New Zealand Transport Agency v Architectural Centre Inc

[2015] NZHC 1991

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11253 [2015] NZHC 1991

UNDER

the Resource Management Act 1991

IN THE MATTER

of an appeal under s 149V(1) of the Act against the Report and Decision of the Board of Inquiry into the Basin Bridge Proposal dated 29 August 2014

BETWEEN

NEW ZEALAND TRANSPORT AGENCY

Appellant

AND

ARCHITECTURAL CENTRE INCORPORATED & ORS

Parties to the appeal under s 302(1)

of the Act

Hearing:

20-24, 27-31 July 2015

Counsel:

M Casey QC, A F D Cameron, F Wedde and A Cameron for

Appellant

K M Anderson and E Manohar for Wellington City Council

(Interested Party)

P Milne for Architectural Centre Incorporated (Interested Party) T Bennion for Mount Victoria Historical Society

(Interested Party)

M S R Palmer QC for Save the Basin Campaign (Interested Party) and Mount Victoria Residents Association (Interested Party)

Judgment:

21 August 2015

JUDGMENT OF BROWN J

NZ TRANSPORT AGENCY v ARCHITECTURAL CENTRE INC & ORS [2015] NZHC 1991 [21 August 2015]

Table of Contents

Paragraph No.

Overview  [1] Scope of appeal  [7] “A question of law”  [12] Section 171  [27]

Section 171(1)(c)  [30]

Original form of s 171(1)  [32]

1993 Amendment  [33]

2003 Amendment  [41] Sections 171(1) and 104(1) compared  [45] The relevance of King Salmon  [48]

Sequence of consideration of the Issues  [50]

Themeaning of “having particular regard to” in s 171  [56] “have regard to”  [59] “having particular regard to”  [64] Did the Board adopt the correct approach?  [69]

The effect of the phrase “subject to Part 2” in s 171  [83] The relocation of the phrase within s 171(1)  [86] The implications of King Salmon  [99]

Consideration of alternative options – an overview  [119] Chronology  [123] The Board’s general approach  [125]

Subissue 1A: Relating the measure of adequacy to the

adversity of effects  [129]

Q 4(a): Does s 171(1)(b) of the Act require a more careful consideration of alternatives where there are

more significant adverse effects of allowing the requirement?         [136]

Subissue 1B: The requirement to consider all non-suppositious

options with potentially less adverse effects  [145]

Q 7(a): Does s 171(1)(b) require the requiring authority to fully evaluate every non-suppositious alternative with

potentially reduced environmental effects?  [152]

Q 7(b)(i): Is the case one in which the true and only reasonable conclusion contradicts the determination

that BRREO was a non-suppositious option?  [160]

Q 7(b)(ii): Is the case one in which the true and only reasonable conclusion contradicts the determination that Option X was an option with potentially less

adverse effects?  [165]

Q 7(b)(iii): Is the case one in which true and only reasonable conclusion contradicts the determination

that a long tunnel option was a non-suppositious option?               [172]

Subissue 1C: Interpreting adequacy as requiring transparency

and replicability  [175] Context  [175] The transparency and replicability of the option evaluation            [179] The issue  [180]

Subissue 1D: Requiring the assessment methodology to incorporate

Part 2 weightings  [188] Subissue 1E: Conflation of s 171(1)(b) and (c) considerations  [201]

Subissue 1F: Finding that adequate consideration was not given to

alternatives following the Government’s decision to underground

Buckle Street  [208] Context  [208] Issues  [209]

Q 19(a) [recast]: Is this a case in which the true and

only reasonable conclusion contradicts the determination that the review of alternatives carried out in July 2012

was cursory?  [211]

Q 19(b): In order for the consideration of alternatives to be relevant must the consideration be completed before

the application documentation is well advanced?  [215]

Q 19(d) [recast]: Is this a case in which the true and only reasonable conclusion contradicts the determination that adequate consideration was not given to alternatives

following the Government’s decision?  [219]

Q 19(c): Is a requiring authority required to prepare a

“feasible option type assessment” when the environment

changes?  Or is it entitled to rely on earlier work?  [222] Subissue 1G: Adequacy of the consideration  [225]

Issue 2: Inquiring as to the outcome rather than the process

of considering alternatives  [232]

Issue 3: Misapplication of s 171(1)  [240]

Issue 4: Incorrect approach to assessment of enabling benefits  [245]

A stand-alone project  [245] Effects and benefits – terminology and meaning  [249] The Board’s Decision  [254] The parties’ positions  [259]

31(a): Is a project’s enabling benefit an effect in terms of s 3 that can and should be taken into account under

s 171(1) and/or s 5?  [261]

31(b): Where a project’s enabling benefits are consistent with a programme of infrastructure development that is recognised in relevant documents under s 171(1)(a) and (d), should those enabling benefits be given considerable

weight as an effect of the project under s 171(1) and/or s 5?           [267]

31(c): In order to be taken into account, must a project’s
enabling benefits be unique to that project, guaranteed and

go ahead, and able to be quantified?  [268]

31(d): Does the definition of the future environment constrain the ability of a decision-maker to consider the enabling

benefits of a project?  [270]

31(e): In order for the positive effects of a future development to be taken into account must the approvals for that development be sought at the same time as

(or in advance of) the project?  [278]

31(f): Is it consistent with sustainable management (in terms of s 5) to approve an infrastructure project because it is necessary to facilitate future developments; and does it make a difference if the project is primarily necessary to facilitate those future infrastructure

developments?  [283]

31(g): In the alternative, given its conclusion that the Proposal was necessary primarily to enable future roading projects, did the Board err in law by failing to

consider conditions to address this concern?  [288] Issue 5: Assessment of transportation benefits – an overview  [289]

Subissue 5A: Standard of proof required to demonstrate

transportation benefits  [293]

Q 36(a): Is a higher standard of proof required to demonstrate the transportation benefits of a project where it will have adverse effects that are more

than minimal?  [297]

Q 36(b): If the Board applied the wrong standard of proof, were the Board’s findings regarding the transportation benefits of the Proposal ones that the Board could

reasonably have come to on the evidence?  [302]

Subissue 5B: Assessment of immediate transportation benefits                   [303]

Q 39(a): Did the Board fail to take into account a relevant matter in failing to have regard to the immediate

transportation benefits of the Proposal?  [307]

The meaning of Q 39(b)?  [311]

Subissue 5C: Requiring the Proposal to demonstrate benefits

that go beyond the requiring authority’s objections  [313]

Mode shift  [314]

The issue of a long-term solution  [322] Issues 6, 7 and 8: Questions of law relevant to heritage and amenity  [329] The refinement of the questions of law  [329]

Q 45A: When assessing the heritage or amenity effects

on the environment under s 171(1), must the decision-maker
do so ‘through the lens’ of the relevant plans under
s 171(1)(a) and, if relevant, s 171(1)(d) documents?
That is, should the effects be assessed ‘through the lens’
of the recognition and protection provided by those plans

and/or documents?  [333] The planning framework  [334] The Board’s decision  [337] The parties’ contentions  [343] Analysis  [351]

Q 45B: Further, should the Board have assessed the effects having particular regard to its finding at [1230] that the works were reasonably necessary to achieve

the objectives under s 171(1)(c)?  [356]

Q 45C:  When there is no ‘invalidity, incomplete coverage or uncertainty of meaning’ in the relevant plans

under s 171(1)(a), is it appropriate for a decision-maker to assess effects against s 6(f) (for historic heritage) and

s 7(c) (for amenity values)?  [361]

Q 45D: Did the Board correctly apply the definition

of ‘historic heritage’ under s 2?  [367]

The parties’ contentions  [369]

Analysis  [374]

Q 45E: What is the correct approach to the application

of the test of ‘inappropriateness’ in s 6(f) [should the Court consider resort to Part 2 of the RMA was available to the

Board in the circumstances of this case]?  [384]

Issue 8: Failure to consider options within the scope of the application to address amenity and heritage related effects to

the Gateway Building  [393] Summary  [399] Disposition  [400]

Overview

[1]      On  17 June 2013  the  appellant  (NZTA)  lodged  a  Notice  of  Requirement (NoR) and applications for incidental resource consents for what is commonly referred to as the Basin Bridge Project (Project).   The Project was to construct, operate and maintain a two lane one-way bridge on the north side of the Basin Reserve in Wellington City as part of State Highway 1 between Paterson Street and Taranaki Street.

[2]      The key aspects of the Project were summarised in NZTA’s submissions in

this way:

(a)       The Basin Reserve is a key transport node within the Wellington network.  [NZTA’s] assessment is that the Project area is subject to congestion, delay and journey time variability, particularly during peak periods and weekends, and also has a high accident rate.  These problems are predicted to get worse in the future as travel demand grows in the area for all transport modes, and changes in land use occur in the immediate vicinity (Adelaide Road) and the wider Wellington   area   (Wellington   airport   and   the   southern/eastern suburbs).

(b)       The Project provides essential infrastructure by grade separating the westbound   traffic   movements   at   the   Basin   Reserve.      Grade separation would be provided by way of a bridge (the Basin Bridge), located in the north of the Basin Reserve.  The Basin Bridge would carry westbound traffic from the Mt Victoria tunnel to Buckle Street/Arras Tunnel.  This would remove that traffic from the roads around the Basin Reserve, which frees up capacity on those roads for public transport improvements and north-south local traffic.

(c)       The Project also includes a dedicated pedestrian/cycling path and enables  improvements  for those  transportation  modes  around  the Basin Reserve by reducing conflict between those modes and vehicular traffic.

[3]      On 7 July 2013 the Minister for the Environment referred the Proposal to a Board of Inquiry appointed under s 149J of the Resource Management Act 1991 (RMA) to hear and determine the merits of the application.  The Minister’s reasons for directing the Proposal to a Board of Inquiry were as follows:

National significance

I consider the matters are a proposal of national significance because:

·    The  proposal  is  adjacent  to  and  partially  within  the  Basin  Reserve Historic Area and international test cricket ground; in the vicinity of other historic places including the former Home of Compassion Crèche, the former Mount Cook Police Station, Government House and the former National Art Gallery and Dominion Museum; and is adjacent to the National War Memorial Park (Pukeahu).  The proposal is likely to affect recreational, memorial, and heritage values associated with this area of national significance (including associated structures, features and places) which contribute to New Zealand’s national identity.

·    The proposal is likely to result in significant and irreversible changes to the urban environment around the Basin Reserve.   In particular, the proposed elevating of westbound traffic on SH1 [State Highway 1] is likely to compete with the open space aspect that exists for the current ground level layout of the Basin Reserve roundabout.

·    The proposal has aroused widespread public interest regarding its actual or likely effects on the environment, including on heritage values and experiential values associated with the Basin Reserve.   This includes on-going media and public attention on the options for traffic improvement around the Basin Reserve, including local, national and international coverage.

·    The  proposal  is  intended  to  reduce  journey  time  and  variability  for people  and  freight,  thereby facilitating economic  development.   The proposal  is  also  likely  to  provide  for  public  transport,  walking  and cycling opportunities; reduce congestion and accident rates in the area; and improve emergency access to the Wellington Regional Hospital.  If realised,  these  benefits  will  assist  the  Crown  in  fulfilling  its  public health, welfare, security, and safety functions.

·    The proposal relates to a network utility operation (road) that, although physically  contained  within  the  boundaries  of Wellington  City,  as  a section of the Wellington Northern Corridor Road of National Significance will affect and extend to more than one district and region in its entirety.

[4]      Section 149P(1) provides that the Board of Inquiry must have regard to the Minister’s reasons for making a direction to refer the Proposal to the Board for decision.

[5]      The scope of the hearing was described by the Board in its Final Report in this way:

[79]     The   hearing   took   place   in   Wellington.     It   commenced   on

3 February 2014 and finished on 4 June 2014.  The hearing took 72 sitting days over four months.   The length of the hearing was occasioned by the

volume of material and the strength and perseverance of the opposition to the Project.  No stone was left unturned.  We make no apology for the length of the hearing.   It was necessary to give the Applicant and the Parties the opportunity to fully present their cases.

[6]      Having  released  a  Draft  Decision  on  22 July 2014  in  accordance  with s 149Q(1)  of  the  RMA,  the  Board  released  its  Final  Report  and  Decision  on

29 August 2014 (Decision).  The essence of the determination of the majority of the

Board1 is captured in the final few paragraphs:

[1324]  In the final outcome, we are required to evaluate the significant adverse effects taken together with the significance of the national and regional need for and benefit of the Project.  In carrying out this evaluation, we are conscious of the dicta of the Privy Council in McGuire that relevantly Sections 6 and 7 are strong directions to be borne in mind, and if an alternative is available that is reasonably acceptable, though not ideal, it would accord with the spirit of the legislation to prefer that.

[1325]  This tension between the anticipated benefits and the anticipated adverse effects is the crux of the issues that have been debated before us.  It reflects the tensions in Part 2.  It reflects the tensions inherent in the statutory documents.

[1326]  We are conscious of our findings as to the manner in which the Project would be consistent with the integrated planning instruments and documents relating to transportation.  We are also conscious of our findings on adverse effects, which are contrary to the themes in the planning instruments on heritage, landscape, visual amenity, open space and amenity. As the planners agreed, the statutory instruments give no guidance on how this conflict should be resolved.

[1327]  While the RMA does not require that an (sic) NoR must set out to achieve  the  best  quality  outcome,  in  our  view,  there  are  compelling landscape, amenity and heritage reasons why this Project should not be confirmed.  The Basin Bridge would be around for over 100 years.  It would thus  have  enduring,  and  significant  permanent  adverse  effects  on  this sensitive urban landscape and the surrounding streets.  It would have adverse effects  on  the  important  symbol  of  Government  House  and  the  other historical and cultural values of the area.

[1328]  Government  House,  like  the  Basin  Reserve,  has  the  important quality of rarity (there is only one such main residence of the Crown in New Zealand).  The sensitivity of the area derives not just from Government House and the Basin Reserve but the overall national significance of the whole area from Taranaki Street to Government House.

[1329]  The adverse effects are occasioned by the dominance of the Basin Bridge, resulting from its bulk and scale in relation to the present environment, and the future environment, which does not anticipate such a

1      Retired Environment Judge G Whiting, D Collins and J Baynes: an alternate view was provided by D J McMahon.

substantial elevated structure in this significant open space.   The carefully crafted design of the Basin Bridge, together with the meticulously crafted landscape and amenity measures, while offering some offset, do not mitigate the bulk and scale of the Basin Bridge, exacerbated by the Northern Gateway Building.

[1330]  The ultimate criterion is whether confirming the NoR for the Project would promote the sustainable management purpose of the RMA.  On that criterion, we judge that, even with its transportation and economic benefits, confirming the NoR would not promote the sustainable management purpose described in Section 5.  It follows that the requirement should be cancelled. The resource consents, being ancillary to the requirement, are declined.

Scope of appeal

[7]      A right of appeal to the High Court against the Board’s decision is provided

in s 149V “but only on a question of law”.

[8]      NZTA  filed  an  appeal  on  24 September 2014  and  the  following  parties (the respondents) gave notice under s 301 of the RMA of their wish to appear on the appeal:

(a)      the Architectural Centre Inc (TAC);

(b)      Mt Victoria Historical Society Inc (MVHS);

(c)      Mt Victoria Residents’ Association Inc (MVRA);

(d)      Save the Basin Campaign Inc (STBC); and

(e)      Wellington City Council (WCC).

[9]      As noted in a Minute of MacKenzie J dated 12 November 2014, some of the respondents contended that aspects of the appeal were not focused on questions of law but related to factual conclusions or the weight which the Board had placed on certain evidence.   Although NZTA did not accept those criticisms, it elected to review its notice of appeal in the light of the matters raised.  MacKenzie J directed:

[9]       … The appellant should be given an opportunity to consider the issues raised by the respondents and, if thought appropriate, to amend the notice of appeal.  If the parties are then still at odds over whether the issues

raise (sic) in the appeal do all involve questions of law, a hearing on that question might assist in focusing the issues on appeal, in a way which could potentially save considerable time at the hearing itself.

Timetable directions were made for the filing of an amended notice of appeal and an interlocutory application challenging the scope of the notice of appeal.

[10]     On 27 November 2014 NZTA filed an amended notice of appeal together with a memorandum summarising the changes in tabular form.   Although the respondents  continued  to have concerns  about  the appropriateness  of  what  they described as the “extensive factual related grounds”, they advised that they would not be pursuing an interlocutory application because of their limited resources as local community groups.

[11]     The scope of the appeal is conveyed in the first paragraph of the amended notice of appeal which divides the appeal into eight issues:

Issue 1:  Misapplication of s 171(1)(b) of the Act (adequacy of consideration given to alternatives);

Issue 2:  Inquiring as to the outcome rather than the process of considering alternatives;

Issue 3:  Misapplication of s 171(1) of the Act (requirement to have particular regard to matters in paragraphs (a) to (d));

Issue 4:  Incorrect approach to the assessment of enabling benefits;

Issue 5:  Incorrect approach to the assessment of transportation benefits;

Issue 6:   Failure to have particular regard to s 171(1)(a) and (d) matters in assessing heritage and amenity effects;

Issue 7:  Incorrect approach to the assessment of the environment; and

Issue 8:   Failure to consider options within the scope of the application to address amenity and heritage related effects of the Northern Gateway Building.

Issue 1 is divided into seven subissues and Issue 5 is divided into three subissues.  In total 34 questions of law were specified in the amended notice of appeal.  However each specified question of law was preceded by alleged “errors of law” and followed by “grounds of appeal”.  As a consequence of cross-references to those other parts, the number of questions of law expanded.

“A question of law”

[12]     As noted above, the right of appeal provided by s 149V is “only on a question of law”.  Hence this appeal is not a general appeal.   It is not the role of the High Court to conduct a rehearing of the application to the Board or to undertake an “on the merits” consideration of whether the Board’s conclusion was correct.  Nor is it the role of the High Court to determine whether or not the Project would be the best outcome to address the congestion problem at the Basin Reserve.

[13]     To adapt  the observation of Blanchard J  in Vodafone New Zealand Ltd v

Telecom New Zealand Ltd the questions for this Court are the more limited ones of:2

(a)       has the Board misinterpreted what was required of it by the RMA and in particular under s 171?

(b)if not, are the Board’s conclusions nevertheless so misconceived that they are unlawful conclusions?

[14]     The  nature of that more limited role was explained by the Supreme Court in

Bryson v Three Foot Six Ltd:3

[24]     Appealable  questions  of  law  may  nevertheless  arise  from  the reasoning of the Court on the way to its ultimate conclusion.  If the Court were, for example, to misinterpret the requirements of s 6 – to misdirect

2      Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [50].

3      Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.

itself on the section, which incorporates the legal concept of contract of service – that would certainly be an error of law which could be corrected on appeal, either by the Court of Appeal or by this Court …

[25]      An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case.  It is for the Court to weigh the relevant facts in the light of the applicable law.  Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.

[26]     An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law: proper application of the law requires a different answer.  That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the  true  and  only  reasonable  conclusion  contradicts  the  determination”. Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test …

[27]     It must be emphasised that an intending appellant seeking to assert that there was no evidence to support a finding of the Employment Court or that, to use Lord Radcliffe’s preferred phrase, “the true and only reasonable conclusion contradicts the determination”, faces a very high hurdle.   It is important     that     appellate     Judges     keep     this     firmly     in     mind. Lord Donaldson MR has pointed out in Piggott Brothers & Co Ltd v Jackson the danger that an appellate Court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the tribunal which did so was certainly wrong:

“It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal.  If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option …”

[28]     It should also be understood that an error concerning a particular fact which is only one element in an overall factual finding, where there is support for that overall finding in other portions of the evidence, cannot be said to give rise to a finding on “no evidence”.  It could nonetheless lead or contribute to an outcome which is insupportable.

[15]     In Vodafone, after reference to Bryson, Blanchard J elaborated on the point with particular reference to the nature of the interpretative problem:4

[54]      The nature of the interpretative problem in the present circumstances and the caution which must be exercised before it can be said that an interpretation is in error, or before it can be said that a statutory provision has been misapplied, is well illustrated in the judgment of Lord Mustill, speaking  for  the  House  of  Lords  in  R  v  Monopolies  and  Mergers Commission, ex parte South Yorkshire Transport Ltd. What was in issue was much less complicated than “net cost” in the present case.   It was the construction of the words “a substantial part of the United Kingdom” in statutory  criteria  applying  to  the  investigation  of  mergers  of  transport services.   Lord Mustill drew attention to the “protean nature” of the word “substantial”,  ranging  from  “not  trifling”  to  “nearly  complete”.     He cautioned against taking an inherently imprecise word and “by redefining it thrusting on it a spurious degree of precision”.  Accordingly, he concluded that the area referred to as “a substantial part” must only be “of such dimensions as to make it worthy of consideration for the purposes of the Act”.  Applying that test (the criterion) to the facts involved asking, first, whether the Monopolies Commission had misdirected itself, and, second, whether its decision could be overturned on the facts.

[55]     His Lordship said that it was quite clear that the Commission had reached an appreciation of “substantial” which was “broadly correct”. Speaking  generally  about  how  a  question  of  the  nature  of  the  second question should be approached, his Lordship said:

Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history.  The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy.  But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case.  In such a case the court is entitled to substitute its own opinion  for  that  of  the  person  to  whom  the  decision  has  been entrusted only if the decision is so aberrant that it cannot be classed as rational:  Edwards v Bairstow [1956] AC 14.

Lord Mustill said that South Yorkshire was such a case:

Even after eliminating inappropriate senses of “substantial” one is still left with a meaning broad enough to call for the exercise of judgment  rather  than  an  exact  quantitative  measurement. Approaching the matter in this light I am quite satisfied that there is no  ground  for  interference  by  the  court,  since  the  conclusion  at which the commission arrived was well within the permissible field of judgment.

4      Vodafone New Zealand Ltd v Telecom New Zealand Ltd, above n 2.

[56]     The issue about “net cost” involves an imprecise criterion where “different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case”.

[57]     Some guidance is also to be obtained from this Court’s decision in Unison Networks Ltd v Commerce Commission.   That case was about a statutory regime for controlling electricity line companies.    The Commission’s task was to set thresholds for declarations of control.   It differs from the present case because it involved the use of a broadly expressed power designed to achieve economic objectives, rather than, as here, the calculation of an amount of net cost.  But it was alleged in Unison that the Commission had misconstrued the requirements of Part 4A of the Commerce Act 1986 and applied the wrong legal test when exercising its power.   As to that, this Court said that the statute contemplated that the Commission, as a specialist body, would exercise judgment in constructing the thresholds.  That requirement, the Court said, could have been lawfully tackled in one of two ways.  Both approaches were within the terms of the provisions in the relevant subpart of Part 4A.  The Commission chose one of them  and  that  was  lawful.    Importantly,  it  can  be  added  that  if  the Commission had chosen the other, it too would have been lawful.

[58]    So there are two stages.   First, whether the Commission has misinterpreted the language of the statute.   This in part turns on its appreciation of the function of the word “unavoidable”.   And, secondly, whether, if its interpretation was correct, it has nonetheless exercised its judgment about what was “net cost” in a way that contradicts the true and only reasonable conclusion available on the facts and has thereby committed an error of law in terms of Edwards v Bairstow.

[16]     Several of the questions of law in the amended notice of appeal utilise the formulation whether the Board made findings to which “it could reasonably have come on the evidence”.5

[17]     I recognise that in identifying the circumstances in which it is permissible to interfere with a tribunal’s decision a number of High Court judgments have included the  formula  “a  conclusion  [the  tribunal]  could  not  reasonably  have  come  to”.6

However I consider that there is significant potential for confusion when such a formulation is reframed without the inclusion of a negative with the consequence that the question becomes: is the conclusion one to which a tribunal could reasonably

have come on the evidence?

5      For example, the questions of law listed as 4(b), 7(b)(i)–(iii), 19(a) and (d), 22 and 36(b).

6      Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC); Ayrburn Farms Estate Ltd v Queenstown Lakes District Council [2012] NZHC 735, [2013] NZRMA 126 at [34].

[18]     The potential for confusion is compounded when the ground of appeal is expressed as was ground 5(d) in the amended notice of appeal:

… the finding that sufficiently careful consideration had not been given to

alternatives was not a reasonable finding on the evidence.

In similar vein in NZTA’s written reply it was contended that:

A question of law can arise where a decision-maker has reached a finding without any reasonable evidential foundation.

[19]     It  is  useful,  I  suggest,  to  recall  why  Lord Radcliffe  preferred  his  third description  in  Edwards  v  Bairstow,  namely  one  in  which  the  true  and  only reasonable conclusion contradicts the determination:7

… Rightly understood, each phrase propounds the same test.  For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.

[20]     In  my  view  paraphrasing  the  established  tests  by  reference  to  “not  a reasonable finding on the evidence” or “without any reasonable evidential foundation” does not advance the analysis and has the potential to extend the inquiry beyond the proper boundary of what constitutes a question of law.

[21]     In the context of an appeal against the exercise of a discretion (which the present appeal is not) it has long been recognised that on the same evidence two different minds might reach widely different decisions without either being appealable.8  The same point has been made employing the word “reasonably”:9

The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong.

7      Edwards v Bairstow [1956] AC 14 (HL) at 36.

8      Bellenden v Satterthwaite [1948] 1 All ER 343 (CA) at 345.

9      G v G [1985] 2 All ER 225 (HL) at 228.

[22]     However in the third of Lord Radcliffe’s descriptions in Edwards v Bairstow where “reasonable” appears, it is quite clear that only one possible conclusion was in contemplation as being reasonable:

one in which the true and only reasonable conclusion contradicts the determination.

[23]     Consequently, in the interests of clarity, when addressing those questions of law in NZTA’s amended notice of appeal which adopt the “could reasonably have come  to  on  the  evidence”  formula,  I  propose  to  reframe  the  question  to  align precisely with Lord Radcliffe’s third description.

[24]     From time to time there was reference in the course of NZTA’s submissions to another formula, namely a conclusion “where there is no reliable, probative evidence to support the determination”.  Authority for that formula as demonstrating an error of law was said to be found in Chorus Ltd v Commerce Commission.10

Kόs J there remarked:

[177]   Thirdly, I find the Commission did not fail to determine what inferences could reliably be drawn from the benchmark data about the likely cost of providing the UBA service in New Zealand.  This was very much a tertiary argument to the two primary arguments.  Had the Commission had reason to believe that the benchmark evidence was not reliable, probative evidence  or  that  the  proposed  IPP  outcome,  based  on  the  benchmark evidence and allowing for consideration of s 18, was irrational and likely to produce an outcome substantially removed from the likely ISLRIC found under the FPP, the Commission would have had a duty to inquire further. But those were not the circumstances here.  The benchmark evidence was reliable and probative.   The IPP outcome was not evidently irrational, however unpalatable it may have been to Chorus.  The mechanism to correct the IPP price lay not in further protracted analysis to produce a more perfect IPP price.   It lay in the statutory mechanism, under s 42, to obtain a full pricing review using the FPP.

[25]     On appeal the Court of Appeal11 endorsed the High Court’s finding that there was no reason to believe that the benchmark evidence that the Commission obtained through its questionnaire was not reliable, probative evidence.12    However I do not

consider that the Court of Appeal’s judgment is to be read as extending the grounds

10     Chorus Ltd v Commerce Commission [2014] NZHC 690 at [154] and [177].

11     Chorus Ltd v Commerce Commission [2014] NZCA 440. References omitted.

12 At [121].

upon which a judgment may be challenged as wrong in law.  Indeed it is apparent that the Court of Appeal was reiterating the traditional approach.

[26]     The introductory paragraphs bear repeating.   Having noted that the appeal was not a general appeal against the merits of the Commission’s determination and that Chorus did not challenge the Commission’s interpretation of any of the relevant statutory provisions, the Court said:

[109]    Instead Chorus challenges the Commission’s determination on the basis that the proper application of the law required a different answer. Chorus does this by alleging, in the first five questions of law, that the Commission made factual errors and thereby erred in law.

[110]   It is well-established, however, that to succeed on the basis of allegations of this nature Chorus must show that the Commission has exercised its judgment about the application of the IPP:

… in a way that contradicts the true and only reasonable conclusion available on the facts and has thereby committed an error of law in terms of Edwards v Bairstow.

[111]    This is a high hurdle for Chorus to surmount.  It is well-established that unless the Commission’s application of the statutory provisions is factually “unsupportable” it will not have erred in law.   It is for the Commission, as a specialist body, to exercise judgment in carrying out the requisite “benchmarking” exercise and in weighing up the relevant facts in that context.  It will therefore having erred only if there is no evidence to support the factual findings it made in reaching its determination.

[112]    In the absence of a right of general appeal, it is not the role of the Court in an appeal on a question of law to undertake a broad reappraisal of the  Commission’s  factual  findings  or  the  exercise  of  its  evaluative judgments.   Care should also be taken to avoid a technical and overly semantic analysis of the Commission’s determination in an endeavour to create  a  question  of  law.     In  making  factual  findings  it  is  for  the Commission, and not the Court, to decide what weight should be given to the relevant evidence and what inferences, if any, should be drawn from the evidence.  An inference must be logically drawn from proven facts and not be mere speculation or guesswork.   At the same time, as counsel for the Commission acknowledged, if the Commission has made a factual error that makes its application of the statutory provisions “unsupportable” it will have erred in law.

Section 171

[27]     The  Board  was  required  to  consider  the  NoR  under  s 149P(4)  which provides:

(4)       A  board  of  inquiry  considering  a  matter  that  is  a  notice  of requirement for a designation or to alter a designation—

(a)       must have regard to the matters set out in section 171(1) and comply with section 171(1A) as if it were a territorial authority; and

(b)      may—

(i)       cancel the requirement; or

(ii)      confirm the requirement; or

(iii)     confirm the requirement, but modify it or impose conditions on it as the board thinks fit; and

(c)       may  waive  the  requirement  for  an  outline  plan  to  be submitted under section 176A.

[28]     Consequently the Board was required to make its decision on the NoR by applying s 171(1) which provides:

(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.

[29]     Issues relating to the interpretation of s 171(1) comprised a significant part of the appeal.  In this portion of the judgment I briefly traverse the legislative history of s 171 together with some relevant authorities.  In the course of doing so I identify a number of the primary interpretation issues in contest.  However it is convenient first to draw attention to s 171(1)(c), relating as it does to the objectives of a requirement.

Section 171(1)(c)

[30]     NZTA’s objectives for the Project were:13

Objective 1: To improve the resilience, efficiency and reliability of the State network:

(i)       By  providing  relief  from  congestion  on  SH1  between

Paterson Street and Tory Street;

(ii)      By improving the safety for traffic and persons using this part of the SH1 corridor; and

(iii)     By  increasing  the  capacity  of  the  SH1  corridor  between

Paterson Street and Tory Street.

Objective 2: To support regional economic growth and productivity:

(i)       By contributing to the enhanced movement of people and freight through Wellington City; and

(ii)      By,  in  particular,  improving  access  to Wellington’s  CBD

employment centres, airport and hospital.

Objective 3:   To support mobility and modal choices within Wellington

City:

(i)       By providing opportunities for improved public transport, cycling and walking; and

(ii)      By   not   constraining   opportunities   for   future   transport developments.

Objective 4:  To facilitate improvement to the local road transport network in Wellington City in the vicinity of the Basin Reserve.

[31]     The Board found that the works were reasonably necessary to achieve those objectives.14    The Board also recorded that there was no real dispute that the NoR

(i.e. designation) was reasonably necessary for achieving the objectives.15

13 Final Decision, at [1225].

14 At [1230].

Original form of s 171(1)

[32]     Section 171 as originally enacted in 1991 included Part 2 of the RMA as one of five matters to which a territorial authority was required to have particular regard:

171     Recommendation by territorial authority–

(1)       When   considering   a   requirement   made   under   section 168,   a territorial authority shall have regard to the matters set out in the notice   given   under   section 168   (together   with   any   further information supplied under section 169), and all submissions, and shall also have particular regard to–

(a)       Whether   the   designation   is   reasonably   necessary   for achieving the objectives of the public work or project or work for which the designation is sought; and

(b)       Whether   adequate   consideration   has   been   given   to alternative sites, routes, or methods of achieving the public work or project or work; and

(c)       Whether the nature of the public work or project or work means that it would be unreasonable to expect the requiring authority to use an alternative site, route, or method; and

(d)       All   relevant   provisions   of   national   policy   statements, New Zealand  coastal  policy  statements,  regional  policy statements, regional plans, and district plans; and

(e)      Part II.

Section  104  concerning  resource  consent  applications  and  s 191  concerning requirements for heritage orders had a similar structure.

1993 Amendment

[33]     The reference to Part 2 was relocated in 199316  when the words “Subject to Part II”  were  placed  at  the  commencement  of  the  subsection.    An  equivalent amendment was made to both ss 104 and 191.

[34]     The  1993  Amendment  also  introduced  s 168A  providing  for  the  public notification of requirements.   Under s 168A(3) a territorial authority was to have

regard to the matters set out in s 171.

15     At [1218] –[1219].

16     Resource Management Amendment Act 1993, s 87.

[35]     The speech of the Minister of the Environment on the second reading of the bill explained the motivation for the amendments.  Having noted that the RMA seeks to provide certainty to all parties and that the law must provide a clear framework for the courts and others to work with, the Hon Rob Storey said:17

The Bill, therefore, addresses those sections of the Resource Management Act in which at present there is a lack of clarity. There are some who believe that  the Act  should  be  left  untouched  until  case  law  demonstrates  that, because of ambiguous wording, Parliament’s intent has not been exactly converted into the law.

If Parliament intends a particular policy direction, I think that direction has to be clearly expressed.  To do otherwise would be a dereliction of the trust placed in us as members of Parliament.  It is one thing to use language that allows a flexibility of outcomes, when Parliament probably knows what it intends as the result; it is quite another matter to have language that allows a variety of outcomes, when there is meant to be only one.

Sorting out the ambiguities in a legal setting also puts a very large cost on everybody – citizens, local government, central government, and potentially on the environment itself.  I think that the House would want to do better than that, and therefore it has to remove the necessary ambiguities and costs.

[36]     Specifically in relation to references within the RMA to Part 2, the Minister said:

As I said, the Bill makes a number of technical amendments and I certainly do not intend to go through all of them.  Part II of the Resource Management Act sets out the purpose of the Act.   The current references in the Act to Part II have been in danger of being interpreted as downgrading the status of Part II.   Amendments in the Bill restore Part II to its proper overarching position.

[37]     The significance of the “subject to” drafting method had been the subject of direct consideration some four years earlier in Environmental Defence Society Inc v Mangonui County Council.18   Section 3 of the Town and Country Planning Act 1977, the predecessor of the RMA, related to matters of national importance which were in particular   to   be   recognised   and   provided   for   in   the   implementation   and administration of district schemes.   Section 36, which related to the contents of

district schemes, included the phrase “subject to section 3”.

17     (17 June 1993) 535 NZPD 15920.

18     Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA)

at 260.

[38]     With reference to the significance of the inclusion of that phrase Cooke P

said:

The decision of the Tribunal now in question contains no discussion of the relationship between s 3 and the other sections, but Chilwell J observes in his  judgment  that  the Tribunal  has  consistently  held  that  the  change  in wording making certain sections subject to s 3 does no more than make explicit what was previously implicit and that the Waimea decision applies to the present Act.  The High Court Judge also adopted that view and it may fairly be said, I think, to have been both an express basis of his decision and an underlying assumption of the Tribunal’s decision.  Read as a whole, their reasoning appears to involve an overall balancing of the various considerations in ss 3 and 4 on the lines approved in the Waimea judgment.

With respect, I am unable to agree that this is a correct view.  Rather I agree with the view taken by Dr K A Palmer in his Planning and Development Law in New Zealand (2nd ed, 1984) vol 1 at p 202 that the 1977 change was significant.  The qualification “Subject to” is a standard drafting method of making clear that the other provisions referred to are to prevail in the event of a conflict.   This Court had occasion to say so expressly in a reported case the year before the 1977 Act: Harding v Coburn [1976] 2

NZLR 577, 582.  There was no need nor reason to insert those words in ss 4 and 36 of the 1977 Act if the legislature had intended that the s 3 matters were no more than matters to which regard was to be had, together with  district  considerations, in  preparing  a  district scheme. The explanation of the insertion of the words that leap to the eye, as it seems to me, is that the argument for the Minister of Works rejected in Waimea was henceforth to prevail.   There is an analogy with the legislative guidelines provided by declaring a special object for the amending Act considered by this Court in Ashburton Acclimatisation Society v Federated Farmers of New Zealand Inc [1988] 1 NZLR 78, 87-88; see also per Bisson J at pp 94–

95 and per Chilwell J at pp 97–99.

(emphasis added)

[39]     Section 171  in  its  1993–amended  form  was  considered  in  a  number  of noteworthy judgments.   Delivering the advice of the Privy Council in McGuire v Hastings District Council Lord Cooke of Thorndon said:19

[22]      …  By  s 171  particular  regard  is  to  be  had  to  various  matters, including (b) whether adequate consideration has been given to alternative routes and (c) whether it would be unreasonable to expect the authority to use an alternative route.   …; but, by s 6(e), which their Lordships have mentioned  earlier,  [Hastings]  is  under  a  general  duty  to  recognise  and provide for the relationship of Maori with their ancestral lands.   So, too, Hastings must have particular regard to kaitiakitanga (s 7) and it must take into account the principles of the Treaty (s 8).  Note that s 171 is expressly made subject to Part II, which includes ss 6, 7 and 8.  This means that

19     McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577.

the directions in the latter sections have to be considered as well as those in s 171 and indeed override them in the event of conflict.

(emphasis added)

[40]     While strictly speaking those observations in relation to the  operation of s 171  were  obiter  dicta,  as  Auckland  Volcanic  Cones  Society  Inc  v  Transit New Zealand recognised, they were “very strong obiter dicta”.20    The High Court there added:

[59]      …  The  specific  considerations  in  s 171  (alternative  methods  or routes in particular) are subject to Part II of the RMA.  Parties involved in the administration and application of the RMA are very familiar with the requirement to have regard to other considerations subject to Part II.  On an application for resource consent, consent authorities and on appeal the Environment Court must have regard to the considerations in s 104 of the RMA. The s 104 considerations are expressed to be subject to Part II.  There is a well-established body of case law confirming the primacy of Part II and how that is applied in relation to the s 104 considerations.   The drafting technique used in s 171 to provide the considerations in that section are subject to Part II is not unique to s 171.

[60]      In the present case the effect of ss 171 and 174 is to require Transit and the Environment Court on appeal to have particular regard to the matters at s 171(1)(a), (b), (c) and (d) but always subject to Part II of the RMA.

2003 Amendment

[41]     Section 171  was  substantially  redrafted  in  the  2003 Amendment.21      One change was the relocation of the reference to “subject to Part II” from its location at the commencement of the subsection:

171      Recommendation by territorial authority

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

…

Although  a  similar  change  was  made  to  s 104(1),  there  was  no  equivalent amendment to s 191(1) and consequently the phrase “Subject to Part 2” remains at

the commencement of that subsection.

20     Auckland Volcanic Cones Society Inc v Transit New Zealand [2003] NZRMA 316 (HC).

21     Resource Management Amendment Act 2003, s 63.

[42]     Section 186A(3) was substantially redrafted in terms identical to s 171(1).

[43]     One  of  the  contested  points  of  interpretation  turns  on  the  fact  of  that relocation of the phrase within s 171(1).  Whereas TAC contended that the phrase continued to render the totality of the consideration of effects as being subject to Part 2, NZTA argued that the relocation had the consequence that the phrase related to the consideration of effects rather than to the (a) to (d) matters.

[44]     Most recently s 171 was considered in Queenstown Airport Corporation Ltd v Queenstown Lakes District Council.22   Citing McGuire, Whata J said:

[68]      It will be seen that the focal point of the assessment is, subject to Part 2,  consideration  of  the  effects  of  allowing  the  requirement  having particular regard to the stated matters.   The import of this is that the purpose,  policies  and  directions  in  Part 2  set  the  frame  for  the consideration of the effects on the environment of allowing the requirement.  Indeed, in the event of conflict with the directions in s 171, Part 2 matters override them.  Paramount in this regard is s 5 dealing with the  purpose  of  the Act,  namely  to  promote  sustainable  management  of natural and physical resources.

[69]     Part 2 also requires that in achieving the sustainable management purpose, all persons exercising functions shall recognise and provide for identified matters of national importance; shall have regard to other matters specified in s 7 and shall take into account the principles of the Treaty of Waitangi.

[70]      The reference at s 171(1)(d) to “any other matter” is qualified by the words “reasonably necessary”.   Given the Act’s overarching purpose, however, the scope of the matters that may legitimately be considered as part of the effects assessment must be broad and consistent with securing the attainment of that purpose.

(emphasis added)

Sections 171(1) and 104(1) compared

[45]     It  is  convenient  at  this  juncture  to  note  the  different  structure  of  s 104 following the 2003 Amendment:23

22     Queenstown Airport Corporation Ltd v Queenstown Lakes District Council [2013] NZHC 2347 [Queenstown Airport]. References omitted.

23     Section 104(1)(b) was replaced on 1 October 2009 by s 83(1) of the Resource Management

(Simplifying and Streamlining) Amendment Act 2009.

104     Consideration of applications

(1)       When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part II, have regard to–

(a)      any  actual  and  potential  effects  on  the  environment  of allowing the activity; and

(b)      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

(c)      any other matter the consent authority considers relevant and reasonably necessary to determine the application.

[46]     Two points of difference between ss 104 and 171 material to the statutory interpretation arguments in this case are:

(a)      in s 104 the effects on the environment comprises one of the matters to  which  regard is  to  be had  whereas  in  s 171  it  is  the focus  of consideration;

(b)      s 171  requires  that  the  matters  listed  are  to  be  the  subject  of

“particular” regard.

[47]     Having noted what it described as the “subtly different language” in the two sections, the Board concluded that the difference in wording did not require a substantively different approach to considering effects on the environment arising from NoRs from that for determining consent applications.24   That conclusion is also

in issue in contest on this appeal.25

24     At [194] of the Final Decision.

25     Question 28A: see [72] below.

The relevance of King Salmon

[48]     The Supreme Court’s decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd26 was released on 17 April 2014 part way through the hearing before the Board.27   King Salmon involved an application for a change to the Marlborough Sounds Resource Management Plan under s 66 of the RMA.  It did not concern s 171.  The relevance of King Salmon to the present appeal arises from

the Court’s discussion of Part 228  and the decision-making process known as the

“overall judgment” approach.

[49]     NZTA’s submissions stated that King Salmon has significantly modified the approach  to  decision-making  under  the  RMA and  in  particular  the  meaning  of “subject to Part 2”.   The respondents rejoined that the ratio of King Salmon was confined to plan changes and that the decision was of little moment in relation to designations.

Sequence of consideration of the Issues

[50]     As earlier noted29 the amended notice of appeal grouped the questions of law under eight broad issues by reference to subject matter.

[51]     In  its  written  submissions  NZTA stated  that  it  had  “further  refined”  the questions of law comprised in Issues 3 and 6.   Although these submissions were presented as filed, the redefinition provoked some debate which led to NZTA filing a memorandum  on  the fourth  day of the hearing  formally recording the  intended “restatement” of the questions of law relevant to Issues 3 and 6 and summarising the

principles relating to the Court’s power to amend a notice of appeal.30

[52]     The  Issue 3  questions,  being  Q 28(a),  (b)  and  (c),  were  refined  as  five questions which I will refer to as Q 28A to 28E.  The Issue 6 question, being Q 45

26     Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 [King Salmon].

27     At [91] of the Final Decision.

28     A change to a regional plan under s 66 must be “in accordance with [inter alia] the provisions of

Part 2”: s 66(1)(b).

29     At [11] above.

30     Memorandum of counsel for the Appellant in relation to questions of scope and the Court’s

power to amend (if necessary) dated 23 July 2015.

(albeit with the cross-reference to the errors of law listed in para 44 of the amended notice of appeal), was refined as five questions which I will refer to as Q 45A to 45E.

[53]     It is convenient to set out the refined Issue 3 questions of law:

28ADoes the difference in wording between s 104 and s 171 require a substantively different approach to considering effects on the environment arising from notices of requirement as that for determining consent applications?

28BWas the Board in error by considering the effects of the environment of allowing the requirement without having particular regard to the matters listed in s 171(1)(a)–(d)?

28C     When considering a requirement under s 171(1) RMA, how are the

words ‘having particular regard’ to be interpreted?

28DWhen considering a requirement under s 171(1) RMA, how are the words ‘subject to Part 2’ to be applied (in particular, following the recent Supreme Court decision in King Salmon)?

28EAs a consequence of those errors, did the Board make findings of fact that it could not otherwise have come to on the evidence?

[54]     That “refinement” of the Issue 3 questions of law was particularly significant as  it  introduced  in  an  explicit  way as  Q 28C  and  28D31   fundamental  questions concerning the interpretation of s 171(1).   The answers to, or more accurately the discussion  of,  those  two  questions  has  significance  for  a  number  of  the  other specified questions of law.

[55]     Consequently, although the structure of the parties’ submissions helpfully tracked the sequence of the Issues in the amended notice of appeal, I propose to first address the key issues of statutory interpretation and the arguments concerning the implications of King Salmon.  Having done so, the judgment will then traverse the

remaining questions of law in the sequence of the identified Issues.

31     Q 28(a), (b) and (c) in the amended notice of appeal remained as Q 28A, 28B and 28E.

The meaning of “having particular regard to” in s 171

[56]     NZTA’s intention to call into question the interpretation of the phrase “having particular  regard  to”  was  arguably  implicit  in  Q 28(a)  and  Q 28(b)  in  Issue 3. However the issue was squarely raised in the restated Q 28C:

When considering a requirement under s 171(1) RMA, how are the words

“having particular regard” to be interpreted?

The 23 July 2015 memorandum32  explained that it was necessary to address Q 28C

when determining the Q 28 questions in the amended notice of appeal.

[57]     The phrase is used not only in s 171(1) (and relatedly in s 168A(3)) but it also appears in 191(1) and notably in s 7 in Part 2.  By contrast what is usually viewed as the lesser obligation of “have regard to” is employed in s 104(1) and in a variety of other sections.33

[58]     A curious interface between the two phrases is highlighted in s 149P which concerns the matters to be considered by a board of inquiry. As noted earlier a board is required to “have regard to” the Minister’s reasons.34    In the case of a notice of requirement for a designation or for a heritage order a board is required to “have regard to” the matters set out in s 171(1)35  and s 191(1)36  respectively.   However both ss 171(1) and 191(1) direct that such matters are to be the subject of “particular regard”.   I raised with counsel the possibility that, given the terms of s 149P, the obligation on a board might be only to “have regard” to the matters in s 171(1). That would have the consequence of equality of treatment between the s 171(1) matters

and the Minister’s reasons.  However neither side was attracted to that interpretation.

32     At [51] above.

33     Resource Management Act 1991, ss 131(1), 138A and 142.

34     At [4] above.

35     Section 149P(4)(a).

36     Section 149B(5)(a).

“have regard to”

[59]     Taking the phrase “have regard to” as the starting point, in New Zealand Co-operative  Dairy  Co   Ltd   v  Commerce   Commission   Wylie J   (sitting  with Mr R G Blunt) said:37

We do not think there is any magic in the words “have regard to”.   They mean no more than they say.  The tribunal may not ignore the statement.  It must be given genuine attention and thought, and such weight as the tribunal considers appropriate.   But having done that the tribunal is entitled to conclude it is not of sufficient significance either alone or together with other matters to outweigh other contrary considerations which it must take into account in accordance with its statutory function[.]

[60]     It follows that the phrase “have regard to” does not mean “to give effect to”. In  New Zealand  Fishing  Industry Association  Inc v  Minister  of Agriculture and Fisheries Cooke P agreed with and adopted the following analysis of McGechan J at first instance:38

… He is directed by s 107G(7) to ‘have regard’ to any submissions made. Such submissions are to be given genuine attention and thought.  That does not mean that industry submissions after attention and thought necessarily must be accepted.  The phrase is ‘have regard to’ not ‘give effect to’.  They may in the end be rejected, or accepted only in part.  They are not, however, to be rebuffed at outset by a closed mind so as to make the statutory process some idle exercise.

Section 107G(7) in its direction that the Minister ‘have regard’ to five stated criteria does not direct that any one or more be given greater weight than others.  In particular it does not direct that (a) value of ITQ is to have greater or lesser regard paid than (b) net returns and likely net returns.  Weight, in the end and provided he observes recognised principles of administrative law, is for the Minister.

[61]     Specifically in an RMA context John Hansen J took a similar approach in

Foodstuffs (South Island) Ltd v Christchurch City Council:39

I do not consider the term “shall have regard to” in s 104 RMA should be given any different meaning from the cases referred to above.  In my view, the appellant is seeking to elevate the term from “shall have regard to” to

37     New Zealand Co-operative Dairy Co Ltd v Commerce Commission [1992] 1 NZLR 601 (HC) at

612.

38     New Zealand  Fishing  Industry Association  v  Minister  of  Agriculture  and  Fisheries  [1988]

1 NZLR 544 (CA) at 551. Similarly see R v Police Complaints Board, ex parte Madden [1983]

2 All ER 353 (QBD) at 369–370 where a number of English decisions are discussed.

39     Foodstuffs  (South Island)  Ltd  v  Christchurch  City  Council  (1999)  5  ELRNZ  308,  [1999] NZRMA 481 (HC) at 487.

“shall give effect to”.   The requirement for the decision-maker is to give genuine attention and thought to the matters set out in s 104, but they must not necessarily be accepted.

[62]     One of the authorities cited by John Hansen J was R v CD,40 a judgment of Somers J who expressed the view in the context of the Costs in Criminal Cases Act 1967 that the expression “shall have regard to” is not synonymous with “shall take into account”. However I note that in a number of subsequent decisions in Australia the two phrases have been treated as equivalent.41

[63]     In my view the expression “to take into account” is susceptible of different shades of meaning.  I consider that the two phrases can be viewed as synonymous if the phrase “to take into account” is used in the sense referred to by Lord Hewart CJ in Metropolitan Water Board v Assessment Committee of the Metropolitan Borough of St Maryleborne “of paying attention to a matter in the course of an intellectual

process”.42   The key point is that the decision-maker is free to attribute such weight

as it thinks fit to the specified matter but can ultimately choose to reject the matter.

“having particular regard to”

[64]     Plainly  the  phrase  “shall  have  particular  regard  to”  conveys  a  stronger direction than merely “to have regard to”.  Section 7 (which includes the phrase) is one  of  the  four  sections  in  Part 2  which  McGuire  described  as  being  “strong directions”.43

[65]     The  issue  is  most  recently  informed  by  the  discussion  of  Part 2  in King Salmon.44     Having observed that s 5 is a carefully formulated statement of principle intended to guide those who make decisions under the RMA, which is given further elaboration by the remaining sections in Part 2 (ss 6, 7 and 8), Arnold J

writing for the majority of the Supreme Court said:

40     R v CD [1976] 1 NZLR 436 (SC) at 437.

41     R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497 (HCA); Queensland Medical

Laboratory Ltd v Blewett (1988) 84 ALR 615 (FCA) at 623; Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 (FCA) at 142; Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 147 ALR 608 (FCA) at 627.

42     Metropolitan   Water   Board   v   Assessment   Committee   of   the   Metropolitan  Borough   of

St Maryleborne [1923] 1 KB 86 (CA) at 99.

43     At [39] above.

44     King Salmon, above n 26.

[26]      Section 5 sets out the core purpose of the RMA – the promotion of sustainable management of natural and physical resources.  Sections 6, 7 and

8 supplement that by stating the particular obligations of those administering the RMA in relation to the various matters identified.  As between ss 6 and

7,  the  stronger  direction  is  given  by  s 6  –  decision-makers  “shall recognise and provide for” what are described as “matters of national importance”, whereas s 7 requires decision-makers to “have particular regard to” the specified matters.  The matters set out in s 6 fall naturally within the concept of sustainable management in a New Zealand context. The requirement to “recognise and provide for” the specified matters as “matters of national importance” identifies the nature of the obligation that decision-makers have in relation to those matters when implementing the principle of sustainable management.  The matters referred to in s 7 tend to be more abstract and more evaluative than the matters set out in s 6. This may explain why the requirement in s 7 is to “have particular regard to” them (rather than being in similar terms to s 6).

[27]      Under s 8 decision-makers are required to “take into account” the principles  of  the  Treaty  of  Waitangi.    Section 8  is  a  different  type  of provision again, in the sense that the principles of the Treaty may have an additional relevance to decision-makers.

(emphasis added)

[66]     While NZTA submitted that the (a) to (d) matters in s 171(1) were to be carefully weighed in coming to a conclusion, no submission was advanced in the course of argument on the interpretation issue to the effect that the matters to which particular regard was to be had were required to be the subject of extra weight.45   On that issue I share the view of Sir Andrew Morritt V-C in Ashdown v Telegraph Group Ltd:46

It was submitted that the phrase ‘must have particular regard to’ indicates that  the  court  should  place  extra  weight  on  the  matters  to  which  the subsection refers.  I do not so read it.  Rather it points to the need for the court to consider the matters to which the subsection refers specifically and separately from other relevant considerations.

[67]     In the event NZTA and the respondents appeared to be on the same page on the  interpretation  of  the  phrase.    Both  sides  cited  the  decision  of  the  Planning

45     However NZTA’s submissions argued that the Project’s enabling effect for future projects was a highly relevant effect that ought to have been considered and “given sufficient weight” by reason of the requirement to have particular regard in s 171(1).

46     Ashdown v Telegraph Group Ltd [2001] 2 All ER 370 (Ch) at [34] where the phrase “must have particular regard to” in s 12 of the Copyright Act 1988 with reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms was considered.

Tribunal in  Marlborough District Council v Southern Ocean Seafoods Ltd where the following view was expressed:47

The duty to have particular regard to these matters has been described in one

case as “a duty to be on inquiry” Gill v Rotorua District Council (1993) 2

NZRMA 604, 2 NZPTD Part 5. With respect in our view it goes further than the need to merely be on inquiry.  To have particular regard to something in our view is an injunction to take the matter into account, recognising it as something important to the particular decision and therefore to be considered and carefully weighed in coming to a conclusion.

[68]     I agree that that is an appropriate interpretation provided that the reference to

“take the matter into account” is understood in the sense explained at [63] above.

Did the Board adopt the correct approach?

[69]     NZTA’s real complaint was that the Board failed to adhere to the identified standard.  It placed particular reliance on the Board’s comments at [175]:48

[175]    What  is  required  (subject  to  consideration  of  the  King  Salmon decision, which we address next) is a consideration of the effects on the environment of allowing the requirement having particular regard to the matters set out in sub-sections (a)–(d).  This means that the matters in (a)– (d) need to be considered to the extent that our finding on these matters are to be heeded (or borne in mind) when considering our findings on the effects on the environment.

[70]     I would agree with NZTA that merely to heed or bear in mind matters would fall below the requisite level of attention which the phrase “have particular regard to” imports.   However I do not consider that the comments at [175], which were introductory in character, accurately reflect the Board’s approach which is more evident at [181]–[182]:

[181]    By  contrast,  in  considering  the  NoR  we  are  required  to  have

particular regard to the relevant instruments.

[182]    The  phrase  have  particular  regard  to  has  been  interpreted  as requiring that we specifically turn our mind to each of the listed matters, and give them some greater weight than those to which we are only required to have regard.  This is a different and lesser test than the requirement to give effect to, as was being considered in  King Salmon. The Supreme Court interpreted give effect to as simply meaning implement, and considered that this requirement was intended to constrain decision makers.

47     Marlborough District Council v Southern Ocean Seafoods Ltd [1995] NZRMA 220 at 228.

48 Attention was also drawn to the use of the verb “informed” in [196].

[71]     That such turning of their minds was required separately in respect of each of the listed matters was acknowledged in the Board’s subsequent endorsement at [194] of a passage from the Report and Decision of the Board of Inquiry into the Upper North Island Grid Upgrade Project (NIGUP).49

[72]     It is convenient at this point to address Q 28A which states:

Does  the  difference  in  wording  between  s 104  and  s 171  require  a substantively different approach to considering effects on the environment arising from notices of requirement as that for determining consent applications?

[73]     This ground of appeal was directed to the Board’s statements at [193]–[194]:

[193]    … We acknowledge (as [NZTA] noted) that the obligation to assess effects with respect to NoRs under Section 171(1) is expressed in subtly different language from the equivalent obligation arising with respect to resource   consents   under   Section 104(1).      Specifically,   Section 171(1) requires consideration of the effects on the environment having particular regard to the matters in sub-sections (a)–(d).  Whereas under Section 104(1), the activity’s actual and potential effects are instead listed as one of the matters to which a decision maker must have regard, alongside those in Section 104(1)(b) and (c).   Both Sections 104(1) and 171(1) though, are subject to Part 2.

[194]    However, we do not consider that difference in wording requires a substantively different approach to considering effects on the environment arising from NoRs as that for determining consent applications, as counsel for [NZTA] claimed.  Indeed in our experience, it does not.  To the contrary, we adopt the findings of the Report and Decision of the Board of Inquiry into the Upper North Island Grid Upgrade Project, that Section 171(1) is to be applied as follows:

[a]       The language … consider the effects … having particular regard to … expresses a duty to do both together, without necessarily giving one primacy over, or making one subordinate to, the other;

[b]       The language having particular regard expresses a duty for us to turn our mind separately to each of the matters listed, to consider and carefully weigh each one.  The words do not carry a meaning that the matters listed in (a)–(d) are necessarily more or less important than the effects on the environment of allowing the requirement; and

49     At [73] below.

[c]       We must make our own judgment, based on the evidence and in the circumstances of the case, about the effects on the environment, about the matters listed in (a)–(d), and about the relative importance of each in all the circumstances.

[74]     NZTA’s objection to that analysis was directed both to the equivalence of treatment of the two sections and to the issue of “subject to Part 2”.  That latter issue is addressed below in the context of my consideration of Part 2.

[75]     NZTA’s  argument  was  that  the  Board  misapplied  s 171(1)  by  in  effect inserting the word “and” into the subsection (presumably before the phrase “having particular regard to”) so that it read to the same effect as s 104(1).  As its written submissions stated:

28.7…  By  inserting  ‘and’ into  s 171(1),  the  Majority has  given  it  a different meaning.   On the Majority’s interpretation of s 171(1) a decision-maker is required to:

aMake  its  own  judgment,  through  Part  2,  concerning  the effects on the environment of allowing the requirement; and

bMake a separate judgment concerning the matters listed in paragraphs (a)–(d); and

cMake its own overall judgment, subject to Part 2, regarding the relative importance of each in all the circumstances.

28.8This is not what s 171(1) requires.  The correct approach to s 171(1) is to consider the effects of the proposed requirement ‘having particular regard to’ (in the sense of ‘through the lens’ of) the (a) to (d) matters and then come to a decision on the basis of that assessment of effects.   Where there is a conflict in the (a) to (d) matters, the decision-maker will have recourse to Part 2 (we return to the meaning of ‘subject to Part 2’ in the section below).

[76]     I  accept  the  respondents’ submission  that,  while  there  is  a  difference  in wording between ss 104 and 171, in its analysis of those sections at [193]–[194] the Board has not misinterpreted s 171 in the manner suggested by NZTA.  As noted above, in discharging the obligation to have “particular” regard to the specified matters the Board has recognised that each specified matter is to be the subject of separate attention.

[77]     The Board transparently stated its intended decision-making process at [199]:

[199]  We therefore propose to structure this part of our decision (appropriately applying the guidance from King Salmon, as just identified) as follows:

[a]       To identify and set out the relevant provisions of the main RMA statutory instruments that we must have particular regard   to   under   Section 171(1)(a),   and   the   relevant provisions of the main non-RMA statutory instruments and non-statutory documents that we must have particular regard to under Section 171(1)(d);

[b]       To consider and evaluate the adverse and beneficial effects on the environment informed by the relevant provisions of Part 2; the relevant statutory instruments; and other relevant matters  being  the  relevant  conditions  and  the  relevant non-statutory documents;

[c]       To   consider   and   evaluate   the   directions   given   in Section 171(1)(b) as to whether adequate consideration has been given to alternative sites, routes or methods of undertaking the work;

[d]       To   consider   and   evaluate   the   directions   given   in Section 171(1)(c) as to whether the work and designation are  reasonably necessary  for  achieving the  objectives  for which the designation is sought; and

[e]       In making our overall judgment subject to Part 2, to consider and  evaluate  our  findings  in  (a)  to  (d)  above,  and  to determine whether the requirement achieves the RMA’s purpose of sustainability.

[78]     I do not consider that that formulation is susceptible to challenge so far as the appropriate consideration of the 171(1)(a) to (d) matters is concerned.

[79]     It is convenient at this point to address the contention at ground of appeal

29(b) that the matters listed in s 171(1)(a) to (d) ought to have been determined prior to the Board’s substantive consideration of the Proposal’s effects.  This complaint is directed to the observation in the Decision at [197]:

[197]    In applying Section 171(1) of the RMA, there is also no explicit obligation that our determination regarding the matters in Section 171(1)(b) must be made in advance of our substantive consideration of effects.

[80]     The Board proceeded to note that the Wiri Prison Board50  had undertaken a substantive effects assessment, and determined that that project would result in some significant effects, before moving on to consider the s 171(1)(b) matters.  The Board favoured that approach:

[198]   We adopt the same approach, as we consider it:

[364]   As explained earlier, the manner of recourse to Part 2 in the context of s 171 (and other sections stated to be “subject to Part 2”) is not limited in the manner described in King Salmon.157   Of course the three caveats may still have application in relation to inadequate plans so far as concerns the obligation to have particular regard to them.

[365]   I have some reservation about the formulation of the question so far as it incorporates the word “appropriate”.  As the Supreme Court remarked in King Salmon,158 the scope of that word is heavily affected by context.  I tend to think that the words “permissible” or “legitimate” would have been preferable.

[366]   However, assuming that the consideration of an application under s 171 does in fact engage historic heritage or amenity values, for the reasons above the answer

to Q 45C is in the affirmative.

156   Auckland City Council v John Woolley Trust, above n 54; see also [111] above.

157   At [85] in [113] above.

158   King Salmon, above n 26, at [100].

Q 45D: Did the Board correctly apply the definition of ‘historic heritage’ under s 2?

[367]   One of the matters of national importance listed in s 6 as (f) is the protection of historic heritage from inappropriate subdivision, use and development.  “Historic heritage” is defined in s 2 of the RMA as follows:

historic heritage–

(a)       means those natural and physical resources that contribute to an understanding   and   appreciation   of   New Zealand’s   history   and cultures, deriving from any of the following qualities:

(i)       archaeological: (ii)          architectural:

(iii)     cultural: (iv)       historic:

(v)      scientific:
(vi)     technological; and

(b)       includes–

(i)       historic sites, structures, places, and areas; and
(ii)      archaeological sites; and

(iii)     sites of significance to Māori, including wāhi tapu; and

(iv)     surroundings   associated   with   the   natural   and   physical resources.

[368]   The  nature  of  the  Board’s  alleged  error  in  its  interpretation  of  s 2  was described in ground of appeal 40(c) as follows:

The Board wrongly applied paragraph (b)(iv) of the definition of ‘historic heritage’ in s 2 of the Act and thereby extended its consideration beyond the surroundings associated with the natural and physical resources constituting the historic heritage within the project area (being the Basin Reserve and listed heritage items) to conclude that the wider setting to those resources was of itself a heritage area.

The parties’ contentions

[369]   NZTA’s primary written submissions developed the argument in this way:

37.3While the definition includes ‘historic’ places and areas it does not specifically provide for heritage precincts or landscapes.   The fact that there may be a collection of heritage items within the locality does not make it an historic place or area, unless that locality is a place or area of historic significance in its own right.  As a matter of law  it  was  not  open to  the  Majority to  conclude that  the  wider Project area is a heritage precinct/landscape.

37.4By establishing a heritage precinct at this location, the Majority has developed a heritage landscape construct which it found stretches from Taranaki Street in the west through the Basin Reserve and Canal Reserve areas to Government House and the Town Belt in the

east and applied it to the wider Project site.  It did so on the basis that there is an unusual concentration of heritage buildings, sites and places at this location, such that the Project is contained within what it describes as an important heritage area.

37.5By establishing a heritage landscape of this scale in this location, the Majority has purported to confer s 6(f) protection over the entire landscape rather than the particular heritage items within it.   This level of protection is not provided for in the District Plan which, as noted, protects scheduled sites and features while ensuring that the diversity   of   development   provided   for   within   the   planning framework relevant to this location is not constrained.

[370] NZTA acknowledged that the Environment Court in Waiareka Valley Preservation  Society  Inc  v  Waitaki  District  Council159   had  been  satisfied  that a purposive interpretation of s 6(f) enabled that provision to describe a collection of historic sites, places or areas as a heritage landscape and had concluded that the nomenclature ‘landscape’ could easily be substituted by ‘area’ or ‘surrounds’, depending on the particular context.

[371]   However  NZTA  noted  that  the  Court  has  since  expressed  considerable caution regarding the extension of (b)(i) of the definition to include a collection of historic sites, places or areas as a “heritage landscape”.  In Maniototo Environment Society Inc v Central Otago District Council,160  the Environment Court noted that such usage:

… may be dangerous under the RMA where the word “landscape” is used only in s 6(b).  Further, the concept of a landscape includes heritage values, so there is a danger of double-counting as well as of confusion if the word “landscape” is used generally in respect of section 6(f) of the Act.

Similarly in Gavin H Wallace Ltd v Auckland Council161  the Court also expressed caution over the use of the term and its inclusion in the lexicon of the RMA.

[372]   Consequently NZTA submitted, having regard to the definition of “historic heritage”,  the  case  law  and  the  District  Plan, that  the  RMA does  not  envisage

protection being extended under s 6(f) to a central city urban landscape of the scale

159   Waiareka  Valley  Preservation  Society  Inc  v  Waitaki  District  Council  EnvC  Christchurch

C058/2009, 13 August 2009 at [230]–[231].

160   Maniototo  Environment  Society  Inc  v  Central  Otago  District  Council  EnvC  Christchurch

103/09, 28 October 2009 at [208].

161   Gavin H Wallace Ltd v Auckland Council [2012] NZEnvC 120 at [66]–[67].

determined by the Board.  To do so would result in all activities within that location being “effectively trapped” within a special heritage landscape thereby “locking up” future urban development contemplated by the planning framework.

[373]   In brief summary the respondents submitted that:

(a)      the definition of “historic heritage” is broad and explicitly “includes” historic sites, structures, place and areas as well as surroundings associated with physical resources;

(b)      NZTA’s interpretation is unduly narrow and at odds with the text and

purpose of the RMA;

(c)      the Board examined whether there was an area of historic heritage, as the definition permits, but NZTA wrongly suggests that the Board concluded that there was some formal heritage precinct or landscape.

Analysis

[374]   The competing perspectives in the contest before the Board are captured in the following paragraphs:

[614]    Some heritage experts have chosen to focus their assessments on individual heritage items, particularly listed or registered items, while others give attention to considerations of heritage setting as well.  With reference to terminology, this is partly a distinction between built heritage and historic heritage.

…

[616]    The  Assessment  of  Environmental  Effects  prepared  by  [NZTA] refers explicitly to Built Heritage as the title for Section 26 of the document, and Technical Report 12 is similarly entitled Assessments of Effects on Built Heritage. [NZTA’s] closing submissions confirmed this thematic focus.

…

[617]    … The City Council’s closing submissions made no reference at all to section 6(f) of the RMA, nor to historic heritage, choosing rather to focus on issues related specifically to listed or registered heritage items.

…

[622]    Mr Milne, in his closing submissions, made numerous references to historic heritage and argued explicitly that the focus of [NZTA’s] case on heritage matters was wrongly limited to built heritage.  Mr Bennion, in his closing  submissions,  having  cited  explicitly  the  relevant  RMA sections, similarly made numerous references to historic heritage and argued for the proper recognition of setting when assessing effects on historic heritage.

[375]   As  earlier  noted,162   while  the  Board  recognised  the  District  Plan  as  the primary means of giving effect to the recognition of historic heritage, it proceeded on the basis that even if a place or area was not scheduled s 6(f) still applied.

[376]   There are a number of reasons why it is not easy to attribute to the Board a particular interpretation of the definition of “historic heritage” in s 2.   First, the Board’s discussion under the heading “Heritage, Cultural and Archaeological” is extensive, spanning [535] to [783], and the evidence is exhaustively analysed.  That said, within that thorough review there are certainly references to precincts and landscapes, which are the focus of NZTA’s submission.

[377]   Secondly, the protection of particular sites or areas is not confined to the District Plan. Although the Basin Reserve is not included in the schedule to the Plan, it is registered as an historic area under the Heritage New Zealand Pouhere Taonga Act 2014.163   Similarly the Board viewed the fact of the creation of the National War Memorial  Park  under  its  own  empowering  legislation164   as  an  indicator  of  its national significance.

[378]   Thirdly, the mosaic which the Board was required to consider was augmented by  the  Minister’s  reasons  for  direction  to  which  the  Board  was  directed  by s 149P(1)(a) to have regard.  Relevant to the issue of historic heritage those reasons stated:

•     The  proposal  is  adjacent  to  and  partially  within  the  Basin  Reserve Historic Area and international test cricket ground; in the vicinity of other historic places including the former Home of Compassion Crèche, the  former  Mount Cook  Police  Station,  Government  House  and  the former National Art Gallery and Dominion Museum; and is adjacent to

162   At [338] above.

163 At [562]. The definition of “historic area” in s 6 means an area of land that contains an inter-related group of historic places and forms part of the historical and cultural heritage of New Zealand.

164   National War Memorial Park (Pukeahu) Empowering Act 2012.

the National War Memorial Park (Pukeahu).  The proposal is likely to affect recreational, memorial, and heritage values associated with this area of national significance (including associated structures, features and places) which contribute to New Zealand’s national identity.

[379]   There is force in the respondents’ submission that it is difficult to see how the Board could have complied with its obligation to have regard to the reasons of the Minister in referring the proposal to it without taking the approach it did to the “area” of historic heritage.

[380]   Indeed  one  of  the  instances  of  the  Board’s  use  of  “precinct”  was  with reference to three of those places of importance when, in relation to an anticipated Anzac Day centenary celebration, it said:165

Such an event would clearly link the NWM Park, the Basin Reserve, and

Government House – covering the entire precinct we have described.

[381]   In seeking to identify from the Board’s broad review the interpretation which the Board placed on s 2, there are three paragraphs which I consider are particularly instructive:

[557]    The protection given by Section 6(f) extends to the curtilage of the heritage item and the surrounding area that is significant for retaining and interpreting the heritage significance of the heritage item.  This may include the  land  on  which  a  heritage  building  is  sited,  its  precincts  and  the relationship   of   the   heritage   item   with   its   built   context   and   other surroundings.

…

[615]    In defining historic heritage, the RMA makes a clear distinction between  historic  sites  and  historic  heritage.    At  their  conferencing,  the experts drew attention to the definition of historic heritage in the RMA – which includes (b)(iv) surroundings associated with the natural and physical (historic heritage) resources.

…

[623]    We agree that we are obliged to consider the effects on historic heritage and that historic heritage includes not only built heritage but the surroundings and setting in which the built heritage exists.  In our view, the explicit focus of [NZTA], Wellington City Council and Heritage NZ heritage assessments  on  built  heritage,  as  distinct  from historic  heritage,  unduly limited the scope of those assessments.

165 At [589].

The third of those paragraphs represented the Board’s conclusion on the competing contentions in the extracts at [374] above.

[382]   While for the reasons in [376] to [379] above Q 45D has proved to be one of the more difficult issues in the case, my conclusion is that there was no error in the Board’s  interpretation  of  the  definition  of  “historic  heritage”.    I  do  not  accept NZTA’s submission that in its application of the definition the Board “went well beyond the surrounds and setting of historic heritage”.166

[383]   NZTA’s submissions further argued that if s 6(f) protection as found by the Board  was  unobjectionable, then the  Board had  erred  in  law  “by applying this concept to the Project area without any methodology being identified or followed on which to base such a significant finding”.  I do not address that submission because I do not consider that it involves either a question of law or an issue sufficiently connected to Q 45D.

Q   45E:   What   is   the   correct   approach   to   the   application   of   the   test   of

‘inappropriateness’ in s 6(f) [should the Court consider resort to Part 2 of the RMA

was available to the Board in the circumstances of this case]?

[384]   The bracketed words in the question reflect the fact that this question is conditional  upon  an  affirmative  answer  to  Q 45C  and  a  rejection  of  NZTA’s argument that it was not appropriate for the Board to assess historic heritage under Part 2.

[385]   NZTA’s argument in summary form was:

(a)      prior  to  King  Salmon,  “inappropriate”  in  the  context  of  s 6  was understood as having a wider meaning than “unnecessary” and was to be considered on a case by case basis;

(b)King Salmon held that the former approach did not accurately reflect the proper relationship between ss 5 and 6;

166   See [757] in [340] above.

(c)      King  Salmon  held  that  “inappropriateness”  is  heavily  affected  by context and that the standard relates back to the attributes to be preserved or protected rather than the activity proposed;

(d)King Salmon also gave a clear direction that it is the relevant planning documents that provide the basis for decision-making under the RMA. This includes a decision-maker’s evaluation of “inappropriateness” in the context of s 6.

[386]   Consequently NZTA submitted:

38.6     …  Therefore,  in  the  absence  of  any  allegation  of  invalidity, incomplete coverage or uncertainty of meaning; a decision-maker is required to assess s 6(f) matters as particularised by the relevant planning documents before them, from National Policy Statements down to district plans.

38.7     Even if the Majority was right to go beyond the District Plan in determining what constituted historic heritage, it should still have assessed what was appropriate by having particular regard to the scale and nature of the protection conferred by the District Plan.  It did not do so.

[387]   Mr Palmer  raised  the  objection  that  this  argument  did  not  appear  in  the amended notice of appeal.   However in my view the proposition advanced is in essence a variation on the theme reflected in Q 45A and Q 45C, in particular the “through the lens” argument.

[388]   I first note that the Board explicitly recognised the guidance of King Salmon

on the meaning of “inappropriate” in s 6(f):

[558]    Importantly, for this matter, we are guided by the Supreme Court in King Salmon as to the application of the word inappropriate as it is used in Section 6(f).    Where  the  term  inappropriate  is  used  in  the  context  of protecting historic heritage, the natural meaning is that inappropriateness should be assessed by reference to what it is that is being protected.  That is, within the context of the heritage elements that exist within and around the Basin Reserve area, their value and the effects of the project on those values.

[389]   In support of its conclusion at [783] that the Project was not consistent with s 6(f) the Board said:

[780]    Our overall evaluation is not simply a matter of considering effects on listed heritage items or confining our evaluation to a consideration only of the loss or restoration of heritage fabric, although such historic heritage

effects are part of the cumulative picture.  We must consider the character and significance of the whole wider heritage area and the appropriateness of such a structure within it.

[781]    We noted in our introduction to this section that the common theme in the relevant statutory documents – the RMA, Regional Policy Statement and District Plan – is to protect heritage from inappropriate use and development.   We concluded in our findings from the sub-area analysis reported earlier in this decision two important issues: the inherent conflict in mitigating adverse effects, and the cumulative adverse effects of severance within the heritage setting.   It appears to us that those conclusions align clearly with the final assessment of Mr Salmond on appropriateness and the findings of Ms Poff from her Part 2 assessment.

[782]    Consequently, we find that the evidence of historic heritage supports the conclusion that the Project before us constitutes an inappropriate development within this significant heritage area of the city.

[390]   It is apparent in my view from [781] and a number of other paragraphs that the  Board  did  have  particular  regard  to  the  District  Plan  and  other  relevant documents.  NZTA’s complaint is with the Board’s ultimate conclusion, as reflected in the submission:

38.8… the Majority should have concluded that, because there was no direct adverse effect arising from the Project on any heritage items identified as significant and worthy of protection in the District Plan, the Project is consistent with s 6(f) as it relates to those listed items and therefore does not represent inappropriate development in terms of s 6(f).

[391]   In effect NZTA’s case is that the Board erred in not reaching a conclusion in accordance with (ie by giving effect to) the District Plan.  As my earlier findings reflect, I do not agree that the Board’s task under s 171(1) was so confined.

[392]   I do not consider that there was any error of law in the Board’s consideration of inappropriateness in s 6(f).  In this context it is desirable to reiterate that this is not a general appeal by way rehearing and I am not sitting in judgment on the merits of the Board’s conclusion.

Issue  8:  Failure  to  consider  options  within  the  scope  of  the  application  to address amenity and heritage related effects to the Gateway Building

[393]   Although this item was omitted from the memorandum of 23 July 2015167 there  was  no  issue  that  it  remained  live  and  the  parties’  written  submissions addressed the following question:

Q51     Did the Board fail to have regard to a relevant matter, being options within the scope of the application that could balance the effects of the Proposal on the playing of cricket with other effects (heritage and amenity)?

[394]   NZTA’s grounds of appeal were:

52       The grounds of appeal in relation to this issue are:

(a)       The Board found at [965] that the cricketing experts were of the uncontested view that the 65m Northern Gateway Building was necessary to mitigate the effects on cricket when  the  evidence  of  Dr Sanderson  was  that  a  Northern Gateway Building of 45m would be sufficient to mitigate the risk of visual distraction to batters.

(b)       As a consequence, the Board found at [758] to [761] that there is an inherent conflict in mitigating the adverse effects on  heritage.     In  particular,  by  finding  that  a  Northern Gateway Building of 65m is required to mitigate the effects on cricket, but that mitigation has of itself other adverse heritage-related effects, including effects on views and amenity.

(c)       Consequently,  the  Board  failed  to  consider  as  a  relevant matter, options within the scope of the application to balance the needs of cricket with any other effects (historic heritage or amenity) of a longer structure, in particular by:

(i)       failing to consider a Northern Gateway Building of

45m or 55m;

(ii)      failing to consider a Northern Gateway Building of

65m  together  with  conditions  to  ensure  that  the

Building remain a sense of openness between 45 and

65 metres.

(d)      In the alternative, by rejecting the evidence of Dr Sanderson, the Board implicitly found that the evidence of the cricketers was more persuasive in assessing the Proposal’s effects on the Basin Reserve.   The Board therefore could only have reasonably   found   in   accordance   with   the   cricketers’ evidence  on  amenity  effects  that  the  Northern  Gateway

167   At [332] above.

Building would appropriately protect the ambience of the

Basin Reserve (contrary to the Board’s finding at [653]).

[395]   It is quite apparent that the Board was cognisant of the options involving a Northern Gateway Building (NGB) of reduced length.  At [36] the Board notes that the key elements of the Project included:

(f)      A new structure, known as the Northern Gateway Building, approximately 65m long and 13m high at or about the northern end of the Basin Reserve, adjacent and to the east of the R.A. Vance Stand.  Shorter alternatives to the proposed structure within the same approximate  65m  long  and  13m  high  envelope/area  are  also proposed, together with landscaping;

[396]   The primary function of the NGB was to screen the moving traffic on the Basin Bridge from views within the Basin Reserve so as to mitigate the effects of the Basin Bridge on cricket and amenity within the Basin Reserve.  NZTA made it clear that it had no interest in developing the building, except as mitigation for the effects of the Basin Bridge.168

[397]   Hence the longest option was naturally the focus of the Board’s consideration because the cricketing experts were of the universal view that that option was necessary to mitigate the effects on cricket.  So far as Dr Sanderson’s evidence was concerned, Mr McMahon noted:169

[1383]  … The cricket evidence from the Basin Reserve Trust is preferred to the   evidence   of   Dr Sanderson   for   the   Applicant,   who   generously acknowledged that, despite his technical evidence in respect to ophthalmology, he should defer to cricket experts on the extent of the length of screening necessary to avoid distracting movement on the Basin Bridge for cricket players.

[398]   I agree with Mr Palmer’s submission that it is apparent from the Decision and from the Draft Decision (which included proposed conditions regarding design) that the Board did not fail to have regard to other options or conditions.  I note the irony in his closing observation that NZTA appeared to be complaining that the Board did not consider options  which would  have had  an  even  greater impact  on  historic

heritage than the option it did focus on.

168 [1424].

169 [1383].

Summary

[399]   A decision on an appeal “only on a question of law” which raises more than

35 questions of law is not well-suited to a succinct summary.  That is especially so when ten of the questions asked whether the Board’s conclusions on various issues were findings to which it could reasonably have come on the evidence, that is, whether those conclusions were so insupportable that they amounted to errors of law.

The judgment finds that the Board’s Decision does not contain any of the errors of law alleged.  Although it is not practicable to recite each finding, attention is drawn to the following points of general application.

The meaning of s 171(1)

The provision in s 171(1) to have “particular regard to” the matters specified in (a) to (d) required the Board to consider these matters specifically and separately from other relevant considerations but did not indicate that extra weight should be placed on those matters.170

The relocation of “subject to Part 2” did not change the meaning of s 171(1).171   The Board’s  role  under  s 171(1)  was  different  from  that  in  King  Salmon  where  the obligation under s 67(3) was to give effect to the NZCPS.   King Salmon did not change the import of Part 2 for the consideration under s 171(1) of the effects on the environment of a requirement.172

Adequate consideration of alternative options

Section 171(1)(b):

(a)       permits a more careful consideration of alternatives when there are more significant adverse effects of allowing a requirement;173 and

170   [64]–]68] above.

171 [86]–[98] above.

172 [99]–[118] above.

173 [140]–[142].

(b)does  not  require  a  requiring  authority  to  fully  evaluate  every non-suppositious alternative with potentially reduced environment effects.174

In some, but by no means in all, cases it may be necessary for the decision-maker to gain access to the weightings in a multi-criteria analysis in order to be satisfied that adequate consideration has been given to alternatives.

Enabling effects

A project’s enabling benefit can constitute an effect to be taken into account under s 171(1) and/or s 5.175   In order to be given weight the enabling benefit need not be unique to a project, guaranteed to go ahead or able to be quantified.176

Transportation benefits

Where a project will have more than minimal adverse effects no higher standard of

proof is required to demonstrate the project’s transportation benefits.177

Heritage and amenity

On a s 171(1) application a District Plan is not exhaustive concerning items of historic heritage.   The decision-maker’s consideration of Part 2 considerations is neither restricted to instances of unresolvable conflict178  nor confined to situations

where one of the three King Salmon caveats is applicable.179

The  Board  did  not  err  either  in  its  interpretation  of  the  definition  of  “historic heritage” in s 2180  or in its approach to the application of “inappropriateness” in

s 6(f).181

174 [156].

175 [265]–[266].

176 [268].

177 [299].

178 [354].

179 [363]–[364].

180 [382].

181 [392].

Disposition

[400]   For the reasons above, NZTA has not established that in its Decision the Board made any error of law of the nature reflected in the several questions of law in the  amended  notice  of  appeal,  as  revised  by  the  23 July 2015  memorandum. Consequently NZTA’s appeal under s 149V(1) is dismissed.

[401]   The parties requested the opportunity to make submissions on costs.  In view of the outcome of the appeal:

(a)       the     respondents     are     to     file     any     costs     memoranda     by

11 September 2015;

(b)      NZTA is to file a costs memorandum by 2 October 2015; and

(c)       the  respondents  may  file  any  memoranda  strictly  in  reply  by

16 October 2015.

Leave is reserved to apply to amend that timetable if necessary.

[402]  Finally I record my appreciation to all counsel for the quality of their submissions and the assistance which they provided to the Court in navigating a

course through this complex matter.

Brown J

Solicitors:

M Casey QC, Wellington

Andrew Cameron Law, Wellington
Kensington Swan, Wellington

DLA Phillips Fox, Wellington

Prestige Lawyers Ltd, Auckland