Ngati Tama Ki Te Waipounamu Trust v Tasman District Council
[2017] NZHC 1081
•23 May 2017
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2016-442-31 [2017] NZHC 1081
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of a decision made pursuant to section
125(1A)(b) of the Resource Management
Act 1991BETWEEN
NGĀTI TAMA KI TE WAIPOUNAMU TRUST
Applicant
AND
TASMAN DISTRICT COUNCIL First Respondent
KAHURANGI VIRGIN WATERS LIMITED
Second Respondent
Hearing: 13 March 2017 Counsel:
T L Hovell for Applicant
C P Thomsen for First Respondent
T J Castle for Second RespondentJudgment:
23 May 2017
JUDGMENT OF THOMAS J
Table of contents
Introduction ............................................................................................................. [1] Judicial review ......................................................................................................... [9] Background............................................................................................................ [13] The first extension ............................................................................................... [17] The second extension........................................................................................... [19] The third extension application ........................................................................... [22] The Decision........................................................................................................... [26] Statutory framework ............................................................................................ [29]
Section 125(1A)(b)(i) – whether substantial progress or effort has been, and continues to be, made towards giving effect to the consent ............................... [37]
NGĀTI TAMA KI TE WAIPOUNAMU TRUST v TASMAN DISTRICT COUNCIL [2017] NZHC 1081 [23 May 2017]
Analysis ............................................................................................................... [49]
Section 125(1)(b)(ii) – whether the applicant has obtained approval from
persons who may be adversely affected by the granting of an extension......... [54]
Approval .............................................................................................................. [58] Changed context .................................................................................................. [62] Reliance on incorrect information ...................................................................... [74] Effects of the extension ........................................................................................ [79] Analysis ............................................................................................................... [83]
Section 125(1A)(b)(iii) – the effect of the extension on the policies and
objectives of any plan or proposed plan .............................................................. [94]
Analysis ............................................................................................................. [101] Overall assessment .............................................................................................. [111] Discretion .......................................................................................................... [111] Result .................................................................................................................... [117]
Introduction
[1] Ngāti Tama ki Te Waipounamu Trust (Ngāti Tama) seeks judicial review of the decision (the Decision) of the Tasman District Council (the Council) to grant an extension of the lapse date of a water take consent granted on 21 February 2005 (the Consent) to Kahurangi Virgin Waters Ltd (KVW). The Consent authorises the taking of groundwater from the Tākaka Confined Marble Aquifer at Bore WWD 6001 in Golden Bay, Nelson. The lapse date of the Consent had been extended twice previously, on 11 August 2009 and 22 February 2013.
[2] Ngāti Tama was established by way of the Ngāti Tama ki Te Waipounamu Deed of Trust dated April 2013. Its purposes include the promotion of the spiritual and cultural advancement and well-being of the Ngāti Tama ki Te Tau Ihu iwi, and the maintenance and establishment of places of cultural or spiritual significance to Ngāti Tama ki Te Tau Ihu.
[3] Ngāti Tama claims the Council erred in the Decision by:
(a) applying the wrong legal test under s 125(1A)(b) of the Resource
Management Act 1991 (the Act);
(b)failing to have regard to a mandatory relevant consideration by failing to assess the effect of the Decision on changes to the Tasman
Resource Management Plan (TRMP) which had occurred since the grant of the Consent;
(c) relying on erroneous information;
(d) failing to recognise Ngāti Tama as an affected person whose written
approval was relevant; and
(e) failing to have regard to a mandatory relevant consideration by concluding that sufficient progress and effort towards giving effect to the Consent had been and continued to be made where the proper test is that “substantial progress and effort” has been and continues to be made and the Council had regard to irrelevant factors.
[4] Ngāti Tama seeks three things: the Decision be set aside; a declaration the extension to the lapse date of the Consent be declined, or alternatively, an order directing the Council to reconsider the Decision; and, in the event of a reconsideration, an order directing that Ngāti Tama be treated as an affected person pursuant to section 125(1A)(b)(ii) of the Act.
[5] The Council opposes the application.
[6] KVW finds itself in a somewhat difficult position because it is seeking to develop a relationship with Ngāti Tama. It is a limited liability company and a Māori-Pakeha joint venture with two iwi, Ngāti Rarua and Te Atiawa, being shareholders. Both iwi have a special interest in Golden Bay and Te Waikoropupū Springs. KVW notes that Ngāti Tama has been invited to take up shares in KVW and the invitation remains open.
[7] KVW does, however, say it has acted throughout on the basis it has a valid Consent through to 2019, which was approved by all relevant interested parties, including Ngāti Tama, when the period sought in the application for the Consent was to 2034.
[8] KVW also says it has consistently acted on an inclusive basis by seeking to engage and involve iwi in promoting the joint venture with acute recognition of the responsibilities of kaitiakitanga. It therefore considers it unreasonable that its position should now be thrown into a state of uncertainty by these proceedings.
Judicial review
[9] Judicial review is the supervisory function of the Court which ensures public power is exercised according to the law.1 It is primarily concerned with examining procedural compliance, not the substance of the decision itself, when assessing whether a decision should be allowed to stand.2
[10] Ngāti Tama submits the Council’s decision is reviewable for illegality, principally for making errors of law, failing to take into account mandatory considerations, and taking into account irrelevant considerations. Mallon J in Berryman v Solicitor-General explained the approach taken to claims a decision maker failed to take into account relevant considerations as follows:3
A person with a statutory power must exercise that power within perimeters set by the statute. The statute may require or permit (expressly or by implication) that the decision maker take into account certain considerations (these are referred to as “the relevant considerations”). The weight the decision maker places on a relevant consideration is a matter for the decision maker. This means that failing to take into account the required (or mandatory) relevant considerations is a ground of judicial review but failing to have “sufficient regard” to relevant factors is not.
[11] Any error of law must be material, that is, “one which may well have altered the ultimate decision”.4 This can arise, for example, where a decision maker has applied a gloss to a statutory test, or asked him or herself the wrong question.5
[12] I am, therefore, broadly concerned not with the substance of the Decision, but whether the Council made the Decision according to the law, applying the correct
legal tests and taking into account the correct considerations in applying that test.
1 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
2 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
3 Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].
4 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314, 22
December 2011.
5 Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington, 2011) at 709.
Background
[13] In November 2004, KVW lodged an application for resource consent to take, use or divert groundwater until 2034 (Original Application) and an associated assessment of environmental effects. The bore to which the Original Application related was already in existence and had been previously authorised pursuant to a water take permit which had lapsed at the time of Original Application.
[14] A written approval form from Tāngata Whenua Iwi Trust (Manawhenua ki Mohua) (MKM) was executed on 21 January 2005 (the Approval) and lodged with the Council. The Approval was signed by:
(a) Fred Te Miha, Chairperson Ngāti Tama ki Te Tau Ihu Iwi Trust; (b) D McConnell, Chairperson Te Atiawa ki Te Tau Ihu Trust; and (c) R J Thomas, Chairperson Ngāti Rarua Iwi Trust.
[15] As a result of the Approval, the Original Application did not assess cultural or spiritual effects.
[16] The Council processed the Original Application on a non-notified basis and granted the Consent with a 2019 expiration date. However, unless implemented by
22 February 2010 the Consent would lapse.6
The first extension
[17] On 27 July 2009, KVW applied for an extension of the lapse date of the
Consent, saying:
We appreciate that this project has been “on the go” for many years without any manifestation of significant practical progress being made. However, preliminary financial feasibilities have been prepared that show the financial viability of the proposed plant. The key to an application for resource consent to establish the plant is the active involvement of iwi without degrading the spirituality of the Springs themselves. It is likely any concerns
6 Pursuant to s 125 of the Resource Management Act 1991.
can be overcome when iwi (and particularly Ngāti Rarua) have the time to
address these concerns in detail.
[18] On 11 August 2009, the Council extended the lapse date of the Consent to
22 February 2013.
The second extension
[19] On 10 December 2012, Ngāti Tama’s predecessor wrote to the Council registering its objection to any further extension of the Consent, saying:
Ngāti Tama Manawhenua ki Te Tau Ihu Trust ask that Tasman District Council place on their records the Iwi’s objection to a rollover of resource consent number RMO 50079. The basis for this objection is that the whole area is wāhi tapu.
Furthermore, we attach … our draft Deed of Settlement … and formally ask that Council remove “non-notifiable” status off any future resource consent applications …
[20] On 11 February 2013, KVW applied for a second three year extension to the lapse date of the Consent, saying:
As set out in the letter supporting the previous lapsing extension, KVW is, and always has been, firmly of the view that active involvement and collaboration of the three relevant iwi (Ngāti Tama, Ngāti Rarua, and Te Atiawa) is both highly desirable and indeed necessary in the KVW water project, to the point that it considers that iwi have a cultural and spiritual entitlement to involvement regardless of any legal argument as to ownership of the resource. …
The third iwi, Ngāti Tama, has not yet agreed to support the project but KVW hopes that with ongoing dialogue they will agree to do so in the not too distant future …
[21] The Council granted the second extension subject to conditions. The Council said “a further extension of the lapsing of RM050079 is unlikely to be approved”.
The third extension application
[22] On 18 December 2015, KVW applied for a further extension of the lapse date of the Consent (the Extension Application) and reported on progress of its targets and objectives, saying:
… Te Runanga o Ngāti Rarua … accepting an invitation from KVW for
Ngāti Rarua to be the promoter of the water project. …
The Business Proposal attached to this letter is what was presented to, and accepted by, Ngāti Rarua. KVW believes it is entitled to rely on Ngāti Rarua to deal with any differing perspectives of the other 2 relevant iwi.
[23] On the same date KVW applied to drill a new bore and to change conditions to the Consent (Bore Application and Variation Application respectively).
[24] On 20 January 2016, Ngāti Tama wrote to the Council advising it was an affected party with respect to the Bore Application, the Variation Application and the Extension Application saying:
Any application to take water from springs, groundwater and waterways has
the potential to adversely affect Ngāti Tama ki Te Tau Ihu values.
…
It is unreasonable for Tasman District Council to grant an extension for the exercise of water take permit when Kahurangi Virgin Waters have not met the conditions of the consent and they have not consulted with Ngāti Tama ki Te Tau Ihu.
We therefore recommend Tasman District Council recognise and acknowledge Ngāti Tama ki Te Tau Ihu as an ‘affected party’ to these proceedings. Ngāti Tama opposes any extension for the water take permit.
[25] The Council granted the Bore Application in March 2016. The Variation Application was to allow the water take from the consented bore to be taken from the new bore. The Variation Application has been put on hold pending these proceedings.
The Decision
[26] The Council prepared a draft decision in respect of the Extension
Application, which stated:
The application confirms that Ngāti Rarua and Te Atiawa support the project while Ngāti Tama is clearly opposed. KVW’s hope they would join has not eventuated.
…
While it is acknowledged that the settlement process may well have delayed progress it is clear that various volunteered targets and objectives have not
been achieved. Furthermore, Council is now asked to extend the lapse date again to allow a third party (N Rarua) to undertake due diligence on KVW. My assessment is 20 years [sic] is more than sufficient time to give effect to the consent.
… Ngāti Tama have notified Council they are adversely affected and that KVW have not consulted with them despite the confirmed association with the water and management of the W Springs. … KVW believes it is entitled to rely on Ngāti Rarua to deal with any differing perspectives of the other two iwi. The fact is the applicant has not obtained approval from Ngāti Tama.
[27] On 22 February 2016, the Council made the Decision granting a third extension of the lapse date to the Consent, providing for a new lapse date of 31 May
2018.
[28] In the Decision, the Council:
(a) summarised the background to the Extension Application, including the previous extensions, and the basis for the Extension Application;
(b) set out the relevant section of the Act (s125(1A)), and assessed the
Extension Application having regard to the matters in s125(1A)(b);
(c) considered other matters, including the controlled activity status of the proposed new bore, and the sustainability of the take; and
(d) concluded stating:
It is for the above reasons the application for extension of lapsing period for resource consent RM050079 can be granted.
… if not given effect to by 31 May 2018, the consent will lapse
one full year prior to its expiry date of 31 May 2019.
Statutory framework
[29] Section 125 of the Act relevantly provides:
125 Lapsing of consents
(1) A resource consent lapses on the date specified in the consent or, if no date is specified,—
(a) 5 years after the date of commencement of the consent, if the consent does not authorise aquaculture activities to be undertaken in the coastal marine area; or
(b) 3 years after the date of commencement if the consent does authorise aquaculture activities to be undertaken in the coastal marine area.
(1A) However, a consent does not lapse under subsection (1) if, before the consent lapses,—
(a) the consent is given effect to; or
(b) an application is made to the consent authority to extend the period after which the consent lapses, and the consent authority decides to grant an extension after taking into account—
(i) whether substantial progress or effort has been, and continues to be, made towards giving effect to the consent; and
(ii) whether the applicant has obtained approval from persons who may be adversely affected by the granting of an extension; and
(iii) the effect of the extension on the policies and objectives of any plan or proposed plan.
…
[30] The purpose of s 125 generally is to provide a measure of certainty regarding consented resource use to facilitate ongoing sustainable management of those resources. Requiring a consent to be used or otherwise lapse ensures other consent applications can be determined without unnecessary uncertainty as to whether previously consented activities will be put into effect:7
[56] It is plain to see the mischief if consents are obtained but not pursued, yet could be pursued anytime in the future. Whether it was under the Town and Country Planning Act 1953 or 1977 or the Resource Management Act 1991, all planning and regulatory consents are granted against consideration of the neighbourhood or region (in the Town and Country Planning Act legislation) or the environment (in the RMA).
…
[59] [The dictum in Katz v Auckland City Council] broadly addresses the importance of a consent being either used or lapsing, so that other applications for consents cannot be artificially constrained by uncertainties
7 Biodiversity Defence Society Inc v Solid Energy New Zealand Ltd [2013] NZHC 3283, (2013) 17
ELRNZ 337.
as to whether previous consents will be put into effect or not. Consents under the Town and Country Planning Acts and under the RMA have always been the result of a balancing of factors for and against, allowing change in place of the status quo, but subject to conditions. Such analysis would be severely compromised by considerable uncertainty, if there was doubt, whether or not consents previously granted would ever be put into effect.
[31] In Katz v Auckland City Council, decided under the Town and Country Planning Act 1977, the Planning Tribunal set out in some detail the policy behind lapsing and cancellation provisions:8
There are compelling reasons of policy why a planning consent should not subsist for a lengthy period of time without being put into effect. Both physical and social environments change. Knowledge progresses. District schemes are changed, reviewed and varied. People come and go. Planning consents are granted in light of present and forseeable circumstances as at a particular time. Once granted a consent represents an opportunity of which advantage may be taken. When a consent is put into effect it becomes a physical reality as well as a legal right. But if a consent is not put into effect within a reasonable time it cannot properly remain a fixed opportunity in an ever-changing scene. Likewise, changing circumstances may render conditions, restrictions and prohibitions in a consent inappropriate or unnecessary. Sections 70 and 71 of the Act [now ss 125 and 127 of the Resource Management Act 1991] give legislative recognition and form to these matters of policy which, in the ultimate, do but recognise that planning looks to the future from an ever-changing present.
[32] Mr Hovell appeared for Ngāti Tama. In his submission, this passage applies to each of the three mandatory considerations in s 125(1A)(b). That is, any application for an extension cannot be assessed without first ascertaining what changes have occurred in the environment, both physical and social. The application may then be considered in light of those changes.
[33] The passage was cited with approval by the Court of Appeal in Body Corporate 97010 v Auckland City Council.9 The Court considered that the philosophy in Katz appeared to have been given statutory effect by what is now s 125(1A)(b)(iii) of the Act, which requires an assessment of the effect of the extension on the policies or objectives of any plan or proposed plan.10 The Court of Appeal did not address s 125(1A)(b)(i) and (ii) in terms of Katz. In my assessment,
in addition to informing s 125(1A)(b)(iii) specifically, the philosophy outlined in
8 Katz v Auckland City Council (1987) 12 NZTPA 211.
9 Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA) [Body Corporate
97010 (CA)].
10 At [76].
Katz also applies, in a general way, to any provision providing for the lapse of or extension to consents, including all the matters contained in s 125(1A).
[34] The mandatory considerations under s 125(1A)(b) may tell for or against the grant of an extension; either way they are informed by the Katz philosophy. Through that provision, Parliament has determined how and to what extent decision makers should consider changing physical and social environments, knowledge, and other circumstances in the context of extensions to lapse dates. Broadly, s 125(1A)(b) turns the mind of the decision maker to whether the considerations will mitigate or exacerbate the risk of an extension undermining policy goals of reducing uncertainty and enabling sustainable management of resources.
[35] Nonetheless, although the philosophy necessarily informs the provision generally, the Court of Appeal did not apply Katz to the interpretation or application of either s 125(1A)(i) or (ii) in the manner Mr Hovell suggested. Katz does not expand the words of the statute beyond their clear meaning, particularly where that meaning has been interpreted by the Court of Appeal.
[36] I now consider the Decision, and Ngāti Tama’s challenge to it, under each of the mandatory considerations set out in s 125(1A)(b).
Section 125(1A)(b)(i) – whether substantial progress or effort has been, and continues to be, made towards giving effect to the consent
[37] The Decision summarised the basis for the Extension Application, saying:
… there still needs to be completion of “due diligence” … which is required before October 2016. Then a 24-month period is said to be required if the water bottling project is to proceed, for it to become operational.
[38] The Decision then referred to the March 2004 amendment to s 125 whereby the phrase “after taking into account” was substituted for “upon being satisfied that” in respect of the three matters listed in subss (1A)(b)(i)–(iii). The Decision said:
Taking account of whether substantial progress has been made is a less definitive test than having to be satisfied that such progress has in fact been made.
[39] The Decision recorded:
KVW has provided details of the progress and effort undertaken towards establishing the authorised activity since the second lapsed extension was granted in 2013. While the three year programme of targets and objectives agreed to at that time has not been achieved, I consider that there has been sufficient progress and effort (as outlined in the application) and that this is continuing to be made, towards giving effect to the consent.
[40] Ngāti Tama claims the Council:
(a) did not correctly interpret s 125(1A)(b)(i) in stating that the test is less definitive than having to be satisfied that the “such progress has in fact been made”;
(b) did not correctly apply s 125(1A)(b)(i) in finding “sufficient” progress
and effort;
(c) failed to take into account and/or did not comply with the conditions set by the Second Extension;
(d)took into account irrelevant considerations, particularly the efforts and due diligence undertaken by KVW in respect of the bottling plant; and
(e) reached conclusions based on insufficient information and/or which were not available on the evidence, particularly in stating that there has been sufficient progress and effort.
[41] In Mr Hovell’s submission there was a fundamental error in that s 125 makes no reference to “sufficient” progress and effort but requires the Council to take into account whether “substantial” progress or effort has or has not been made and continues to be made. He said the approach taken by the Council was that it did not need to ascertain whether in fact substantial progress or effort had been made.
[42] Mr Hovell then referred to the targets and objectives KVW volunteered in its letter to the Council dated 3 May 2013 in respect of the Second Extension and the Council’s view at that time that no further extension of the lapse date was likely. It
was telling, he said, that the date for completion of due diligence noted in the
Decision has passed and yet there was no affidavit evidence on these matters.
[43] Mr Hovell submitted that in all these circumstances the Council could not reasonably consider substantial progress or effort had been made.
[44] The Council attempted to answer this criticism by observing that whether progress is substantial must depend upon all the circumstances, including the time taken compared to the total time envisaged and the degree of attainment of the ultimate aims.11 Mr Thomsen, who appeared for the Council, relied on comments in Body Corporate 97010 that the authority can take into account external factors which affect the ability to exercise the Consent. Furthermore, the Court of Appeal observed:12
A lack of substantial “progress” is also no longer of the same significance now that substantial “effort” can be enough, provided it is directed to the end of giving effect to the consent.
[45] It was important, in Mr Thomsen’s submission, not to read parts of the Decision in isolation but rather to read them in context. He referred to the fact that the start of the Decision explained the changes to s 125, which came into effect in
2004, and the Council then examined the meaning of the term “substantial progress”. That showed, in his submission, the Council clearly understood the statutory task it faced.
[46] The Council conceded that KVW’s objectives have not been met but referred to information before it that KVW had secured a partner and funder in Ngāti Rarua and had made progress to obtain the support of tangata whenua.
[47] Mr Castle, appearing for KVW, supported the Council’s position. In his submission the Decision correctly analysed s 125. He submitted that, when the Council’s comment about sufficiency was read in context, it was clear the Council reached its conclusion after having given consideration to the substantial progress
made by KVW.
11 Ashburton BC v Clifford [1969] NZLR 927 (CA).
12 Body Corporate 97010 (CA), above n 9, at [70].
[48] Both Mr Hovell and Mr Thomsen addressed the detail of matters taken into account by the Council. Mr Hovell referred to the Council’s consideration of the endeavours towards establishing a bottling plant and contended that the Council thereby took into account an irrelevant factor. He submitted that, because the Decision related only to the water take consent, the Council could not take into account matters relating to the bottling plant.
Analysis
[49] The Court of Appeal in Body Corporate 97010 discussed the precursor to s 125(1A)(b)(i), which at the time required a council to be satisfied that substantial progress or effort towards giving effect to a consent had been and continued to be made. The Council correctly identified this is no longer the relevant threshold. However, the Court’s statements interpreting the substance of the mandatory considerations in s 125(1A)(b) remain relevant. The Court observed that “substantial progress or effort” does not require physical progress on site, and consenting authorities are entitled to take into account practical and economic realities where
they pertain to the specific consented activity.13
[50] I agree with the Council that there was an obvious link between the Consent and the bottling plant and it would have been artificial not to at least consider or acknowledge the latter activity. The Consent authorises the taking of water for bottling and logically the implementation of the Consent requires a bottling plant. In my assessment, when considering progress and effort towards giving effect to the Consent, it would have been wrong for the Council to have ignored what progress had been made in establishing the bottling plant. In addition, I consider the Council did take into account the conditions in the Second Extension.
[51] While the 2004 amendment to s 125 altered the requirement from being “satisfied” to “taking into account”, it did not alter the need to ascertain whether substantial progress and effort had in fact been made. The Council’s task was first to determine whether or not substantial progress or effort had been and continues to
be made and then take that into account in deciding whether or not to extend the
13 At [68]–[71].
lapse date. It is at this second stage that the question of whether any progress or effort might have been “sufficient” may be relevant.
[52] Mr Hovell submitted that, in finding there was sufficient progress, it followed there had not been substantial progress and effort. I am not convinced his conclusion necessarily follows, although I acknowledge the draft decision commented adversely on progress. Mr Castle took the opposite view to Mr Hovell, saying the Council essentially concluded the progress and effort had been substantial. This divergence in interpretation reinforces the difficulty with the Decision.
[53] On its face, the record does not demonstrate the Council complied with its statutory obligation in reaching the Decision. The Council did not take into account the mandatory consideration of whether or not substantial progress or effort had been and continues to be made towards giving effect to the Consent. This was a material error.
Section 125(1)(b)(ii) – whether the applicant has obtained approval from persons who may be adversely affected by the granting of an extension
[54] In relation to subs (1A)(b)(ii), the Decision recorded:
No persons are considered to be adversely affected by the granting of a further lapsing period extension.
Council has received correspondence dated 20 and 28 January from Ngāti Tama ki Te Waipounamu Trust asserting that they are an affected person. Their interest relates to the significant values of Te Waikoropupū Springs, Dancing Sands Springs and Fish Creek Spring and other waterways near to the point of take for RM050079. Those values were known at the time the consent was granted. They have recently been reinforced in Statutory Acknowledgements as part of the Treaty Claims settlement process for Te Tau Ihu iwi.
The authorised take is from the Confined Marble Aquifer, whereas the recharge zone for Te Waikoropupū Springs is the Unconfined Aquifer. There is no known or proven hydraulic connection between the point of take and the Te Waikoropupū Springs and related waterways.
… the matter I have to consider is whether any persons will be affected by the additional time sought to implement the consent, not the effects of carrying out the authorised activity to take water from the Confined Marble Aquifer. Physical or cultural effects of the proposal were matters to be considered when the application was being considered in 2005. In this case, the delay in giving effect to the consent is not impeding or obstructing any
other resource users from access to water resources. My conclusion is that no persons will be affected by the granting of another extension.
[55] Ngāti Tama claims the Council:
(a) did not correctly interpret section 125(1A)(b)(ii) in stating that the relevant affected parties were those “affected by the additional time sought”;
(b) failed to take into account relevant considerations, particularly:
(i) cultural effects were not considered when the Original
Application was considered in 2005;
(ii) Ngāti Tama objected to the Extension Application;
(iii)the Ngāti Tama Treaty settlement provided significant redress measures to recognise the important cultural relationship of Ngāti Tama with the affected water resource; and
(iv)the changed circumstances since the grant of the Consent, including the Treaty settlement redress measures, and the lack of Ngāti Tama approval to the Extension Application; and
(c) reached conclusions based on insufficient information and/or which were not available on the evidence, particularly in stating:
(i) Ngāti Tama would not be adversely affected;
(ii)the cultural values were known at the time the Consent was granted; and
(iii)there was no known or proven hydraulic connection between the point of take and Te Waikoropupū Springs and related waterways.
[56] The Council’s position is that it reached the Decision because it concluded
Ngāti Tama was not adversely affected by the extension, rather than by the Consent.
[57] A number of matters were raised under this head: the effect of the Approval; the changed context since the Consent was granted; the Council’s reliance on incorrect information; and the effects of the extension of the lapse date. I will address the competing contentions in respect of each topic before considering them against the requirements of s 125(1A)(b)(ii).
Approval
[58] Ngāti Tama says, because of the Approval, the Council did not undertake an assessment of cultural effects when the Consent was granted. It says approval for the Original Application is different from any approval required under s 125, and the Approval could only apply to the Consent as sought, which included the lapsing period of five years.
[59] Ngāti Tama says the Approval does not act as a continuing approval for all future changes and to treat it as such is unreasonable, particularly in light of the change in circumstances since 2005. In Mr Hovell’s submission, any extension of the lapsing condition must equally be a matter for further written approval of affected persons and the proper approach would have been to seek re-confirmation of Ngāti Tama’s approval to the Extension Application.
[60] Frederick Te Miha, Trustee of Ngāti Tama, gave affidavit evidence of the circumstances in which the Approval was given and signed by MKM in 2005. He was the sole appointment from Ngāti Tama ki Te Tau Ihu to MKM, which operated on behalf of the three iwi trusts “with very little input from the iwi trusts or its iwi members into decisions”. He emphasised that MKM was a group of three iwi and decisions were made on a majority basis. He said this meant it was difficult at the time to maintain an independent voice. He described it as very frustrating and distressing that the Council held the iwi to the Approval, saying Ngāti Tama now provided a voice for his people.
[61] Mr Thomsen responded by noting that a Ngāti Tama entity, the Ngāti Tama ki te Tau Ihu Iwi Trust, provided separate written confirmation of the Approval in 2005. Ngāti Tama could not therefore seek to distance itself from the Approval by claiming it had been given only by MKM as an umbrella organisation. He pointed out the Approval was in respect of an application for a permit lasting 30 years – to 2035. On this basis, he submitted the Approval was a continuing approval for changes and extensions to the Consent. He accepted Ngāti Tama was entitled to change its mind, but said it did not follow that any change of mind required a reassessment of the effects of the Consent itself.
Changed context
[62] Ngāti Tama relies on changes in context since the date of the Consent,
particularly Ngāti Tama ki Te Tau Ihu’s Treaty settlement.
[63] The Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui Claims Settlement Act 2014 (the Settlement Act) gives effect to certain provisions of the Deed of Settlement for Ngāti Tama ki Te Tau Ihu and the three other iwi dated 20 April 2013 (Deed of Settlement), which settles their historical claims. The Settlement Act includes the Tākaka River and its tributaries as a statutory area.14 Te Waikoropupū Springs, the groundwater and other waterways are tributaries to the Tākaka River.
[64] The Settlement Act provides a statutory acknowledgement for statements of association.15 The statement of association for the Tākaka River and its tributaries is recorded in the Deed of Settlement as follows:
TĀKAKA RIVER AND ITS TRIBUTARIES
The relationship Ngāti Tama ki Te Tau Ihu has with the Tākaka River catchment is a significant one, as it encompasses both the spiritual and physical realms. The spiritual realm is reflected in the legend told about Huriawa.
…
14 Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui Claims
Settlement Act 2014 [Settlement Act 2014], sch 1.
15 Section 41.
The physical relationship Ngāti Tama ki Te Tau Ihu has with the Tākaka River relates to the protection and use of numerous resources associated with this taonga. Descendants of Ngāti Tama ki Te Tau Ihu chiefs have maintained ahi kā roa in Mōhua since the early 1800s.
…
Ngāti Tama ki Te Tau Ihu have continuously maintained the role of kaitiaki over this awa since pre-1840.
[65] The Crown also acknowledges statements of iwi values in relation to the overlay sites, including Te Waikoropupū Springs.16 The Ngāti Tama ki Te Tau Ihu values in relation to Te Waikoropupū Springs are recorded in the Deed of Settlement as follows:
3. NGĀTI TAMA KI TE TAU IHU VALUES
3.1Waikoropupū Springs is a large karst resurgence consisting of a collection of springs. It is a precious taonga, which has outstanding water quality. Since their occupation of Mōhua, Waikoropupū Springs has been central to lives of Ngāti Tama ki Te Tau Ihu whānau. Ancestral connections with this wāhi tapu encompass the spiritual and physical realms.
[66] The Settlement Act provides for agreement between the trustees of the settlement trust for any overlay site and the Minister of Conservation on protection principles intended to prevent harm or the diminishing of the iwi values in relation to an overlay site.17 The following protection principles are treated as having been agreed:18
4.1The following protection principles are directed at the Minister of Conservation avoiding harm to, or the diminishing of Ngāti Tama ki Te Tau Ihu values related to Te Waikoropupū Springs Scenic Reserve:
(a) protection of wāhi tapu, indigenous flora and fauna and the wider environment of Te Waikoropupū Springs Scenic Reserve;
(b) recognition of the Ngāti Tama ki Te Tau Ihu mana, kaitiakitanga and tikanga within Te Waikoropupū Springs Scenic Reserve;
16 Section 58.
17 Section 60.
18 Section 60(2); and [4.1] of Part 1 of the Documents Schedule of the Deed of Settlement.
(c) respect for Ngāti Tama ki Te Tau Ihu tikanga and kaitiakitanga within Te Waikoropupū Springs Scenic Reserve;
(d) encouragement of respect for the association of Ngāti Tama ki Te Tau Ihu with Te Waikoropupū Springs Scenic Reserve;
(e) accurate portrayal of the separate and distinct association and kaitiakitanga relationship of Ngāti Tama ki Te Tau Ihu with Te Waikoropupū Springs Scenic Reserve;
(f) recognition of the relationship of Ngāti Tama ki Te Tau Ihu with the wāhi tapu and wāhi whakahirahira; and
(g) recognition of the interest of Ngāti Tama ki Te Tau Ihu in actively protecting species within Te Waikoropupū Springs Scenic Reserve.
[67] The protection principles were published by way of Gazette notice on
21 August 2014.19
[68] Leanne Manson, Chair of Ngāti Tama, gave affidavit evidence on behalf of Ngāti Tama. She explained that the Ngāti Tama Manawhenua ki Te Tau Ihu Trust, which signed the Approval, was succeeded by Ngāti Tama in April 2013. She recorded Ngāti Tama’s concerns with the Decision, noting that Ngāti Tama was not treated as an affected party, despite the Settlement which she described as “such a major and fundamental change to the social, cultural and planning environment that [she does] not see how the Council could simply dismiss it”. Furthermore, she said:
It is deeply distressing to go through a Treaty Settlement process, receive our Settlement and acknowledgement from the Crown and receive overlay recognition over our cultural wahi tapu, and then be told by Council that we are not an affected person, and that we have no rights to be engaged or consulted about resource consents that affect our wahi tapu. The process was shameful and disempowering.
[69] Hemi Toia is the Chief Executive Officer of Ngāti Rarua, one of the other iwi parties to the Deed of Settlement. Ngāti Rarua is a shareholder of KVW. He explained that cultural considerations were at the core of Ngāti Rarua’s participation
in and support for the KVW water venture, and that Ngāti Rarua has a special
19 “Notification of Te Korowai Mana Overlay Classification and Protection Principles – Te Waikoropupū Springs Scenic Reserve” (21 August 2014) 96 New Zealand Gazette 2736; and Settlement Act 2014, s 65.
association with Te Waikoropupū Springs, as recognised by the Settlement. Ngāti
Rarua opposes the application for judicial review.
[70] In Mr Hovell’s submission, s 8 of the Act emphasised the need to take into account Ngāti Tama’s relationship with Te Waikoropupū Springs and the Tākaka River. He referred to the case of Environmental Defence Society Inc v New Zealand King Salmon Company Ltd, wherein the Supreme Court said:20
The wider scope of s 8 reflects the fact that among the matters of national importance identified in s 6 are “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga”. …
[71] Mr Hovell said in light of that context, when the Council was considering who “may be adversely affected by the granting of an extension” it should have taken account of Ngāti Tama’s significant relationship with Te Waikoropupū Springs. He acknowledged two other iwi have distinct interests in Te Waikoropupū Springs but, in his submission, the Council did not undertake the exercise of evaluating their differing positions.
[72] The Council does not dispute the cultural value of Te Waikoropupū Springs to Ngāti Tama and notes it specifically recognises those values in the TRMP. Section 46 of the Settlement Act confirms the statutory acknowledgement is not part of the statutory plan, rather it is for the purpose of public information only unless adopted as part of the statutory plan. The Council says, in any event, there was no evidence before it that the effects of the extension would adversely affect Ngāti Tama’s cultural and spiritual relationship with Te Waikoropupū Springs.
[73] In Mr Thomsen’s submission, it was clear the Council knew about the
Settlement and considered it in the Decision. He pointed out that, in the letter of
20 January 2016, Ms Manson set out the adverse effects on Ngāti Tama as including: the impact on the flow and quantity of water available to Te Waikoropupū Springs; Fish Creek drying up in summer; the health and wellbeing of Te Waikoropupū
Springs; and the need for further research better to understand the Springs. None of those matters were, in his submission, relevant to the extension.
Reliance on incorrect information
[74] Ngāti Tama maintains the Council relied on incorrect information about the hydraulic connection between the application site and Te Waikoropupū Springs. The Decision stated:
The authorised take is from the Confined Marble Aquifer, whereas the recharge zone for Te Waikoropupū Springs is the Unconfined Aquifer. There is no known or proven hydraulic connection between the point of take and Te Waikoropupū Springs and related waterways.
[75] Ngāti Tama says reliance on this incorrect information constitutes an error of law.21 Mr Hovell relied on the Supreme Court decision in Ririnui endorsing the proposition that, in considering whether an official or agency has acted unlawfully, what is important is whether a decision is made or a power exercised on the basis of erroneous advice and whether that decision or exercise of power is reviewable.22
[76] Ms Manson’s evidence was that it does not matter whether there is a hydraulic link – the waterways and groundwater systems are of major cultural significance to Ngāti Tama whether they are upstream or downstream of the Springs. However, she considers the Council’s error in finding there was no such link compounded its failure to obtain any proper analysis of the cultural and hydrological matters relevant to the Decision.
[77] The Council’s position is that it was not an error to state the recharge zone of Te Waikoropupū Springs was within the unconfined aquifer but there was a technical argument between geohydrologists as to the correct position.
[78] In Mr Thomsen’s submission, the position can be distinguished from Ririnui. In that case, the error arose because the Crown mistakenly thought a Treaty claim
had been settled in the context of an iwi’s rights to preferential purchase of Crown
21 Ririnui v Land Corp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.
22 At [55].
land. Mr Thomsen said the mistake needed to be similarly pivotal to the decision.23
The error in this case was not similarly pivotal in his submission for three reasons: the volume of the take was not significant and there was evidence to that effect; the effect of the take on Te Waikoropupū Springs was not a matter which arose under s 125 because it was considered under s 104 when the Consent was granted; and the Decision did not, in any event, place any meaningful reliance on the error.
Effects of the extension
[79] The Decision said:
… the matter I have to consider is whether any persons will be affected by the additional time sought to implement the consent, not the effects of carrying out the authorised activity to take water from the Confined Marble Aquifer. … My conclusion is that no persons will be affected by the granting of another extension.
[80] The Decision referred to the effects of the delay in exercising the Consent and said:
The delay in giving effect to the consent is not impeding or obstructing any other resource users from access to water resources.
The Decision addresses the advice from Mr Thomas that no new information had become available which changed his view that the take was “sustainably available”.
[81] In Mr Hovell’s submission, this is a misapplication of the law and the proper approach, in accordance with Body Corporate 97010, is that the effects arising from changes to the environment since the grant of the Consent must be considered.
[82] In Mr Thomsen’s submission, the Decision demonstrates the decision maker turned his mind to the impact of delay and it was open to the Council to conclude that in effect nothing had changed. The same volume of water could be taken from the same location within the same physical framework. Mr Thomsen suggested an analysis of Ngāti Tama’s evidence and correspondence with the Council reveals its concerns all relate to the exercise of the Consent itself, not any particular effect which arises from the extension.
Analysis
[83] In Body Corporate 97010, which involved the precursor to s 125(1A)(b)(ii), the Court of Appeal agreed with Randerson J in the High Court, who emphasised an application for an extension is not an opportunity to revisit the effects associated with the grant of the consent:24
[140] … Under s 125(1)(b)(ii) the focus of the inquiry is upon the effects of the grant of the extension. These would include in the case of a construction project, the effects of that construction taking place at a later time than originally envisaged. …
[141] I accept … that the effects of the extension cannot be confined to construction effects. For example, the extension sought may be such as to give rise to unacceptable uncertainty for those living or working in the vicinity or there may be changes to the physical environment or to activities in the vicinity since the grant of the original consent which require consideration when application is made under s 125. Where such changes have occurred, a consent authority may be justified in concluding that the grant of the extension would adversely affect other persons. However, the focus of the inquiry still remains on the grant of the extension. Effects which would have occurred had the consent been given effect to within the statutory period of two years (or such other period as may be specified in the consent) are to be disregarded. An application for extension is not an opportunity to revisit the effects associated with the original grant except to the extent that they be necessary background to the effects of granting the extension.
[84] In practice, the application of s 125(1A)(b)(ii) requires a two-stage process. The Council must first ascertain whether there any persons who may be adversely affected by the extension. This must include why or in what way they are affected. Whether a person is affected depends upon circumstances which can include identity, location, sensitivity, public interest and physical effects. The bar can be considered to be relatively low given the use of the word “may”. Secondly, the Council must then take into account any approval and any absence of approval of the extension by those adversely affected.
[85] Those who may be adversely affected by the granting of the extension will not necessarily be the same as those who were adversely affected at the time the Consent was granted. Furthermore, the Council cannot simply rely on a previous
approval because it is the effects of the extension which must be considered, not those of the activity itself.
[86] Ngāti Tama, through the evidence of Ms Broughton, raised many challenges in respect of hydrology issues. Her evidence was admitted on a provisional basis, subject to a subsequent assessment of its relevance to this judicial review. Ms Broughton raised matters relating to the Council’s original assessment of effects, and concerns about the volume of the take. I accept Mr Thomsen’s submission that the application for an extension was not the correct forum to consider Ms Broughton’s evidence. That information was relevant to the grant of the Consent, not the effects of an extension. I have not, therefore, considered Ms Broughton’s evidence, except to the extent it related to the factual error in the Decision.
[87] I agree with the Council’s approach in respect of Ngāti Tama’s submission that withdrawal of the Approval changes the approach to s 125. The Approval was given under s 104(3) which does not allow a consent authority to consider the effects on a person who has given a written approval to an application. There is an exception under subs (4) if the affected person’s approval is withdrawn before the hearing or, if there is no hearing, before the decision is made. It is therefore correct for the Council to say there is no ability to withdraw a consent given in 2005 and then argue the effects on the affected person were not considered.
[88] As Mr Thomsen pointed out, Ngāti Tama approved the application for the Consent with no knowledge of what the lapse period would be. The statutory lapse period of five years pursuant to s 125 of the Act was incorporated in the Consent, but the Council could have imposed a longer period. The Original Application was for a consent to last until 2034 and Ngāti Tama approved that. It was the Council who imposed an end date of 2019.
[89] I also accept the submission that the fact of the Settlement did not mean there were any new or particular adverse effects on Ngāti Tama. What the Settlement did do, however, was reinforce Ngāti Tama’s position as a party who “may be adversely affected by the granting of an extension”. The fact that two other iwi with similar
associations either did not oppose the extension or were involved in the venture is
then part of the Council’s overall assessment.
[90] It is clear that Ngāti Tama is an entity whose position should have been considered. That, however, must be done in the context of the law as set out in Body Corporate 97010.
[91] Ngāti Tama’s letter of objection to the Council did not address the effects on Ngāti Tama of the extension. Indeed, the opening paragraph makes it clear that the letter was written from the perspective of considering the effects of the Consent itself.
[92] Mr Thomson seemed to acknowledge the Decision contained a factual error. The importance of the mistake is that it was made under the subs (1A)(b)(ii) analysis and in the context of considering Ngāti Tama’s assertion they were an affected person. There is some force in Mr Hovell’s submission that the incorrect analysis as to a lack of physical connection between the point of take and Te Waikoropupū Springs effectively entitled the Council to disregard any spiritual or cultural effects there might have been as a consequence of the extension. He said the mistake had the effect of removing the physical nexus necessary to enable consideration of the cultural and spiritual effects as well as the changed cultural and social circumstances. In this way it could be considered a mistake of fact pivotal to the conclusion that no persons were considered adversely affected by the extension.
[93] This is not to say that the Council’s overall conclusion under this subparagraph was necessarily wrong, particularly given the effects as identified by Ngāti Tama. However, the error did mean that Ngāti Tama’s position was not correctly analysed as to the extent to which it was an affected party. That incorrect analysis precluded the necessary consequential assessment as to the ways in which Ngāti Tama was potentially affected by the extension.
Section 125(1A)(b)(iii) – the effect of the extension on the policies and objectives of any plan or proposed plan
[94] In relation to subs (1A)(b)(iii), the Decision records:
The objectives and policies of the [TRMP] were considered in the decision on the original resource consent application. That decision concluded that the activity would not be contrary to the relevant provisions of the TRMP. There have been no changes to any of the objectives and policies in the TRMP which relate to this site or proposal. Therefore, it is considered that granting this extension of the lapsing period sought by the Consent Holder will have no effect on the objectives and policies of the TRMP.
Ngāti Tama refer to the Statutory Acknowledgements relating to the significant values of Te Waikoropupū Springs and other waterways. Again, those values were generally known at the time that the consent was granted, and were recognised in general terms within the provisions of the TRMP, such as Schedule 30A(7).
[95] Ngāti Tama claims the Council:
(a) did not assess the effect of the extension on the objectives, policies and rules of the TRMP;
(b) did not undertake a planning assessment in respect of the Decision;
and
(c) did not consider changes to the objectives, policies and rules of the
TRMP in reaching the Decision.
[96] In Mr Hovell’s submission, there have been changes to the planning documents since the grant of the Consent as well as the introduction of the National Policy Statement for Fresh Water Management in 2014. He pointed out that the only reference in the Decision to any specific provisions of the TRMP was to sch 30A(7). By way of example, Mr Hovell identified a change in the introduction of Policy
30.1.3.37 to the TRMP, which provides:
To identify with Manawhenua iwi agreed opportunities for active participation of iwi in water management in the District, other than by any transfer or joint management of the power to decide on any policy statement, plan or resource consent.
[97] In his submission, this was particularly relevant and was not taken into account. He said it was not for this Court to say if any changes to the Plan were material. It was an exercise the Council should have undertaken. There was no
assessment of changes or reference to them and therefore, in Mr Hovell’s
submission, this mandatory relevant consideration was not taken into account. [98] The Council does not accept that no planning assessment took place.
[99] Phil Doole, Resource Consent Manager for the Council, made the Decision. His affidavit discusses the TRMP and the fact that since 2014 the Council has been working collaboratively with the Takaka Fresh Water Land Advisory Group (FLAG) to develop a water management plan for the Takaka water management zone, as required by the National Policy Statement for Freshwater Management 2014.
[100] In Mr Thomsen’s submission, the relevant consideration following the guidance of Body Corporate 97010 was whether the grant of an extension would compromise policies and objectives of a plan which had been amended or a new plan which had been notified since the original Consent. He said the Decision records the Council’s consideration of the plan provisions, concluding that nothing material had changed and therefore there were no effects on the policies or objectives of the plan by the grant of the extension.
Analysis
[101] Section 125(1A)(b)(iii) requires a consenting authority to consider “the effect of the extension on the policies and objectives of any plan or proposed plan”.
[102] In Body Corporate 97010, s 125(1)(b)(iii) – s 125(1A)(b)(iii)’s predecessor – was considered. The previous provision had required a consenting authority to be satisfied that the “effect of the extension on the policies and objectives of any plan is minor”. Both the High Court and the Court of Appeal said the provision likely gave
effect to the philosophy found in Katz.25 In the words of the Court of Appeal,
Councils are required to:
[77] … consider whether the planning situation has altered since the resource consent and, if so, whether, in the light of that changed situation, allowing the consent to be implemented after the expiry of the time limit will affect the policies and objectives of any plan. Any plan includes the plan in
25 Body Corporate 97010 (HC), above n 24, at [145]; and Body Corporate 97010 (CA), above n 9, at [76].
relation to which a consent was originally granted (unless it has already been replaced by a new Operative Plan). But the original plan is highly unlikely to be affected to any greater extent unless it has subsequently been amended. Therefore it must be the case that the concern of s125(1)(b)(iii) is with whether the grant of an extension will compromise the policies and objectives of a plan which has been so amended, or, as in the present case, those of a new plan which has been notified since the original consent.
[78] The new plan or amendment may necessitate an entirely new appraisal of the development, because what was considered appropriate in the former planning context may have thereby been rendered inappropriate. It is important for the Council to ensure that the granting of an extension while a Proposed Plan is under consideration does not pre-empt what the plan is proposed to achieve by undermining its objectives and policies before it has become operative. Although as a result of the necessary process of public consultation those objectives and policies may be amended or even discarded altogether, it is meanwhile not to be assumed that this will occur.
[103] In essence, the Court stated that councils may undertake a re-appraisal of the proposed activity, not just the effects of the extension, in light of a changed planning situation.
[104] Due to the nature of the case before them, both the High Court and the Court of Appeal focused on the fact that plan changes are the predominant way in which a planning situation may change. Katz acknowledged that increased knowledge and shifting social and physical circumstances can also result in a changed planning situation. Moreover, the wording of the provision directs councils to consider the effect of the extension not on the plan itself, but on the “policies and objectives” of that plan. Changes to a planning situation which would result in extensions having an effect on policies and objectives might arise not only out of plan changes, but also from changes to the environment, social and cultural context, legislative background, and scientific or technical understanding.
[105] At the hearing, Mr Thomsen went through the 2005 version of the TRMP in force when the Consent was granted, and the 2015 version, which was in effect at the time of the Decision. I accept there are no material changes in the TRMP and the relevant provisions, including recognition of tangata whenua values, water as wahi tapu, and the spiritual value of water, are recognised in both the 2005 and 2015 versions.
[106] Importantly, the 2005 version identified significant water bodies and the values and uses which would be adversely affected, and then set out management objectives. There was specific recognition of Te Waikoropupū Springs and their cultural and spiritual values.
[107] The Consent was a restricted discretionary activity under the 2005 Plan and remains so under the 2015 Plan. I note there is no limit on allocation in the Takaka water management zone, either now or in 2005. I am satisfied that, even if the Consent were considered today, the classification of the activity and relevant considerations are the same as those pertaining at the time the Consent was granted.
[108] If the Consent needs to be renewed, that will be a controlled activity, as it was in 2005. The Council’s policy in that regard, if the consented water take is being used, would suggest the Consent would likely be renewed. The thrust of the Plan is to prevent “water banking”.
[109] The Council identified the relevant objectives and policies of the TRMP and noted they were unchanged. Simply because the Decision did not painstakingly recite the relevant policies, does not mean no planning assessment was undertaken. The fact there had been no material changes to the TRMP meant it was not an error to fail to list all non-material ones. In this regard the position is different from that in the Body Corporate 97010 case where there had been material changes to the relevant plans.
[110] Despite my finding that none of the pleaded grounds of review under subs (1A)(b)(iii) have been made out, the changed context pleaded under subs (1A)(b)(ii) is of relevance to the planning situation, although moderated by the previous recognition of tangata whenua, their cultural and spiritual values, and wahi tapu and waterways in the TRMP. As such, I find that this may also properly fall to be considered under s 125(1A)(b)(iii).
Overall assessment
Discretion
[111] I now have a discretion as to whether or not to grant the application for judicial review. Ngāti Tama considers relevant the facts that the Consent has not been substantially progressed for over 12 years, the grant would not prejudice the Consent holder, and there have been significant changes in the social, cultural and regulatory environment since the grant, in particular the Settlement Act.
[112] In Mr Castle’s submission, if Ngāti Tama’s position were to receive special consideration because of the Settlement Act, then it was important not to lose sight of the fact the other two iwi required the same consideration. That, in his submission, was relevant to the discretion as to whether the Decision should be sent back to the Council.
[113] Mr Castle said there can be no legitimate expectation that the Decision, if considered afresh, would be different. This is because the responsibilities and interests of Ngāti Rarua in respect of Te Waikoropupū Springs and Aquifer are equally in play and of equal weight to any views of Ngāti Tama.
[114] Mr Castle pointed out that any reconsideration would take significant cost and time, possibly to the end of 2018. That would be within one year of the lapse of the Consent and would not be fair and reasonable in the circumstances. Relevant, too, is the fact that the Consent expires on 31 May 2019 and will lapse if not given effect by 31 March 2018.
[115] In the Council’s submission, Ngāti Tama is asking the Court to place greater weight on the recognition provided to Ngāti Tama by the Settlement Act and the fact it did not consent to the renewal. As pointed out in Berryman v Solicitor-General, the weight the decision maker places on relevant considerations is a matter for the
decision maker and not a ground of judicial review.26 Those aspects of Ngāti Tama’s
claim have been unsuccessful.
26 Berryman, above n 3, at [84].
[116] Nonetheless, I have identified two problems with the way in which the Extension Application was dealt with in respect of the mandatory considerations, with s 125(1A)(b)(i) being a particular concern. Because the Council is required to consider an extension taking into account the matters listed in (i), (ii) and (iii) and because, in light of the identified errors, it did not do so, the Decision was not made in accordance with the Act.
Result
[117] I am satisfied the application for judicial review should be granted. The Decision is set aside and the Extension Application is to be reconsidered by the Council. I decline to make the directions sought that Ngāti Tama be considered an affected person pursuant to s 125(1A)(b)(ii). This is part and parcel of the Council’s consideration on the basis of the evidence put forward to it.
[118] If costs cannot be agreed, Ngāti Tama is to file submissions within 21 days of
this decision and any replies are required 14 days thereafter.
Thomas J
Solicitors:
Atkins Holm Majurey, Auckland for Applicant
Fletcher Vautier Moore, Richmond for First Respondent
3
2
0