Ngāti Kuku Hapū Trust v Environmental Protection Agency
[2025] NZHC 2046
•24 July 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-375
[2025] NZHC 2046
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER OF
an application for judicial review in respect of the Fast-track Approvals Act 2024
BETWEEN
NGĀTI KUKU HAPŪ TRUST
First Applicant
TRUSTEES OF NGĀ HAPŪ O NGĀ MOUTERE TRUST
Second Applicant
AND
THE ENVIRONMENTAL PROTECTION AGENCY
First Respondent
PORT OF TAURANGA LIMITED
Second RespondentA PANEL CONVENOR APPOINTED UNDER THE FAST-TRACK APPROVALS ACT
Third Respondent
Hearing:
Further submissions by memoranda:
16 July 2025
18 July 2025 from counsel for the Second Respondent and from counsel for the Applicants
Counsel:
R B Enright and J Pou for Applicants
T J Conder and C L Lipinski for Second Respondent Appearances of counsel for First Respondent and
Third Respondent excused
Judgment:
24 July 2025
JUDGMENT OF GENDALL J
NGĀTI KUKU HAPŪ TRUST v THE ENVIRONMENTAL PROTECTION AGENCY [2025] NZHC 2046 [24 July 2025]
Introduction
[1] On 24 December 2024, the Fast-track Approvals Act 2024 (FTAA) came into force, with the stated purpose of facilitating “the delivery of infrastructure and development projects with significant regional or national benefits”.1
[2] On 14 April 2025, the second respondent, Port of Tauranga Limited (POTL) lodged a substantive application with the Environmental Protection Authority (EPA) seeking fast-track approvals for its project expanding certain facilities at the Port of Tauranga and dredging the Stella Passage in Tauranga Harbour (the Stella Passage Project).
[3] On receiving such an application, s 46 of the FTAA requires the EPA to decide whether the application is complete and within scope, having consulted a number of relevant parties and considered certain prescribed matters (the completeness decision). Broadly, if the EPA determines in its completeness decision that the substantive application is compliant, the application is then considered by an expert panel, with a panel convenor appointed to convene that panel.
[4] On 8 May 2025, the EPA issued its completeness decision, determining that POTL’s application for the Stella Passage Project was “complete and within scope” in terms of s 46.
[5] On 4 June 2025, the applicants, Ngāti Kuku Hapū Trust (Ngāti Kuku) and Nessie Kuka, Te Uta Rolleston, Jason Murray, Hori Murray and Brendon Taingahue as trustees of Ngā Hapū o Ngā Moutere Trust (Ngā Hapū o Ngā Moutere) filed a statement of claim seeking judicial review of the EPA’s completeness decision. Later in June 2025, POTL filed its statement of defence in opposition to the applicants’ judicial review application.
[6] Then, on 7 July 2025, the applicants filed an interlocutory application for interim orders, seeking first, an order that the EPA, the Panel Convener, and the Panel
1 FTAA, s 3.
take no further steps in processing or progressing POTL’s fast-track application for the Stella Passage Project, and secondly, an interim stay until determination of their substantive judicial review application.
[7] In response, on 8 July 2025, POTL filed a notice of opposition to that interlocutory application, and a further application seeking a stay of this proceeding until a substantive decision has been given by the expert panel on its application for approval of the Stella Passage Project under the FTAA.
[8] The Panel Convener, Ms Caldwell, who was joined to this proceeding as third respondent by direction of the Court on 7 July 2025, has confirmed she will abide the decision of the Court.
[9] The EPA has indicated it does not oppose the applicant’s claim, but reserves its rights in the event another person becomes a party to the proceeding, or any party takes a step in the proceeding against its interests.
[10] The hearing of the application for interim orders took place before me on 16 July 2025. Late in the day of this hearing, counsel for the EPA filed and provided to the parties a memorandum concerning EPA’s completeness decision (setting out reasons for the decision-maker’s assessment) and an attachment of these reason notes (the EPA memorandum) that had not been provided to the Court before.
[11] At the request of counsel for the applicants, both counsel at the hearing were given until 5.00 pm on 18 July 2025 to file and serve their individual response memoranda to the EPA memorandum. Those memoranda were filed, and I have now had an opportunity to consider them.
Background
The FTAA
[12] The FTAA was enacted as a means of addressing what was said to be the “slow, costly and complex” resource consenting regime under the Resource Management Act 1991 (RMA), and is part of a proposed three-phase reform of Aotearoa New Zealand’s
resource management system that is intended to eventually culminate in the replacement of the RMA with new resource management legislation.2 The “broad objectives” of the new fast-track regime were expressed as being:3
(a)to ensure more rapid and less costly consenting processes for major projects;
(b)to ensure simpler and less burdensome application processes;
(c)to provide an increase in favourable decisions for major projects that have regionally or nationally significant benefits; and
(d)to uphold all existing treaty settlements and other legislative arrangements.
[13] Section 42(1) of the FTAA provides that an authorised person (an applicant) for a listed project may lodge with the EPA a substantive application for the project. Such an application must comply with s 43 of the Act.4 A listed project such as the Stella Passage Project, is one set out in sch 2 of the FTAA.5 Section 43 specifies that a substantive application for a listed project must contain the information required by s 13(4), which “applies as if the reference in section 13(4)(k) to section 11 were a reference to section 29”.6
[14] Section 13(4)(k) of the FTAA requires that a summary of consultation undertaken for the purposes of s 11 and any other consultation undertaken on the project must be included in the referral application. Section 11(1)(b) stipulates that before lodging a referral application, the applicant must consult any relevant iwi authorities, hapū and Treaty Settlement entities, including iwi authorities that represent hapū that are parties to relevant Mana Whakahono ā Rohe or joint management agreements, and any relevant applicant groups with applications for customary marine
2 Ministry for the Environment Supplementary Analysis Report: Fast Track Approvals Bill
(29 February 2024) at 1.
3 At 2.
4 FTAA, s 42(2)(a).
5 Section 4.
6 Section 43(2)(a).
title under the Marine and Coastal Area (Takutai Moana) Act 2011. And, s 29 goes on to provide that, before lodging a substantive application for a listed project, the authorised person must consult the persons and groups referred to in s 11.
[15] The decision under review in these proceedings was made under s 46 of the FTAA. This provides:
46 EPA decides whether substantive application is complete and within scope
(1)The EPA must, in consultation with the relevant administering agencies and relevant consent authorities, decide whether a substantive application complies with subsection (2) within 15 working days after receiving it.
(2)A substantive application complies with this subsection if—
(a)the application complies with—
(i)section 42; and
(i) section 43 and 44; and
(b)the application relates solely to a listed project or a referred project; and
…
(3)If the EPA decides that the substantive application complies with subsection (2), the EPA must—
(a)give written notice of the decision to the applicant; and
(b)provide the application to the panel convener.
(4)If the EPA decides that the substantive application does not comply with subsection (2), it must return the application immediately to the applicant, with written reasons for returning the application.
…
History
[16] POTL is the port operator in relation to the Port of Tauranga. Evidence before the Court suggests that the Port is currently constrained in its operations in a number of ways due to berth length, vessel congestion, and the age of some of its wharves. The Stella Passage Project seeks to alleviate some of these constraints to allow POTL to realise the opportunity cost.
[17] POTL says it had been outlining its development plans in relation to Stella Passage since 2016, and in 2019 sent out invitations to various iwi, hapū and other Māori entities to inform them of the proposed development and to seek some high- level early feedback on areas of concern.
[18] In November 2020, following the enactment of the COVID-19 Recovery (Fast- track Consenting) Act, POTL sought the Stella Passage Project to be referred under that Act for fast-tracking, but this was declined. POTL then lodged a resource consent application for the Project with the Bay of Plenty Regional Council under the RMA. A subsequent notice of motion for direct referral was filed with the Environment Court on 15 December 2021. After a lengthy hearing at the Environment Court in early 2023, POTL was directed to take a number of steps, including further engagement, consultation and cooperation with tangata whenua.
[19] During the ‘direct referral’ process, POTL undertook engagement with various tangata whenua parties, including Ngāti Kuku. Ngāti Kuku and Ngā Hapū o Ngā Moutere also joined the direct referral proceedings as s 274 parties.7 After the Environment Court’s interim decision, POTL also engaged with Ngā Tai ki Mauao Hapū Collective (NTKM), a collective of Ngāi Te Rangi hapū which included Ngāti Kuku and Ngā Hapū o Ngā Moutere.
[20] On 16 December 2024, the Environment Court granted consent for the Stage One Sulphur Point extension, reserving a decision on Stage Two. That decision was appealed by a number of parties, including Ngāti Kuku and NTKM.
[21] Earlier, on 2 May 2024, POTL had made an application for the Stella Passage Project to be included in sch 2 of the Fast-track Approvals Bill. This was granted on 18 October 2024. The description of the project that now appears in sch 2 of the FTAA reads:
7 Under s 274 of the RMA a person can become a party to a proceeding before the Environment Court if they have an interest in the proceeding greater than the interest that the general public has, or if they have made a submission.
Authorised person
Project name
Project description
Approximate
geographical location
Port of Tauranga Limited
Stella Passage Development
In stages, extend the Sulphur Point wharf, including
associated
reclamation and dredging of the seabed.
8.5 hectares of the coastal marine area within Tauranga Harbour at Sulphur Point and Mount Maunganui
[22] Prior to the enactment of the FTAA, POTL says it also undertook pre- engagement with key groups in Tauranga Moana, which involved meeting with representatives of various iwi and hapū trusts and incorporated societies, including Ngāti Kuku.
[23] On 14 April 2025, POTL lodged its substantive application under the FTAA with the EPA. The cover letter accompanying the application specified that:
POTL seeks all necessary approvals for all activities associated with the Project which provide for the expansion of the Sulphur Point and Mt Maunganui wharves, dredging of the Stella Passage within Te Awanui/Tauranga Harbour and the installation of four new cranes on the Sulphur Point wharves.
[24] A memorandum of counsel served with the application explained that the Project involved land reclamation and associated dredging to extend the Sulphur Point wharf by 385m and the Mount Maunganui wharf by 315m. Minor structures at Butters Landing and mooring and breasting dolphins adjacent to the Mount Maunganui wharf extension were also sought to be constructed. The memorandum noted too that the application did not materially depart from the resource consent application that was before the Environment Court. It said the only notable changes were an application for a wildlife approval in relation to the handling of little blue penguins under the Act and resource consent for installation of the four cranes at Sulphur Point.
[25] Appended to the substantive application was also a report titled “Port of Tauranga Limited Consultation Report” by Mahea NZ Limited (Consultation Report) which summarised the consultation that POTL was said to have undertaken in respect of its substantive application. The applicants here note however that neither this report nor the substantive application included the Cultural Values Assessments (CVAs) that
had been provided to POTL by some of the tangata whenua entities that it had been engaging with.
[26] On 1 May 2025, a group of iwi and hapū entities, including the applicants, wrote to the EPA, and in this letter recorded their concerns over what they said were POTL’s failures in consultation. They argued this rendered the application incomplete by failing to meet the consultation requirements under s 29 of the FTAA. The letter was anticipated to be considered by the EPA in its assessment of whether POTL’s application was ‘complete’ or needed to be returned to POTL for resubmission. The letter noted too the previous criticism POTL had received from the Environment Court as to its consultation with tangata whenua.8
[27] On 8 May 2025, the EPA provided its completeness decision. This confirmed that POTL’s substantive application complied with the requirements in the FTAA. The application was then provided to the FTAA Panel Convener, who is responsible for standing up an expert panel to determine the application and to set the timeframe for that panel to make its decision.9
[28] An expert panel has yet to be established, with the Panel Convener not intending to stand up a panel before 1 August 2025.
Application for interim orders
[29]The interim orders sought are:
(a)That the EPA, the Panel Convener and (if required) the Panel (if a Panel is set up by the Panel Convener at the time the orders take effect) take no further steps in processing or progressing of the application made by POTL for the Stella Passage listed project.
(b)An interim stay is sought until the earlier of:
8 See Port of Tauranga Ltd v Bay of Plenty Regional Council [2023] NZEnvC 270 at [360]–[361].
9 FTAA, ss 46(3), 50 and 79.
(i)determination of the applicants’ substantive application for judicial review; or
(ii)as otherwise varied on application to the Court.
(c)Waiver of the requirement to file an undertaking as to damages is sought.
(d)A one-day priority fixture is sought to be allocated for resolving the substantive proceeding, including abridgement of time for relevant interlocutory steps.
[30]The applicants seek the interim orders on the basis that they say:
(a)the orders are necessary to preserve their position, pending the determination of the substantive proceedings for judicial review;
(b)there is a serious question to be resolved, involving what is said to be the first judicial review in relation to the FTAA legislation, and the statutory powers of the EPA in relation to assessment of ‘completeness’ under the Act;
(c)the balance of convenience and wider public interest factors support the granting of interim relief, including recognising and providing for the mana whenua and mana moana interests of the applicant hapū, together with the wider interests that they represent through Ngāi Tai ki Mauao collective, underlying principles of tikanga and te Tiriti o Waitangi;
(d)there is limited or no material prejudice to POTL, given the minimal delay associated with resolution of the substantive questions in these proceedings, with any time delay able to be addressed by allocation of a priority fixture, which has been sought; and
(e)the overall justice of the situation favours the granting of the orders sought.
[31] POTL opposes the interim orders and seeks a stay of the overall substantive proceedings here on the basis that:
(a)while the grounds of judicial review are arguable, they are not particularly strong;
(b)the applicants face little to no prejudice if the process under the FTAA continues, given they are likely to be invited to comment on the fast- track application, and have an interest in other bodies that have already been invited to comment;
(c)conversely, POTL faces significant prejudice if the fast-track application is delayed, when it has been seeking approval for the Project since at least 2020, the Project is urgently required to allow for growth of traffic through the Port, and the cost of completing the Project has risen significantly and can be expected to rise further;
(d)the application for judicial review is premature, particularly when it is likely that the applicants will be invited to comment on the fast-track application, and the Court will be better placed to determine matters such as the scope of the application after the expert panel has made its decision; and
(e)the appropriate order of proceedings is the fast-track application first and any judicial review second.
Legal principles on the interim order application
[32]Section 15(1) of the Judicial Review Procedure Act 2016 (JRPA) provides:
15. Interim orders
(1) At any time before the final determination of an application, the Court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
[33] Section 17(1)(a) of the Crown Proceedings Act 1950 provides that the Court may not grant an injunction or an order for specific performance against the Crown. Instead, under s 15(3) of the JRPA, the Court may make an ‘interim order’ declaring that the Crown as a respondent should not take any further action that is, or would be, consequential on the exercise of a statutory power, if the Court considers it necessary to preserve the position of the applicant.
[34] The test under s 15 requires a two-stage approach10 and begins with the statutory threshold of satisfying the Court that the interim orders are necessary to preserve the applicants’ position. Once that is established, the Court secondly has a wide discretion to consider all the circumstances of the case.11 These include the strengths or weaknesses of the applicant’s claim for review, the competing advantages and detriments to the parties, the balance of convenience, public and private repercussions, and where the overall justice lies.12
Is the interim order necessary to preserve the position of the applicants?
[35] Mr Enright and Mr Pou, for the applicants, submit that the interim orders are necessary to preserve the position of the applicants. They suggest that if the orders are not granted, then by the time the application for judicial review is heard and a decision given, POTL’s substantive application is likely to have been determined. The applicants in the meantime will have been put to significant time, cost and effort in participating through the FTAA process. Counsel also submit that it is possible the applicants may not even be able to participate in the FTAA process, as only those invited to comment on the substantive application by the expert panel can participate. They say too that whether the Mount Maunganui wharf work (not specifically mentioned in part of the sch 2 FTAA listing) is included or excluded from the panel’s consideration of the Stella Passage Project is a key issue here.
[36] In response, Mr Conder, for POTL, submits that the applicants face little prejudice from the substantive application being considered by the expert panel. He
10 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
11 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3].
12 ENZA Ltd v Apple & Pear Export Permits Committee HC Wellington CP266/00, 18 December 2000 at [17].
maintains that if the applicants are not invited to comment on the application, and this is wrongful, then it can be corrected by the Court after that process, at the time when a judicial review is expressly anticipated by the FTAA. He refers to s 101 of the Act, which sets out the process for applying for judicial review of a decision approving an application. Mr Conder argues there is no prejudice to the applicants in being invited to participate in the FTAA process. Any costs they incur, he says, will not be wasted, as any comments provided in this process will be able to inform any future application, should the judicial review be successful. He notes too that any decision of the expert panel is likely to be subject to appeal or review, and so it would be foolish for POTL to seek to implement the consent. And, in any event, he says POTL is prepared to confirm it would consent to an interim order prohibiting physical works from commencing before the substantive judicial review application is fully determined. Overall, Mr Conder maintains there is no prejudice to the applicants in allowing the expert panel to make a decision on the substantive application, with interim relief accordingly unnecessary to preserve their position.
[37] In my view, there is force in Mr Conder’s argument that it is hard to see how the interim orders are necessary to preserve the applicants’ position here. Interim orders such as these are sought to ‘preserve the position’ to prevent the applicant from suffering prejudice or loss, namely that the substantive judicial review application is not rendered moot by the respondents, and principally POTL, undertaking the acts the applicants seek to restrain. However, in this case, were the interim orders not to be granted, all that would occur is the Panel Convener would stand up an expert panel, and possibly the panel might begin to consider POTL’s substantive application for consents for the Stella Passage Project. Mr Conder has confirmed that POTL will not undertake physical works until the substantive judicial review application is resolved. There do not appear to be any other irreversible acts that will be undertaken prior to the judicial review application being heard and decided. If the judicial review is successful, but the expert panel had by chance already made a decision, the panel’s decision would be rendered invalid, for example, on the basis that the EPA’s completeness decision was unlawful. POTL would then need to amend its substantive application and resubmit it, as acknowledged in s 46(4)–(5) of the FTAA.
[38] With respect to the argument of wasted costs and effort in participating claimed by Mr Enright and Mr Pou, I accept that these would not in actuality be entirely wasted. It is highly likely that, if the judicial review were to be successful, another substantive application under the FTAA will be submitted, and the applicants’ participation and feedback during the first application process would help inform this second application. In terms of the applicants’ concerns that they may not be invited to comment on the substantive application by the expert panel, I accept that the applicants do not fall within the categories of parties that “must” be invited to comment under s 53(2) of the FTAA. However, given the filing and pursuit of these proceedings clearly expresses that the applicants are in opposition to the substantive application, I would expect it is highly likely they would be invited to comment. From Mr Conder’s submissions before me, he also confirmed that “POTL regards it as highly likely … that the applicants will be invited to comment to the panel”.
[39] It has previously been recognised by the Courts that, in appropriate cases, an applicant’s position can be preserved by allocating an expedited substantive fixture date without any interim relief.13 Such a date is being sought in this case, and as I will discuss below, I consider that this is the appropriate course to follow in all the circumstances here.
Do the circumstances of the case warrant the Court exercising its discretion?
[40] Although I have already determined that the application for interim orders fails at the first hurdle for completeness, I will nonetheless also consider briefly whether, if I had found that the orders were necessary to preserve the positions of the applicants, the circumstances warranted the exercise of the Court’s discretion.
Strengths of the applicants’ case
[41] In terms of the strength of the applicants’ case, given this is the first judicial review of a decision under the FTAA, this is a question that is hard to determine. I also need to emphasise that any comments I make are entirely preliminary views which in no way suggest what the outcome of the substantive judicial review application
13 Alt New Zealand Ltd v Attorney-General [2023] NZHC 2300.
might be. Further, I note that submissions advanced to me were necessarily truncated, given an urgent hearing was set down for what is an interim matter.
[42] The applicants’ statement of claim contends that the EPA’s decision was unlawful on the following grounds:
(a)the application was outside of scope;
(b)the EPA applied the wrong legal test, failed to have regard to relevant matters, or considered irrelevant matters in its completeness decision;
(c)there was inadequate consultation;
(d)there was insufficient information; and
(e)the EPA failed to give reasons.
[43] As a preliminary view, the failure to give reasons ground may largely have fallen away now, when the EPA has (albeit rather late) provided the parties and the Court with its reasons memorandum on completeness and scope. However, counsel for the applicants still argue that the memorandum’s failure to address the adequacy of consultation means there does remain a reasons issue. That appears relevant more to the failure to consider relevant matters ground however, in my view. I note also there may be no general duty on a decision-maker in a case such as this to provide reasons,14 and there was no express requirement for reasons to be provided under the FTAA. Section 46(3)(a) only requires the EPA to give written notice of the decision to the applicant, if it considers (as here) the application under the FTAA complies under s 46(2). And indeed, s 46(4) differs in that it specifically requires “written reasons” to be given for a decision that an application does NOT comply under s 46(2).
[44] In contrast the inadequacy of consultation ground appears to at least be possibly arguable. Significant engagement with tangata whenua certainly occurred during the earlier ‘direct referral’ process before the Environment Court, and also prior
14 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75].
to the enactment of the FTAA in anticipation of the Stella Passage Project being included as a ‘listed project’ under the Act. However, there are disputes over whether this engagement, particularly with respect to the applicants, amounted to ‘consultation’. In her affidavit for the applicants, Ms Bennett deposed that “consultation, particularly in accordance with tikanga, is not simply meeting with hapū and other entities”. I note also that much of the consultation is said to have taken place prior to the lodging of the substantive application. Accordingly, potential issues arise on whether this prior consultation can be relied on as consultation in accordance with ss 43, 13(4)(k), 11(1)(b) and 29 of the FTAA. I observe too that the courts have set out distinct principles concerning consultation with Māori under the RMA, which were helpfully summarised in Land Air Water Association v Waikato Regional Council.15
[45] There also appears to be a potential, although possibly slim, claim with regard to the scope of the application, when the listed project in sch 2 does not include extensions to the Mount Maunganui wharf. I need to accept at this point Mr Conder’s submission that the project proposal that was accepted was intended to include Mount Maunganui wharf, and there is a reference to Mount Maunganui in the geographic description of the Project in sch 2. The “project name” in sch 2 also adds to the words “Stella Passage” the additional word “Development”. However, I do note also the express wording of s 46(2)(b) that the substantive application must relate “solely” to a listed or referred project. As noted by counsel for the applicants, the EPA memorandum did conclude the issue of scope was “very finely balanced” with the author of the memorandum, Mr Mickelson, finding the Mount Maunganui wharf extension “cannot be seen as simply supporting, or subsidiary to the project as described in Schedule 2”. In my view, that must lend support to a finding that there is some merit in this ground of review.
[46] In terms of the second ground of review—namely error of law, failure to consider relevant matters, and consideration of irrelevant matters—my preliminary view is that many of the points raised lack particularly strong prospects. The principles of Te Tiriti o Waitangi are not referred to in the FTAA, with the Act instead providing
15 Land Air Water Association v Waikato Regional Council [2001] ELHNZ 428.
that those exercising functions, powers, and duties under the Act must act consistently with obligations under existing Treaty settlements.16 Similarly, tikanga appears only to be referred to in relation to conducting a hearing on a fast-track application.17 There also does not seem to be any requirement to consider Cultural Impact Assessments or CVAs in determining whether a substantive application is complete or within scope. That also suggests the insufficient information ground similarly lacks merits. However, there may be a possible argument with respect to whether the history of the Stella Passage Project and POTL’s rationale, which were discussed in the EPA’s memorandum, amounted to an irrelevant consideration for determining whether the substantive application was within scope.
Competing advantages and detriments to the parties
[47] With respect to the competing advantages and detriments to the parties, there may well be greater potential prejudice to POTL in granting the interim orders than the prejudice to the applicants in refusing them. While, as noted above, the applicants may have to incur some unnecessary costs in participating in a process that will have to be repeated in the event the substantive judicial review succeeds, that is a relatively speculative prejudice. It is particularly so when, as canvassed below, I intend to grant the application for a priority fixture. Furthermore, as already discussed, the costs of participation may not be entirely wasted. The limited window of 20 working days to provide comment on the substantive application if invited to do so is also a relatively minor prejudice, given the long history of the Stella Passage Project and all parties’ involvement in the lengthy Environment Court hearing over this.
[48] In contrast, POTL will face further delays to the Stella Passage Project, as well as the associated increase in costs. I am told these have already increased by around
$35 million over the past four years. Based on this increase, Mr Conder submits that a potential delay of the judicial review process of around six months could result in further cost increases in the region of $4 million. I do not accept the applicants’ submission that the fact POTL elected to withdraw its direct referral application to
16 FTAA, s 7.
17 Section 58.
pursue a fast-track approval means it cannot plead prejudice. In my view, that is irrelevant.
[49] Mr Conder submits also that there is a risk of duplication of these proceedings. He notes that other parties are able to bring appeals on questions of law if they make comment on the substantive application, and they would not necessarily be bound by the outcome of these proceedings. He notes too that any delay would be reduced if the judicial review were heard alongside any appeals that follow the decision of the expert panel, and that this is expressly provided for in the FTAA.18 I consider this prejudice somewhat speculative, however.
The application is premature
[50] Mr Conder also maintains here that a relevant factor to consider is that in general, the judicial review application is premature, with the future decision of the expert panel the appropriate one to be challenged. He says the matters complained of by the applicants can be remedied within the process created by the FTAA, with the expert panel able to consider them, and then any resulting decision can be appealed, or reviewed. He notes too the concerns around whether or not the applicants will be invited by the panel to comment remain hypothetical.
[51] It seems to me that not all the matters complained of by the applicants can be remedied by the processes created by the FTAA, such as possible issues around the scope of the substantive application. However, I do agree that the application appears premature, when it challenges a preliminary gateway decision, rather than the substantive decision to grant or decline the substantive application. But I accept also that it is the applicant’s right to apply for judicial review of a decision of a public authority that affects their rights, obligations or interests protected or recognised by law.19 While the FTAA places some limits on this right in respect of decisions on referral applications or approvals of substantive applications,20 it does not constrain judicial review of completeness decisions.
18 FTAA, s 101.
19 New Zealand Bill of Rights Act 1990, s 27(2).
20 FTAA, s 101.
Purpose of the FTAA
[52] Lastly, although not mentioned in detail by either party in their submissions, I consider the purpose of the legislation has some relevance in this case. Legislative schemes have previously been considered in applications under s 15 of the JRPA (and its predecessor).21 Section 10 of the FTAA provides that “every person performing functions and duties and exercising powers under this Act must take all practicable steps to use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions, duties or powers being performed or exercised”. The emphasis on timeliness and efficiency is also reflected in the various strict timeframes provided for. These include, by way of example, 15 working days for a decision under s 46, 10 working days for the expert panel to direct the EPA to invite written comments on an application under s 53, 20 working days for those comments to be received,22 and five working days for the applicant to respond to any such comments.23 I consider this weighs in favour of declining interim orders in a case such as the present, except in clearly different and meritorious circumstances.
Balance of convenience and overall justice
[53] In light of the above, I find that the balance of convenience and overall justice in all the circumstances of this case weigh against the granting of interim orders. Although on fuller enquiry, there may prove to be possible merit in some of the causes of action raised by the applicants, as I see it there is greater prejudice to the respondents if an interim order was granted here. The FTAA’s emphasis on a timely and efficient process militates against the granting of interim orders. The suggestion that the application itself may be largely premature suggests this is not a case in which an interim order is warranted. Accordingly, even if I had found the orders were necessary to preserve the position of the applicants, I would have determined that the application failed at the second stage as well.
21 See Coromandel Peninsula Watchdog Inc v Hauraki District Council [1997] 1 NZLR 557 (HC); and Bishop v Central Regional Health Authority HC Palmerston North M47/97, 11 July 1997.
22 FTAA, s 54.
23 Section 55.
Application for stay of proceedings
[54] In its stay application, POTL, as I see it, has not clearly articulated the basis on which it seeks an entire stay of the judicial review proceeding. Rule 15.1 of the High Court Rules 2015 permits a stay of proceedings in which the pleadings disclose no reasonably arguable cause of action, are likely to cause prejudice or delay, are frivolous or vexatious, or are otherwise an abuse of the process of the Court. Although arguably prejudice or delay might be present in this case, the authorities are clear that this generally needs to be due to defects in the pleadings themselves, and requires an element of impropriety and abuse of the Court’s process.24 That evidently is not the case here. Although s 15 of the JRPA does permit interim orders in the form of a stay of proceedings, as I see it, these are in respect of proceedings in connection with any matter to which the judicial review application relates, rather than the judicial review proceeding itself.
[55] The FTAA regime, while not restricting judicial review, in my view reflects a legislative intention that any reviews that are brought should be conducted in a fashion consistent with the speed the FTAA is intended to achieve. The existence of a specialist decision-making body (the expert panel) perhaps suggests, to an extent, the Court should also be hesitant in making findings on procedural issues within the scope of the panel. A quashing of a completeness decision, in any event, is possible either on appeal on a question of law in terms of the FTAA or indeed under a substantive judicial review application. Arguably such a risk is inherent in the structure of the Act and therefore may not require the Court’s intervention on an interim basis such as is sought here. I accept that might suggest the Court’s role was intended to be limited. However, I do not consider this provides a sufficient basis to stay the proceedings, when a stay is generally only granted in two situations, namely when the proceeding affects or is affected by an appeal or judicial review, and when the proceeding is an abuse of process. Neither applies here.
24 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
Application for priority fixture
[56] The remaining issue to be considered is the application for a priority fixture for the substantive judicial review hearing in this proceeding. The principles for considering applications for priority fixtures were summarised in Gavin v Powell.25 There needs to be exceptional factors justifying the granting of a priority fixture, beyond the usual hardship experienced by a litigant, given that granting a priority fixture will disadvantage other litigants who had filed claims earlier. In my view, given the purpose and scheme of the FTAA canvassed above, there is a public interest in this judicial review application being heard promptly justifying the granting of a priority fixture.
Conclusion
[57] Both the applicants’ application for interim orders and the second respondent’s application for stay of the judicial review proceeding are declined.
[58] The applicants’ application for a priority fixture for resolving the substantive proceeding however is granted. A direction is made that, the substantive judicial review proceeding here is to be allocated a priority fixture (one day is estimated) at the earliest available date.
[59] Leave is reserved for the parties to approach the Court for suitable timetable directions for the substantive proceeding.
[60] Costs are reserved at this point. If appropriate, they may be determined at the hearing of the substantive judicial review.
Gendall J
Solicitors:
Tu Pono Legal Limited, Rotorua for Applicants Holland Beckett, Tauranga for Respondents
25 Gavin v Powell [2020] NZHC 1224 at [25].
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