Made Group Limited v Kiwirail Holdings Limited

[2023] NZHC 1780

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-002378

[2023] NZHC 1780

IN THE MATTER

Of an application for judicial review under the Judicial Review Procedure Act 2016

BETWEEN

MADE GROUP LIMITED

First Applicant

KARAKA & DRURY LIMITED
Second Applicant

AURANGA RESIDENTS’ ASSOCIATION INCORPORATED

Third Applicant

AND

KIWIRAIL HOLDINGS LIMITED

First Respondent

AUCKLAND COUNCIL

Second Respondent

continued overleaf…

Hearing:

6 to 9 March 2023

Further submissions: 23 March & 6 April 2023

Appearances:

R J Hollyman KC, M D Pascariu & M J Grayson for the Applicants

P J Radich KC, M L Campbell & N J C Wilson for the First Respondent

W M C Randal & F Y-S Cho for the Second Respondent A J L Beatson & E M Taffs for the Third Respondent

V S Evitt & J W E Parker for the Fourth Respondent

Judgment:

12 July 2023

JUDGMENT OF TAHANA J

This judgment was delivered by me on 12 July 2023 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

MADE GROUP LIMITED v KIWIRAIL HOLDINGS LIMITED [2023] NZHC 1780 [12 July 2023]

AND

AUCKLAND TRANSPORT

Third Respondent

WAKA KOTAHI NZ TRANSPORT AGENCY

Fourth Respondent

Solicitors/Counsel:

R J Hollyman KC, Shortland Chambers, Auckland Anderson Creagh Lai Limited, Auckland

P J Radich KC, Clifton Chambers, Wellington Russell McVeagh, Wellington

DLA Piper, Auckland

A J L Beatson, Barrister, Wellington Bell Gully, Wellington

Buddle Findlay, Auckland

TABLE OF CONTENTS

Para No.

Introduction  1

Grounds of review  6

Issues  12

FACTUAL BACKGROUND  15

Respondents  15

MADE development  23

Programme business case  27

Auckland Council structure planning  29

Developments after the Structure Plan  40

Engagement by the SGA  40
Funding allocated to KiwiRail  41

SGA consultation  44

Technical workshops  50

21 August 2020 workshop  55

Events after the Workshop  58

STATUTORY REGIME  102

Resource Management Act 1991  102

State-Owned Enterprises Act 1986  111

Land Transport Management Act 2003  112

Local Government (Auckland Council) Act 2009  118

Climate Change Response Act 2002  125

ISSUE 1 – IS THE DECISION AMENABLE TO JUDICIAL REVIEW?       126

Preliminary decision  138
Nature of the statutory power being exercised  144
Stage in the statutory process  153
Influence on ultimate decision  167

Opportunities to correct errors and availability of appeal or judicial review     173

Was the Workshop decision capable of altering rights, interests or liabilities?     181

Public policy  199

Conclusion – is the decision reviewable?  202

LEAVE TO AMEND STATEMENT OF CLAIM  208

Result  213

Costs  214

Introduction

[1]                 Auranga is a new development at Drury West in south Auckland. Auranga is the flagship development for the first and second applicants (MADE Group Ltd (MADE) and Karaka & Drury Ltd respectively). The third applicant is an incorporated society for the current and future residents of Auranga.

[2]                 The applicants challenge the outcome of a workshop on 21 August 2020 (the Workshop), where they say the respondents collectively decided that the new Drury West train station should be at a location known as DW1, which is to the west of a proposed extension to Jesmond Road. The applicants want the train station to be located to the east of the Jesmond Road extension, closer to the Auranga town centre at a location known as DW2.

[3]                 The location of DW1 was not within the indicative location identified for the Drury West station in a structure plan approved by Auckland Council in 2019 (the Structure Plan). The Structure Plan indicative location included the location at DW2 but not DW1. The applicants say the location should not have been changed from the indicative location in the Structure Plan without a change to the Structure Plan and consultation with them.

[4]                 All of the respondents deny that the outcome of the Workshop is amenable to judicial review. They say it was a workshop of officials who were not authorised to make any decision. Once funding to build the Drury West station was allocated to KiwiRail Holdings Ltd (KiwiRail) in 2020, the respondents say KiwiRail became the delivery agency and ultimately decided in June 2022 to lodge notices of requirement for designations and an application for resource consent for construction of DW1 under ss 168 and 88 of the Resource Management Act 1991 (the RMA).

[5]                 On the last day of the hearing during submissions in reply, the applicants sought leave to amend two of the four grounds of review. I granted leave to the respondents to file submissions after the conclusion of the hearing in response to that application and in response to supplementary submissions filed by the applicants on decision making powers.

Grounds of review

[6]                 The applicants challenge the outcome of the Workshop as unlawful on four grounds.

[7]                 First, that in deciding to locate the station at DW1, the respondents erred in law by misconstruing the appropriate legal tests and their respective obligations under:

(a)the Climate Change Response Act 2002 (KiwiRail, Auckland Transport, and the New Zealand Transport Agency (Waka Kotahi));

(b)s 4 of the State-Owned Enterprises Act 1986 (SOE Act) (KiwiRail only);

(c)s 39 of the Local Government (Auckland Council) Act 2009 (LGACA) (Auckland Transport only);

(d)s 94 of the Land Transport Management Act 2003 (LTMA), and s 49 of the Crown Entities Act 2004 (Waka Kotahi only); and

(e)the Resource Management Act 1991 (the RMA), the National Policy Statement on Urban Development 2020 (NPS-UD), and the Structure Plan (Auckland Council only);

such that the collective decision is unlawful and in breach of the respondents’ climate change commitments and obligations, their statutory obligations, and their respective statements of intent.

[8]                 Second, that the decision at the Workshop was made without public consultation with the applicants and therefore breached their procedural legitimate expectations. The applicants seek to amend this ground of review to apply to all respondents, not just Auckland Council. They say this ground of review also applies to Auckland Transport, Waka Kotahi and KiwiRail because:

(a)they were parties individually and collectively, as Te Tupu Ngātahi or the Supporting Growth Alliance (SGA), to the structure plan process;

(b)they agreed on and delivered an indicative business case and a draft integrated transport assessment for the Structure Plan;

(c)in accordance with an alliance charter under the Project Alliance Agreement (PAA), agreed to implement joint decisions, be open and honest, accept collective responsibility, and do business on an open book basis; and

(d)they all had a common expectation that if the location of the Drury West train station moved away from the location indicated in the Structure Plan, they would consult on the proposed change with all stakeholders, including the applicants.

[9]                 Third, that in making the decision at the Workshop, there was a breach of the duty to consult with the applicants and other interested parties. The applicants seek to amend this ground of review to apply to all of the respondents, not just Auckland Council, so that all respondents are alleged to have breached their respective duties to consult.

[10]Fourth, that the decision at the Workshop was unreasonable because it:

(a)failed to consider or give proper weight to the detrimental effect the change to DW1 will have on the interests and wellbeing of the existing and developing community at Auranga;

(b)failed to consider or give proper weight to public health benefits of a train station at DW2;

(c)failed to locate the train station in a location that will be supported by development intended in the short and medium term, namely Auranga;

(d)failed to consider the impact on Auckland Council’s and the New Zealand Government’s commitment and obligations to reduce greenhouse gas emissions;

(e)failed to consider the increased emissions that will result from locating the train station at DW1, as opposed to DW2;

(f)failed to consider the increased road congestion resulting from additional private vehicle use that will arise from moving the train station to the DW1 location (when compared to DW2); and

(g)failed to correctly understand and take into account that:

(i)the development potential and accessibility of the greenfield land proximate to DW1 is lower than the development potential and accessibility of the land proximate to DW2;

(ii)there are no significant operational or technical reasons preventing the location of the Drury West train station at DW2; and

(iii)Auranga’s present and emerging communities will have poor walkable and cyclable connectivity to DW1 which will inevitably lead to increased private vehicle use.

[11]              The applicants seek declarations that the respondents acted unlawfully and ask the Court to direct the respondents to reconsider the location of the Drury West train station.

Issues

[12]              The first preliminary issue to determine is whether the outcome of the Workshop is amenable to review. If it is not, the applicants ask the Court to identify the relevant decision and to then consider the grounds of review in relation to that alternative decision. The respondents oppose the Court allowing such an amendment.

[13]              Second, I need to determine whether to allow the proposed amendments, including:

(a)if I consider the decision made at the Workshop is not amenable to review, whether to allow an amendment to cover an alternative decision; and

(b)whether the proposed amendments to the second and third grounds of review should be allowed so that they apply to all respondents and not just Auckland Council.

[14]              Third, I need to determine whether any of the four grounds of review are established, and if so, whether the decision should be set aside and referred back to the respondents for reconsideration.

FACTUAL BACKGROUND

Respondents

[15]              KiwiRail is a state-owned enterprise under the SOE Act and has been allocated funding for the construction of the Drury West train station.

[16]              Auckland Council is the unitary authority for Auckland established by s 6 of LGACA, and both a territorial authority and a local authority under the Local Government Act 2002 (LGA).

[17]              Auckland Transport is a council-controlled organisation of the Auckland Council under the LGACA.1 The purpose of Auckland Transport is to “contribute to an effective, efficient, and safe Auckland land transport system in the public interest.”2

1      Local Government (Auckland Council) Act 2009 [LGACA], s 38(1) and (2).

2      Section 39.

[18]              Waka Kotahi is a crown entity3 established under s 93 of the LTMA. Waka Kotahi’s primary function is to contribute to an effective, efficient and safe land transport system in the public interest.4

[19]              The SGA is an alliance between Auckland Transport, Waka Kotahi, two consulting firms, and two law firms.

[20]              In June 2018, the members of the SGA entered into the PAA with Waka Kotahi and Auckland Transport as “owner participants”, and the two consultancy firms and two law firms as “non-owner participants.”

[21]The PAA explains the purpose of the SGA:5

The Supporting Growth Programme has been established to identify and protect the transport networks required to support and connect Auckland’s future growth areas over the next 30 years. The Programme Business Case (completed in 2016) identified the preferred network in response to a range of identified problems.

[22]The PAA also sets out the outcomes the SGA seeks to deliver which include:6

(a)The identification of the “Indicative Strategic Transport Network” (ISTN) and its protection through a programme of detailed business case and route protection activities that respond to current and evolving local and central government priorities, and developer and stakeholder planning initiatives.

(b)Four aggregated indicative business cases for the ISTN.

(c)12 aggregated detailed business cases for the ISTN approved by Auckland Transport and Waka Kotahi as owner participants.

(d)Delivery to Auckland Transport or Waka Kotahi as the relevant owner participant or alliance partner of work scopes and supporting

3      Waka Kotahi is a crown entity for the purposes of s 7 of the Crown Entities Act 2004.

4      Land Transport Management Act 2003 [LTMA], s 95.

5 Project Alliance Agreement [PAA], Schedule 4 at [1].

6 Schedule 4 at [2].

information for all ISTN components that do not require route protection by the alliance.

(e)Approval of Auckland Transport and Waka Kotahi as owner participants to lodge or execute documentation to support prioritised route protection of the ISTN for those components requiring route protection.

(f)Successful conduct of all post-lodgement processes to achieve route protection required for the ISTN by 2025.

MADE development

[23]              In 2013, MADE began acquiring land in Drury West for the development of a greenfield residential development. Mr Charles Ma is the director and CEO of MADE, director of Karaka & Drury Ltd, and chairperson of the Auranga Residents’ Association Inc. Mr Ma says that the Auranga development’s purpose is to be a world- class, sustainable urban community promoting wellbeing and meaningful connections between residents via an integrated community of over 160 hectares with approximately 3,000 dwellings and a town centre called Auranga.

[24]The development is being undertaken in stages:

(a)Auranga A – the first stage which is close to the Drury Central train station.

(b)Auranga B1 – which is still in the early stages of physical development (this stage was the subject of plan change 6 (PC6)).

(c)Auranga B2 – this is the area closest to the proposed Drury West train station. B2 is yet to be developed and was the subject of plan change 51 (PC51).

[25]              In 2016, MADE created a master plan for Drury West in support of its structure plan.

[26]              MADE then engaged in a developer-led structure planning process for the Drury-Opāheke area. The outcome of that process was captured in a “Drury Developer Structure Plan” report.

Programme business case

[27]              In 2015, the Auckland Council, Auckland Transport and Waka Kotahi worked together to investigate the transport networks required to service the future urban growth areas across Auckland over the next 30 years.

[28]              A programme business case (PBC) was prepared which included the development of “high level” draft strategic transport networks for future urban growth areas, including areas in South Auckland. The PBC identified that the development of business cases for route protection of the strategic transport network was a priority and recommended an alliance model as the best option for procuring the next stages of business cases and route protection work. The SGA was then established.

Auckland Council structure planning

[29]              The Auckland Council undertook its own structure plan process for the Drury and Opāheke area, which commenced on 1 August 2017.

[30]              From September to October 2017 Auckland Council engaged in a first phase of public consultation on future planning and land use. MADE participated in this consultation.

[31]              In 2018, the Auckland Council released documents for consultation showing different options for transport corridors and town centres in Drury West. At that time, the indicative locations for a train station included areas both east and west of the proposed Jesmond Road extension.

[32]              In February 2019, KiwiRail provided input to the SGA about technical requirements for the railway network at Drury including that:

(a)A power supply would need to be installed at Drury with a location of a substation on KiwiRail’s network, yet to be determined. The location of that installation would have a direct impact on the potential location of any station.

(b)The substation would have a neutral section that needs to be on a straight and level portion of the track. That would also impact location of the station.

(c)There would also need to be a minimum separation distance of 1,800 m, or more likely 2,000 m.

[33]              Auckland Council produced a document titled “Summary report – April 2019 Draft Drury-Opāheke Structure Plan” (Summary Report). The Summary Report was made available to the public online during April 2019 and feedback was requested.

[34]              Auckland Transport engaged the SGA to prepare a document entitled “Drury- Opāheke and Pukekohe-Paerata Structure Plan Draft Integrated Transport Assessment” (ITA). The ITA was made available to the public online at the same time as the Summary Report and was referred to as a “technical reporting input” to the draft structure plan. The ITA notes that:

This ITA has been developed in parallel with the business case being developed by SGA for the Southern Growth Area in its entirety. The business case process takes a long-term strategic view towards defining the higher order transport networks required to support the full extent of growth in the south. This ITA builds on the transport networks emerging from the business case process by adding detail on land use integration, lower order networks, and staging.

[35]              MADE provided a submission in response to the third round of public consultation in April 2019. MADE indicated its opposition to the Drury West station being south-west of the proposed Jesmond Road extension (as opposed to adjacent to Auranga, and south-east of the Jesmond Road extension).

[36]              On 11 July 2019 the SGA published its indicative business case (IBC) showing alternative locations for the Drury West station. The IBC was later provided to MADE under the Official Information Act 1982 (OIA). The IBC notes that:

Proposed corridors shown are yet to be prioritised for funding and delivery over the next 30 years. They will require further technical investigations and engagement to confirm the detail of locations for proposed upgrades or proposed new route alignments, and any associated land requirements.

[37]              The IBC refers to a multi-criteria assessment (MCA) framework. The IBC considered potential locations for Drury West (DW1 to DW6A). Each option was scored through a MCA framework against different investment objectives, including strategic connectivity, environmental wellbeing and social wellbeing. The IBC concluded that DW4 (now DW2) and DW3 (now DW1) were recommended.

[38]              On 6 August 2019, the Auckland Council approved the Structure Plan. The indicative location for the new Drury West station was identified as being east of Jesmond Road, where DW2 is located.

[39]              MADE says it relied on the indicative location in the Structure Plan to lodge a plan change request (PC51) in May 2020.

Developments after the Structure Plan

Engagement by the SGA

[40]              The SGA continued work on the detailed business case (DBC) after the Structure Plan was approved. That included further assessment of the previously identified locations DW1 and DW2.

Funding allocated to KiwiRail

[41]              In January 2020, the government announced the New Zealand Upgrade Programme (NZUP), an infrastructure investment programme. The funding included

$247 million for two stations at Drury Central and Drury West.

[42]              In March 2020, Waka Kotahi wrote to Minister Hon Phil Twyford MP advising that there was sufficient funding within the $247 million to build the two Drury

stations and potentially a third station (Paerata) or a Drury West access road. An update to the NZUP in June 2021 increased the funding for completion of all three stations, including Drury West, and the delivery date from 2024 to 2025.

[43]              In May 2020, delivery of the Drury stations was transferred from Waka Kotahi to KiwiRail.

SGA consultation

[44]              In May 2020, the SGA released for public feedback a document entitled “Supporting urban and economic growth.” The document explained that the NZUP had provided funding for three projects that support growth in South Auckland, including two new stations at Drury Central and Drury West.

[45]              The SGA consultation document indicated that three options had been considered for Drury West and that Option A (now DW1) was the preferred option because the location:

·     is surrounded by the largest catchment of developable land with the highest residential development potential

·     is located on a straight piece of railway track, meaning that costly track realignments associated with other options can be avoided

·     leaves enough distance to the next station (Drury Central) and the future power feed location, such that trains can run efficiently

·     has the least impact on the Ngākoroa Stream tributaries

·     is well located to integrate with the rest of the transport network via the proposed SH22 north connection (Jesmond Road extension)

[46]              The consultation paper invited feedback on the options and directed people to use the feedback form or visit the SGA website to do so.

[47]              The SGA met with representatives of MADE in May 2020. The SGA’s notes of that meeting record that:

SGA provided context on our IBC the DBC development including current timing of NOR lodgement 1st quarter 2021. We noted there would likely be changes due to NZUP but we were yet to understand these. We confirmed the preferred station location was based on a technical assessment on a multi- criteria basis.

Actions: We had left Gary to respond via the SGA website with their comments. He is also free to contact us directly as needed.

[48]              In July 2020 representatives of KiwiRail met with Mr Ma of MADE to discuss KiwiRail’s involvement in the project.

[49]              The NPS-UD was gazetted on 20 July 2020 and came into force on 20 August 2020, replacing the 2016 statement.

Technical workshops

[50]              There were a series of pan-agency workshops between 30 June and 21 August 2020 attended by the SGA and all the respondents.

[51]              The first workshop was on 30 June 2020. A presentation to the workshop indicates that the SGA had narrowed down the six options reviewed in the IBC to three options (DW1, DW2 and DW3). DW1 was identified as technically preferred. The presentation noted that MADE have a strong preference for DW2 due to proximity to the Auranga town centre. It was recorded that DW2 would require:

·     Straightening of ⁓900m of track and additional land take – estimated at

⁓$8-10m, would result in blocks of line;

·     Would result in a smaller net developable area and residential catchment; BUT

·     Would be ⁓200m closer to proposed local centre with slightly larger employment catchment.

[52]              The minutes of that workshop record that the agencies agreed to dismiss DW3 as a preferred option, and that DW1 was the preferred option given the land use context at that time.

[53]              A second workshop took place on 23 July 2020. The minutes record that the agencies should seek to agree the preferred locations (for Drury Central, Drury West and Paerata) before September 2020. In relation to Drury West, the minutes also record that:

·     Agreement that Drury West has greatest gap between development plans and transport plans, requiring proactive collaboration to find conclusion

·     Confirmed that AT [Auckland Transport] are ultimate decision maker on station locations.

o   Noted that if it impacted KiwiRail function/operations that there would need to be resolution found

…

·     No opposition to Alliance’s technically preferred station location for Drury West but concerns as to whether it is the better option.

o   Therefore, evaluation criteria sought to be reviewed by council

o   Agreed that Alliance and Council to work through evaluation criteria used to date and come to agreement on final assessment approach

o   Confirmation of outcomes to be endorsed sought at next workshop

[54]              A third workshop was held on 12 August 2020. There was discussion around the decision and endorsement process prior to KiwiRail’s October 2020 Board meeting. The minutes of that workshop indicate that it was agreed that DW1 was optimal. It was noted that at the next workshop, the agencies would confirm the endorsement process and SGA would “pull together” a programme to facilitate confirming the endorsement schedule and critical path for the Boards of the respondents so agreement could be reached before September 2020.

21 August 2020 workshop

[55]              At the 21 August 2020 workshop, the respondents agreed DW1 was the preferred location. The minutes record that the NPS-UD had taken effect in August 2020 and that the evaluation had new information since the council-led evaluation (presumably during the Structure Plan process). Auckland Council approved of the analysis.

[56]              The minutes record that a “Communication Plan” is the best solution to ensure uniformity across agencies, “especially due to inter-relation with political messaging.” It was agreed the following should occur:

(a)Joint workshop so agencies understand why the decision was made, to take place before any briefing to the Mayor and Minister.

(b)Communications to Ministers, Mayor, councillors and Board members as the first step.

(c)Formal reporting to occur after joint briefing. “All respective governance to be signed off prior … [i]ncluding KiwiRail, Waka Kotahi, Auckland Transport, Auckland Council and mana whenua.”

(d)Engagement with plan change developers.

(e)Notification of other government authorities (Ministry of Housing and Urban Development, Kainga Ora, Ministry of Transport, NZUP).

(f)Communication plan needs to be set out like a programme.

[57]              It was agreed that the SGA would prepare and circulate documentation to the respondents. A working group would be created to implement the pan-agency agreement.

Events after the Workshop

[58]              On 24 September 2020, Mr Ernst Zollner, Director of Strategic Urban Partnerships for the Ministry of Housing and Urban Development, emailed members of the Auckland Council expressing concern as to why KiwiRail did not disclose operational issues regarding the Drury West station location during the Structure Plan process. He questioned whether the Structure Plan needed to be changed.

[59]              On 25 September 2020 the respondents met with other agencies (Ministry of Housing and Urban Development, Ministry of Education, Kainga Ora and Ministry of Transport) and briefed them on the preferred locations for the three railway stations (Drury Central, Drury West and Paerata).

[60]              In September 2020, the Auckland Transport Board endorsed the DW1 location.

[61]              On 7 October 2020, Mr David Gordon, of KiwiRail, briefed Ministers (the Hon Grant Robertson MP and Mr Twyford) indicating that the $247 million funding was not sufficient to fully construct and connect all three Drury stations. He stated that officials from Auckland Council, Auckland Transport, Waka Kotahi, and KiwiRail had been using an MCA to determine the best locations, and that advice in respect of station location would be included in advice to Ministers to be prepared by late October.

[62]              After the briefing with Ministers, there was a meeting between the SGA and KiwiRail. An email referring to that meeting records that:

KiwiRail Dept CE and Chris Meale have met with Charles Ma re Drury West station location. As a result they now wish to soften messaging about station locations and instead of confirming station locations, state they are preferred locations and test the locations via the engagement. Note, our last engagement in May this year showed station location options within a ‘sausage’ and identified a preferred location. There is a risk we are now looking at continuing the same messaging from May.

[63]              On 13 October 2020, Auckland Council, Auckland Transport and the SGA met with MADE. The minutes of that meeting record that:

(a)The DW1 station location was discussed, MADE’s views were sought.

(b)MADE was informed that the DW1 location was not confirmed.

(c)Auckland Council staff stated that the Structure Plan was to provide “indicative” output in terms of station locations, and that it was a bookmark indicating that the station is subject to final confirmation.

[64]              There was a further meeting between MADE (Mr Ma and Mr Gary Noland) and the SGA on 22 October 2020. At that meeting, MADE reiterated its preference for DW3 (with potential for DW2) because of proximity to Auranga as a key transit on demand (TOD) success factor. Resident surveys and urban design analysis substantiated the importance of proximity to stations. MADE indicated

it had planned based on the location shown in the Structure Plan. Mr Ma sought clarity on the reasons for discarding DW2 and DW3 and preferring DW1.

[65]              The SGA explained the reasons for the preference for DW1 over DW2. Reasons included larger long-term potential residential and greater “walk-up” catchment at DW1, and track curve and operational efficiency issues as well as hydrological and ecological constraints at DW2.

[66]              The SGA also informed MADE that the DW1 location had been confirmed by all partners at an officer level and was in the process of being endorsed by the Auckland Transport and KiwiRail Boards. All parties present agreed to share the analysis underlying their preferences. It was acknowledged that this would provide a clear rationale for positions in designation processes, with station locations not to be confirmed until designation processes under the RMA. KiwiRail was confirmed as the requiring authority.

[67]The draft DBC options assessment was finalised on 23 October 2020.

[68]              On 27 October 2020, Mr Gordon attended a KiwiRail Board meeting. He explained to the Board that the respondents had agreed, in principle, the preferred Drury station locations, but that there was a significant funding shortfall for construction of the three stations.

[69]              A KiwiRail Rail Network Growth Impact Management (RNGIM) Programme Status Report dated 3 November 2020 indicates that a multi-agency (Auckland Council, Auckland Transport, Waka Kotahi and KiwiRail) agreement had been reached on fixing the stations’ positions and KiwiRail had just been formally advised that the Boards of the Auckland Council, Auckland Transport and Waka Kotahi had endorsed the station location recommendations. Both Auckland Council and Waka Kotahi deny that there was any Board endorsement of the location and there were no Board minutes evidencing such endorsement.

[70]              Further online meetings between Mr Gordon and Mr Ma occurred on 4 and 5 November 2020. Mr Gordon’s evidence is that he wanted to fully understand

MADE’s reasons for preferring the DW2/DW3 locations before any recommendation endorsing the DW1 location could be elevated to the KiwiRail Capital Committee or Board. Mr Gordon says he reviewed MADE’s materials about Auranga town centre before and after the 4 November 2020 meeting.

[71]              On 11 November 2020, following concerns expressed by the Deputy Mayor, Mr Bill Cashmore, Mr Gordon considered further testing of the SGA’s assessments of developable catchments was warranted to ensure that they were robust.

[72]              On 17 November 2020, Mr Greg Miller, then Chief Executive of KiwiRail, updated Mr Robertson (Minister for Infrastructure) and Hon Michael Wood MP (then Minister of Transport) on the progress of the Drury stations project. In that briefing, he said:

(a)KiwiRail had been working closely with the SGA to further investigate the potential of building three stations as part of the NZUP.

(b)KiwiRail’s assessment has confirmed that building three stations with “fully developed transport connections” will not be achievable within the $247 million funding envelope.

(c)A fully connected station requires rail alignment, signalling, platforms and shelters but there are also important pedestrian connections to ensure safety, such as pedestrian overbridges, which can cost tens of millions of dollars each.

(d)Officials from Auckland Council, Auckland Transport, Waka Kotahi and KiwiRail (as well as the Ministry of Housing and Urban Development) had been using an MCA, covering transport and land use development considerations, to determine what would be the best location for each of the three stations.

(e)There are technical reasons, which Auckland Council were not aware of at the time, for not adopting the original site. Further, analysis done by officials focussed on the long-term growth scenario for the Drury basin as a whole, which has a centre of gravity some distance from the original Drury West site.

(f)MADE had concerns with DW1 for the Drury West station and KiwiRail would engage directly with MADE.

(g)There were differences of opinion between Auckland Council officers and elected councillors over the location (which would delay announcement of preferred locations until Auckland Council had a consistent view).

(h)KiwiRail would attempt to resolve any disagreements “before reaching a final decision and officially lodging” the notices of requirement.

(i)More fundamental changes were possible (with the agreement of the other agencies involved) to the Drury West station if that would better meet the Ministers’ and Mayor’s objectives and the long-term development of the Drury area.

[73]              Mr Gordon noted to the KiwiRail Board at its 24 November 2020 meeting that a final decision on station locations may be deferred pending discussions between Auckland Council and developers in the Drury area.

[74]              Around this time, KiwiRail was also considering further technical matters relating to station location, such as the proposed relocation of a gas line, and the design of the feeder and switching stations, neutral sections, and station spacing affecting the DW1 location.

[75]              In December 2020, the SGA sent information to key stakeholders (including landowners) announcing the three Drury stations. The materials

explained that the respondents would be carrying out site investigations to understand the environment in and around the intended locations for the new stations, as well as talking to the community, local property owners and developers to better understand and align plans and expectations.

[76]              In response to an OIA request to Auckland Transport made in November 2020, MADE received a memo from Auckland Transport prepared by the SGA on 22 January 2021. The memo included an explanation of the separation issues between the Drury West station and the neutral section and Drury Central Station, the costs of realigning the curved track at DW2, the SGA’s assessment of net developable areas, populations, employment yields, the extent of centre zones within 400 m and 800m walkable catchments, and a summary of the SGA’s analysis that a relatively small proportion of trips at the Drury West station would be inbound commuters (working in Drury West).

[77]              There was a second round of public consultation in early February 2021. Consultation materials identified the “intended location” of the Drury West station (DW1) and gave a short summary of the reasons why this was the “intended location.” Referring to it having the largest catchment of developable land, sufficient distance to the Drury Central station, avoiding the need to realign track curves and having the least impact on Ngākoroa Stream tributaries.

[78]              On 4 March 2021 the SGA and KiwiRail updated the Planning Committee of Auckland Council on the intended new train station locations.

[79]              Also in 2021, ecological fieldwork assessments found that all three Drury West station options would result in limited stream loss but that DW2 and DW3 would directly impact natural wetland areas on both sides of the North Island Main Trunk line. The DW1 site would avoid wetland areas.

[80]              Mr Gordon briefed Minsters (the Hon Megan Woods MP and Mr Wood) on 17 February 2021. He said:

(a)station locations had been identified based on long-term growth aspirations for the Drury area and that it was not possible to satisfy all interested parties;

(b)MADE continued to raise concerns about the DW1 site; and

(c)as KiwiRail could not let “uncertainties on station location” delay the design and build of the project, it would work on the assumption of the preferred locations but would “change approach if necessary.”

[81]              On 12 March 2021, the SGA emailed MADE encouraging it to submit feedback on the consultation.

[82]              On 5 April 2021 MADE submitted its feedback. That feedback included that MADE:

(a)was surprised by the recommendation for DW1 as the area was not currently ‘live-zoned’ and had major infrastructure issues;

(b)considered it was short-term thinking to provide a park and ride facility and not a long-term vision for a station involving local employment;

(c)thought its Space Syntax and Urbacity reports provided to Auckland Council during the Structure Plan process were integral to a location to the east of the proposed Jesmond Road extension (DW2 or DW3); and

(d)understood that the Structure Plan location would provide better outcomes under the MCA and was supported by Auckland Transport.

[83]              On 8 April 2021, Mr Miller and Mr Gordon met with Mr Ma and Mr Len Brown to explain that no final decision on the Drury West station location had been made and that a compromise might be possible. If MADE proposed a suitable

compromise location KiwiRail would likely obtain agreement from the other respondents to that location.

[84]              In turn, KiwiRail and the SGA investigated the possibility of shifting the station north-eastward.

[85]              Mr Gordon and Mr Chris Meale met with MADE again on 13 April 2021. They discussed the accessibility of the DW1 location, the proposed station footprint and design, as well as work to assess the feasibility of shifting the station north-eastward. MADE spoke to a proposed platform location they had prepared which broadly corresponded with the DW2 site, which Mr Gordon agreed KiwiRail would consider.

[86]              Following this meeting, KiwiRail, the SGA, Auckland Transport and Waka Kotahi considered how the DW1 location might be better connected to Auranga, including both moving the station as well as access roads and paths.

[87]              At its 20 April 2021 meeting, the KiwiRail Capital Committee approved a paper noting that Mr Gordon had met with MADE and that work was ongoing to find an acceptable middle ground. The KiwiRail Capital Committee noted that it would require detailed advice on the criteria for selecting the preferred location and the costs and risks of the consenting strategy for that location.

[88]              A final meeting between KiwiRail and MADE occurred on 25 May 2021. At that meeting Mr Gordon notified Mr Ma, Mr Noland and Mr Brown that KiwiRail and the SGA had tried to move the station closer to Auranga but could not. He indicated that DW1 was chosen following an MCA, and that KiwiRail and the SGA had investigated alternative active mode transport links between Auranga and DW1. He advised that he would not recommend to the KiwiRail Board that it approve the notices of requirement application until satisfied that (likely) additional investment for these connections would support the DW1 location.

[89]              The DBC was finalised on 1 June 2021 and identified DW1 as the preferred location for the Drury West station. The DBC notes that:

DW1 platform location is the preferred as it has the largest developable catchment area, achieves an appropriate separation distance from other stations and electrification infrastructure and is located on a straight section of track.

Access option DW1A scored highest against investment objective four (accessible and integrated with land use) and has the least impact on the natural environment.

[90]              In June 2021, it was confirmed that funding was available for all three stations under the NZUP, and that the Drury West station would proceed as a separate and subsequent application to the other two stations.

[91]              In August 2021 the Auckland Transport Board approved the strategic direction of the full DBC, excluding station locations and components, given they had been done already.

[92]              The KiwiRail Capital Committee and Board approved acquisition of land for the Drury stations at their meetings on 20 July 2021 and 3 August 2021 respectively.

[93]                The KiwiRail Capital Committee and Board approved lodgement of designations at their 25 and 31 August 2021 meetings respectively. Mr Gordon says that this meant KiwiRail management was now authorised to proceed once satisfied that designation applications were ready and supportable.

[94]              KiwiRail finalised its “Drury Rail Stations Implementation Business Case” (ImBC) which was signed off by Mr Gordon in October 2021 and approved by the KiwiRail Board on 2 November 2021. The ImBC was a requirement for the NZUP funding.

[95]              Around this time the SGA began to prepare the application for the notices of requirement on behalf of KiwiRail, which continued into 2022. That application included:

(a)An Assessment of Effects on the Environment (AEE).

(b)An Assessment of Alternatives (AOA), outlining the process by which alternative locations for the Drury West station were considered and analysis of those alternative locations (including reasons why those locations were not preferred). The AOA includes assessment of both DW1 and DW2.

(c)A suite of 13 technical specialist assessments covering in further detail the Drury West station’s environmental effects.

(d)A set of proposed designation and resource consent conditions.

(e)A set of indicative plans.

[96]              Further analysis in 2021 considered the impact of the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 which mandated the use of Medium Density Residential Standards (MDRS) for residential land in urban areas. This analysis concluded the MDRS would yield a higher number of dwellings than assumed in the Structure Plan.

1. On 10 December 2021, the applicants filed this proceeding.

[98]              Following the issue of proceedings, KiwiRail received three expert reports from MADE:

(a)Designgroup Stapleton Elliot’s Auranga Town Centre report, dated 4 December 2021;

(b)Space Syntax Ltd report, dated November 2021; and

(c)Emission     Impossible      Ltd     Auranga     Transport     Emissions Assessment, dated 7 December 2021.

[99]              KiwiRail requested that the SGA consider the findings in the above three reports. The SGA prepared two memoranda which also included comments on and analysis of the comparative developable catchments and greenhouse gas emissions reductions attributable to the DW1 and DW2 sites.

[100]          Mr Gordon (in his role as acting Chief Executive) approved KiwiRail’s lodgement of applications for designation (notices of requirement) and resource consent on 28 June 2022. The application was lodged on 8 July 2022.

[101]          KiwiRail requested direct referral to the Environment Court on 21 September 2022, and on 11 October 2022, Auckland Council granted KiwiRail’s direct referral request.

STATUTORY REGIME

Resource Management Act 1991

[102]          The RMA governs planning in New Zealand and provides for a three-tiered system: local, regional and national, and a hierarchy of planning documents:

(a)Central government: national environmental standards, national policy statements and the New Zealand coastal policy statements;

(b)Regional councils: regional policy statements and regional plans; and

(c)Territorial authorities: district plans.

[103]          Structure plans are not referenced in the RMA. Mr Donald Cairncross, Team Leader Central South in the Chief Planning Office of Auckland Council, deposes that structure plans were used by Auckland legacy councils prior to amalgamation in 2010.

[104]          The Auckland Unitary Plan Operative (AUP) is relevant to understanding the purpose of a structure plan. The AUP combines the regional policy statement (RPS), regional coastal plan, regional plans and district plans (except for the Hauraki Gulf Islands) into one combined plan for the Auckland region. The AUP became operative

on  15 November 2016.    The requirements for structure planning are set out in Appendix 1 of the AUP:

1.1.  Introduction

Structure plans are an important method for establishing the pattern of land use and the transport and services network within a defined area. They can provide a detailed examination of the opportunities and constraints relating to the land including its suitability for various activities, infrastructure provision, geotechnical issues and natural hazards. They should identify, investigate and address the potential effects of urbanisation and development on natural and physical resources in the structure plan area and in neighbouring areas, particularly those that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal environment, historic heritage and special character. They should then explain how the proposal will give effect to the regional policy statement and how any adverse effects of land use and development are to be avoided, remedied or mitigated by proposed plan provisions.

This will ensure that all the effects of development are addressed in advance of development occurring. A structure plan is an appropriate foundation for the plan change process required to rezone land.

…

1.2.  Structure planning in the context of the plan change process

The regional policy statement promotes the preparation of structure plans as a precursor to plan changes and to support any of the following:

(1)identifying greenfield land suitable for urbanisation;

(2)rezoning of existing urban areas for more intensive uses or for comprehensive redevelopment;

(3)rezoning of Future Urban Zone land for urbanisation; and

(4)establishing new or significantly expanding existing rural and coastal towns and villages.

Structure plans guide future development and redevelopment. The level of analysis required needs to be appropriate to the type and scale of development.

…

[105]In relation to transport networks, the guidelines provide that:

1.4.6.Transport networks

(1)Integration of land use and development with the local and strategic transport networks.

(2)Layout of the transport network and facilities in a manner that is safe, attractive, efficient, and resilient to hazards, well connected to local

facilities and integrated with land uses, the surrounding area and the wider transport network.

(3)Support for transport and accessibility that is multi-modal and interconnected with an appropriate number and location of access points.

(4)Transport effects on land uses and the management of these effects.

1.4.7.Infrastructure

(1)The location and protection of existing and planned infrastructure, including network infrastructure corridors.

(2)The location, scale and capacity of existing and new infrastructure to serve the structure plan area.

(3)The location, scale and function of stormwater management facilities based on the principles of an integrated stormwater management approach, including the retention of natural water systems and the primary use of onsite flow and quality controls (and related impervious area limits) to manage stormwater runoff from proposed sites and roads.

(4)The location, scale, function and provision of community facilities, including educational, health, welfare and cultural facilities and open space to cater for the needs of communities in the structure plan area and neighbouring areas.

[106]          The structure plan process is therefore a precursor to any subsequent process to change the district plan or obtain a designation or resource consent to construct infrastructure.

[107]          KiwiRail is a requiring authority under s 167 of the RMA. As a requiring authority, KiwiRail may give notice to a territorial authority of its requirement for a designation for a project or work.7

[108]          Under s 36A of the RMA, there is no requirement to consult on an application for resource consent or notice of requirement, but s 36A requires an applicant to comply with any duty under any other enactment to consult about the application.8

[109]Section 171 of the RMA applies when considering any notice of requirement:

171     Recommendation by territorial authority

7      Resource Management Act 1991, s 168(2).

8      Section 36A.

(1A) When considering a requirement and any submissions received, a territorial authority must not have regard to trade competition or the effects of trade competition.

(1)When considering a requirement and any submissions received, a territorial authority must, subject to Part 2, consider the effects on the environment of allowing the requirement, having particular regard to—

(a)any relevant provisions of—

(i)a national policy statement:

(ii)a New Zealand coastal policy statement:

(iii)a regional policy statement or proposed regional policy statement:

(iv)a plan or proposed plan; and

(b)whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work if—

(i)the requiring authority does not have an interest in the land sufficient for undertaking the work; or

(ii)it is likely that the work will have a significant adverse effect on the environment; and

(c)whether the work and designation are reasonably necessary for achieving the objectives of the requiring authority for which the designation is sought; and

(d)any other matter the territorial authority considers reasonably necessary in order to make a recommendation on the requirement.

(1B) The effects to be considered under subsection (1) may include any positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from the activity enabled by the designation, as long as those effects result from measures proposed or agreed to by the requiring authority.

(2)The territorial authority may recommend to the requiring authority that it—

(a)confirm the requirement:

(b)modify the requirement:

(c)impose conditions:

(d)withdraw the requirement.

(2A) However, if the requiring authority is the Minister of Education or the Minister of Defence, the territorial authority may not recommend

imposing a condition requiring a financial contribution (as defined in section 108(9)).

(3)The territorial authority must give reasons for its recommendation under subsection (2).

[110]Section 296 of the RMA provides that:

296 No review of decisions unless right of appeal  or reference  to inquiry exercised

If there is a right to refer any matter for inquiry to the Environment Court or to appeal to the court against a decision of a local authority, consent authority or any person under this Act or under any other Act or regulation—

(a)no application for review under the Judicial Review Procedure Act 2016 may be made; and

(b)no proceedings seeking a writ of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction in relation to that decision, may be heard by the High Court—

unless the right has been exercised by the applicant in the proceedings and the court has made a decision.

State-Owned Enterprises Act 1986

[111]          KiwiRail  is  a  state-owned  enterprise  under  the SOE Act.    The principal objective of a state-owned enterprise is as follows:

4        Principal objective to be successful business

(1)The principal objective of every State enterprise shall be to operate as a successful business and, to this end, to be—

(a)as profitable and efficient as comparable businesses that are not owned by the Crown; and

(b)a good employer; and

(c)an organisation that exhibits a sense of social responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage these when able to do so.

…

Land Transport Management Act 2003

[112]          The LTMA governs land transport in New Zealand. The purpose of the LTMA is to contribute to an effective, efficient and safe land transport system in the public interest.9

[113]Waka Kotahi’s functions include:10

(a)to oversee the planning, operation, implementation, and delivery of public transport (including issuing guidelines for regional public transport plans (RPTP));

(b)to manage the funding of the land transport system; and

(c)to assist, advise, and cooperate with KiwiRail in relation to KiwiRail’s role in preparing each rail network investment programme.

[114]          Regional transport committees are required to prepare a RPTP every six financial years and to approve it by a date appointed by Waka Kotahi.11 For Auckland, the regional transport committee is the governing body of Auckland Transport or a joint regional transport committee that includes Auckland Transport as a member.12

[115]Section 14 prescribes the core requirements of a RPTP:

14       Core requirements of regional land transport plans

Before a regional transport committee submits a regional land transport plan to a regional council or Auckland Transport (as the case may be) for approval, the regional transport committee must—

(a)be satisfied that the regional land transport plan—

(i)contributes to the purpose of this Act; and

(ii)is consistent with the GPS on land transport; and

(b)have considered—

9      LTMA, s 3.

10     LTMA, s 95(1)(i), (j) and (l). A full list of Waka Kotahi’s functions are set out at s 95.

11     LTMA, s 13.

12     LTMA, s 5.

(i)alternative regional land transport objectives that would contribute to the purpose of this Act; and

(ii)the feasibility and affordability of those alternative objectives; and

(c)have taken into account any—

(i)national energy efficiency and conservation strategy; and

(ii)relevant national policy statements and any relevant regional policy statements or plans that are for the time being in force under the Resource Management Act 1991; and

(iii)likely funding from any source.

[116]          The LTMA also requires KiwiRail to prepare a rail network investment programme every three financial years and the requirements of that programme are set out at s 22A(3).13

[117]          In acting under the LTMA, Waka Kotahi, Auckland Transport, and the Auckland Council must work cooperatively with each other and KiwiRail, the police and other organisations that have responsibilities in relation to the Auckland transport system and state highways and railways within Auckland. The purpose being to help ensure a coordinated approach to decision making about Auckland transport.14

Local Government (Auckland Council) Act 2009

[118]          Auckland Transport’s purpose is to “contribute to an effective, efficient, and safe Auckland land transport system in the public interest.”15

[119]The functions of Auckland Transport are:16

45       Functions of Auckland Transport

The functions of Auckland Transport are to—

(a)prepare the regional land transport plan for Auckland in accordance with the Land Transport Management Act 2003; and

13     Section 22A of the LTMA was inserted on 1 July 2020 by s 11 of the Land Transport (Rail) Legislation Act 2020.

14     LTMA, s 38AA.

15     LGACA, s 39.

16     LGACA.

(b)manage and control the Auckland transport system in accordance with this Act, including by—

(i)performing the statutory functions and exercising the statutory powers set out in section 46 as if Auckland Transport were a local authority or other statutory body, as the case may be; and

(ii)acting as a requiring authority under section 167 of the Resource Management Act 1991 in accordance with section 47; and

(c)carry out research and provide education and training in relation to land transport in Auckland; and

(d)undertake any other transport functions that the Auckland Council may lawfully direct it to perform or delegate to it (for example, management of off-street parking facilities owned by the Council); and

(e)without limiting paragraph (d), undertake any transport functions expressly conferred on the Auckland Council by any enactment (for example, under a local Act) that the Council may lawfully direct it to perform or delegate to it; and

(f)undertake or exercise any functions, powers, and duties in respect of State highways that the New Zealand Transport Agency or the Director of Land Transport may lawfully delegate to it; and

(g)undertake any other functions that are given to it by this Act or any other enactment, or that are incidental and related to, or consequential upon, any of its functions under this Act or any other enactment.

[120]          Other than as prescribed by the LTMA, Auckland Transport’s functions under the LGACA in relation to managing and controlling the Auckland transport system include performing the statutory functions under s 46 (which are not relevant to the issues in this proceeding) and acting as a requiring authority under s 47. Auckland Council is prohibited from performing Auckland Transport’s functions and powers under ss 46 and 47.17

[121]          Auckland Transport is deemed to be approved as a requiring authority under s 167 of the RMA for the purpose of carrying out an activity or proposed activity in relation to the Auckland transport system for which it or the Auckland Council has financial responsibility.18

17     LGACA, s 50.

18     LGACA, s 47(1).

[122]          Relevantly, Auckland Transport’s management and control functions relate to the Auckland transport system, which is defined as follows:19

Auckland transport system—

(a)means—

(i)the roads (as defined in section 315 of the Local Government Act 1974) within Auckland; and

(ii)the public transport services (as defined in section 5(1) of the Land Transport Management Act 2003) within Auckland; and

(iii)the public transport infrastructure owned by the Council; and

(iv)the public transport infrastructure owned by or under the control of Auckland Transport; but

(b)does not include—

(i)State highways:

(ii)railways under the control of New Zealand Railways Corporation:

(iii)off-street parking facilities under the control of the Council:

(iv)airfields

[123]          Auckland Transport’s functions under s 45(b) of the LGACA are therefore limited to public transport infrastructure that is owned by Auckland Council or owned by, or under the control of, Auckland Transport. It does not include railways under the control of KiwiRail.

[124]          I do not consider that the LGACA prescribes functions and powers to Auckland Transport such that only it can determine where public transport infrastructure is to be located in circumstances where it is not the requiring authority for the relevant infrastructure and the infrastructure cannot be said to be part of the Auckland transport system.

19     LGACA, s 37(1).

Climate Change Response Act 2002

[125]          The Climate Change Response Act 2002 was amended on 14 November 2019 to set a target of zero for New Zealand’s net greenhouse gases (excluding biogenic methane) by 2050.20

ISSUE 1 – IS THE DECISION AMENABLE TO JUDICIAL REVIEW?

[126]          Section 11 of the Judicial Review Procedure Act 2016 (JRPA) provides for judicial review of a “proposed or purported exercise of a statutory power.”

[127]          Section 5(1) of the Judicial Review Procedure Act defines “statutory power” as:

5        Meaning of statutory power

(1)In this Act, statutory power means a power or right to do any thing that is specified in subsection (2) and that is conferred by or under—

(a)any Act; or

(b)the constitution or other instrument of incorporation, rules, or bylaws of any body corporate.

(2)The things referred to in subsection (1) are—

(a)to make any secondary legislation; or

(b)to exercise a statutory power of decision; or

(c)to require any person to do or refrain from doing anything that, but for such requirement, the person would not be required by law to do or refrain from doing; or

(d)to do anything that would, but for such power or right, be a breach of the legal rights of any person; or

(e)to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person.

[128]          The applicants did not clearly articulate the statutory power that the respondents were purporting to exercise when they made the “collective decision” at the Workshop. The statutory regime set out above indicates that each respondent has different statutory functions and powers.

20     Climate Change Response Act 2002, s 5Q.

[129]          The applicants say that the Court should be less concerned with the source of the power and more concerned with its consequence, as articulated in Wilson v White:21

The principle is that the courts, in considering amenability of administrative action to judicial review, are less concerned with the source of power exercised by decision-makers (and in particular whether or not it is statutory) and now more ready than in the past to treat as reviewable the exercise of any power having public consequences. That is so even if the power is exercised by a private organisation. In all such cases the power must be exercised on public law principles.

[130]          The Court of Appeal in Wilson v White went on to consider that provided the power came within the broad definition of a statutory power under s 3 of the Judicature Amendment Act 1972 the procedure for review will be the statutory one. The wide reach was emphasised in Webster v Auckland Harbour Board:22

… Parliament underlined that the modern and flexible procedural provisions of the Act are intended to have a liberal scope. If the applicants are able to show that in making any decision under attack the Board violated the express or implied requirements of some statute (which requirements could include, for instance, relevant considerations or fairness) it is highly probable that they will also be able to show that the decision decided, prescribed or affected their rights or privileges. And if their case did reach that point, we think that it would be contrary to the intention of the Judicature Amendment Act to hold that it was not sufficiently a decision under a power conferred by any Act to enable the review procedure to be used.

[131]          In Lawyers for Climate Action NZ Inc v Climate Change Commission Mallon J rejected an argument that the Climate Change Commission (the Commission) was not exercising a statutory power when providing advice to the Minister in circumstances where the Commission had been set up to be independent from the Minister.23 The Commission was required by statute to take into account specified considerations, to make its draft advice available to invite submissions on the draft, and to make the advice publicly available. The Minister is required by statute to respond to the advice and to explain their reasons if departing from the advice.24 The Court considered that the Commission’s advice has a significant influence on the Minister’s decision and the

21     Wilson v White [2005] 1 NZLR 189 (CA) at [21].

22     Webster v Auckland Harbour Board [1983] NZLR 646 (CA) at 651.

23     Lawyers for Climate Action NZ Inc v Climate Change Commission [2022] NZHC 3064 [Lawyers for Climate Action].

24 At [64].

advice has public consequences separate from the Minister’s ultimate decision.25 The Commission’s advice was therefore reviewable.

[132]          It is accepted here that the views of Auckland Council, Auckland Transport and Waka Kotahi are relevant to KiwiRail’s ultimate decision to lodge notices of requirement. As set out above, Auckland Transport has statutory functions in relation to the Auckland transport system, and together with Waka Kotahi and through the SGA, had been developing the ISTN. The SGA’s work included developing business cases for the purpose of protecting future transport routes, which would include the construction of new train stations. The PAA indicates that it was anticipated that Auckland Transport would likely be the requiring authority and so would be responsible for the lodgement of any notices of requirement necessary for route protection.

[133]          It follows that Auckland Transport and Waka Kotahi were participating in the Workshop given their respective statutory functions in seeking to route protect future transport networks and as part of their purpose of contributing to an effective, efficient, and safe land transport system in the public interest. Neither however, had requiring authority status so would not be able to lodge notices of requirement for designations.

[134]          Auckland Council had previously been involved through the Structure Plan process and would be involved in any change plan process and was also the relevant territorial authority when the notices of requirement were ultimately lodged. It was therefore participating in the Workshop in the context of those functions.

[135]          KiwiRail had been allocated funding to build train stations at Drury West and Drury Central at the time of the Workshop. It would be the requiring authority under the RMA for that purpose. It therefore had to determine when to lodge the notices of requirement and for what locations. I accept that it had the statutory authority to determine, for the purpose of the notices of requirement, where to locate the Drury West train station.

25 At [65].

[136]          There were therefore different statutory powers being exercised by each of the respondents attending the Workshop. Further, the evidence indicates that KiwiRail wished to obtain agreement from all of the respondents. Such a desire is prudent given the involvement of those other agencies in the development of the IBC, the ITA, the Structure Plan and the earlier engagement by the SGA in May 2020. That KiwiRail desired a consensus is accepted but it does not indicate a collective exercise of a statutory power. Rather, it is relevant to the degree of influence on KiwiRail’s ultimate decision.

[137]          The respondents all say that the Workshop was not the end of the process and that subsequent to the Workshop there was further engagement, further work on finalising the DBC, and further analysis of MADE’s reports such that, at best, the Workshop could only be considered a preliminary decision of KiwiRail.

Preliminary decision

[138]          The Court of Appeal in Singh v Chief Executive Ministry of Business, Innovation and Employment outlined the considerations relevant to determining whether a preliminary decision is reviewable:26

[38]      In summary, without limiting the matters which may guide a court in cases such as this, the following considerations will be relevant:

(a)The nature of the statutory power being exercised.

(b)The stage that has been reached in the relevant statutory process.

(c)The extent to which the statutory power exercised is likely to be influential in the ultimate decision.

(d)Whether there are any further opportunities in the statutory process to correct any apparent error including the availability of a right to appeal or seek judicial review of a decision ultimately reached at the conclusion of the statutory process.

26     Singh v Chief Executive Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23.

[139]          Courts have held that review of a preliminary decision will be exceptional.27 That cases in which preliminary decisions are reviewable will be “exceptional” has been interpreted to mean that they will be rare, rather than requiring exceptional circumstances.28 Kós J in Zhao v New Zealand Law Society stated that where processes leading to a final decision are not completed, review remains discretionary and will be exceptional.29

[140]          In Hot Holdings Pty Ltd v Creasy, a case from the High Court of Australia but adopted in New Zealand cases,30 stated that, typically, preliminary decisions are not reviewable unless they are a step in the process that is capable of altering rights, interests or liabilities.31

[141]          In Lawyer v New Zealand Law Society Thomas J said there was a high bar before judicial review of preliminary decisions would be allowed. This was identified as arising only in exceptional cases where a decision-maker had gone seriously off the rails.32

[142]          In Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries, Ronald Young J held that review will be appropriate where the procedure has “gone off the rails” so that it cannot be cured:33

[15] I acknowledge also that there may be situations where because the procedure of decision-making has seriously gone off the rails at an early stage in the process it is essential that the Court quashed the decision. This will particularly be the case where no form of further consultation with the aggrieved party can cure the defect. An obvious example is overt bias by a decision-maker. If established at a preliminary stage it will probably be fatal to all subsequent decision-making.

27 Zhao v New Zealand Law Society [2012] NZHC 2169; Singh v Chief Executive Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23; and Lawyer v New Zealand Law Society [2019] NZHC 1961.

28 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at [21].

29 Zhao v New Zealand Law Society [2012] NZHC 2169 at [67].

30 Including Zhao v New Zealand Law Society [2012] NZHC 2169; and Marlborough Aquaculture  Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC).

31 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 (HCA).

32 Lawyer v New Zealand Law Society [2019] NZHC 1961 at [117] citing Singh v Chief Executive Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23; and Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at [16].

33 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC).

[143]          Whether the applicant subsequently has the ability to challenge the decision is relevant, if there is no further appeal or recourse for example, this can count in favour of review.34

Nature of the statutory power being exercised

[144]          The applicants contend that the decision as to the location of the Drury West station “must be taken by Auckland Council and or Auckland Transport.” They say all the respondents participated in that decision by attending the Workshop. The applicants refer to the approval of the Auckland Transport Board in October 2020, and the documents showing that the Boards of the other agencies had endorsed the Workshop decision.

[145]          For the reasons that follow, I do not accept that only Auckland Transport or Auckland Council had the statutory authority to decide the location of the Drury West train station for the purpose of lodging a notice of requirement.

[146]          First, the definition of “Auckland transport system” does not include public transport infrastructure that is not owned by the Auckland Council, or not owned by or under the control of Auckland Transport. Nor does it include railways under the control of KiwiRail.

[147]          Second, railways under the control of KiwiRail are an express exclusion to the definition. The applicants argue that railways do not include infrastructure, such as train stations, so that the exclusion does not cover railway-related infrastructure. It would lead to an absurd outcome if ‘railways’ was interpreted so narrowly that it did not include any infrastructure related to those railways, even when KiwiRail had financial responsibility for that railway infrastructure. KiwiRail would have financial responsibility without any power to decide where to put that infrastructure.

[148]          Even if ‘railways’ does not extend to railway infrastructure, Auckland Transport or Auckland Council must still have ownership or control. The fact that

34     See for example Mercury NZ Ltd v The Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 at [23].

they are not financially responsible for the infrastructure indicates that there is no control, without more.

[149]          Third, Parliament restricted Auckland Transport’s requiring authority status to infrastructure for which it (or Auckland Council) has financial responsibility, thereby indicating that it is not the requiring authority for lodging a notice of requirement for that infrastructure and it is not the only agency that can decide where to locate the infrastructure.

[150]          Fourth, the RMA regime prescribes the requirements when considering whether to approve a notice of requirement for a designation. That process provides for consideration of: any planning documents;35 whether adequate consideration has been given to alternative sites; whether the work and designation are reasonably necessary for achieving the objectives for which it is sought; and any other matter that the territorial authority reasonably considers necessary.36

[151]          Further, s 36A of the RMA provides that a requiring authority must comply with “a duty under any other enactment to consult any person about the application,” thereby indicating that if Parliament considered that only Auckland Council or Auckland Transport could make the decision about public transport infrastructure within Auckland, it would have required other requiring authorities (such as KiwiRail or Waka Kotahi) to first obtain a decision from either or both of Auckland Council and Auckland Transport prior to lodgement. The fact there is no such statutory requirement on KiwiRail indicates that it is within its power to determine where to locate railway infrastructure and that such location will be considered in accordance with s 171 of the RMA and any other enactment that requires KiwiRail to consult. That is the relevant statutory process in this case.

[152]          There is no statutory power conferred on all of the respondents to collectively determine the location of a train station. As set out at [132] to [136] above, each of the respondents have different statutory powers and functions and were therefore

35     Including a National policy statement, a New Zealand coastal policy statement, a regional policy statement or proposed regional policy statement, a plan or proposed plan.

36     Resource Management Act 1991 [RMA], s 171.

exercising those different functions when attending the Workshop. Only KiwiRail was a requiring authority for the purposes of determining whether to lodge the notices of requirement and the application for resource consent for DW1. The outcome of the Workshop therefore needs to be assessed in that context.

Stage in the statutory process

[153]          There is no prescribed statutory process prior to lodging notices of requirement.

[154]          The location of the train station was the subject of different processes overseen by different agencies at different times.

[155]          First, the PBC, developed by Auckland Council, Auckland Transport and Waka Kotahi, identified that the development of business cases for route protection of the future strategy transport network in Auckland was a priority and recommended an alliance model for the next stages of business cases and route protection work. The PBC involved public consultation.

[156]          Second, the SGA was established to prepare indicative business cases for the ISTN, which included South Auckland.

[157]          Third, in September 2017 Auckland Council commenced its process for the development of the Structure Plan for the Drury-Opāheke area. The Auckland Council engaged the SGA in June 2018 to prepare the ITA. The ITA noted that:

(a)no final decision on the indicative locations (now DW1 and DW2) had been made from a business case perspective;

(b)the Structure Plan and ITA mapping indicatively shows the location (now DW2) for the reason that it is likely to better integrate with the assumed centre to the east of the SH22/Jesmond Road intersection;

(c)there is an opportunity to further refine rail station locations, particularly if land use is developed further through the Structure Plan or plan change processes; and

(d)the exact location of stations is also a function of design considerations and access arrangements which will be considered further through the DBC process.

[158]          I do not consider that the SGA or Auckland Council adequately explained why the Structure Plan only included the area where DW2 is located, in circumstances where the ITA and IBC indicated that both DW1 and DW2 were preferred for Drury West and final locations could change. The Structure Plan would have been more consistent with the ITA if it included an area that covered both DW1 and DW2. The provision of maps that excluded DW1 suggest that the Auckland Council and the SGA considered that it was appropriate to adopt a Structure Plan that only depicted an area that included DW2 knowing that the area covered by DW1 had not yet been discarded as an option.

[159]          Fourth, the SGA’s work on the DBC, which followed the IBC, commenced in 2019 and included the SGA-led public consultation in May 2020 which identified Option A (DW1) as the preferred location with DW2 and DW3 as options.

[160]          Fifth, the NZUP announced in 2020 that funding would be allocated to KiwiRail to build two stations at Drury Central and Drury West. From that point, KiwiRail was the requiring authority under the RMA and so would need to determine when to lodge a notice of requirement for the new Drury train stations and for which locations. There is no defined process for how a requiring authority determines a location for infrastructure that will be the subject of a notice of requirement. The process that took place comprised:

(a)Technical workshops in 2020 leading to the Workshop decision in August 2020 at which the minutes record that the preferred location for the Drury West station is DW1.

(b)Meetings between KiwiRail and MADE.

(c)KiwiRail’s Board determining in November 2020 that it would defer a decision pending further discussions.

(d)KiwiRail considering whether three stations (Drury Central, Drury West and Paerata), rather than two (Drury Central and Drury West), be constructed, and if so, whether the NZUP funding was sufficient.

(e)Consideration of technical issues including relocation of a gas line.

(f)KiwiRail engaging Auckland Transport who in turn engaged the SGA to undertake public engagement and continue the DBC. This included public engagement commencing in December 2020 with distribution of a document indicating technical investigations would start with community and landowner engagement in early 2021.

(g)Information provided to MADE on 22 January 2021 in response to an OIA request regarding the criteria for assessing locations.

(h)A consultation pack distributed in February 2021 explaining why DW1 was the preferred location and requesting feedback.

(i)Meetings between KiwiRail and MADE in April and May 2021 where KiwiRail informed MADE that it had unsuccessfully tried to find a way to move the DW1 location east closer to DW2.

(j)Confirmation of funding for three stations (Drury Central, Drury West and Paerata) in June 2021.

(k)The SGA’s continued work on the DBC, which was finalised in July 2021.

(l)Preparation of the ImBC by KiwiRail, approved by its Board in November 2021.

(m)Preparation of expert reports for the notice of requirement.

(n)The SGA’s consideration of three technical reports prepared for MADE in June 2022.

(o)The final decision by Mr Gordon on 28 June 2022 to lodge the notice of requirement.

[161]          Auckland Transport says that the business case process, while related to the structure planning process, is separate from it and is a precursor to the preparation of an application under the RMA. Mr Craig Hind’s evidence was that consideration of alternatives was premised on the need to be sufficiently robust to meet the RMA requirements regarding the consideration of alternatives, including locations. Mr Hind says the business case process is responsive to change and requires previous assessments to be re-evaluated. This evidence is supported by what actually happened and reflects the statutory regime under the RMA for notices of requirement.

[162]          The issue of where a train station should be located, as is illustrated by this case, may be captured in a number of statutory processes including:

(a)development of policy to determine future transport networks;

(b)structure plans and subsequent plan changes; and

(c)the process a requiring authority undertakes when it has financial responsibility for public infrastructure to enable it to determine when to lodge a notice of requirement and for what location.

[163]          I am satisfied that in this case, the Workshop was part of KiwiRail’s process for deciding to lodge a notice of requirement. In the context of that process, the Workshop took place soon after KiwiRail was allocated funding, and almost two years prior to lodging. The Workshop occurred after the Structure Plan process. The requiring authority can change depending on who has financial responsibility for the infrastructure so that the process may switch from being the responsibility of one delivery agency to another delivery agency. Central government determined that issue

by allocating funding to KiwiRail. The statutory regime allows this as it only deems Auckland Transport the requiring authority if it (or Auckland Council) has financial responsibility.

[164]          While contemporaneous documents indicate that KiwiRail’s intention was to lodge the notice of requirement by the end of 2020 (suggesting most of the analysis was complete by August 2020), the process following the Workshop decision indicates that KiwiRail subsequently decided that further engagement and analysis was required.

[165]          The process, as seen from KiwiRail’s perspective, was summarised in KiwiRail’s notice of requirement as follows:

While the requiring authority and applicant is KiwiRail, this Project is part of the broader Te Tupu Ngātahi programme. Therefore, consultation and engagement has been largely led by Te Tupu Ngātahi, with KiwiRail involved in a stakeholder capacity. KiwiRail became directly involved with consultation and engagement activities once confirmed as the requiring authority and applicant in mid-2020. From mid-2021, engagement with the affected property owners has been led by KiwiRail, with the support of Te Tupu Ngātahi.

[166]          While the Workshop was early in the process of KiwiRail becoming the requiring authority, it was some four years after work had commenced on considering the business case for the location of the train station. That, however, must be viewed against what happened after the Workshop decision which indicates that further analysis, further public consultation, and further direct engagement with the applicants took place before KiwiRail decided to lodge a notice of requirement.

Influence on ultimate decision

[167]          The respondents accept that a consensus was reached at the Workshop as to the preferred Drury West station location. The respondents say the consensus had no legal standing, was not a condition precedent to the future steps taken, and did not constrain the respondents from making further inquiries.

[168]          The report to the Auckland Transport Board in September 2020 indicates the likely reasons for the Workshop, as follows:

1.   Preferred locations for three stations in the southern greenfield growth area have been identified. Through the NZUP, KiwiRail is the delivery agency for the stations. KiwiRail requires confirmation of these station locations now to enable them to be included in the Papakura to Pukekohe rail electrification programme. The timing of this requires an out of cycle board discussion and consideration of the preferred station locations prior to the board’s consideration of the DBCs.

2.   A comprehensive technical analysis and options evaluation assessment (the analysis) has been completed to determine the location of the three stations – Drury Central, Drury West, and Paerata. These preferred station locations have been confirmed with senior staff from Auckland Council, KiwiRail, Auckland Transport (AT) and Waka Kotahi. The process is considered to have been robust and meet the requirements for the business case process for investment and the route protection notices of requirement (NOR) processes.

[169]          KiwiRail accepts that the agreement of the respondents was very relevant. I accept it was very influential on any ultimate decision. Mr Gordon acknowledged that agreement of the respondents was relevant but says that after the Workshop further analysis and engagement was undertaken and he was confident he could get the agreement of the other respondents if that analysis indicated that the Drury West preferred station location should change.

[170]          Mr Gordon also says that he did not consider that impact on the Papakura to Pukekohe rail electrification programme (P2P) precluded KiwiRail from changing the preferred location from DW1. He did not consider that any increased costs to the P2P were greater than the costs of a potential dispute over the DW1 location. Mr Gordon’s evidence was that if a workable compromise with MADE could be reached, he would have taken that compromise location to the other agencies and pushed hard to get them to agree. Mr Gordon is confident he could have obtained their agreement, should that be necessary. Mr Gordon’s evidence is contrary to the Workshop being a final decision or being so influential that KiwiRail would not have changed its view.

[171]          What transpired after the Workshop is consistent with Mr Gordon’s evidence, thereby indicating that rather than the Workshop being a preliminary decision, it was part of the iterative process undertaken to determine whether DW1 should be preferred or whether further analysis indicated otherwise.

Opportunities to correct errors and availability of appeal or judicial review

[172]          There were further opportunities for the applicants to correct any apparent error arising from the Workshop as follows:

(a)Meetings: at the meetings the applicants attended with one or more of the respondents on 13 October 2020, 22 October 2020, 4 and 5 November 2020, 5 March 2021, 8 April 2021, 13 April 2021, and 25 May 2021.

(b)Public consultation: there were public online engagement sessions on 18 and 20 February 2021, and an in person open day on 23 March 2021.

(c)Responding to the reasons provided for DW1 being the preferred location as provided in the May 2020 consultation, the information disclosed at the meetings, and the information provided in response to OIA requests.

[173]          The Environment Court will consider the notice of requirement in accordance with s 171.37 There is therefore a further opportunity in that process to correct any apparent error. There is also a right of appeal from the decision of the Environment Court.

[174]          The applicants refer to Queenstown Airport Corp Ltd v Queenstown Lakes District Council where the Court adopted the principles stated in the decision of the Board of Inquiry when considering s 171 of the RMA:38

a)the focus is on the process, not the outcome: whether the requiring authority has made sufficient investigations of alternatives to satisfy itself of the alternative proposed, rather than acting arbitrarily, or giving only cursory consideration to alternatives. Adequate consideration does not mean exhaustive or meticulous consideration.

b)the question is not whether the best route, site or method has been chosen, nor whether there are more appropriate routes, sites or methods.

37     RMA.

38     Queenstown Airport Corp Ltd v Queenstown Lakes District Council [2013] NZHC 2347 at [18].

c)that there may be routes, sites or methods which may be considered by some (including submitters) to be more suitable is irrelevant.

d)the Act does not entrust to the decision-maker the policy function of deciding the most suitable site; the executive responsibility for selecting the site remains with the requiring authority.

e)the Act does not require every alternative, however speculative, to have been fully considered; the requiring authority is not required to eliminate speculative alternatives or suppositious options.

[175]          The applicants say the Environment Court will not determine which is the best or most suitable site. Neither will this Court in a judicial review application. The applicants also refer to the decision of Wylie J not to stay this proceeding and say that the decision indicates that the Environment Court cannot address the applicants’ concerns.39 Wylie J’s decision, however, must be read in its context. It was not concerned with determining whether the Workshop decision was amenable to review. It proceeded on the assumption that the decision was amenable to review, so any observations as to the differences between judicial review of the Workshop outcome and the role of the Environment Court are limited to that context. If the Workshop is not amenable to review, and the decision is ultimately KiwiRail’s (as I have found), the Environment Court process provides a further opportunity for the applicants’ issues to be addressed.

[176]          Further, the applicants appear to be asserting that the procedural irregularities in the process are the basis of their concern which cannot be addressed in the Environment Court. The process in the Environment Court is an opportunity for the applicants to submit material which establishes why DW1 is flawed, why it fails to comply with planning documents, why it fails to comply with climate change requirements, and why it should not be preferred to DW2. The Environment Court process does provide an opportunity for their concerns to be addressed. This is particularly so when KiwiRail does not have any express statutory obligation to consult before lodging a notice of requirement but took a number of steps to do so.

[177]          The applicants say the notice of requirement process cannot address the failure to comply with the applicants’ legitimate expectations arising from the Structure Plan.

39     MADE Group Ltd v KiwiRail Holdings Ltd [2022] NZHC 3038.

The applicants knew by May 2020 that the preferred location had changed to Option A (DW1). They had an opportunity to address their concerns in responding to that consultation. They had opportunities throughout the meetings in 2020 and 2021 to provide any material they wished in order to convince KiwiRail to change the location.

[178]          It is acknowledged that in some circumstances even where there is a further opportunity to correct errors, it may nevertheless be appropriate to intervene. In Mercury NZ Ltd v Waitangi Tribunal the Court considered that it appropriate to review a preliminary decision, despite the final decision being subject to judicial review and then potential further appeals:40

[29]      I nevertheless agree that practical considerations might still suggest that judicial review at this stage should not be granted. If the Court entertains judicial review now there is a prospect for a delay in the ultimate decisions being made by the Tribunal. It is highly likely, irrespective of the outcome of the decision in this Court, that appeals will be pursued before the Court of Appeal and potentially the Supreme Court. Those steps will take time, and this may interfere with the progress of the Tribunal’s work. There is even a risk of further prolonging the disputes, as there is a possibility of judicial review going through the appeal system not only at the preliminary determination stage, but also again following a final determination. Awaiting a final determination would also allow all matters relevant to the judicial review claims to be addressed by this Court, and subsequently on appeal.

[30]      Notwithstanding those factors, a decision not to address the judicial review challenges at this point would be decidedly unhelpful. As the Tribunal itself has noted there is no direct authority on the meaning of the relevant legislative provisions, and the arguments that have now been advanced by the parties are critical to the outcome of the applications, and resumption claims more generally. If the Court were to agree with the Tribunal’s approach, then the door would be open for it to deal with these claims, and any other resumption claims with a clearer understanding of the proper approach to the relevant provisions, and any legal limits on its powers. And if the Court concludes that the Tribunal is following an erroneous approach it would be better for that to be said now, rather than having the parties go through further procedures before an ultimate determination.

[31]      One of the key reasons why the release of the preliminary determination was helpful is precisely because it allowed any judicial review claims to be advanced. The reasons that caused the Tribunal to release a preliminary determination provide equivalent justification for the Court to consider judicial review of that determination at this stage. Moreover, having now heard the claims it seems to me that it would be most unhelpful for the Court not to provide its conclusions, even allowing for the fact that the Court of Appeal or Supreme Court may say that this Court’s views are erroneous.

40     Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654.

[32]      For these reasons I reject the argument that the Court should not address the judicial review claims, and I proceed to do so.

[179]          In Mercury, the Waitangi Tribunal was required to consider the meaning of ss 8A and 8HB of the Treaty of Waitangi Act 1975 in circumstances where there was no direct authority on their meaning. In those circumstances, the Court considered it appropriate to intervene and that it would be helpful to do so.

[180]          In contrast, here, the outcome of the Workshop did not disclose any predetermined decision by KiwiRail as to the interpretation of a statutory provision it was required to consider in determining the Drury West station location. The circumstances here do not indicate it is necessary for the Court to intervene to clarify a statutory interpretation issue.

Was the Workshop decision capable of altering rights, interests or liabilities?

[181]          The applicants say the Workshop decision was a “collective exercise of public powers” by the respondents affecting the interests of the Drury West community and the interests of the wider community. The applicants rely on KiwiRail’s report to Ministers in November 2020 as indicating that their rights were altered. The report notes that:

12.While there will always be concerns about any of the locations given competing developer interests, the Drury West site is particularly contentious. The party who is most advanced on actually developing their land – Ma Development Enterprises (MADE), headed by Charles Ma – has focussed on a station being located where it was originally signalled in Auckland Council’s plans (see Appendix).

13.There are technical reasons, which Auckland City were not aware of at the time, for not adopting that original site. Further, the analysis done by officials focussed on the long-term growth scenario for the Drury Basin as a whole, which as a centre of gravity is some distance from the original Drury West site.

14.Mr Ma feels aggrieved by the change and considers the process run by officials has technical flaws, and that the officials neither adequately engaged with him or properly considered the visionary nature of his development. He has been public in his views, and may litigate in the event KiwiRail designates a different site for the Drury West station, unless we can find a middle path.

[182]          The above passage does not establish that the Workshop decision impacted MADE’s rights. It simply sets out MADE’s opposition to the preferred location and its reasons for that opposition. The report goes on to note that “KiwiRail will continue to have direct dialogue with all developers, including Mr Ma, but we are committed to maintain a united front with all agencies.”

[183]          KiwiRail and the SGA did undertake further engagement with MADE, at which any grievances as to the “technical flaws” in the process could be addressed. If Mr Ma considered the engagement was not adequate, there was an opportunity after the Workshop and after the November 2020 report to the Minister for Mr Ma to provide further submissions on the visionary nature of the development so that those views could be further considered.

[184]          I reject the applicants’ submission that the respondents proceeded on the basis of the decision at the Workshop “subject to messaging communications and managing the politics of changing the location.” This submission would require the Court to accept that KiwiRail’s further consideration of an alternative location in 2021 was simply “managing politics” and that Mr Gordon’s evidence is to be rejected as being untruthful. I do not accept that it is.

[185]The applicants also refer to a KiwiRail report in October 2020 that records:

Note: Progress re Stations fix: Multi agency (AC, AT, NZTA, KR) agreement reached on fixing stations’ position. We have just been informally advised that the Boards of AC, AT, NZTA have endorsed the recommendation. This endorsement will form the basis of a paper to the October KiwiRail Board meeting for approval. The Board has been briefed on the recommendation.

Note: Structured communications package being prepared to assist with the management of the associated stakeholder responses. Draft comms plan, briefing timetable, notices to affected landowners being finalised to commence engagement after prior briefings with Minsters, Mayor, Local Boards etc. SGA instructed not to commence the landowner engagement without KiwiRail approval. Jenni Austin is coordinating the messaging for KR. COO CPAD involved. Close control of this process is critical given the degree of Developer disquiet.

A multi agency programme of “next steps” has been drafted to; 1 Communicate the station fix decision. See above.

2    Confirm the Station footprint Design, relationship with PT interchange, roads / access for route protection / designations / budget etc. Options identified and being assessed for the November update.

3  Land use integration/transport systems/funding/financing and sequencing of land use and investment changes

(Point 3 relates primarily to AT/AC initiatives) Study at 2 will coordinate with this. First cut RLB review of SGA cost estimates indicate significant differences. Meeting arranged with SGA for Wednesday 11 for a deep dive into the SGA cost assumptions.

…

Interagency agreement reached to fix Stations locations. Now endorsed by AC/AT/NZTA Boards. KiwiRail Board briefed 27 October.

[186]          The above report needs to be read in the context of what actually happened. Only the Auckland Transport Board endorsed the Workshop outcome.

[187]          The KiwiRail Board minutes for the October 2020 meeting note that “notices to affected landowners being finalised to commence engagement after prior briefings with Ministers, Mayor, Local Boards etc. The SGA instructed not to commence the landowner engagement without KiwiRail approval.” Those minutes indicate that KiwiRail intended to undertake further engagement and that the Workshop was not a final decision. The subsequent KiwiRail Board minutes in November 2020, then indicate that KiwiRail was going to defer a decision, thereby indicating that the Workshop did not impact the applicants’ ability to provide further input before a final decision was made.

[188]          The documents the applicants rely on to assert there was a final decision indicate that KiwiRail was concerned to ensure the agencies were united, but it does not follow that the Workshop outcome was final such that there was no opportunity for that decision to change. It would be necessary to infer that the reference to “future engagement” was for perception only and that KiwiRail had predetermined the outcome of its direct engagement with MADE and the outcome of the public engagement in 2021. That would be contrary to the evidence of Mr Gordon and the considerable time that it took before the notices of requirement were lodged.

[189]          The applicants then refer to internal communications as evidencing a final decision by the respondents, with Board endorsement as a “rubber stamp.” The consensus, however, was never endorsed by Waka Kotahi, KiwiRail or Auckland Council. In fact, KiwiRail’s Board minutes in November 2020 indicated that further discussion was required.

[190]          What occurred after the Workshop is relevant to determining whether the outcome altered the applicants’ rights. I am not satisfied that the outcome of the Workshop was final  given  the  steps  that  were  taken  after  the  Workshop  and  Mr Gordon’s evidence that KiwiRail was open to changing the location if the applicants could satisfy it that the analysis was flawed.

[191]          The applicants then say that the Court can infer that a final decision was made because the respondents were concerned with communications and managing the politics of the change. I accept that the respondents were acutely aware of the potential for a dispute and the “political” risks of their view that DW1 was the preferred location in circumstances where DW2 was preferred by MADE. This was further complicated by the fact that despite the SGA indicating in the IBC and the ITA that both locations (now DW1 and DW2) were preferred, the Structure Plan provided an indicative location that only covered the DW2 location. The May 2020 consultation had notified the public that Option A (DW1) had not been rejected as it was disclosed as the preferred option.

[192]The ITA had noted that:

The ITA has adopted indicative location DC2 for Drury Central as per the IBC, and notes that no final decision regarding indicative locations DW3 and DW4 for Drury West has been made from a business case perspective. The Structure Plan and ITA mapping indicatively shows location DW4 for the reason that it is likely to better integrate with the currently assumed centre to the east of the SH22/Jesmond Road intersection.

There is an opportunity to further refine the transport network including rail station locations, particularly in the event that land use is developed further through the Structure Plan or Plan Change processes. The exact location of stations is also a function of design considerations such as platform length and configuration, and access arrangements for stations which will be considered further through the DBC process.

[193]          The ITA is clear that the exact location could change and that from a business case perspective it had not been determined.

[194]          Despite the Structure Plan, MADE knew in May 2020, prior to the Workshop, that the preferred location had changed when the SGA distributed the consultation document indicating Option A (DW1) was preferred. By that time, it was clear that DW1 had not been rejected.

[195]          There were ongoing opportunities for the applicants to “correct” or “change” the view reached in the May 2020 consultation and at the Workshop that DW1 was the preferred location. This is evident from the further round of consultation in 2021, the meetings between KiwiRail and MADE after the Workshop, KiwiRail’s consideration of a further alternative location in mid-2021, and KiwiRail’s subsequent consideration of reports prepared on behalf of MADE.

[196]          I am not satisfied that something had seriously gone off the rails at the time of the Workshop such that it is necessary for the Court to intervene to correct the course.

[197]          While detailed analysis had been undertaken when the Workshop decision was made, that was overtaken when KiwiRail determined that further engagement and analysis was necessary. If I were to accept that the outcome of the Workshop altered or impacted the applicants’ rights, I would have to accept that KiwiRail had no intention of changing the location and that it engaged with MADE in bad faith. The evidence of Mr Gordon indicates otherwise.

[198]          For the reasons above, I am not satisfied that the Workshop decision impacted any substantive or procedural rights of the applicants.

Public policy

[199]          There are sound public policy reasons for the Workshop outcome not being amenable to review. As noted in Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries, it would be “unattractive to allow the Courts to be used as a

vehicle to potentially challenge each step of a decision-making process.”41 This is especially so in circumstances where that step is prior to subsequent public engagement and prior to further analysis before a final decision.

[200]          If review of this step in the process was allowed, it may result in the unattractive prospect that KiwiRail, and other requiring authorities in the future, will not engage in any consultation so as to avoid interim challenges before lodging a notice of requirement. This concern was identified in Marlborough Aquaculture as a reason not to intervene.42

[201]          In the absence of evidence that the process had seriously gone off the rails, there is no good policy reason to allow review of an outcome of a workshop of officials in circumstances where the actual decision maker went on to undertake further engagement and further analysis. This would be contrary to, and lower, the established threshold for when a preliminary decision is reviewable. The Workshop in this case is not a situation where review is necessary or desirable. Allowing review of the Workshop consensus would enable review of intermediary “decisions” that necessarily occur during extended processes involving multiple parties and stakeholders. There is good reason to decline review of decisions of this type, unless the established threshold has been met and the Court is satisfied that the process has gone off the rails, such that the Court’s discretion to intervene should be exercised.

Conclusion – is the decision reviewable?

[202]          I am not satisfied that the outcome of the Workshop is amenable to review in circumstances where that decision was prior to ongoing analysis for the DBC, a further public consultation round, further direct engagement with MADE and further technical analysis. I accept the evidence of Mr Gordon that KiwiRail was open to changing the location from DW1. KiwiRail acknowledged that the position of the other respondents was very relevant and that KiwiRail would have obtained their agreement to change the location from DW1 if it was satisfied the analysis supported such a change. There was therefore an opportunity for the preferred location to

41     Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at [21].

42 At [21].

change, and the Workshop, when viewed in the context of the overall process, was a step in that process.

[203]          The applicants invited the Court to determine when a decision that is amenable to review was made and to then review that alternative decision, if the Court found that the decision was something other than the Workshop.

[204]            A decision that is amenable to review is a decision that is capable of affecting the rights or interests of the applicants. That would involve either a decision that impacted procedural rights or a decision that impacted substantive rights. I am satisfied that the relevant decision is KiwiRail’s decision to lodge notices of requirement and the resource consent application for the DW1 location. Once that decision was made, the applicants’ procedural and substantive rights were impacted.

[205]          That decision is a matter where there is a right to refer it for inquiry to the Environment Court such that s 296 of the RMA applies to KiwiRail’s decision. That was not the case in relation to the Workshop, the outcome of which could not be referred to the Environment Court for inquiry.

[206]          While I would allow the application to be amended to plead KiwiRail’s decision in June 2022 as the relevant decision, I do not consider that this assists the applicants. Section 296 of the RMA precludes this Court from reviewing the decision to lodge notices of requirement. The Environment Court is the appropriate forum to consider those applications.

[207]          Given my finding that the Workshop is not amenable to review and the relevant decision is subject to s 296 of the RMA, there is no jurisdiction to proceed to review the relevant decision.

LEAVE TO AMEND STATEMENT OF CLAIM

[208]          While I do not need to determine the issue, I would have been inclined to grant leave to amend the claim in circumstances where very significant evidence (thousands of pages of documents) had been filed canvassing all processes from the preparation of the PBC, the Structure Plan process, and the subsequent processes undertaken by

the SGA and KiwiRail. I do not accept that there would have been serious prejudice to the respondents in allowing the amendments.

[209]          I consider that given the interweaving statutory functions and powers of each of the respondents, it would have been in the interests of justice to determine the issues raised in the proposed amendments.

[210]          I do not consider it was necessary for the applicants to have seen the terms of the PAA to have been able to formulate its amendments in circumstances where the applicants had already pleaded that there was a “collective” decision and that all respondents were involved in the Structure Plan process. Further, neither Auckland Council nor KiwiRail are parties to the PAA.

[211]          I do consider the PAA is relevant. It disclosed the functions of the SGA and the expected outcomes from its work, which assisted in understanding the purpose of the SGA and how its work was relevant to KiwiRail’s ultimate decision as to the location of the Drury West station. It also helped in understanding why it was prudent that KiwiRail engage Auckland Transport (who in turn engaged the SGA) to undertake engagement, complete the DBC and to prepare the notices of requirement.

[212]          While the amendments could have been made sooner, I consider it would be in the interests of justice to allow them.

Result

[213]The application for judicial review is dismissed.

Costs

[214]          The respondents have been successful in defending the application. The parties are encouraged to agree costs. If they cannot, the respondents may file costs memoranda by 18 August 2023, with any memorandum in response by 1 September 2023. Memoranda as to costs are to be no more than five pages in length.

[215]Unless a hearing is required, costs will be determined on the papers.

Tahana J