpeace now appeals the High Court decision to this Court. Ngā Hapū are parties to this appeal. Te Korowai abides this Court’s decision.
[5]Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810, (2022) 24 ELRNZ 269 [High Court judgment].
[6]FTCA, sch 6 cl 44(3).
On this appeal, Greenpeace contends that the Panel failed to include any condition requiring the transition to actually occur and this:
(a)was an error of law, or alternatively, meant that the Panel erred in assessing the environment effects of the Project on the basis that the transition would occur;
(b)meant that the issue of transition was left to be addressed by the South Taranaki District Council and this was an unlawful abdication of its decision-making function under the FTCA; and
(c)failed to actively protect Māori interests because it left a crucial decision about the Project to be made by a decision-maker who, unlike the Panel, was not required to act consistently with the principles of the Treaty.
Ngā Hapū contends that the Decision was unlawful because it was not consistent with the principles of the Treaty.[7] They say that:
(a)the Crown is under an obligation to protect taonga of great spiritual and physical importance to Māori;
(b)Taranaki Maunga and Ngā Hapū’s tikanga-based relationship with the Maunga is a taonga;
(c)because of the unmitigated adverse spiritual and cultural harm to that connection from the Project, the Decision is inconsistent with the Treaty principle of active protection;
(d)there were no exceptional circumstances to displace this inconsistency; and
(e)this meant the Panel was required to decline consent to the Project or at least to consider properly whether there was an alternative site for the turbines that would not impact on the spiritual and physical relationship of Ngā Hapū with Taranaki Maunga.
[7]Greenpeace supports Ngā Hapū’s appeal on these grounds.
We have concluded that the appeal must be dismissed. In summary this is because:
(a)The Project was not referred to the Panel because it would certainly make a successful transition to utilising the hydrogen for transportation. It was referred to the Panel in part because, if the intended transition to hydrogen fuel was successful, it would assist New Zealand’s efforts to mitigate climate change and transition to a low-emissions economy more quickly. The conditions of the consent reflected this intention but did not require a successful transition because that could not be assured. The conditions of the consent properly matched the justification for the Project’s referral to the Panel.
(b)The Decision was consistent with the principles of the Treaty. The principle of active protection of taonga did not require the Panel to find that any structure placed on the landscape in front of the Maunga was inconsistent with the principles of the Treaty. This principle, as with other Treaty principles, falls under the overarching principle of partnership. Where adverse effects on Māori spiritual or cultural values can be offset with mitigating measures, that may be sufficient to discharge the duty of active protection in some circumstances. In this case the circumstances included that the position of hapū were not consistent nor aligned. Ngāti Manuhiakai, the hapū most affected by the proposed location of the turbines, supported the Project. This was evidence that, with appropriate mitigating measures, the Project was consistent with the duty of active protection and the overarching principle of partnership. It was open to the Panel to conclude that, with appropriate conditions, the Project was consistent with the principles of the Treaty.
We set out below our reasons for the conclusions we have reached. We begin by discussing the FTCA regime and the respondents’ application for a consent under the FTCA (the Application). We then discuss the Decision and the High Court judgment as it relates to Greenpeace’s grounds of appeal and our assessment of those grounds. We then discuss the Decision as it relates to Ngā Hapū’s grounds of appeal and our assessment of those grounds.

FTCA

The FTCA was enacted in the context of the COVID-19 pandemic.[8] Its purpose was set out in s 4 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.
[8]The legislation was repealed on 8 July 2023 by its sunset clause. See FTCA, s 3(1).
Section 6 of the FTCA was the Treaty clause. It provided:
6        Treaty of Waitangi
In achieving the purpose of this Act, all persons performing functions and exercising powers under it must act in a manner that is consistent with—
(a)       the principles of the Treaty of Waitangi; and
(b)       Treaty settlements.
The FTCA sought to achieve its purpose by providing for certain resource consent applications to be determined on a fast-track basis by an expert consenting panel appointed to consider the application. Schedule 6 of the FTCA applied to applications made under the FTCA in place of the Resource Management Act 1991 (the RMA) process for resource consent applications.[9] A consent granted under the FTCA had the same force and effect for its duration, and according to its terms and conditions, as if it were granted under the RMA.[10] Except as otherwise provided in the FTCA, the RMA applied.[11]
[9]Section 12(2)(a).
[10]Section 12(2)(b).
[11]Section 12(10).
Resource consent applications qualified for the fast-track process as either a “listed project” or “referred project”.[12] Listed projects were itemised in sch 2 of the FTCA. Referred projects were projects that were referred to an expert consenting panel, either on the joint decision of the Minister for the Environment and the Minister of Conservation where the project would occur in the coastal marine area,[13] or on the decision of the Minister for the Environment alone in any other case.[14] The Project was a referred project of the latter kind.
[12]Section 14(a) and (b).
[13]Section 16(1)(a).
[14]Section 16(1)(b).
To be referred, the Minister (or Ministers) had to be satisfied that the project would “help to achieve the purpose of [the FTCA]” amongst other things.[15] If the Minister decided to refer a project to an expert panel, the Minister was required to recommend that a referral order be made by Order in Council.[16] The Minister was also to send to the Environmental Protection Agency (the EPA) and the panel convenor all information received that relates to the matter.[17] The EPA provided the application to the expert panel appointed to determine it.[18] Up to four persons could be appointed to an expert panel.[19] One person was to be nominated by the relevant local authorities and one person must be nominated by the relevant iwi authorities.[20] The chairperson was required to be a judge or retired judge or, if the circumstances required, a suitably qualified lawyer with experience in resource management law.[21] Collectively the panel was required to have resource management knowledge, skills and expertise; technical expertise relevant to the project; and expertise in tikanga Māori and mātauranga Māori.[22]
[15]Section 18(2). In considering whether a project would help to achieve the purpose of the FTCA, the Minister could have regard to various specified matters set out in s 19 and these were assessed at whatever level of detail the Minister considered appropriate.
[16]Section 27.
[17]Section 26(2)(b). The function of a panel convenor was to appoint the members of expert consenting panels: see sch 5 cl 2(5).
[18]Schedule 6 cl 3(2).
[19]Schedule 5 cl 3(1).
[20]Schedule 5 cl 3(2).
[21]Schedule 5 cl 4(1) and (3).
[22]Schedule 5 cl 7(1).
No public or limited notification of applications was permitted.[23] However, the expert panel was required to invite written comments on applications from specified persons or groups.[24] The specified persons or groups for a referred project included the relevant iwi authorities and Greenpeace.[25] Iwi authorities invited to comment could share the consent application with hapū whose rohe was in the project area and could choose to include comments from those hapū with its comments to the expert panel.[26]
[23]Schedule 6 cl 17(1).
[24]Schedule 6 cl 17(4) and (6).
[25]Schedule 6 cl 17(6)(b) and (o).
[26]Schedule 6 cl 18(3).
There was no requirement to hold a hearing under the fast-track process. This was set out in cl 20 of sch 6 as follows:
20 Hearing not required
There is no requirement for a panel to hold a hearing in respect of a consent application or notice of requirement and no person has a right to be heard by a panel.
If a hearing was held, the procedure for the hearing was set out in cl 21 of sch 6 as follows:
21 Procedure if hearing is held
Who may appear and be heard
(1) If, in its discretion, a panel considers it is appropriate to hold a hearing, it may hear from—
(a) the applicant; and
(b) any person commissioned by the panel to write a report on the relevant consent application or notice of requirement; and
(c) any person or group that provided comments in response to an invitation given under clause 17(2).
(2) If a person or group that provided comments is heard, a panel must give the consent applicant or requiring authority the opportunity to be heard.
…
Clause 21 of sch 6 went on to provide notice and timing requirements for hearings as well as other provisions for the conduct of hearings.[27] There were tight timeframes for all steps in the fast-track process, beginning from the lodgement of the application with the EPA. The timeframes are summarised in the following diagram:
[27]Schedule 6 cl 21(3)–(15).
As this diagram shows, expert panels were required to issue decisions on referred projects within 25 working days of the date for receiving comments, but this could be extended or varied by the referral order.[28] An extension could be for the period specified in the referral order or, if the referral order was silent on the matter, up to a further 25 working days.[29]
[28]Schedule 6 cl 37(2)(b) and (3)(b).
[29]Schedule 6 cl 37(3)(b).
Timeliness was an element of the procedural principles in s 10 of the FTCA as follows:
10 Procedural principles
(1)Every person performing functions and exercising powers under this Act must take all practicable steps to use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions, duties, or powers being performed or exercised.
…
Clause 31 of sch 6 set out the matters that the expert panel was required to or could have regard to when considering referred projects. The factors in cl 31(1) that the expert panel was required to consider were subject to the purpose and principles of the RMA (in pt 2) as well as the purpose of the FTCA (in s 4). Most relevantly for present purposes, cl 31 provided:[30]
[30]The documents listed in cl 29(2) of sch 6 are: a national environmental standard, other regulations made under the RMA, a national policy statement, a New Zealand coastal policy statement, a regional or proposed regional policy statement, a plan or proposed plan, and a planning document recognised by a relevant iwi authority and lodged with a local authority.
31 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.
(2) In respect of the matters listed under subclause (1), a panel must apply section 6 of this Act (Treaty of Waitangi) instead of section 8 of the Resource Management Act 1991 (Treaty of Waitangi).
…
Other matters relevant to decisions
(7) A panel may grant a resource consent on the basis that the activity concerned is a controlled, restricted discretionary, discretionary, or non-complying activity, regardless of what type of activity the application was expressed to be for.
(8) A panel may decline a consent application on the ground that the information provided by the consent applicant is inadequate to determine the application.
(9) In making an assessment on the adequacy of the information, a panel must have regard to whether any request made to the consent applicant for further information or reports resulted in further information or any report being made available.
(10) If a Treaty settlement imposes an obligation on a local authority or other decision maker when determining an application for a resource consent, a panel must comply with that obligation as if it were the local authority or other decision maker (see example relating to clause 29(4)).
(11) Subclause (10) is subject to clause 5 of Schedule 5 (conduct of hearings and other procedural matters in context of Treaty settlements).
(12) A panel must decline a consent application for a referred project if that is necessary to comply with section 6 (Treaty of Waitangi).
Clause 32 of sch 6 provided further relevant matters the expert panel was to consider as follows:[31]
32Further matters relevant to considering consent applications for referred projects
(1) Sections 104A to 104D, 105 to 107, and 138A(1), (2), (5), and (6) of the Resource Management Act 1991 apply to a panel’s consideration of a consent application for a referred project.
(2) The provisions referred to in subclause (1) apply with all necessary modifications, including that a reference to a consent authority must be read as a reference to a panel.
...
[31]The provisions of the Resource Management Act 1991 [RMA] referred to in sch 6 cl 32(1) of the FTCA relate to such matters as determining applications for controlled activities, and discretionary or non-complying activities amongst other things.
Clause 35 of sch 6 permitted an expert panel to grant a resource consent subject to “the conditions it consider[ed] appropriate” and the RMA provisions relating to conditions applied with “all necessary modifications”.[32]
[32]RMA, ss 108, 108A–112 and 220.

Clause 36 of sch 6 required the expert panel to provide draft conditions for comment as follows:
36Panel to provide copies of draft conditions
(1) Before a panel grants a resource consent or confirms or modifies a designation, the panel must provide a copy of its draft conditions to the following, inviting comments on the draft conditions:
(a)the consent applicant or requiring authority; and
(b) every person or group that provided comments in response to an invitation given under clause 17(2).
(2) A panel must set a date by which any comments on the draft conditions must be received by the EPA.
(3) The EPA must, as soon as practicable after receiving comments under subclause(1), provide electronic copies of those comments to—
(a) the members of the panel; and
(b) the consent applicant or requiring authority; and
(c) every person or group that provided comments in response to an invitation given under clause 17(2).
(4) Sections 123 and 123A of the Resource Management Act 1991 apply to the duration of any resource consents granted by a panel.
(5) Before making its final decision on a consent application or notice of requirement, a panel must have regard to all comments received under subclause (1).
The expert panel was required to produce a written report of its decision.[33] As noted, the FTCA provided for appeal rights against panel decisions. An appeal on a question of law could be made by certain persons to the High Court.[34] This included any person who was permitted to and did comment on the application.[35] An appeal against a High Court decision could be made to the Court of Appeal, but that appeal was final.[36]
[33]FTCA, sch 6 cl 37(1)(b).
[34]Schedule 6 cl 44(1) and (2).
[35]Schedule 6 cl 44(1)(d).
[36]Schedule 6 cl 44(3).
The local authority that, but for the FTCA, would have had responsibility for granting a resource consent under the RMA had “all the functions, powers, and duties in relation to a resource consent granted under [the FTCA], as if it had granted the resource consent itself”.[37]

REFERRAL

[37]Schedule 6 cl 42(2)(a).

On 2 April 2021 the Governor-General, on the advice and consent of the Executive Council and the recommendation of the Minster for the Environment, referred the Project under the FTCA (the Order).[38] The Order described the scope of the Project as being “to construct, install, and operate a renewable hydrogen hub”.[39] The renewable hydrogen hub was described as comprising: four wind turbines and associated infrastructure; an electrolysis plant; hydrogen production infrastructure; hydrogen storage, loadout, and refuelling facilities; and underground electricity cables and associated buildings and structures.[40]
[38]COVID-19 Recovery (Fast-track Consenting) Referred Projects Amendment Order (No 3) 2021 [Amendment Order]. The Order in Council amended the COVID-19 Recovery (Fast-track Consenting) Referred Projects Order 2020 [Order]. The Amendment Order was made on the 29 March 2021 but did not come into force until 2 April 2021. The Amendment Order inserted schs 14 and 15 into the Order.
[39]Order, sch 14 cl 3(1).
[40]Schedule 14 cl 3(2).
The Order required the respondents to submit to the expert panel a range of further information in addition to that already required under the FTCA.[41] Relevantly, this included:
(a)a landscape and visual assessment, including photomontages showing the scale of the proposed wind turbines in relation to views of Taranaki Maunga;[42] and
(b)a cultural impact assessment prepared by or on behalf of the Taranaki Māori Trust Board as the collective representative of Ngā Iwi o Taranaki (or reasons given by the Taranaki Māori Trust Board for not providing that assessment).[43]
[41]Schedule 14 cl 6.
[42]Schedule 14 cl 6(a).
[43]Schedule 14 cl 6(b).
Before making the Order, comments were sought and received from the relevant Ministers, local authorities, energy sector participants, Te Korowai, Ngāti Tū and Ngāti Manuhiaki (two of the six hapū of Ngāruahine).[44] The Order specified parties from whom the expert panel was to invite comments, in addition to those specified in the FTCA. They included the six Ngāruahine hapū, as well as Te Rūnanga o Ngāti Ruanui Trust and the Taranaki Māori Trust Board.
[44]This is discussed at [107]–[109].
The Project was referred for the following reasons:[45]
• the project will help to achieve the purpose of the Act; and
• the project offers the opportunity to create an average of 40 full‑time‑equivalent jobs, over an 18‑month period, in engineering, design, and construction; and
• the project provides infrastructure that will contribute to improving economic and employment outcomes; and
• the project is likely to help to improve environmental outcomes for air quality and assist New Zealand’s efforts to mitigate climate change and transition more quickly to a low-emissions economy (subject to a successful future transition to the use of green hydrogen as a fuel in the transport sector); and
• the project will progress faster than would otherwise be the case under the Resource Management Act 1991 standard processes; and
• any adverse effects arising from the activities occurring in the project, and potential mitigation measures, can be tested by an expert consenting panel, having regard to Part 2 of the Resource Management Act 1991 and the purpose of the Act.
[45]Order, sch 14.
Following the Order, the Panel was established to consider the Application from the respondents for a resource consent under the FTCA.[46]

APPLICATION

[46]The Panel was comprised of Richard Fowler KC as chair, Sheena Tepania (nominated by Te Korowai), Robert Northcote (nominated by South Taranaki District Council) and Justine Inns (a barrister and solicitor with resource management expertise).

The Application was described as being to “establish a renewable wind energy facility with associated hydrogen production, storage, offtake and refuelling infrastructure”.
Hiringa was described as the first company in New Zealand dedicated to the supply of “green” hydrogen for industrial, public and transport sector use.[47] Ballance was described as a New Zealand farmer-owned cooperative providing agricultural products and services. The Application said Ballance’s production facility at Kapuni was one of the largest employers in South Taranaki and it used “natural gas to produce ammonia and urea, the majority of which becomes fertiliser for pasture”.
[47]Green hydrogen refers to hydrogen produced from renewable energy rather than from diesel, petrol or gas.
The Application explained that Hiringa and Ballance had entered into an agreement to build facilities at Kapuni that used “wind-powered electricity generation to produce green hydrogen and baseload renewable electricity for the Ballance Plant”.
The purpose of the Project was described as being:
[T]o develop an industrial-scale low emissions energy facility which produces commercially sustainable green hydrogen to be used for industrial and transport applications to enable decarbonisation of industry and assist with New Zealand’s transition to a low emissions economy.
The respondents described their objective as being:
[T]o both demonstrate New Zealand’s capability in the de-carbonisation of the heavy industry and heavy transport sectors and to also provide infrastructure that will improve economic, employment and environmental outcomes.
The Application set out the reasons the Project was referred.[48] It explained that the hydrogen from the Project would be used to decarbonise the heavy transportation sector and thereby replace the “highest emitting vehicles with [a] zero emissions” solution. It explained that, outside the scope of the Application but related to it, Hiringa was developing a “hydrogen transport refuelling infrastructure network in New Zealand”, allowing low-cost hydrogen produced from the Project to establish a commercially-viable heavy transport hydrogen network.
[48]See [30] above quoting sch 14 of the Order, which sets out the reasons.
The Project site included the wind turbine site, the Ballance Plant, and land (private land and/or road reserve) between the wind turbine site and the Ballance Plant in which electricity infrastructure to convey electricity between the wind turbine site and the Ballance Plant would be established.
The Application provided the following project schematic:
The respondents explained that the green hydrogen would be consumed in three ways:
Fed back into the plant for use in ammonia production:
The purpose of the Ballance Plant is to produce ammonia for urea. The resulting green hydrogen will be used by the plant and combined with atmospheric nitrogen to produce urea. Green hydrogen generated will produce up to 7000 tonnes of urea per year.
Utilised as a fuel supply for heavy transport refuelling:
The green hydrogen produced will also provide fuel for the transport sector and support the development of a green hydrogen energy and transport hub for South Taranaki. As the hydrogen-powered transport market develops over time, green hydrogen will be diverted to the transport market and green urea production will be reduced. The proposal has the capacity to generate 2000 kg of green hydrogen per day, enough to supply up to 6,000 cars, or 50 heavy vehicles per day though initially, the proposal is to begin refuelling up to 25 heavy vehicles per day. Additional green hydrogen generation can be added as markets develop and demand requires.
Exported from the site:
Green hydrogen storage and loadout facilities will be constructed on the site to service offtake via (Multi Element Gas Containers – MEGCs). MEGCs will be utilised for delivery of green hydrogen to other refuelling stations within the national network which do not produce green hydrogen onsite, or as supplementary supply.
The Application explained that:
(a)There would be four wind turbines, each 125 m tall with three blades 79 m in length attached to a central hub, giving a total maximum height of 206 m.
(b)The wind turbines could generate about 24–25 MW of electricity, of which the first 4.3 MW would be used to power the Ballance Plant, the next tranche would be used for the hydrogen electrolyser (which had a maximum consumption of about five MW) and, if enough electricity was generated after these two uses, the remainder would be exported to the grid. Further, if the grid demand was high, it might be exported to the grid in preference to hydrogen production from time to time.
(c)The wind turbines had a design life of 25 years and a possible useful life of a further 10 years. Te Korowai had requested that the turbines be removed at the end of their useful life (35 years) and the foundations covered over with soil and replanted into pasture. Hiringa had agreed to volunteer a condition to this effect.
The Application went on to say:
Green hydrogen production is planned to transition from 100% urea to the transport market over a 5 year period as the fuel cell electric vehicles market increases, with the intention to increase electrolysis capacity once green urea production falls below a minimum threshold.
The Application contained a discussion of the improved environmental outcomes from the Project:
Assessment: The Project will improve environmental outcomes for air quality by actively lowering the level of emissions generated from combustion of natural gas and petrol or diesel through the provision of a renewable energy source and clean-burning hydrogen as a feedstock for the Ballance Plant and displacing diesel trucks operating in the area by providing for hydrogen refuelling facilities.
The manufacture of ammonia-urea from green hydrogen will offset up to 12,000 tonnes of greenhouse gas emissions and avoid the import (and associated emissions) of up to 7,000 tonnes of urea from the Middle East and Asia. Production of urea from green hydrogen would eliminate the equivalent amount of CO2 as taking 2,600 cars off the road. The energy used to power the plant may provide up to an additional 20,000 tonnes per annum of CO2 reduction. The Project may also serve as a catalyst for further decarbonisation of the agri-nutrients sector.
In 2018 New Zealand’s gross greenhouse gas emissions were mainly made up of carbon dioxide (44.5 percent), methane (43.5 percent), and nitrous oxide (9.6 percent). Carbon dioxide emissions were mainly produced by transport (47.0 percent), manufacturing industries and construction (17.9 percent), and public electricity and heat production (9.4 percent) … Transport emissions were mainly made up by road vehicle emissions (90.7 percent). The Project will provide a zero-emissions fuel source for heavy transport and serve as a catalyst for decarbonisation of that sector.
Pollutants from fossil-fuel vehicles (particularly those that run on diesel) are associated with respiratory illnesses such as asthma, impaired lung development and function, heart and brain problems, and other general health issues. A shift to a low-emissions heavy vehicle fleet would assist to remove these pollutants, provide cleaner air, and reduced rates of illness and mortality caused by air pollution.
Increasing the capacity of renewable electricity generation in New Zealand will also lead to a decentralised power network. This, too, could have potential positive benefits for air quality by displacing carbon-intense fuels with clean, emissions-free local generation.
In other words the environmental benefits of the Project were seen as being:
(a)generating green hydrogen (that is, hydrogen produced from renewable electricity generation) to:
(i)replace hydrogen produced from natural gas, diesel and petrol as a feedstock for the Ballance Plant with green hydrogen, thereby enabling the manufacture of ammonia-urea that would replace the importation of 7,000 tonnes of urea from the Middle East and Asia, and reducing emissions;
(ii)provide a zero-emissions fuel source alternative to fossil fuels for heavy vehicles, contributing to the decarbonisation of the fossil fuel transport fleet; and
(b)increasing New Zealand’s renewable electricity generation capacity.
The benefits of green hydrogen both for locally produced urea and for the heavy transport sector were also discussed under the heading “[c]ontributing to New Zealand’s efforts to mitigate climate change; and transition more quickly to a low-emissions economy”, where the Application stated:
Assessment: At a national level, green hydrogen is … key to the decarbonisation of commercial and heavy transport, agricultural and industrial chemical production, process heat, and energy storage. These sectors have significant potential to accelerate New Zealand’s transition to a low emission economy while increasing energy resilience and replacing imports with sustainable regionally produced products. The Project is a tangible example that touches on all those sectors by leveraging the existing infrastructure to deploy green hydrogen production at commercial scale. The additional urea production offsets imported urea with locally produced urea, which typically has higher emissions due to production from coal and ocean transport. As production is diverted to the transport market it offsets fossil fuel imports with locally produced green hydrogen for transport.
A key challenge with establishing a hydrogen network in New Zealand is the need for the transportation demand to match generation or supply capacity. The Project will enhance the Crown Infrastructure Partners (CIP) funded hydrogen supply infrastructure project which is targeting the establishment of nation-wide refuelling infrastructure with green fuels generated within New Zealand. It will do this by providing flexible renewable hydrogen production at scale, that can be diverted to a growing transport market.
Hydrogen from the Project will be used to decarbonise the heavy transport sector. Heavy vehicles produce grossly disproportionate emissions with large line haul trucks generating over 100 times the emission of an average light vehicle. This Project will enable commercially viable hydrogen production to [replace] the highest emitting vehicles with zero emission solutions to accelerate transitions to a low emission economy.
These benefits, as well as those from increased renewable energy generation capacity and employment were discussed under the heading “[s]trengthening environmental, economic, and social resilience” as follows:
Assessment: As previously discussed, the Project will increase renewable energy generation for industry and provide a commercial demonstration of coupling wind generation to green hydrogen via electrolysis in New Zealand. By diversifying electricity production through adding another renewable contributor to the region and country, energy resilience is improved; wind generation can fill gaps in generation when hydro lakes are low or the sun does not shine.
The Project creates the basis for a hydrogen transport hub for green hydrogen at Kapuni, aiding in the transition from fossil fuels for the transportation sector and providing a diversified supply of fuel.
Potential associated effects of climate change and the reducing supply of fossil fuels may see more stringent policies and pricing for petrol and diesel, with potential shortages or with supplies being uneconomic. Providing a catalyst for [the] uptake of hydrogen powered heavy vehicles will enable transportation fuel to be generated from New Zealand renewable energy and reduce dependence on imported fossil fuels making New Zealand more economically resilient.
The Project will reduce reliance on imported urea through the direct additional production and the catalyst for establishment of a larger green hydrogen and urea project.
…
The plant relies on natural gas for its feedstock so the project represents a way to future-proof a large employer and improve the plant’s long term economic and environmental outcomes, but also a way to provide a tangible example of a just transition for the region. It will create and support new opportunities, new jobs, new skills and new investments that will emerge from the transition. The Project provides an opportunity to leverage Ballance Plant as a facility, the existing oil and gas infrastructure associated with it, and the proposed new wind and hydrogen facilities and infrastructure. Altogether this future-proofs Ballance and their suppliers as existing employers and generates opportunities for new and continued employment in terms of design, construction, operations and maintenance jobs. These employment opportunities strengthen Taranaki and New Zealand’s social resilience.
The benefits of green hydrogen for producing fertiliser from urea were further discussed under the heading “[o]ther benefits” as follows:
The Project enables the Ballance Plant to manufacture agricultural fertilisers from urea that will have a low emissions profile as compared to that currently being manufactured with a reliance on fossil fuels. This is an opportunity to enhance Ballance’s programs for best environmental practice in farm, land and waterway management with regard to the responsible use of products. Low emissions fertiliser therefore offers a product for farmers who are seeking recognition in environmental best practice. Use of this urea reduces New Zealand’s dependence on fertiliser imports (particularly from less emission‑efficient areas of the world). It is also an opportunity to raise farmer awareness of their complete carbon footprint and best practices. All of these factors contribute overall to a more sustainable pathway for fertiliser use in agriculture.

GREENPEACE’S APPEAL

Introduction

Greenpeace is concerned about the climate and environmental effects of urea. It unsuccessfully opposed the Project before the Panel on that basis. It then supported Te Korowai’s High Court appeal on the basis that the Panel had failed to impose conditions that ensured that the transition to utilising the hydrogen as fuel for heavy transport would take place and had not properly considered the environmental effects of urea. Those matters are again raised in this Court.
We first discuss Greenpeace’s submissions to the Panel, the Panel’s consideration of those submissions in the Decision, and the reasons why the High Court rejected Greenpeace’s appeal, before discussing the appeal to this Court.[49]

Submission to Panel

[49]We discuss iwi and hapū concerns with the Project, the Panel’s approach and the reasons why the High Court dismissed Te Korowai and Ngā Hapū’s appeal below at [104]–[173].

As noted above, Greenpeace was a specified party which was to be invited to comment on the Project.[50] In a joint submission with the Environmental Defence Society Inc (the EDS) and Royal Forest and Bird Protection Society of New Zealand Inc | Te Reo o te Taiao (Forest and Bird), Greenpeace submitted that the Application should be declined on the grounds that the Project’s primary purpose was the production of urea that would worsen outcomes nationally for the climate, environment, coastal and freshwater quality, air quality, indigenous biodiversity, and the well-being of current and future generations.[51] Greenpeace submitted this would also undermine New Zealand’s efforts to mitigate climate change and transition more quickly to a low-emissions economy. It submitted that the Project would therefore have significant adverse environmental effects, including greenhouse gas emissions.
[50]FTCA, sch 6 cl 17(6)(o).
[51]The EDS and Forest and Bird were two other specified parties invited to comment.
Greenpeace acknowledged that “green hydrogen [was] a possible solution for reducing greenhouse gas emissions and air pollution”, but noted that for the first five years the hydrogen would not be used for anything other than feedstock for the production of urea. It did not support this use to produce urea nor any other synthetic nitrogen fertiliser. Greenpeace submitted that: the use of synthetic nitrogen fertiliser was a climate pollutant because it emitted nitrous oxide and carbon dioxide when applied to land (direct emissions) and it was a key enabler of the intensification of agriculture, in particular intensive dairying, which was the single largest source of greenhouse gas emissions in New Zealand (indirect emissions); and it was also a water pollutant. Greenpeace submitted that the use of nitrogen fertiliser should be phased out rather than enabled, and that it was not clear from the Application whether the additional 7,000 tonnes of urea produced by the Project would result in any change in urea consumption.

The Decision

Process

The Decision was issued on 1 December 2021. In the period prior to issuing the Decision, the Panel was operating subject to the COVID-19 restrictions.[52]
[52]The Panel was appointed 15 September 2021. Taranaki was in Alert Level 2 from 7 September 2021 and Auckland did not move to Alert Level 2 until 2 December 2021.
The Panel decided a hearing was not required. The members conducted a site visit,[53] and meetings occurred by Zoom. The Panel invited and received comments from relevant specified parties. It sought and received from the respondents a further detailed assessment of the landscape and visual effects on four marae. It developed a draft set of conditions based in part on those provided as part of the Application. It provided and received comments on those draft conditions from the respondents, the South Taranaki District Council and others.

Project

[53]Initially three members visited the site on 7 October 2021. The fourth member was prevented from attending due to the COVID-19 alert level rules in Auckland but subsequently made the same site visit in November 2021.

The Panel discussed the scope and purpose of the Project. It noted that its purpose was to develop an industrial-scale low-emissions energy facility to produce commercially sustainable green hydrogen to be used for industrial and transport applications to enable de-carbonisation of the industry and to assist with New Zealand’s transition to a low-emissions economy.
The Panel also referred to the risk of job losses in Taranaki (and in particular South Taranaki) due to the Government announcement in April 2018 that no new offshore petroleum exploration permits would be granted. It noted that Methanex New Zealand Ltd, one of Taranaki’s largest employers and making up 10 per cent of the local economy, had confirmed that 75 jobs would be lost from the closure of one of its plants. The Panel also noted that the Project offered the opportunity to create an average of 40 full-time equivalent jobs over an 18-month period in engineering, design and construction.

Applicable consents required and planning instruments

The Panel discussed the consents that the Project needed:
(a)for the replacement of a culvert within the tributary of the Waiokura Stream (relating to the wind turbine site) — this was a discretionary activity under the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 and the Regional Freshwater Plan for Taranaki;
(b)for the disturbance of soil in relation to the Ballance Plant site — this was a discretionary activity under the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011;
(c)for the wind turbine site — this was a discretionary activity under the South Taranaki District Plan because it did not meet the definition of “small scale renewable energy generation”;
(d)for the location and size of the Ballance Plant buildings and the width of the vehicle crossings — these were discretionary activities under the South Taranaki District Plan;
(e)for earthwork volumes exceeding permitted volumes and potentially being undertaken in the winter period in relation to the cable route between the wind turbine site and the Ballance Plant — these were controlled activities under the Regional Freshwater Plan for Taranaki; and
(f)for ground water potentially taken from excavations and discharged after treatment to land or water surface if the dewatering of the turbine foundations if required — this was a discretionary or a controlled activity (depending on the volume) under the Regional Freshwater Plan for Taranaki.

Evaluation of effects

The Panel evaluated the potential environment effects. It began with a discussion under the heading “[e]nd use of urea”. It noted that Greenpeace, the EDS and Forest and Bird had asserted the “continuing production of urea at the Ballance Plant” was a potential adverse effect.
The Panel noted that 607,000 tonnes of urea were used in New Zealand in 2019 and the Ballance Plant currently produced 265,000 tonnes of urea annually. As the Ballance Plant was the only ammonia manufacturing plant in New Zealand, it seemed that 56 per cent of the urea used in New Zealand was imported and the annual production of 7,000 tonnes generated from the Project would amount to only 1.15 per cent of the total urea used in New Zealand. Further, the resource consents from the Taranaki Regional Council associated with Ballance’s existing urea production for water take and discharges will expire in 2035.
The Panel went on to say:
61. Critically, the proposal is that over a five-year period the utilisation of green hydrogen will transition from 100% urea production (i.e. 7,000 tonnes per year) to entire use for fuel cells as the electric fleet is expected to increase.
62.In the view of the Panel, taking into account the very small fraction of the annual tonnage that would be immediately attributable to production from green hydrogen, and then the intended transition, there is a danger that to disenable this proposal on the basis of the urea production end use would be to throw the baby out with the bathwater vis-à-vis the much more ambitious and significant greenhouse gasses / climate change reductions that will be achieved through the increasing use of hydrogen fuel in heavy transport. We therefore do not consider this is a reason to deny the availability of fast-track consenting, or to decline consent itself. However, it has some relevance to the process of transition.
Immediately following this discussion, the Panel said:
63.Turning then to the effects that ought to be evaluated in this application, the Assessment of Environmental Effects identified the following actual or potential effects:
The Panel then went to discuss each of these identified effects as follows:
(a)Landscape and visual effects: the Panel discussed the visual impact of the four turbines in some detail. It concluded that the turbines could be successfully accommodated without significant adverse landscape and visual effects with appropriate conditions for the relatively small number of properties that were more directly adversely affected. The Panel noted that this did not address the adverse effect on landscape character for iwi for whom the connection with the Maunga and its influence on the wider landscape held special value. This was to be addressed in its discussion on adverse cultural effects.[54] Shadow flicker effects were addressed by conditions that referred to established international guidelines. There were no discernible adverse effects on rural character or amenity, aside from the visual effects.
(b)Ecology: the Panel concluded that the turbines did not pose a risk of collision to bats or migrating birds and conditions provided for a lizard survey and, if necessary, a lizard management plan, as recommended by the Department of Conservation. The Panel further accepted that, with appropriate mitigation steps, there would be no or minimal adverse effects on freshwater ecology.
(c)Noise: the Panel concluded that there would be nil or minimal adverse noise effects either during construction or during operation at the sites.
(d)Traffic and transport effects: the Panel concluded traffic and transport effects were limited to effects during construction and these were addressed through conditions. Following construction there were no effects of “any particular moment” other than the benefits arising from the decarbonisation of the transport industry.
(e)Hazards: the Panel noted that the modelling showed that the risk of release from underground piping was minimal and the risk of explosion could be managed to be as low as reasonably practicable. The Panel considered that the proposed works did not add any new hazard to the Ballance Plant since it already manufactured hydrogen from natural gas in significantly higher quantities than would be produced by the Project. The Panel considered that adverse effects from natural hazards, while always possible if they occurred on a biblical scale, otherwise appeared to be low.
(f)Historic heritage: the Panel considered the likelihood of recovering in‑situ archaeological evidence was low and an archaeological discovery protocol was to be added as a condition.
[54]See below at [107]–[164] for the relevant information as to the adverse cultural effects.
Effects on sites of significance to Māori and on cultural values were further actual or potential adverse effects identified and discussed in the “Assessment of Environmental Effects” section. We discuss the Panel’s views in relation to those effects in the section in this judgment on Ngā Hapū’s appeal grounds.[55]

Relevant policy statements in planning instruments

[55]The Panel’s conclusions on this matter are summarised below at [157]–[164].

The Panel assessed the Project against relevant policy statements in planning instruments. It considered that the Project was a comfortable fit with some relevant objectives or was consistent with them. The only issues related to the Taranaki Maunga and its cultural and spiritual significance to iwi and tangata whenua. As noted, those matters are discussed below in the section in this judgment about Ngā Hapū’s grounds of appeal.

Conditions

The Panel then referred to having further developed the conditions, with reference to the comments it had received. It listed the subjects that the conditions covered. Beyond this, the only condition it discussed was the “[c]ondition relating to urea transition”. The Panel noted the existing urea production was a permitted baseline and that consideration of the end-use was legally uncertain:
Condition relating to urea transition
236.The Panel recognises that the current urea production is a lawful activity utilising existing resource consents that do not expire until 2035. As such, if nothing else happens, that would be part of the permitted baseline and, as pointed out earlier, it is far from clear as a matter of law that consideration of the potentially adverse effects of an end use product in these particular circumstances is open to the Panel.
The Panel, however, noted that the transition was an important part of the Project, and a justification for its fast-tracking:
237.However, what is more relevant here is that this project is said to be justified for fast-track consenting, and that is squarely premised on the transition to utilisation of hydrogen in the heavy transport industry (and see FTCA Schedule 6 clause 31(1)(b)). Indeed at 4.4 of the Assessment of Environmental Effects it is explicitly said:
“Green hydrogen production is planned to transition from 100% urea to the transport market over a 5 year period as the fuel cell electric vehicles market increases, with the intention to increase electrolysis capacity once green urea production falls below a minimum threshold.”
238.Absent that transition (i.e. if the proposal were simply to continue producing urea) it is difficult to see how the fast-track consenting could be justified. The proposal may or may not have succeeded as an ordinary application under the Resource Management Act. Therefore, given the reliance on transition to justify fast-tracking, it is appropriate to ensure that any consent matches that justification, and is reflected in the appropriate conditions.
239.The applicants raised a concern that part of the condition proposed by the Panel introduced an element of uncertainty to the project by enabling the South Taranaki District Council to impose fresh conditions if transition was rendered difficult in the prevailing market conditions. The Panel has reviewed this, but does not consider the condition required further amendment. As currently framed, it will be open to the consent holder to refer [to] the market conditions in exchanges with the Council in the review process as a factor it regards as of significance to any consideration of further conditions.
As relevant to Greenpeace’s appeal the conditions on which the resource consent was granted included the following:
GENERAL
(1)The construction, operation and maintenance of the Kapuni Green Hydrogen Project shall be undertaken in general accordance with the information provided in “Kapuni Green Hydrogen Project Resource Consent Application and Assessment of Environmental Effects” dated August 2021 and any other documentation relevant to the resource consent applications. In the event of any conflict or discrepancy between these documents and the conditions of this resource consent, the conditions shall be determinative.
…
TRANSITION FROM UREA PRODUCTION
(112)Over a five year period, on the dates specified below, the consent holder shall provide a written report to the South Taranaki District Council as to progress in achieving the transition of green hydrogen production from utilisation entirely for the purposes of urea production to utilisation in the transport market.
(113)The dates specified for the purposes of Condition 112:
(a) By 30 June 2023; and
(b) Each anniversary thereafter until 30 June 2028.
(114)Pursuant to s 128(1)(a)(iii) of the Resource Management Act 1991, the South Taranaki District Council may review this condition at any time after 30 June 2028 for the purpose of assessing progress of the transition referred to in Condition 112 above, and/or to propose new conditions to ensure that that transition progresses or continues.

Conclusion

The Panel set out its conclusion on the Application. It considered that the pt 2 principles of the RMA were of prime importance because the considerations in cl 31 of sch 6 of the FTCA were subject to pt 2. The Panel’s view was that the Application was “entirely consistent” with the pt 2 principles.
As to the considerations in cl 31 of sch 6, the Panel concluded that:
(a)with appropriate conditions, there were no disenabling actual or potential effects on the environment (sch 6, cl 31(1)(a));
(b)with appropriate conditions, there were measures to ensure that the positive actual and potential effects on the environment offset or compensated for any adverse effects from the activity (sch 6, cl 31(1)(b));
(c)the activities within the Project for which consents were necessary were discretionary activities at worst, while others were controlled or restricted discretionary activities where the ambit of the Panel’s discretion was limited, and with conditions the activities were not contrary to and were mostly consistent with the applicable planning instruments (sch 6, cl 31(1)(c));
(d)there were no other matters relevant and reasonably necessary to determine the Application (sch 6, cl 31(1(d)); and
(e)with conditions, granting consent was consistent with the Treaty and with relevant Treaty settlements (sch 6, cl 31(2)).
The Panel noted that, in reaching its conclusions, it had disregarded the adverse effects of any activity permitted by planning instruments and any effect on persons who gave their written approvals to the Application. It granted consent to the Project, subject to conditions, for a term of 35 years from the date of the grant.

High Court

Te Korowai, supported by Ngā Hapū and Greenpeace, appealed the Panel’s decision to the High Court. Greenpeace took the primary carriage of the grounds of appeal that related to environmental issues and Te Korowai and Ngāti Tū, one of the hapū within Ngā Hapū, took the primary carriage of the grounds that related to the Treaty and cultural matters.[56]
[56]As noted, we discuss the Treaty and cultural matters in relation to the hapū appeal below at [104]–[212].
On environmental issues, there were two main grounds of appeal. First, Greenpeace said that a critical reason for the Panel’s approval of the Project was the anticipated transition to use the hydrogen for fuel and yet, despite this, the conditions did not require that the transition occur within five years.[57] Secondly, Greenpeace said that the Panel had not properly considered the end use of urea as fertiliser and its harmful greenhouse gas and pollutant effects.[58]
[57]High Court judgment, above n 5, at [277].
[58]At [295].
On the first main ground of appeal, the Judge held that the Panel had made no error in finding the transition from the use of the hydrogen for urea to use for transport was a critical reason for approving the Project.[59]
[59]At [293].
As to the conditions directed to this transition, the Judge said:[60]
[285]    The resource consent application recorded that the intention was to complete a transition within five years. However, the exact timeframe was dependent on the growth of demand in the transport sector. This was recognised by the Panel in its reference to the “expected” increase in the electric fleet. The five-year period was not an absolute time limit.
[286]    In any emerging alternative technology, there will be some uncertainty particularly in the timeframe for implementation. The fact itself that hydrogen storage, loadout and refuelling facilities were part of the Project indicates a strong commitment by Hiringa to move to hydrogen use for transport.
[287]    Importantly, the conditions as framed ensure that the transition over five years will be monitored by the South Taranaki District Council, which has the ability to amend the conditions to progress the transition. The only purpose for which the local authority is able to review the condition is to ensure that that transition progresses or continues, and any condition imposed by the local authority under s 128(1) is to ensure the maintenance of the transition.
[60]Footnote omitted.

The Judge went on to note that the respondents had submitted that they were commercially incentivised to ensure the transition, but also that they did not have complete control over how quickly the hydrogen transport market developed.[61] The Judge noted that the respondents had therefore objected to conditions beyond reporting requirements but that the Panel had nonetheless refused to amend the conditions as requested.[62]
[61]At [290].
[62]At [290].
The Judge disagreed with a submission from Ngāti Tū that the conditions left it to the respondents to evaluate the speed of transition.[63] The Judge accepted that the transition clause did not impose a hard limit.[64] It allowed “some appropriate leeway”.[65] Importantly, however, the Judge considered that the Application referred to a five-year period and that the provisions of the Application that made reference to the transition were incorporated by reference through Condition 1 of the consent.[66] The Judge saw Condition 1 as requiring that there be a transition from “entirely” urea production to hydrogen use within five years.[67] In the Judge’s view, there was an appropriate mechanism to monitor that transition through the local authority’s review.[68]
[63]At [291].
[64]At [291].
[65]At [292].
[66]At [291].
[67]At [292].
[68]At [292].
The Judge summarised her conclusion on this ground at the end of the judgment:
[325] … Though the conditions imposed in this respect did not impose a “hard” requirement to ensure that the transition would occur within five years, I am satisfied the conditions imposed, as well as the evidence before the Panel itself, ensured that the transition would occur in a timely manner, relevant to the five-year timeframe, with appropriate review by the South Taranaki District Council. There was no unlawful delegation, nor were the transition conditions, which were certain and not unreasonable, ultra vires.
As to the second main ground of appeal, Greenpeace submitted that the Panel had not properly considered the end use of urea as fertiliser, and in particular the greenhouse emissions from fertiliser use on pasture on which sheep and cattle grazed, and the possibility the Project never transitioned to the production of hydrogen for fuel or was delayed.[69]
[69]At [295].
The Judge referred to the evidence before the Panel from the respondents that: the Project would not increase the use of urea in New Zealand; the use and rate of application of urea was subject to a range of regulatory and industry-based factors that were independent of the way urea is manufactured; and the Project would enable imported urea to be replaced with lower emission domestically produced urea.[70] The Judge found that it was open to the Panel to accept this evidence and to conclude that “the causal relationship between the activity and the indirect adverse effect would unlikely be altered by allowing or refusing the activity”.[71]
[70]At [309].
[71]At [311].
Greenpeace also submitted that, by failing to ensure a transition from use of the hydrogen for urea to use as fuel, Māori interests would be damaged through the contribution fertiliser made to the harmful effects of climate change and to water pollution.[72] The Panel was said to have acted inconsistently with the principles of the Treaty. The Judge said these end use effects were “well down the chain”.[73] The Judge was satisfied the Panel had considered these indirect effects and had held that they should not be given determinative weight in the circumstances.[74]
[72]At [312].
[73]At [313].
[74]At [314].
Overall, the Judge was satisfied that the Panel properly considered the end use of urea and related environmental effects and, in view of the urea transition conditions, was entitled on the evidence before it to not decline the Application on that basis.[75]

Submissions on this appeal

[75]At [315].

On appeal to this Court, Greenpeace again submits that the Panel erred by not imposing conditions that required the hydrogen use to transition from urea to fuel when that was the critical reason for the Panel’s decision to grant consent to the Project. It submits that, absent that transition, the Panel erred in its assessment of the environmental effects of the Project. Additionally, because it did not require a transition to occur, it unlawfully delegated its decision-making function under the FTCA to the South Taranaki District Council and failed in its duty to act consistently with the principles of the Treaty.

Discussion

We start with what the Panel decided in response to Greenpeace’s submissions that using the hydrogen as a feedstock for fertiliser had harmful environmental effects. On this topic, the Panel regarded the following considerations to be relevant:
(a)the urea produced from green hydrogen as a result of the Project would be a “very small fraction” of the annual tonnage of urea used in New Zealand;
(b)the Ballance Plant had resource consents from Taranaki Regional Council for water take and discharges associated with urea production that expired in 2035; and
(c)critically, the proposal was for a 100 per cent transition from urea to fuel over a five-year period as the electric fleet was expected to increase.
In light of these considerations, the Panel expressly did not reach a view on whether the use of the hydrogen to produce urea would have adverse environmental effects. This was for two reasons:
(a)it was not clear, as a matter of law, that it could do so given that urea production was already a lawful activity under existing resource consents that did not expire until 2035; and
(b)more relevantly, fast-track consenting was squarely premised on a transition to using the hydrogen as a fuel for heavy transport and would not have been justified if the Project was simply to continue providing urea.
The Panel considered it was appropriate to ensure that the consent matched the justification for fast-tracking and this be reflected in the appropriate conditions. In our view, this did not require the Panel to include a condition prohibiting the hydrogen produced from the Project from being used as a feedstock for fertiliser after a period of time, for example five years.
The Panel’s focus was not on potential adverse effects associated with urea. That was because, as it explained, the proposed urea production from hydrogen would be a very small percentage of all urea produced in New Zealand and, so far as urea produced at the Ballance Plant was concerned, it was already a lawful activity at least until 2035. The Project consent conditions were not the place to manage urea use that was part of permitted baselines. As the Panel can be expected to have known, urea is managed at a national level by a range of regulatory and industry-based controls.[76]
[76]That includes a cap introduced on the application of synthetic nitrogen fertiliser for land grazed by livestock. Any activity that exceeds the cap is deemed to be a non-complying activity and therefore requires a resource consent: see Resource Management (National Environmental Standards for Freshwater) Regulations 2020.
That is, the conditions were not intended to be and were not directed at prohibiting urea production. Rather, the Panel’s focus was to have conditions directed to the intended transition to utilisation of the hydrogen as a fuel for heavy transport for the benefits that could bring. We turn now to consider the effect of the conditions that the Panel did impose relating to this intended transition.
Condition 112 required the respondents to report as to progress in achieving the transition from utilising the green hydrogen for urea to utilising it in the transport market. This reporting is required “[o]ver a five year period, on the dates specified below”. It is a reporting requirement only. It assumes there will be a transition at some, unspecified, date, but does not require it.
Condition 113 sets out “specified” dates for the reporting required by Condition 112. We note that in fact Condition 113 requires reports over a six-year period, rather than the five-year time frame specified in Condition 112, and the last specified date under Condition 113 is 30 June 2028. Because Condition 112 does not require transition to have occurred within five years, the 30 June 2028 date only has the effect of enabling the South Taranaki District Council to be informed as to whether the intention of a transition within five years has in fact been achieved. If a transition has occurred, that will bring to an end the Council’s monitoring role.
Condition 114 is directed to the position after 30 June 2028. It enables the South Taranaki District Council to “review this condition at any time after 30 June 2028”. The review is pursuant to s 128(1)(a)(iii) of the RMA. That section permits a consent authority to serve notice of an intention to review the conditions of a resource consent for any purpose “specified in the consent”.[77] Condition 114 specifies that such a review may be for two purposes: (1) “assessing progress of the transition referred to in Condition 112”; and/or (2) “to propose new conditions to ensure that [the] transition progresses or continues”.
[77]RMA, s 128(1)(a)(iii). Sections 128–132 contain the relevant powers and procedural requirements to review and vary consents.
Condition 114 assumes, therefore, that a transition may not have occurred within five, or even six, years. It does not explicitly require the South Taranaki District Council to undertake any review after 30 June 2028. It provides only that it “may” review the Condition. The discretion would need to be exercised in light of the Condition’s purpose and the purpose of the consent as a whole. Given the Panel’s decision that a transition was the justification for a fast-track consent, and the Application advised that a transition was planned over a five-year period, we consider that there would need to be a good reason for not exercising the review power after 30 June 2028 if the transition had not occurred. Failure to exercise the s 128 power could be the subject of an application for review under the Judicial Review Procedure Act 2016.
The question then is what the Panel intended from any such review. As noted, Condition 114 provides two purposes. The first is to assess progress of the transition. It would be possible, in furtherance of this purpose, for the South Taranaki District Council, to require further progress reports on whether a transition is occurring. That could be with the purpose of determining whether a transition was still intended to occur and by when. If a transition was still intended, then the South Taranaki District Council might be sufficiently satisfied as to progress so as not to require any further action from it. Or it might use the review power for the second purpose in Condition 114, that is, to propose “new conditions to ensure that [the] transition progresses or continues”. That is a broadly constructed purpose that leaves some discretion to the Council.
Condition 114 does not, however, provide what is to happen if the respondents no longer intend to continue with the planned transition. It does not provide the South Taranaki District Council with the authority to cancel the consent.[78] The power in s 128(1)(a)(iii) of the RMA is instead a review power allowing a consent authority to consider changing the conditions to make them more appropriate in the light of the circumstances triggering the review.[79] There are limited grounds for the cancellation of a consent following a review under s 128. In particular for these purposes, a consent can be cancelled under s 132(3) following a review under s 128(1)(c) if the resource consent application was materially misleading, materially influenced the decision to grant consent, and there are significant adverse effects on the environment from the exercise of the consent.
[78]Section 132 of the RMA, which concerns decisions following a review, does not enable a consent authority to cancel a consent following a review under s 128(1)(a)(iii).
[79]PVL Proteins Ltd v Auckland Regional Council EnvC Auckland A061/2001, 3 July 2001 at [82] as cited in Stephen Blackley (ed) Brookers Resource Management (looseleaf ed, Thomson Reuters, Wellington, 2008) at A128.01(2).
The combined effect of these conditions is, therefore, to enable the South Taranaki District Council to be informed and to monitor progress toward a transition both up to 30 June 2028 and beyond. It left unspecified what condition it could propose to ensure that a transition “continues”, but the conditions at least enabled consideration to be given to whether any further conditions were appropriate in the circumstances as they might arise. The conditions do not directly address what is to happen if the respondents were to advise the South Taranaki District Council that they had decided against proceeding with a transition and, for example, intended to use the hydrogen solely for urea production or for some other purpose, or intended to halt hydrogen production and use the power from the turbines to sell to the national grid or for some other purpose.
That leaves the general Condition 1. It required the “construction, operation and maintenance” of the Project to be “undertaken in general accordance with the information provided” in the Application and any other documents relevant to the Application. Arguably, “operation” of the Project encompassed using the hydrogen in accordance with the information provided in the Application and other relevant documents. As the premise of the Application was a planned transition to using the hydrogen as fuel for heavy transport, it could be argued that the condition requires that transition. This was the view accepted in the High Court, albeit that there was no “hard time limit” in which the transition had to occur.[80]
[80]High Court judgment, above n 5, at [316].
In our view, however, that is not the intended effect of Condition 1. That is because it would be a requirement without any specific deadline. The Application intended that a transition would take place within five years but it was clear from the Application that this might not occur. As stated in the Application, the intended use of the hydrogen was “subject to a successful future transition”, was a “planned transition … as the fuel cell electric market increases” and there were “challenge[s] [in] establishing a hydrogen market”, and Condition 114 envisaged and permitted a transition occurring later than five years.
As a matter of commercial reality, this was a new venture that would not be embarked upon without the respondents intending it to be successful and being committed to its success. As Grice J noted, the commitment to this venture was demonstrated by the intention to build hydrogen loading, storage and refuelling facilities as part of the Project.[81] But, as a new venture, there was not a guarantee of its success or as to a timeframe if it were to succeed. This commercial reality was reflected in the Minister’s reasons for accepting the referral, as recorded in the Order. Those reasons referred to the Project being “likely” to help improve air quality and to assist New Zealand’s efforts to mitigate climate change “subject to a successful future transition to the use of green hydrogen as a fuel in the transport sector”.[82]
[81]At [286].
[82]Order, sch 14.
We consider the Minister recommended the Project for referral not because the future transition was assured, but because it could be successful, in which case it would have the environmental and climate change benefits that he identified. Moreover, even if the transition was not successful, the Minister considered that the Project promoted employment and the certainty of investment in New Zealand which were also part of the purpose of the FTCA.[83] Seen in this light, the importance of the Project was as an investment aimed at supporting a zero-emissions fuel for the benefit of the environment, which would also provide employment opportunities both in the construction of the necessary infrastructure and in the pursuit of the transition to hydrogen fuel, even if that transition was not ultimately successful.
[83]FTCA, s 4.
In other words, it was critical that the respondents pursued a successful transition to using the hydrogen for fuel. It was not critical that the respondents achieve a successful transition. Ultimately a successful transition would be dependent on market uptake and that would depend on factors beyond the respondents’ control. The Minister’s decision to recommend the referral of the Project, despite the fact that it would not necessarily succeed in its aims, can be understood in the context of the purpose of the FTCA to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19.[84] Investment in the pursuit of alternatives to fossil fuel promoted the sustainable management of natural and physical resources because of the climate emergency, even though ultimately the investment may not succeed in its aims.
[84]Section 4.
In light of the Order, the Application and the conditions the Panel imposed, we consider the Panel did not intend that the Project would become an unlawful activity if the transition did not occur within five years or at all providing the respondents had acted in good faith in pursuing a transaction.[85] Had it so intended, it would not have imposed the conditions that it did. As we have discussed, it appears clear that a transition was envisaged but not required within five years or at all providing the respondents had pursued the intended transition in good faith. The Panel was a body with resource management expertise that could be expected to have intentionally imposed the conditions in the terms that it did. It would have known that it had not required that after a specified period of time the hydrogen from the Project could only be utilised for fuel.
[85]The proper scope of a resource consent includes its conditions and supporting documentation incorporated by a condition. It is determined objectively. See Gillies Waiheke Ltd v Auckland City Council [2004] NZRMA 385 (CA) at [22]–[23]; Gillies Waiheke Ltd v Auckland City Council HC Auckland A131/02, A132/02, A1333/02 20 December 2002 at [23]; and Palmerston North City Council v New Zealand Windfarms Ltd [2014] NZCA 601, (2014) 18 ELRNZ 149 at [57].
We consider that the conditions were intended to keep the South Taranaki District Council informed of progress as a check on a good faith pursuit by the respondents of the intended transition, and to provide the Council with information about the utilisation of the hydrogen from the Project, but in light of the commercial reality that uptake of hydrogen fuel by heavy transport was ultimately dependent on factors that were not all within the respondents’ control. Those conditions matched the justification for fast‑tracking because there was a public benefit in the pursuit of a successful transition (“the baby” the Panel referred to).[86] If, however, the electricity generated from the turbines continued to be used to produce hydrogen utilised as a feedstock for fertiliser (“the bathwater” the Panel referred to) this did not give rise to adverse environmental effects additional to the existing production (a lawful activity at the Ballance Plant regulated by resource consents for water take and discharge that applied until 2035).[87]
[86]See above at [59] quoting the Panel decision.
[87]See above at [59] quoting the Panel decision.
Our conclusion on the Panel’s intention is reinforced by the conditions that the parties proposed and which were not accepted by the Panel. Greenpeace sought a condition that the hydrogen be utilised entirely for the transport market and not for the production of urea or any other synthetic nitrogen fertiliser. Neither this condition, nor any variation of it, was accepted by the Panel. For their part, the respondents sought conditions that more specifically addressed the purposes of South Taranaki District Council’s review power and which did not authorise it to impose new conditions. The respondents said they were commercially incentivised to ensure a transition but they did not have complete control over how quickly the hydrogen transport market would develop. The Panel acknowledged this but regarded it as open to the respondents to inform the South Taranaki District Council of this as part of the review process on the conditions it imposed. It would then have been for the Council to decide whether it was satisfied about this and, if it was not, to impose conditions to ensure progress towards a transition.

The last paragraph was a reference to Te Atiawa having been willing to accommodate the national interest by not insisting upon the protection of all their reefs, as they might have done, and accepting limited discharges in one area.
The fourth and final example is the 1988 Mangonui Sewerage report.[164] It concerned a sewage treatment pond on farmland in Taipa, Northland. The sewage pond was part of a scheme for intended housing developments in Doubtless Bay, the historic homeland of Ngāti Kahu. The report explained that Taipa was of special importance to Ngāti Kahu as the place where Te Pārata arrived from Hawaiki to dwell with Kahutianui and from that relationship the Ngāti Kahu tribe was born.[165] The report stated that Ngāti Kahu lost most of its land shortly after the Treaty was signed but in recent times had reclaimed some of that land through purchases or gifts from settler families.[166] The farmland on which the sewage treatment pond was to be sited had been sold to the tribe in 1986.
[164]Waitangi Tribunal Report of the Waitangi on the Mangonui Sewerage Claim (Wai 17, 1988).
[165]At 1 and 13–14.
[166]At 1.
The Tribunal discussed the Treaty as follows:[167]
In this context the Treaty is particularly important. The basic concept was that a place could be made for two people of vastly different cultures, to their mutual advantage, and where the rights, values and needs of neither would necessarily be subsumed. That is still the fundamental base from which we examine the sewerage scheme and from which we will later need to consider the developments in Doubtless Bay as a whole. It is obvious that to achieve the objective, compromises on both sides are required and a balance of interests must be maintained.
Some things on the other hand, like lands and fisheries, could forever be retained, according to the Treaty’s terms, for so long as there was a wish to keep them. … The enjoyment and continued possession of lands and fisheries was guaranteed.
The Treaty envisaged British settlements and the development of new towns. With high concentrations of people, sewerage schemes are required. We must balance in this case the record of Ngati Kahu concerns with the long saga of events behind the sewerage scheme, bearing in mind that such a scheme must proceed. …
[167]At 4.
The Tribunal noted that the treatment works had been proposed for the site since 1973 which was well before the land was purchased by Ngāti Kahu.[168] The Tribunal went on to find that, because of the significance of the land at Taipa to Ngāti Kahu and the strong cultural views on human waste, another site should be sought if it could reasonably be found. It commissioned a consultant to review alternatives near to the Taipa area. However, none of the alternatives were clearly superior in terms of cost. They also posed other problems that “could very well result in further objections from Maori and non-Maori alike, when planning consents were sought”.[169] The Tribunal considered that no alternative was “sufficiently free of other problems to warrant Parliamentary intervention” to require the relocation of the proposed works.[170] The Tribunal weighed the alternatives with the reality that the works on the proposed site would be largely obscured from view and the discharge would be effected elsewhere.
[168]At 7.
[169]At 7.
[170]At 7.
Ultimately, the Tribunal declined to make a recommendation. It concluded:[171]
The Treaty as we have said, requires a balancing of interests in some cases, and a priority for Maori interests in others. This is one occasion where a balancing of interests is needed and some compromise must be made. We have considered at length the background to both the tribe and the scheme and we have noted that the land was acquired after the designation was made. The scheme, we note, has been arranged and changed to reduce the cultural impacts, and the continued possession and enjoyment of tribal land and fisheries is not in the circumstance unduly encroached upon.
[171]At 7.
We consider the discussion on balancing of interests in Mangonui Sewerage report, as well as the case law referred to above, reflects the overarching principle of partnership,[172] and is relevant here. Importantly, while Ngā Hapū’s connection to Taranaki Maunga is a taonga, it does not necessarily follow that any new addition to the landscape around the Maunga will always be contrary to the principle of active protection. Tino rangatiratanga required the Panel to respect the views of iwi and hapū about the effect of the turbines on their spiritual and cultural values, but in this case these views were not consistent nor aligned. Moreover, the LVEA provided evidence of the visual effects alongside which these inconsistent and non-aligned views could be considered.
[172]At 7.
Ngāti Manuhiakai, the hapū in whose rohe the proposed turbines are to be located and whose view to the Maunga is most affected, was in favour of the Project. As in the Motuni-Waitara report where Te Atiawa’s accommodations were considered to be Treaty-consistent, Ngāti Manuhiakai’s support was evidence of Treaty consistency here.[173] The withdrawal of support for the project by Ngāti Tū, the other hapū in whose rohe the proposed turbines are to be located, appears to have been over the failure to obtain a royalty payment. As in the High Court, we do not have details about this and so do not know whether its position was reasonable in the context of the Treaty partnership. We do know, however, that the Panel did not include a condition requiring a royalty payment. Similarly, Te Korowai, which could be expected to have an overall perspective for Ngāruahine, was initially supportive subject to conditions. The positions of these two most affected hapū and the iwi position indicated to the Panel that the Project would be consistent with the principles of the Treaty provided appropriate conditions could be negotiated. The Panel’s approach in this respect is consistent with the idea that the Treaty is a partnership involving reasonableness and cooperation in which the rights, values and needs of one are not inevitably subsumed by those of the other and where mitigation measures may appropriately offset adverse effects.
[173]Motunui-Waitara report, above n 145.
In our view, the position here can be contrasted with sewage discharge into an important fishing ground or cooling towers which would result in a significant loss of an important fishing area. That was a direct, clear and significant interference with a protected taonga. For better or worse, the landscape around the Taranaki Maunga has existing structures reflecting development over time. In this context the turbines have mainly low or very low adverse visual effects relative to the Maunga from the marae of the hapū who now oppose the Project. Importantly, the turbines are to generate renewable power to produce hydrogen that may provide an alternative fuel source for the benefit of New Zealand’s response to the climate emergency the world faces. It was for that significant public interest that the Project was recommended for referral by the Minister for fast-tracking. Te Korowai and hapū expressed support for a move away from fossil fuels to renewable energy sources. It is also important that the respondents have agreed to decommissioning and an alternative site plan if necessary when the turbines are at the end of their life (a maximum of 35 years). A range of other mitigating measures have been offered and cultural components are included in the conditions of consent imposed by the Panel.
We consider it was not necessary for the Panel to interrogate the possibility that an alternative site might be found in order for the Project to be consistent with the Treaty. This was not advanced as being necessary by the iwi and hapū who provided written comments except as a condition at the end of the useful life of the turbines (accepting that Te Korowai’s position about this was more equivocal in its comments on the conditions in late November). The Application directly addressed that alternative sites were considered and explained why the proposed site was the location especially suitable for the Project. There was no reason for the Panel to second guess the respondents’ investigations and conclusions about this. We agree with Grice J that the Panel’s assessment must be based on the evidence before it and that the Panel addressed the concerns that were raised at the time.
We acknowledge that the Panel found that the Project was not fully consistent with Māori cultural and spiritual values. But that is not the same as finding that the Project was not consistent with the principles of the Treaty. The Panel concluded that the Project with conditions was consistent with the principles of the Treaty. We consider that the Panel made no error in finding that the mitigation measures, including identifying an alternative site at the end of the useful life of the turbines, ensured that the Project was consistent with the Treaty. The Project was important to the Government’s commitment to renewable energy and provided employment opportunities. It met the purposes of the FTCA. With the mitigation measures and conditions of consent, we consider it was a project that reflected a balancing of interests reflective of the partnership that the Treaty represents. It met the duty of active protection in the circumstances, taking into account the Crown’s acknowledgment to Ngāruahine of past treaty breaches.[174]
[174]Although this was not the focus of the submissions before the Panel or this Court, we note that nothing has been identified as inconsistent with any Treaty settlement either, other than as providing context for the concerns of hapū about the Project and as context for past Treaty breaches (which may inform current duties by the Crown).
Returning to the considerations in cl 31 of sch 6, we consider that the Panel properly had regard to the actual and potential effects on the environment of allowing the activity, and to measures proposed or agreed to ensure that positive effects offset or compensated for any adverse effects in allowing the activity, as viewed through the lens of what consistency with the principles of the Treaty required. For these reasons, we consider that the Panel made no error of law in how it approached the Treaty consistency of the Project.

Third appeal ground: reasons for no hearing

Ngā Hapū submit that the Panel erred in not holding an oral hearing. They say that the discretion to hold a hearing (in cl 20 of sch 6) was fettered by the need for Treaty consistency. Ngā Hapū submit that a hearing would have provided critical insight into what active protection and tino rangatiratanga required given that the position of hapū and iwi remained “murky” and concerns about their capacity to engage with the process had been raised. Ngā Hapū submit that Treaty consistency required, at a minimum, that the Panel give reasons for not holding a hearing.
We do not accept this submission. The evidence before the Panel was that the respondents had engaged with relevant iwi and hapū at an early stage. The process allowed for a CIA from Te Korowai and Ngāti Tū as well as the preparation of the LVEA. All parties were able to and did provide their comments, other than Kāhihi‑Umutahi hapū which did not provide official feedback.[175] Concerns were raised about timing when feedback was sought on conditions. However, Te Korowai, while expressing those concerns, did provide specific comments on the conditions. Moreover, the fact hapū held views ranging from strong opposition to supportive, did not mean that the Panel had insufficient information and needed to conduct an oral hearing to test the “murky” views raised.
[175]See above n 2.
The real question is what natural justice required. It is well established that this is context-dependent and is considered in light of the statutory scheme. We consider that the process adopted by the Panel met the requirements of natural justice in this case. All relevant parties had the opportunity to be heard through the respondents’ early engagement with them, followed by the opportunity to make written comments on the Application and subsequently on the draft conditions. Through those opportunities the Panel had the full spectrum of views. It was for the Panel to assess those views in the context of the statutory criteria and in the timeframe stipulated by the legislation. In the absence of any party requesting an oral hearing or explaining why one was necessary, the Panel cannot be criticised for failing to provide reasons for why it adopted the default position under the FTCA that a hearing was not required.

Conclusion

We conclude that Ngā Hapū have failed to show that, in granting consent to the Project subject to conditions, the Panel did not act in a manner consistent with the principles of the Treaty. We also consider that the Panel did not err by failing to hold a hearing nor by failing to provide reasons for why a hearing would not be held.

COSTS

We decline to make an award of costs. Greenpeace and Ngā Hapū each raised matters of public importance in the context of a fast-tracked process under legislation that gave them standing to do so and where no public notice was permitted.

RESULT

The appeal is dismissed.
We make no order for costs.

COOPER P

I agree that the appeal should be dismissed, and with the reasons set out in the judgment of Mallon J, save in one respect. The point on which I disagree is as to the effect of Conditions 112 to 114 imposed by the Panel.
For ease of reference, I set out those conditions again:
(112)Over a five year period, on the dates specified below, the consent holder shall provide a written report to the South Taranaki District Council as to progress in achieving the transition of green hydrogen production from utilisation entirely for the purposes of urea production to utilisation in the transport market.
(113)    The dates specified for the purposes of Condition 112:
(a)       By 30 June 2023; and
(b)      Each anniversary thereafter until 30 June 2028.
(114)Pursuant to s 128(1)(a)(iii) of the Resource Management Act 1991, the South Taranaki District Council may review this condition at any time after 30 June 2028 for the purpose of assessing progress of the transition referred to in Condition 112 above, and/or to propose new conditions to ensure that that transition progresses or continues.
I consider that read together, these conditions assume that there is to be a transition from utilisation of the green hydrogen for the purposes of urea production to utilisation in the transport market. While the conditions contemplate flexibility as to timing, I do not consider the flexibility extends to the possibility that the transition would not occur at all.[176] I say this for the following reasons.
[176]As is contemplated at [99] of Mallon J’s judgment.
First, the transition was an essential feature of the Application. The Panel highlighted what had been said in relation to the transition at paragraph 61 of the Decision:
61.Critically, the proposal is that over a five-year period the utilisation of green hydrogen will transition from 100% urea production (i.e. 7,000 tonnes per year) to entire use for fuel cells as the electric fleet is expected to increase.
Subsequently, in paragraph 237, the Panel described the Project as being “squarely premised on the transition to utilisation of hydrogen in the heavy transport industry”, and quoted from the assessment of environmental effects where it was “explicitly” said:
Green hydrogen production is planned to transition from 100% urea to the transport market over a 5 year period as the fuel cell electric vehicles market increases, with the intention to increase electrolysis capacity once green urea production falls below a minimum threshold.
Again, at paragraphs 238 and 239, the Panel said:
238.Absent that transition (i.e. if the proposal were simply to continue producing urea) it is difficult to see how the fast-track consenting could be justified. The proposal may or may not have succeeded as an ordinary application under the Resource Management Act. Therefore, given the reliance on transition to justify fast-tracking, it is appropriate to ensure that any consent matches that justification, and is reflected in the appropriate conditions.
239.The applicants raised a concern that part of the condition proposed by the Panel introduced an element of uncertainty to the project by enabling the South Taranaki District Council to impose fresh conditions if transition was rendered difficult in the prevailing market conditions. The Panel has reviewed this, but does not consider the condition required further amendment. As currently framed, it will be open to the consent holder to refer [to] the market conditions in exchanges with the Council in the review process as a factor it regards as of significance to any consideration of further conditions.

None of this is consistent with the idea that the transition might never occur.

Second, it is clear that Condition 112’s requirement, to provide a written report as to the progress made in achieving the transition, assumes that the transition will be under way. That assumption also underpins Conditions 113 and 114 which follow. The reports provided in accordance with these conditions would be pointless if all they were doing was stating (as might notionally be the case if the transition need not occur) that no progress had been made.
Third, the Panel expressly stated that Condition 114 needed no further amendment, in response to the respondents’ expressed concern that an element of uncertainty would be introduced if the Council could introduce fresh conditions in the event prevailing market conditions impeded the transition. The Panel stated that Condition 114, as it was framed, allowed the consent holder to raise the prevailing market conditions in discussion with the Council as a factor of significance to any consideration of further conditions. I see this as underlining the fact that the transition did need to occur. That was the entire purpose of Condition 114.
As discussed above, the imposition of further conditions was expressly for the purpose of ensuring the transition progressed or continued. Maintenance of Condition 114 in the face of the respondents’ opposition is, in my view, only consistent with the notion that the Panel intended to allow for flexibility as to the timing, and not implementation, of the transition.
I am not persuaded that the Panel’s intention was to provide for a situation in which the transition might not occur. Given the clear statements made, and commitments given, about the transition in the documentation submitted with the Application, the Panel may well have felt justified in taking it as a given that the transition would occur, that the respondents would take genuine steps to ensure that it did, and that allowing for temporal flexibility would be sufficient to deal with any difficulties that arose.
Following a report prepared in accordance with Condition 112, a review could occur under s 128(1)(a)(iii) of the RMA, for the purposes set out in Condition 114. These include the imposition of new conditions designed to ensure that the transition took place. I note that, after giving notice of review under s 128(1)(a)(iii), the Council could then propose “new consent conditions” under s 129(1)(d).
The imposition of a condition particularising the timeline for the transition would be difficult to criticise in light of the intentions expressed in the Application. If the transition still did not occur, an essential element of the basis on which the consent was sought, dealt with and granted on an expedited basis under the FTCA would fall away. In these circumstances, it would be unlawful to continue to utilise the consent. The Council could then seek an enforcement order either requiring the activity to cease under s 314(1)(a) of the RMA (as an activity contravening a resource consent), or requiring the transition to occur to comply with the resource consent under s 314(1)(b)(i).

For these reasons, I consider that Conditions 112 and 114 are designed to ensure that the transition occurs, even though it may not do so within the timeframes that were originally envisaged.

Solicitors:
Lee Salmon Long, Auckland for Appellant
Govett Quilliam, New Plymouth for Respondents

Tripe Matthews Feist, Wellington for Interested Parties

[2023] NZCA 672

21 December 2023 at 4 pm