Norman v Tūpuna Maunga o Tāmaki Makaurau Authority
[2020] NZHC 3425
•22 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2019-404-2682
[2020] NZHC 3425
UNDER the Judicial Review Procedure Act 2016 BETWEEN
AVERIL ROSEMARY NORMAN and WARWICK BRUCE NORMAN
Applicants
AND
TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY
First Respondent
AUCKLAND COUNCIL
Second Respondent
Hearing: 8 and 9 June 2020 Counsel:
R J Hollyman QC, J W H Little and J K Grimmer for Applicants P T Beverley and R A Balasingam for First Respondent
P M S McNamara and S J Mitchell for Second Respondent
Judgment:
22 December 2020
JUDGMENT OF GWYN J
This judgment was delivered by me on 22 December 2020 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
R J Hollyman QC, Auckland J W H Little, Auckland Duncan King Law, Auckland Buddle Findlay, Auckland Simpson Grierson, Auckland
NORMAN v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY [2020] NZHC 3425 [22 December 2020]
Contents
Introduction [1]
Context [8]
The claims [13]
Role of the Court on review [16]
What was the decision under review? [20]
First ground of review: Reserves Act 1977 [35]
Second ground of review: failure to consult [104]
Third ground of review: Council cannot follow an unlawful direction [188] Fourth ground of review: non-notification of resource consent application [190] Result [384]
Costs [385]
Introduction
[1] Ōwairaka, or Mt Albert (Ōwairaka), is one of fourteen Tūpuna Maunga, or ancestral mountains, of Tāmaki Makaurau, or Auckland (Tāmaki Makaurau), which were transferred from Crown ownership to the 13 iwi and hapū of Ngā Mana Whenua o Tāmaki Makaurau (Nga Mana Whenua) under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress Act).
[2] Under the Collective Redress Act, the fee simple estate in the 14 Tūpuna Maunga, including Ōwairaka, is vested in Ngā Mana Whenua’s collective legal entity, the Tūpuna Taonga o Tāmaki Makaurau Trust (Tūpuna Taonga Trust) 1 for the common benefit of the iwi and hapū of Ngā Mana Whenua and the other people of Auckland.2
[3] The Tūpuna Maunga o Tāmaki Makaurau Authority (Maunga Authority) is the governance and administering body of Ōwairaka, as it is for most of the transferred Tūpuna Maunga,3 for the purposes of the Reserves Act 1977 (Reserves Act).4 This statutory co-governance authority has equal representation from Ngā Mana Whenua and Auckland Council,5 with one (non-voting) Crown representative.6
1 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 8.
2 Section 41(2).
3 Rarotonga/Mt Smart excepted: ss 17 and 39.
4 Reserves Act 1977, ss 22(4) and 106.
5 Also referred to in this judgment as “the Council”.
6 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 107.
[4] The Tūpuna Maunga are classified as reserves under the Reserves Act and that classification was maintained by the Collective Redress Act.7 Ōwairaka is a recreation reserve,8 located in the suburb of Mt Albert, Tāmaki Makaurau. It comprises approximately 9.5 hectares.
[5] In the period between 9 August 2018 and 11 October 2018, the Maunga Authority made a decision to remove 345 exotic trees from Ōwairaka and to replant 13,000 native plants.
[6] It is that decision, or part of it, that Mr and Ms Norman seek to review in this Court.9 The applicants are Averil Norman and Warwick Norman. Ms Norman’s evidence is that she is a frequent visitor to Ōwairaka. In her evidence she describes the beauty of the Maunga and the close connection she feels to it. There is other evidence before the Court that indicates that Ōwairaka is enjoyed and well-used by local residents and visitors from further afield. Various personal and historical connections are described in the evidence.
[7] The applicants also challenge the actions of Auckland Council, to the extent the Council is to implement the challenged decision10 and, separately, the Council’s decision that it was not necessary to publicly notify or give limited notification of the Maunga Authority/Council’s application to carry out the tree felling and planting work under ss 95A to 95E of the Resource Management Act 1991 (RMA).
Context
[8] The preamble to the Collective Redress Act sets out the historical context to this proceeding regarding Ōwairaka:
7 Pursuant to s 22 the reservation of Ōwairaka as a recreation reserve was revoked for the purposes of vesting the fee simple estate in the trustees of the Tūpuna Taonga Trust. Ōwairaka was then declared a reserve and classified as a recreation reserve under s 17 of the Reserves Act.
8 Reserves Act 1977, ss 16 and 17.
9 What is comprised in “the decision” that the applicants seek to challenge is discussed below at [20]–[34].
10 Under s 61 of the Collective Redress Act the Council is responsible for “routine management” of the Maunga, under the direction of the Maunga Authority and in accordance with the Annual Operational Plan and any standard operating procedures agreed between the Authority and the Council. In practice, as the evidence shows, Council officers under the Maunga Authority’s operational work, since the Authority does not have its own staff. Mr Turoa who is the Tūpuna Maunga manager for the Maunga Authority, is also a Council employee.
Preamble
(a)The iwi and hapū constituting the collective known as Ngā Mana Whenua o Tāmaki Makaurau have claims to Tāmaki Makaurau based on historical breaches of the Treaty of Waitangi (Te Tiriti o Waitangi) by the Crown;
(b)Settlement of these claims is progressing through negotiations between the Crown and each individual iwi and hapū;
(c)At the same time, the Crown has been negotiating other redress with Ngā Mana Whenua o Tāmaki Makaurau—
(i)that relates to certain maunga, motu, and lands of Tāmaki Makaurau; and
(ii)in respect of which all the iwi and hapū have interests; and
(iii)in respect of which all the iwi and hapū will share;
(d)The maunga and motu are taonga in relation to which the iwi and hapū have always—
(i)maintained a unique relationship; and
(ii)honoured their intergenerational role as kaitiaki;
(e)The negotiations between the Crown and Ngā Mana Whenua o Tāmaki Makaurau began in July 2009;
(f)On 12 February 2010, the Crown and Ngā Mana Whenua o Tāmaki Makaurau signed a Framework Agreement;
(g)On 5 November 2011, the Crown and Ngā Mana Whenua o Tāmaki Makaurau signed a Record of Agreement;
(h)On 7 June 2012, the Crown and Ngā Mana Whenua o Tāmaki Makaurau initialled a deed encapsulating the agreed redress arising from the Framework Agreement and the Record of Agreement;
(i)On 8 September 2012, representatives of the Crown and Ngā Mana Whenua o Tāmaki Makaurau signed the deed;
(j)To implement the deed, legislation is required.
[9] The Collective Redress Act gives effect to the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed (Collective Redress Deed). Section 3 of the Collective Redress Act provides:
3 Purpose of Act
The purpose of this Act is to give effect to certain provisions of the collective deed, which provides shared redress to the iwi and hapū constituting Ngā Mana Whenua o Tāmaki Makaurau, including by—
(a)restoring ownership of certain maunga and motu of Tāmaki Makaurau to the iwi and hapū, the maunga and motu being treasured sources of mana to the iwi and hapū; and
(b)providing mechanisms by which the iwi and hapū may exercise mana whenua and kaitiakitanga over the maunga and motu; and
(c)providing a right of first refusal regime in respect of certain land of Tāmaki Makaurau to enable those iwi and hapū to build an economic base for their members.
[10] Paul Majurey is the Chair of the Maunga Authority and has been since its establishment in 2014. Mr Majurey was also the Chair of the Tāmaki Collective, the Treaty settlement negotiations entity for the 13 iwi and hapū of Tāmaki Makaurau that negotiated the Collective Redress Deed. His evidence is given on behalf of the Authority.
[11] Mr Majurey notes that the Tūpuna Maunga are among the most significant spiritual, cultural, historical and geological landscapes in the Auckland region. He describes the Tūpuna Maunga as fundamental and sacred to Mana Whenua, being taonga tuku iho, or treasures handed down the generations. Since human occupation of Tāmaki Makaurau commenced some 1,000 years ago, Maori settled and established pā, kainga and extensive cultivations in and around the Tūpuna Maunga. The Maunga have been central to the lives of tribes of Tāmaki Makaurau as places of habitation, rituals of daily life and worship, the cultivation of food, and sometimes warfare. He notes that the tangible inscriptions of the Tūpuna Maunga remain today in, for example, the modified terraced fortified pā, cultivated areas and stone features.
[12]As the Waitangi Tribunal recorded:11
… maunga are iconic landscape features for Maori. They are iconic not because of their scenic attributes, but because they represent an enduring symbolic connection between tangata whenua groups and distinctive land forms. Sometimes, these land forms are the physical embodiment of tūpuna.
11 The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 95 (footnotes omitted). This is the Waitangi Tribunal report on Treaty settlement processes in Tāmaki Makaurau. The scope of the inquiry included the Tūpuna Maunga of Tāmaki Makaurau.
Thus, associations with maunga are imbued with mana and wairua that occupy the spiritual as well as the terrestrial realm. Maunga express a group’s mana and identity. This connection and expression is an integral part of Maori culture.
The claims
Overview
[13] The applicants seek an order quashing the decision to fell the exotic trees, a declaration that the Maunga Authority acted unlawfully in making that decision and an order injuncting the Maunga Authority from taking any steps to implement the decision.
[14] The applicants’ application for judicial review was filed, together with an application for urgent interim relief, on 6 December 2019. The interim injunction application sought orders preventing the proposed felling of the 345 exotic trees until the judicial review application is determined. The applicants and the first respondent have agreed that the status quo be preserved (that is, the proposed tree felling not take place) until the substantive judicial review proceeding has been determined. That agreement is recorded in a Minute of Lang J dated 13 December 2019.
[15]The grounds of review are:
(a)first ground of review: the decision does not comply with ss 42 and 17 of the Reserves Act;
(b)second ground of review: there was an obligation on the Maunga Authority to consult regarding the decision to fell the 345 exotic trees and it failed to do so;
(c)third ground of review: the Council cannot lawfully follow a direction from the Maunga Authority to fell the trees given that the decision to fell was unlawful in terms of either the first or second ground of review;
(d)fourth ground of review: the Council erred in terms of the RMA in deciding not to require notification of the resource consent application to fell the exotic trees to either the public or to users of the reserve.
Role of the Court on review
[16] The proper approach on judicial review is not in dispute. However, in light of the content of some of the affidavit evidence before me, which might be seen as inviting me to reach a different view to that of the Maunga Authority and the Council on the substance of their respective decisions, it may be useful to set out that approach.
[17] Judicial review is not an appeal from the decisions in question, but a review of the manner in which the decisions were made.12 It is not for the Court to interfere with the way the Maunga Authority and/or the Council exercised the powers given to them by statute, simply on the basis that the Court thinks the decision should have been different – for example, not removing the trees or doing so in a staged manner over an extended period.
[18]The Court of Appeal in Pring v Wanganui District Council said:13
It is well established that in judicial review [proceedings] the Court does not substitute its own factual conclusions for that of the [authority under review]. It merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no irrelevant considerations were taken into account, and whether the decision was one which, upon the basis of the information available to it, a reasonable decision-maker could have made. Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority, not the Court, to determine, but, of course, there must be some material capable of supporting the decision.
[19] Because an application for judicial review does not involve a review of the decision’s merits, the Court must focus only on the information that was before the Maunga Authority and the Council at the time they made their decisions, not the further information that has been made available through the evidence of the applicants and their experts and the evidence in reply.14
12 Chief Constable for North Wales v Evans [1982] 1 WLR 1155 at 1174 (HL).
13 Pring v Wanganui District Council (1999) 5 ELRNZ 464 (CA) at [7].
14 Evans v Clutha District Council [2018] NZHC 3355 at [38]–[39].
What was the decision under review?
[20] It is important to clarify at the outset what is the decision that the applicants want to review. In the period of 9 August 2018 to 11 October 2018, the Maunga Authority made a decision to remove 345 exotic trees from Ōwairaka and to replant 13,000 native plants. That decision was made by Nicholas Turoa (who is the Tūpuna Maunga Manager for the Maunga Authority and an employee of Auckland Council) on behalf of the Maunga Authority.
[21] The applicants solely seek to review the decision by the Authority to simultaneously cut down the 345 exotic trees. They do not challenge the proposal to plant native plants in their place.
[22] Mr Hollyman QC, for the applicants, says that their case is not about whether planting more native trees on the reserve is lawful or otherwise a good thing; the applicants are not opposed to the planting of many more native trees. His submission is that, by conflating the proposed felling of the 345 exotic trees with the intended planting of 13,000 native plants, the respondents are seeking to have the Court infer that the former is necessary to achieve the latter, when that is not the case.
[23] This also bears on the applicants’ fourth ground of review, against the Council. The applicants say the respondents in their (successful) application for consent erroneously grouped together two separate proposals – removal of exotic trees from the reserve and planting of native trees and shrubs in certain parts of the reserve – as a single proposal. They say these should have been two separate applications, and the bundling of the two affected the way the Commissioner considered and decided notification issues.
[24] Mr Turoa, and the respondents, frame the decision as a single operational implementation decision as part of a broader sequence of decision-making that included the Tūpuna Maunga Integrated Management Plan (IMP)15 and the 2018/18 Annual Operational Plan. This is the Ōwairaka ecological restoration project.
15 Mr Turoa’s evidence is that the IMP was developed in accordance with the Collective Redress Act and s 41 of the Reserves Act and was unanimously adopted by the Maunga Authority at its Hui 19 on 23 June 2016.
[25] That framing is reflected in the resource consent application which sought consent to restore the central and historical quarry faces of the Maunga with over 12,2000 native plantings to recreate a WF7 Pūriri broad leaf forest. It is also consistent with the evidence of Antony Yates, the consultant planner for the Maunga Authority during the resource consent application process. He notes that the purpose of the resource consent application was to facilitate the restoration of the cultural, spiritual and native landscape of Ōwairaka, whilst avoiding adverse effects on in-situ archaeology and the high landscape, geological and visual values of the Maunga.16
[26] In Mr Turoa’s evidence he summarises the procedural context of the decision following the approval of the Maunga Authority’s 2018/2019 Annual Operational Plan:
(a)Pre-planning internal meetings – approval of the project operations plan through to August 2018;
(b)initial site visit to Ōwairaka/Te Ahi-kā-a-Rakataura – 9 August 2018;
(c)ongoing planning meetings and discussions – 9 August 2018 to approximately 10 October 2018;
(d)archaeological, ecological, landscape and other assessments undertaken - 9 August 2018 through to late September 2018;
(e)review of draft expert reports and ongoing discussions – late September 2018 through to 10 October 2018;
(f)decision made that 345 exotic trees would be removed – 9 August 2018 through to 11 October 2018;
(g)application for resource consent prepared – October 2018 and lodged on 19 October 2018;
(h)application for resource consent granted 20 February 2019; and
(i)post-resource consent actions and meetings in preparation for project commencement – 20 February 2019 through to November 2019.
16 In the context of the fourth ground of review, the Council notes that the “Proposal” as described in the Notification Decision, was “to remove exotic vegetation and undertake restoration planting on Ōwairaka.” While a number of separate land use consents were required because different rules under the Auckland Unitary Plan were engaged, there was a single proposal involving both vegetation removal and restoration planting. The Council observes that the draft conditions annexed to the AEE included requirements that the planting be undertaken in accordance with a finalised planting plan (a draft of which was submitted with the Application) and maintained thereafter. These conditions were an inherent part of the proposal for which resource consent was sought. I discuss later in this judgment the significance of what activities consent was sought for and granted.
Analysis
[27] “Decision” is not defined in the Judicial Review Procedure Act 2016 but, as in Taylor, Judicial Review A New Zealand Perspective, it is to be interpreted in a common sense way. 17
[28] I accept the submission of Mr McNamara for the Council that it would be artificial to attempt to separate out the Maunga Authority’s decision to fell all the exotic trees from its decision to carry out replanting on the Maunga. Such an approach would isolate Mr Turoa’s operational decision from its wider context and the Authority’s high level decisions. While the applicants are correct that the felling of trees is not strictly necessary for the replanting, which will not occur in exactly the same places as the felled trees, the reasons for the felling of the exotic trees are inextricably bound up with the replanting: that is, to facilitate the restoration of the “natural, spiritual and native landscape.”
[29] As the Maunga Authority’s evidence details, that has a number of aspects. Mr Majurey says:18
For Mana Whenua, the return to indigenous vegetation is an important part of the journey of reconnection with the Tūpuna Maunga. All of our histories, all of our matauranga (knowledge) and all of our connections with the spiritual and temporal worlds of the Tūpuna Maunga revolve around native flora and fauna. They are imprinted on the very names of the Maunga – Maungawhau and Maungakiekie (in reference to the native whau tree and kiekie plant) and Matukūtururu (in reference to the native owl) are a few examples. Returning the Tūpuna Maunga to a state of indigenous vegetation reflects the Maori world view that the vegetation that originally cloaked these significant Maunga should be restored. That is fundamental to our identity.
[30] Mr Taipari, a Mana Whenua representative on the Independent Maori Statutory Board, says:19
The Authority’s proposals for ecological restoration at Owairaka/Te Ahi-kā- a-Rakataura and other Tūpuna Maunga are of fundamental importance to Mana Whenua. The proposals to re-introduce indigenous vegetation and remove exotic vegetation is significant to our cultural well[be]ing and the re- connection between Mana Whenua and the Tūpuna Maunga. The cultural
17 Graham Taylor, Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [5.14].
18 Affidavit of Paul Francis Majurey, 5 February 2020 at [42].
19 Affidavit of David Errol Taipari, 19 February 2020 at [25].
landscapes and the protection of the views to and from the Tūpuna Maunga are also of fundamental importance to Mana Whenua.
[31]Mr Turoa notes:20
The Owiaraka/Te Ahi-kā-a-Rakataura ecological restoration project will facilitate the restoration of the natural, spiritual and indigenous landscape of the Maunga. This project represents a significant step toward the realisation of the Integrated Management Plan. This includes opening up viewshafts and defensive site lines from Maunga to Maunga while also opening up the terracing and other important archaeological features of the Maunga. The protection and restoration of these archaeological values is a very important element of this project.
[32] The Maunga Authority also observes that the Ōwairaka project is part of a broader ecological restoration programme being undertaken by the Maunga Authority across the Tūpuna Maunga. For example:
(a)180 exotic trees have been removed from Maungarei/Mt Wellington;
(b)150 exotic trees have been removed at Māngere Mountain; and
(c)165 exotic trees have been removed at Ōhuiarangi/Pigeon Mountain.
[33] In conjunction with those removals there has been restoration planting programmes undertaken on each of those Tūpuna Maunga. The Maunga Authority plans to have approximately 74,000 native trees planted across the Tūpuna Maunga by 2021, 8,260 of which have already been planted.
[34] I have concluded that, as a matter of fact, and for the purpose of the first three grounds of review, there was one decision, which encompassed removal of the exotic trees, retention of the existing native trees and a programme of new planting of native trees and plants. I will consider separately the decisions involved in the RMA ground of review.
20 Affidavit of Nicholas Henry Turoa, 31 January 2020 at [43].
First ground of review: Reserves Act 1977
[35] The applicants’ first ground of review focuses on alleged breaches of ss 17 and 42 of the Reserves Act.
[36] Ōwairaka is a recreation reserve to which s 17 of the Reserves Act applies. The applicants say that the Maunga Authority, as the administering body of the Ōwairaka Reserve, is required to act in compliance with ss 17 and 42 of the Reserves Act, and the decision is inconsistent with those provisions.
[37] To begin I set out for convenience s 109 of the Collective Redress Act, which is relevant to this cause of action:
109 Functions and powers
(1)The Maunga Authority has the powers and functions conferred on it by or under this Act or any other enactment.
(2)In exercising its powers and carrying out its functions in relation to the maunga, the Maunga Authority must have regard to—
(a)the spiritual, ancestral, cultural, customary, and historical significance of the maunga to Ngā Mana Whenua o Tāmaki Makaurau; and
(b)section 41(2) [which states: “The maunga is held by the trustee for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the other people of Auckland.”].
(3)In exercising its powers and carrying out its functions in relation to the administered lands, the Maunga Authority must have regard to the spiritual, ancestral, cultural, customary, and historical significance of the administered lands to Ngā Mana Whenua o Tāmaki Makaurau.
[38] The starting point in terms of the Reserves Act is s 16(8), which says that a reserve shall be held and administered for the purpose(s) for which it is classified and for no other purpose. Section 40 provides that administering bodies shall administer, manage and control reserves in accordance with the appropriate provisions of the Reserves Act, “so as to ensure the use, enjoyment, development, maintenance, protection, and preservation, as the case may require, of the reserve for the purpose for which it is classified:”. Section 53(1) sets out powers the administering body of a recreation reserve may utilise “in the exercise of its functions under section 40 and to the extent necessary to give effect to the principles set out in section 17.”
Section 17 itself provides:
Recreation reserves
(1)It is hereby declared that the appropriate provisions of this Act shall have effect, in relation to reserves classified as recreation reserves, for the purpose of providing areas for the recreation and sporting activities and the physical welfare and enjoyment of the public, and for the protection of the natural environment and beauty of the countryside, with emphasis on the retention of open spaces and on outdoor recreational activities, including recreational tracks in the countryside.
(2)It is hereby further declared that, having regard to the general purposes specified in subsection (1), every recreation reserve shall be so administered under the appropriate provisions of this Act that—
(a)the public shall have freedom of entry and access to the reserve, subject to the specific powers conferred on the administering body by sections 53 and 54, to any bylaws under this Act applying to the reserve, and to such conditions and restrictions as the administering body considers to be necessary for the protection and general well-being of the reserve and for the protection and control of the public using it:
(b)where scenic, historic, archaeological, biological, geological, or other scientific features or native flora or fauna or wildlife are present on the reserve, those features or that flora or fauna or wildlife shall be managed and protected to the extent compatible with the principal or primary purpose of the reserve:
provided that nothing in this subsection shall authorise the doing of anything with respect to fauna that would contravene any provision of the Wildlife Act 1953 or any regulations or Proclamation or notification under that Act, or the doing of anything with respect to archaeological features in any reserve that would contravene any provision of the Heritage New Zealand Pouhere Taonga Act 2014:
(c)those qualities of the reserve which contribute to the pleasantness, harmony, and cohesion of the natural environment and to the better use and enjoyment of the reserve shall be conserved:
(d)to the extent compatible with the principal or primary purpose of the reserve, its value as a soil, water, and forest conservation area shall be maintained.
[40] The essence of Mr Hollyman’s case regarding s 17 is that it acts as a constraint on the Maunga Authority’s decision-making power regarding Ōwairaka, and that the significant damage that the Ōwairaka restoration project would do to existing features
of the reserve is not consistent with either the general purposes in s 17(1) or the more specific purposes in s 17(2).21 In particular, felling a substantial number of trees is contrary to the protection and pleasantness, harmony and cohesion of the existing natural environment.
[41] Section 42 of the Reserves Act limits the circumstances in which cutting or destruction of trees or bush on any recreation reserve may be undertaken. It provides:
42 Preservation of trees and bush
(1)The trees and bush on any historic reserve or scenic reserve or nature reserve or scientific reserve shall not be cut or destroyed, except in accordance with a permit granted under section 48A or with the express consent in writing of the Minister and subject to such terms and conditions as the Minister may determine, including (as appropriate) the method of cutting, extraction, and restoration.
(2)The trees or bush on any recreation reserve, or government purpose reserve, or local purpose reserve shall not be cut or destroyed, except in accordance with a permit granted under section 48A or unless the administering body of the reserve is satisfied that the cutting or destruction is necessary for the proper management or maintenance of the reserve, or for the management or preservation of other trees or bush, or in the interests of the safety of persons on or near the reserve or of the safety of property adjoining the reserve, or that the cutting is necessary to harvest trees planted for revenue producing purposes.
(3)Where in the case of any recreation reserve or government purpose reserve or local purpose reserve the administering body is satisfied that the cutting or destruction of trees or bush is necessary for any of the reasons mentioned in subsection (2), the administering body shall not proceed with the cutting or destruction and extraction except in a manner which will have a minimal impact on the reserve and until, as circumstances warrant, provision is made for replacement, planting, or restoration; and the administering body shall not proceed to authorise the cutting or destruction, except subject to conditions as to the method of cutting or destruction and extraction which will have minimal impact on the reserve and, as circumstances warrant, replacement, planting, or restoration; and any other conditions which the administering body considers to be appropriate in the circumstances.
21 Supporting this point, counsel pointed to various smaller-scale actions that could be taken which would be feasible within s 17 while having regard to s 109 of the Collective Redress Act – such as accounting for areas of significance to Ngā Mana Whenua when determining a new walking track, considering activities that are culturally significant to Ngā Mana Whenua when determining what recreational activities should be provided for at the archery club grounds, closing the road on the Maunga, protecting areas of cultural or spiritual significance, and closing the reserve or parts of it for Matariki celebrations and other celebrations.
The applicants’ submissions
[42] The applicants say that the Maunga Authority cannot reasonably have been satisfied that the decision to fell the trees was “necessary” for any of the purposes set out in s 42(2), including the “proper management or maintenance” of the reserve.
[43] Further, the applicants say that, even if the Maunga Authority was reasonably satisfied that felling the trees is necessary for one of those purposes, the Maunga Authority may not proceed with the cutting of the trees “except in a manner which will have a minimal impact on the reserve”.22 They say that the tree felling if implemented as planned will have a more than minimal impact on the reserve.
[44] I will set out, in turn, each of the applicants’ four principal arguments as to why the decision to fell the trees was inconsistent with the Reserves Act:
(a)The Maunga Authority failed to consider whether the cutting down of any of the trees was necessary for the purposes specified in s 42(2) or at all.
(b)To the extent there was a decision under s 42(2), it was unreasonable and not for a permitted purpose.
(c)The felling of 345 exotic trees will not conserve the qualities of the reserve identified in s 17(2)(c).
(d)The felling of almost half of the trees on the reserve at the same time will not have a “minimal impact” in terms of s 42(3).
(a)That the decision is not necessary in terms of s 42(2)
[45] The applicants’ submission is that the “necessary” test in s 42(2) is consistent with the substantial weight placed on conservation and preservation in the Reserves Act, both generally, and also in relation to recreation reserves specifically, pointing to s 17. They say the statute requires that each tree be specifically and individually
22 Section 42(3).
considered. Mr Hollyman emphasised the word “necessary” as a “strong word falling in between expedient or desirable on the one hand and essential on the other”.23
[46] The applicants also say that a threshold of necessity is consistent with the fact that trees (whether native or not) are integral to the qualities that s 17(2)(c) requires be conserved: those “which contribute to pleasantness, harmony, and cohesion of the natural environment and to the better use and enjoyment of the reserve.” Further, s 42(2) requires felling of trees be necessary for the proper management or maintenance of a reserve. Counsel says “proper management or maintenance” must be read in light of the s 17 purposes of a recreation reserve – further heightening the focus on protection and conservation of existing natural features.
[47] The applicants say that the Maunga Authority did not ever consider whether the felling of the 345 trees was necessary for the purposes of s 42(2) and therefore could not have been “satisfied” on that matter. They point to the absence of a written record setting out the decision or the reason for it, noting that it is, instead contained in Mr Turoa’s affidavit.
[48] The applicants are critical of that affidavit for two reasons. First, while Mr Turoa says that he is aware of the relevant Reserves Act provisions, he does not assert that he considered the test under s 42(2) at the time of making the decision. And second, nor does he refer to any of the purposes of recreational reserves under s 17.
(b)That the decision was not reasonable
[49] The applicants say that if there was a decision under s 42(2), it was unreasonable and not for a permitted purpose. They cite the reasons given for the decision, which are:24
(a)Some of the trees are classified as pest plants.
(b)Some of the trees pose risks to health and safety.
23 Environmental Defence Society v Maungonui County [1989] 3 NZLR 257 (CA) at 260 per Cooke P.
24 In the evidence of Mr Majurey and Mr Turoa.
(c)Some of the trees pose risks to archaeological features.
(d)Some of the trees affect viewshafts.
(e)The project will “facilitate” the restoration of the “natural, spiritual and indigenous landscape.”
[50] However, the applicants say that the decision by the Maunga Authority was to cut down all exotic trees. This was because of their status as exotic trees and not because all exotic trees qualify under one of the first four identified reasons. Accordingly, the first four reasons are not rationally connected to the decision.
[51] Further, counsel submits that if the first four reasons were really taken into account, it was unreasonable of the decision-maker to have done so.
[52] Only the fifth consideration, restoration of the “natural, spiritual and native landscape,” might be directed to all of the exotic trees. The contemporaneous RMA consent application cites the fifth consideration as the reason for removing the trees.
[53] The applicants contend that “proper management and maintenance” of recreation reserves under s 42(2) cannot extend to the destruction of exotic trees on the mere basis that they are non-native trees. Section 42 does not distinguish native trees from exotic trees; it protects all trees equally. This is in contrast to the distinction between native and exotic trees that is drawn in other parts of the Reserves Act.
[54] The applicants say that s 109 of the Collective Redress Act does not assist the Maunga Authority. While s 109(2) and (3) require the Maunga Authority to have regard to the “spiritual, ancestral, cultural, customary, and historical significance” of the maunga and administered lands when exercising its powers and carrying out its functions in relation to them, these do not expand the Maunga Authority’s powers beyond what is provided in the Reserves Act. Indeed, the applicants say, it is plain that the Maunga Authority and Mr Turoa did not take into account the mandatory requirement to have regard to the fact that “the maunga is held by the trustee for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the
other people of Auckland.”25 The applicants say this provides further reason to quash the decision to fell the exotic trees.
[55] The applicants seek to distinguish Evans v Clutha District Council, which appears to be the only other case on s 42(2), on the basis of its facts.26
[56] Evans involved a decision by a local Council to remove two trees from a playground in Balclutha. The trees were situated in a small recreation reserve adjacent to a home. The homeowners complained to the Council, over a number of years, that the trees encroached on their property. After a number of arborists’ reports and a site inspection by the Mayor and several Councillors, the Council decided to remove both trees following a public meeting. The decision was challenged by Ms Evans, a member of the public, on three grounds, including that the Council failed to comply with s 42(2) of the Reserves Act.
[57] On s 42(2) both the High Court and the Court of Appeal accepted that the Council was satisfied that the destruction of the two trees was necessary for the proper management and maintenance of the reserve, on the basis that the trees adversely affected a neighbouring property, could be a danger in an extreme weather event and were of a size incompatible with the nature of the reserve. The Court of Appeal, upholding the decision, said these were “proper management and maintenance reasons.”27
[58] Counsel submits that the facts in Evans are simply too different from those in the present case for any analogy to hold. Further, the Council’s reasons for removing the trees were relevant to the decision made and reflected “proper management” of the reserve – which counsel contends is not so in this case.
[59] The applicants also refer to Attorney-General v Ireland, in which the Court of Appeal considered the legality of a decision relating to a reserve that was made for a
25 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, ss 109(2)(b) and 41(2).
26 Evans v Clutha District Council [2018] NZHC 3355; upheld in Evans v Clutha District Council
[2020] NZCA 5 (Evans Appeal).
27 At [40].
“purpose” not explicitly recognised in the Reserves Act.28 The Court of Appeal held that the Department of Conservation’s pursuit of the additional, unauthorised purpose was lawful, because their additional purpose did not prejudice or thwart the policy or objectives of the Reserves Act.29
[60] While that decision was later affirmed by the Supreme Court in Unison Networks Limited v Commerce Commission,30 the Supreme Court has since significantly qualified the application of the Ireland principle in Hawkes Bay Regional Investment Company Ltd v Royal Forest and Bird Protection Society of New Zealand Inc.31 In that case the Court distinguished Unison on the basis that the expert body exercising statutory power in that case, “was relatively unconstrained in identifying the broad policy considerations that it relied on.”32 Here there is a specific set of applicable policy considerations (relating to recreation reserves) set out in statute. On that basis, Mr Hollyman says the principle in Ireland and Unison has little role to play.
(c)That the decision will not conserve the qualities of the reserve identified in s 17(2)(c)
[61] The applicants say that the felling of 345 trees will not conserve the qualities of the reserve identified in s 17(2)(c) of the Reserves Act. The emphasis on “conservation” confirms that it is the existing qualities of a recreation reserve that contribute to its pleasantness, harmony and cohesion, which have value and must be preserved in their existing state. The destruction of the 345 exotic trees, all at once, will fail to conserve those qualities and so will be inconsistent with s 17(2)(c). The applicants point to the evidence they have filed as to the significant contribution made by the exotic trees to the use and enjoyment of the reserve and therefore what the loss of those trees could mean. Sir Harold Marshall, Mary Tallon, Ms Norman and Anna Redford have all given evidence in this regard. The applicants say that compelling evidence has not been contested.
28 Attorney-General v Ireland [2002] 2 NZLR 220 (CA).
29 At [42]–[45].
30 Unison Networks Limited v Commerce Commission [2007] NZSC 71, [2008] 1 NZLR 42 at [53].
31 Hawkes Bay Regional Investment Company Limited v Royal Forest and Bird Protection Society of New Zealand Inc [2017] NZHC 106, [2017] 1 NZLR 1041.
32 At [110].
[62] The applicants refer also to uncontested evidence from Mary Inomata, the President of Mt Albert Historical Society, that the decision to fell will result in the destruction of trees of considerable heritage value.33 The affidavit evidence of Philip Blakely, a landscape architect, covers the effect of felling all of the exotic trees at once, on the reserve’s environment and on visitors’ use and enjoyment. Mr Blakely says that “it is clear and obvious that cutting down the 345 mature trees on the reserve will have an immediate, significant and negative effect on its amenity as experienced by visitors in the many parts of it, and its use and enjoyment.”34
[63] The applicants’ submissions anticipate the Maunga Authority’s response, which notes that the replanting of native trees and plants, following the removal of the exotic trees, will conserve and enhance the pleasantness, harmony, use, enjoyment and amenity value of the reserve. Above, I have set out why I consider the felling and replanting are part of the same decision. Nonetheless, for s 17(2)(c) purposes, the applicants emphasise that the large majority of the new native trees and shrubs will not be planted in the spaces currently occupied by the exotic trees. In particular, some trees intended to be felled will not be directly replaced by native plants.
[64] The applicants’ experts also question the nature of the planting plan and the likely success of it, in view of what the applicants say is the Maunga Authority’s poor track record to date of planting on the reserve and at Mangere Mountain and that the method of some of the planting proposed (“mound” planting) is not proven and has no guarantee of success. Even if a positive outcome is achieved, it will only be in many years’ time. This contrasts with the immediate impact of cutting down almost of the trees on the reserve.
33 Affidavit of Mary Rose Inomata, 13 February 2020 at [9]. By way of example, Ms Inomata gives examples including an olive grove planted with seeds sent home by Jack Turner, a prisoner of war, from Palestine during World War II, eucalyptus trees known as the “penny trees” due to their seeds having been purchased at a penny apiece, a large macrocarpa planted by one of Mt Albert’s earliest (Pākehā) settlers and likely the oldest tree on the Maunga, cherry trees planted by Ethel Penman in memory of her brother Edgar who died at Gallipoli and a woodland grove planted by pupils from Mt Albert Primary School in the 1950s.
34 Affidavit of Philip Ronald Blakely, 17 February 2020 at [34].
(d)That the decision will have more than minimal impact
[65] As to s 42(3) of the Reserves Act, the applicants rely on Mr Blakely’s evidence as to the “immediate, significant and negative impact” on the amenity of the reserve from cutting down all of the exotic trees at once. He notes that the plan will result in large clusters of decaying tree stumps in many parts of the reserve; together with the immediate loss of nesting and perching habitat involved in removing all the trees at once. The applicants also rely on Andrew Barrell’s evidence as to the “significant and negative impact on the reserve’s eco-system, including many of the remaining native trees, of felling of all the trees at once.
Analysis
[66] Rather than reiterate the respondents’ comprehensive submissions in response I have simply set out the points which I accept in my reasons.
[67] The applicants’ case was put forward on the basis that Ōwairaka is a recreation reserve “governed by the Reserves Act (as confirmed by Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014…).” The submission for the applicants was that they “take no issue” with the underlying Treaty of Waitangi settlement that led to the vesting of the reserve in the Tūpuna Taonga Trust and to the creation of the Maunga Authority as the administering body of the reserve and other Maunga. They say that was a good thing. However, the effect of the applicants’ interpretative approach to the Reserves Act is to give only lip service to the Collective Redress Act and what sits behind it. Applying that approach consistently would have the effect of thwarting the underlying settlement process and what it was designed to achieve.
[68] In my view the applicants’ analysis of the relevant statutory provisions fundamentally misconstrues the overall statutory framework. I accept the submission from the respondents that the Reserves Act must be read in the context of the Collective Redress Act, which itself gives effect to the settlement of and provision of redress for historical Treaty breaches in respect of Ngā Mana Whenua, including by establishing a clear regime for the Maunga Authority to govern the Tūpuna Maunga, including the exercise of mana whenua and kaitiakitanga by Ngā Mana Whenua.
[69] Any analysis must start with the Collective Redress Act. Significantly, the Collective Redress Act:
(a)gives effect to the Collective Redress Deed;35
(b)recognises that the Maunga are taonga with which the iwi and hapū of Ngā Mana Whenua have always maintained a unique relationship and maintained their intergenerational role as kaitiaki;36
(c)restores ownership of certain Maunga and provides mechanisms by which the iwi and hapū may exercise mana whenua and kaitiakitanga over the Maunga;37
(d)is to be interpreted in a manner that best furthers the agreements expressed in the Collective Redress Deed;38
(e)notes that the Reserves Act applies to the Maunga, subject to the provisions of the Collective Redress Act,39 and see also s 5(2) of the Reserves Act:
“Except as otherwise specially provided herein, this Act in its application to any reserve shall be read subject to –
(a)any Act (whether passed before or after the commencement of this Act) …. making any special provision with respect to that reserve, whether by direct reference thereto or by reason of the reserve being vested in any particular local authority, board, or trustees, or in any local authority of a particular class, or by reason of the reserve being one of any particular class, or authorising the setting apart of any reserve for any purpose …
(f)includes a direction that the Maunga Authority, in exercising its powers and carrying out its functions in relation to the Maunga, must have regard to “the spiritual, ancestral, cultural, customary, and historical
35 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, preamble and s 3.
36 Preamble.
37 Section 3.
38 Section 7.
39 Section 47(3).
significance of the Maunga to Ngā Mana Whenua o Tāmaki Makaurau” and the fact that the trustee holds the Maunga for the common benefit of Ngā Mana Whenua and the other people of Auckland;40 and
(g)establishes the Maunga Authority, which is a co-governance body of Ngā Mana Whenua and Auckland Council.41
[70] That statutory framework is fundamental to understanding the statutory mandate of the Maunga Authority and the manner and purpose of the exercise of the Authority’s powers and compliance with its obligations under the Reserves Act. The practical effect is that ss 17 and 42 of the Reserves Act must be applied by the Maunga Authority in a way that recognises that the Maunga are taonga, allows iwi and hapū to exercise mana whenua and kaitiakitanga over the Maunga and has regard to the spiritual, ancestral, cultural, customary, and historical significance of the Maunga to Ngā Mana Whenua o Tāmaki Makaurau, as well as the fact that the Maunga is held on trust for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the other people of Auckland. That is the necessary starting point for the analysis of ss 17 and 42 of the Reserves Act.
(a)Whether felling trees will not conserve the qualities of the reserve identified in s 17(2)(c) of the Reserves Act 1977
[71] I agree with Mr McNamara that s 17 sets out principles which are high level and cannot be read as absolute requirements of law. Their language is aspirational and incompatible with objective measurement. I do not accept that they impose absolute standards, breach of which is a legally reviewable error of law. Further, as the respondents argue, s 17 sets out a range of principles together, including s 17(2)(b),
40 Section 109(2).
41 Section 107.
which specifically identifies indigenous flora as requiring protection, whereas exotic plants are not.42
[72] The concept of management and protection in s 17(2)(b) must, Mr Beverley for the Maunga Authority says, also include the concept of an enhancement as proposed under the Ōwairaka Restoration Project. Although “managed” and “protected” are not defined in the Reserves Act, “protection” is defined in s 2 of the Conservation Act 1987:
protection, in relation to a resource, means its maintenance, so far as is practicable, in its current state; but includes—
(a)its restoration to some former state; and
(b)its augmentation, enhancement, or expansion
[73] The reference in s 17 Reserves Act to the “management” and “protection” of the indigenous flora on Ōwairaka must therefore include the restoration to a former state, and that flora’s augmentation, enhancement or expansion. Mr Majurey’s evidence is that one of the key drivers of the project is to restore the native vegetation cover that once existed on the Maunga. That restoration principle is reflected in the IMP. I accept that submission.
[74] I further accept Mr McNamara’s submission for the Council that s 17(2)(c) requires an inherently subjective assessment. First, the authorised decision-maker must identify the “qualities of the reserve that contribute to the pleasantness, harmony and cohesion of the natural environment and to the better use and enjoyment of the reserve”. Then they must assess the trees’ “contribution” to the named qualities (themselves subjective concepts), and what constitutes “better use and enjoyment” of the reserve. The evidence given on behalf of the applicants by a number of individuals
42 Evans v Clutha District Council [2018] NZHC 3355 at [86]. I also note the submission for the Maunga Authority that s 53(1)(m) of the Reserves Act envisions the erection of huts for the use of persons engaged in the lawfully authorised destruction or eradication of introduced flora and fauna
– further indicating that their destruction can be compatible with the Act. Section 3 of the Reserves Act further says the Act is to be administered for the purpose of providing, for the management for the benefit and enjoyment of the public, areas possessing (amongst other things) “indigenous flora or fauna”. Ensuring the survival of “all indigenous species of flora” is also a statutory purpose: s 3(1)(b).
as to their experience and enjoyment of the reserve,43 and the landscape architect,44 illustrates this point; all express “subjective views about inherently subjective matters”.
[75] The applicants’ view of the effect of felling the trees, while a valid and sincerely held view, cannot be treated as a legal conclusion that the felling would be in breach of s 17. The Collective Redress Act acknowledges that the Maunga are taonga and that iwi and hapū have a unique relationship with the Maunga. The Maunga Authority, as the administering body, had to reach its own view as to which of the s 17(2)(c) qualities contribute to the “pleasantness, harmony and cohesion of the natural environment” and should be conserved. In doing so the Authority must have regard to the “spiritual, ancestral, cultural, customary, and historical significance of the Maunga to Ngā Mana Whenua o Tāmaki Makaurau” as well as the fact that the Maunga is held on trust for the common benefit of Ngā Mana Whenua and the other people of Auckland (a further subjective assessment).45 I am satisfied that is what the Maunga Authority did. Applying those requirements, and in light of the purposes in s 3 of the Collective Redress Act, it was plainly open to the Maunga Authority to reach a different view from the applicants as to what qualities of the reserve should be conserved or protected (including, as Mr Beverley submitted, being restored to its former, native state).
[76]I turn now to s 42.
(b)Whether the Maunga Authority failed to consider whether the cutting down of trees was necessary for the purposes specified in s 42(2)
[77] Section 42(2) requires the Maunga Authority as the administering body of the reserve to be “satisfied” that the cutting or destruction is “necessary for the proper management or maintenance of the reserve”.
[78] The applicants’ submissions frame s 42(2) as requiring a conscious decision to be made. They criticise both the Maunga Authority’s failure to consciously address
43 Sir Harold Marshall, Mary Tallon, Averil Norman, Anna Radford and Mary Inomata.
44 Philip Blakely.
45 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 109(2)(a).
s 42(2) in its decision-making process, and the lack of a contemporaneous record as to any consideration of s 42(2).
[79] I accept the respondents’ submission that the Reserves Act does not require a particular documented decision be made under s 42(2) confirming felling the trees is necessary. The statutory powers under which the decision was made were ss 40 and 53(1)(o). I agree too that s 42(2) does not impose an objective standard of necessity. It is a constraint on the exercise of a power, in the form of certain prerequisites that must be satisfied as a matter of fact before trees or bushes are destroyed.
[80] Further, given no trees have been felled as yet and the s 42(2) prohibition is not engaged, Mr Majurey is able to demonstrate that the s 42(2) prerequisite is satisfied by setting out the present position of the Maunga Authority in his affidavit:
The Authority is also aware that Ōwairaka/Te Ahi-kā-a-rakataura is a recreation reserve under section 17 of the Reserves Act. In terms of section 42(2) of that Act, I confirm, for the reasons set out in this affidavit, that the Authority considers that the proposed tree removals at Ōwairaka/ Te Ahi-kā- a-rakataura are necessary for the proper management and maintenance of the reserve, for the management and preservation of other trees and bush and in the interests of the safety of persons. In terms of section 42(3), I confirm, for the reasons set out in this affidavit, that the Authority is also satisfied that the tree removals will be undertaken in a manner that will have a minimal impact on the Maunga and that an appropriate revegetation programme is in place.
(c)Whether the decision to fell trees was unreasonable and not for a permitted purpose by reference to s 42(2)
[81] What is required is that the Maunga Authority, as the administering body, is satisfied as to the necessity of the destruction for the proper management or maintenance of the reserve. In my view “necessary” as used in s 42(2) is at the “expedient or desirable” end of the spectrum of possible meanings.46
[82] Section 109(2) of the Collective Redress Act informs what amounts to “proper management” of the reserve under s 42 of the Reserves Act. The proper management of Ōwairaka and the other Maunga subject to the Collective Redress Act involves a broader range of matters than is the case for recreation reserves subject only to the Reserves Act.
46 See Evans Appeal, above n 26, at [40].
[83] The Maunga Authority necessarily brings to its role not just the conventional “reserves management” expertise on which the applicants focus, but also its understanding of and expertise in the spiritual, ancestral, cultural, customary and historical significance of the Maunga, including Ōwairaka, for mana whenua.
[84] The evidence of both Mr Turoa and Mr Majurey addresses the spiritual, ancestral, cultural, customary and historical significance of the Maunga and the contribution of the proposed ecological restoration programme to the recognition and protection of those values.47 That evidence provides support for the Maunga Authority’s position that removal of the trees is necessary in order to open up volcanic sightlines, remove destruction of archaeological sites and restore cultural landscapes.48 This evidence also addresses the spiritual, ancestral, cultural, customary and historical significance of these objectives to Mana Whenua. Other considerations are also addressed, such as pest status, health and safety and practical considerations around undertaking the removal project in one swoop and in a manner that causes minimal disturbance to the Maunga.
[85] Mr Turoa’s summary was underpinned by the expert advice he received from, amongst others, tree removal methodology experts, ecology experts, an expert in landscape architecture, an expert archaeologist and an expert resource management planner.
[86] The Maunga Authority further submits that a project to remove exotic vegetation and restore native vegetation on a recreation reserve is consistent with the reserve’s status as a recreation under the Reserves Act and the purposes of that Act. The Maunga Authority and the Council are entitled to take a long-term view of what is appropriate for Ōwairaka.49 Indeed, the Maunga Authority says, that approach is at the heart of the Māori world view, underscored by the Treaty settlement context.
47 This is consistent with s 109(2)(a) of the Collective Redress Act.
48 See Affidavit of Nicholas Henry Turoa, 31 January 2020 at [47].
49 Evans Appeal, above n 26, at [41].
[87] The applicants dispute the basis on which the Maunga Authority’s decision to remove the 345 exotic trees, and to do so in one operation, was made. The applicants’ expert witnesses canvas:
(a)arguments that the high-level nature of the IMP does not fulfil the requirements of a management plan under the Reserves Act;50
(b)arguments that removal of almost half the mature trees on the reserve is a significant policy decision that should be part of a management plan; it is not an operational matter;51
(c)the negative arboricultural effects of the tree felling;52 and
(d)the negative amenity effects of the tree felling on users of the reserve, lack of consideration of the heritage value of the trees to be removed; the significant negative visual impact of removing all 345 trees at the same time, the likely loss in birdlife and the short to medium term loss in character and seclusion.53
[88] I reiterate my comments at the beginning of this judgment regarding the role of the Court on review. I am focussed on whether there was a reasonable and legitimate basis on which the Maunga Authority could legitimately make its decision on the information available to it. It is not my role to second-guess the Maunga Authority’s justifiable conclusions on a range of evidence before it.54
[89] Mr Hollyman suggested that s 42 required the Maunga Authority to consider each tree individually in making a decision as to whether felling was necessary. There is nothing on the face of s 42(2) to suggest that is a requirement and no specific authority was cited for the proposition. I do not accept that is a requirement but, in any event, the evidence of Mr Turoa and Bradley Beach (an arboricultural project manager whose company provided a report on tree removal methodology to the
50 Reply Affidavit of Christopher (Kit) Hoyles Howden, 18 February 2020.
51 Reply Affidavit of Christopher (Kit) Hoyles Howden, 18 February 2020.
52 Unsworn Affidavit of Andrew Francis Barrell, filed 21 April 2020.
53 Affidavit of Philip Ronald Blakely, 17 February 2020.
54 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [191].
Maunga Authority) is that the latter made an individual assessment and report of all 787 trees on the Maunga, covering their height, age, condition, likelihood and consequences of failure, impacts on viewshafts and pest status.55
[90] The Maunga Authority had to be satisfied that cutting down the trees was necessary for the proper management or maintenance of the reserve, as a recreation reserve, having regard to the principles in s 17 of the Reserves Act. I have already found that s 17 sets out principles and that the factors listed in s 17(2)(c) are not susceptible to any one, objective and “correct” answer. Both on the terms of s 17 itself, and having regard to the requirements to interpret it in light of ss 3, 7 and 109(2) of the Collective Redress Act, the Maunga Authority was entitled under s 42 to make its assessment as to what was necessary regarding those factors.
[91]I bear in mind the Court of Appeal’s decision in Evans:56
While the Council did not use the word “necessary” we are satisfied that they decided in effect that destruction of the trees was necessary for the proper management and maintenance of the reserve for essentially the same reasons noted at [22] above. Their primary reason was recorded in the minutes – that the trees were inappropriate for the location and should be replaced with plantings that will not grow too large and are in keeping with the structure of other plantings in the reserve. These are “proper management and maintenance” considerations.
[92] I consider the decision is applicable, insofar as it confirms that “proper management and maintenance considerations” is not bounded so narrowly as the applicants would have me find.
[93] I conclude that there was a sufficient basis for the Maunga Authority to reach the conclusion that the felling of the trees was necessary for the proper management of the reserve. The decision to return the Maunga to a state of native vegetation, in order to reflect the traditional relationship between Mana Whenua and the Maunga, to protect historical and archaeological features of the Maunga and to open up viewshafts and defensive site lines from Maunga to Maunga, was consistent with having regard to the spiritual, ancestral, cultural, customary, and historical significance of the
55 Affidavit of Bradley William Beach, 31 January 2020.
56 Evans Appeal [2020] NZCA 5 at [40].
Maunga to Ngā Mana Whenua and the expert advice that Mr Turoa received and considered. I also do not consider it was inconsistent with the Maunga being held by the Maunga Authority on trust “for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the other people of Auckland”.
[94] Further, I consider that taking “a long-term view” of the needs of the Reserve, including when making decisions about long-term planting decisions, can be consistent with proper management and maintenance of a reserve.57 In this case, it is inherent in s 109 of the Collective Redress Act that the Maunga Authority should take a long term view.
(d)Whether the felling of almost half of the trees on the reserve at the same time will not have a “minimal impact” in terms of s 42(3)
[95] Section 42(3) of the Reserves Act relevantly requires that the removal of trees shall not proceed “except in a manner which will have a minimal impact on the reserve and until, as circumstances warrant, provision is made for replacement, planting, or restoration”, as well as that the method of removal be one “which will have minimal impact on the reserve”.
[96] I agree with Mr McNamara that s 42(3) is not directed at minimal impact on the trees being removed themselves and does not require that the final result, after removal of the trees, will be minimal impact on the reserve. “In a manner” means what it says – it focuses on the impacts of the manner or method of removal.
[97] In any event, the expert evidence received by Mr Turoa from Mr Beach (as to tree removal methodology) and Brent Druskovich (as to preservation of the archaeology and cultural landscape) is that the trees will be removed in an arboriculturally sound and proper way with minimal impact on the reserve.
[98] If, as the applicants contend, s 42(3) requires that there be no more than minimal impact on the reserve as a whole, the evidence is that provision has been made
57 Evans Appeal, above n 26, at [41].
for replacement, planting or restoration (and indeed, consent was sought and granted for a large-scale restoration programme).
[99]For these reasons, I am satisfied that the decision does not fall afoul of s 42(3).
Other matters relevant to the first ground of review
[100] Mr Beverley for the Maunga Authority urged me to apply s 4 of the Conservation Act 1987, and thus the principles of the Treaty, to the interpretation of the Reserves Act. He cites the Supreme Court’s decision in Ngāi Tai ki Tāmaki v Minister of Conservation in which the Court confirmed the powerful effect of the Treaty principles and s 4 in the context of Reserves Act decisions. 58
[101] Section 4 applies to the Conservation Act and to Acts listed in Schedule 1, including the Reserves Act. It provides:
4 Act to give effect to Treaty of Waitangi
This Act shall be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi.
[102] I have not found it necessary to consider the specific application of s 4 in this context, given that, as I have found, the Reserves Act cannot be interpreted in isolation from the Collective Redress Act. As Mr Majurey notes in his evidence, the Collective Redress Act, and the Collective Redress Deed it gives effect to, reflect the Treaty principles of redress, active protection of Mana Whenua interests and, in the co- governance structure of the Maunga Authority, partnership. The Collective Redress Act also reflects a Māori world view, including recognition of the intergenerational responsibility of Mana Whenua as kaitiaki. Inherent in that is a long-term view of what is required in the management of the Maunga.59
[103] My initial view therefore is that the effect of s 4 of the Conservation Act, as Mr Beverley argues for it, is in substance the position arrived at by an analysis of the Reserves Act, read in the context of the Collective Redress Act. While it is possible
58 Ngāi Tai ki Tāmaki v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368.
59 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 109.
that s 4 of the Conservation Act could have greater relevance to a future case, I do not consider I need to resolve its application in this instance.
Second ground of review: failure to consult
The applicants’ submissions
[104] The applicants say there was an obligation on the Maunga Authority to consult regarding the decision to fell the 345 exotic trees and that the Maunga Authority failed to do so.
[105] The duty is framed in the statement of claim as a requirement to consult with interested members of the Auckland public, including those in the position of the applicants, and prior to taking the Decision.
[106] A duty to consult can arise explicitly or implicitly from a statute, through a legitimate expectation of consultation arising from a promise or past practice, or as a common law incident of fairness.60 Where such a duty arises, the parties who are entitled to be consulted must be sufficiently apprised of the proposal in order to know what it is – and they must be consulted at a point when their input could still have some effect.61
[107]In particular, the duty here is said to have arisen from:
(a)the statutory context;
(b)the Maunga Authority’s public representations through the IMP (including that there would be individual management plans for each reserve);
(c)the past practice of consultation by administering bodies of reserves;
(d)the public importance of the reserve; and
60 Nicholls v Health and Disability Commissioner [1997] NZAR 351 (HC) at 370, per Tipping J.
61 Wellington International Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR 671 (CA) at 676.
(e)the significance of the decision.
[108]I summarise their submissions on each head.
The statutory context
[109] First, regarding the statutory context, the applicants say that both the Collective Redress Act and the Reserves Act support an obligation to consult. They refer particularly to the Collective Redress Act’s statement that the reserve is held on trust “for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the other people of Auckland”, to which the Maunga Authority must have regard when exercising its powers and carrying out its functions.62 The applicants emphasise the reference to the “other people of Auckland” alongside named iwi and hapū, the fact that the land is held on trust (which the applicants say imports “a significant depth of political meaning”) and that it is held on trust for their common benefit.
[110] Regarding the IMP, the applicants point to the requirement in the Collective Redress Act that the Maunga Authority prepare an IMP applicable to the reserve.63 That plan is subject to s 41 of the Reserves Act,64 which contains consultation requirements, most relevantly:
(5)Before preparing a management plan for any 1 or more reserves under its control, the administering body shall—
(a)give public notice of its intention to do so; and
(b)in that notice, invite persons and organisations interested to send to the administering body at its office written suggestions on the proposed plan within a time specified in the notice; and
(c)in preparing that management plan, give full consideration to any such comments received.
(5A) Nothing in subsection (5) shall apply in any case where the administering body has, by resolution, determined that written suggestions on the proposed plan would not materially assist in its preparation.
62 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, ss 41(2) and 109(2)(b).
63 Section 58(1) states that the Maunga Authority must prepare and approve an IMP applicable to the reserve.
64 Section 58(3) explicitly states that s 41 of the Reserves Act applies to an IMP, with any necessary modifications, but subject to that section.
(6)Every management plan shall be prepared by the administering body in draft form in the first place, and the administering body shall—
(a)give public notice complying with section 119 stating that the draft plan is available for inspection at a place and at times specified in the notice, and calling upon persons or organisations interested to lodge with the administering body written objections to or suggestions on the draft plan before a specified date, being not less than 2 months after the date of publication of the notice; and
(aa)on giving notice in accordance with paragraph (a), send a copy of the draft plan to the Commissioner; and
(b)give notice in writing, as far as practicable, to all persons and organisations who or which made suggestions to the administering body under subsection (5) stating that the draft plan has been prepared and is available for inspection at the place and during the times specified in the notice, and requiring any such person or organisation who or which desires to object to or comment on the draft plan to lodge with the administering body a written objection or written comments before a specified date, being not less than 2 months after the date of giving of the notice; and
(c)make the draft management plan available for inspection, free of charge, to all interested persons during ordinary office hours at the office of the administering body; and
(d)before approving the management plan, or, as the case may require, recommending the management plan to the Minister for his or her approval, give every person or organisation who or which, in lodging any objection or making any comments under paragraph (a) or paragraph (b), asked to be heard in support of his or her or its objection or comments, a reasonable opportunity of appearing before the administering body or a committee thereof or a person nominated by the administering body in support of his or her or its objection or comments; and
(e)where the management plan requires the approval of the Minister, attach to the plan submitted to him or her for approval a summary of the objections and comments received and a statement as to the extent to which they have been allowed or accepted or disallowed or not accepted.
[111] The IMP produced by the Maunga Authority left the individual management plans for each reserve for another day. Each of those plans, the applicants say, will have to comply with the Reserves Act’s “exhaustive” requirements as to public consultation, per the process set out above, and regarding the content of the plans:65
65 Reserves Act 1977, s 41(3).
(3) The management plan shall provide for and ensure the use, enjoyment, maintenance, protection, and preservation, as the case may require, and, to the extent that the administering body’s resources permit, the development, as appropriate, of the reserve for the purposes for which it is classified, and shall incorporate and ensure compliance with the principles set out in section 17 …
[112] Counsel for the applicants submit these provisions reflect a Parliamentary intent that the Maunga Authority consult with the public on how it proposes to manage the reserve.
Representations by the Maunga Authority and in the IMP
[113] Second, the applicants rely on the purported representation by the Maunga Authority that it would consult on how it would manage appropriate exotic vegetation of each reserve. They point to various provisions within the IMP, including:
(a)In the foreword:
Future individual maunga plans will provide an opportunity for us to work closely with the Local Boards and diverse communities to produce plans that capture and enhance the unique qualities of each maunga.
(b)Under the heading “Introduction”:
1.19In addition, there will be individual Tūpuna Maunga Plans reflecting the Values and Pathways, overarching guidelines and strategies for each of the Tūpuna Maunga. These plans will detail the care and management of each Tūpuna Maunga. …
(c)Under the heading “Individual Tūpuna Maunga Plans”:
9.24 Following the preparation of the above guidelines and strategies, individual Tūpuna Maunga Plans will be prepared. These Plans will give effect to the Values, Pathways, guidelines and strategies.
…
9.26 The Tūpuna Maunga Plans must, as a minimum, address:
…
10.Manage vegetation to protect cultural features and visitor safety;
…
22.Native planting and ecological restoration and enhancement;
23.Proactively manage plant pests and inappropriate exotic vegetation;
[114] They also refer to comments in the Authority’s response to a submission made on behalf of the Friends of Maungawhau (FOM) expressing concern with the draft IMP (specifically its use of general language like “appropriate” and “inappropriate” in referring to trees, noting that some exotic trees have heritage significance and seeking confirmation that some examples of exotic trees would be kept):
It is acknowledged that not all exotic species are necessarily pests and many have heritage significance. This assessment will occur as part of the development of the Tūpuna Maunga plans. An amendment to the list of individual Tūpuna Maunga plan actions and specifically the bullet point dealing with the management of exotic vegetation and plant pests is recommended.
…
The suggestion to use more directive language in certain situations will be more appropriate, and will be considered, in the detail provisions developed for the individual Tūpuna Maunga Plans.
[115] The applicants further point to evidence of Christopher Parkinson, a member of the Maunga Authority until late 2019, who says based on his experiences at the Authority that the Authority always intended individual management plans for each reserve to be developed, and that he believes there would have been consultation on matters including the management of exotic vegetation.66
Past practice of consultation
[116] Third, the applicants rely on the alleged past practice of consultation by administering bodies. They cite the evidence of Kit Howden, who sets out his extensive experience in the management of public spaces such as reserves, and his experience of drafting management plans.67 Mr Howden also discusses what, in his view, management plans are expected to look like, in terms of level of detail. Counsel says Mr Howden’s experience is applicable in assessing decision-making by the Maunga Authority.
66 Reply Affidavit of Christopher Connell Parkinson, 13 February 2020 at [14]–[23].
67 Reply Affidavit of Christopher (Kit) Hoyles Howden, 18 February 2020.
Public importance of the reserve
[117] Fourth, the applicants point to the public importance of the reserve. The applicants refer to the tens of thousands of Aucklanders who visit and enjoy the Ōwairaka reserve every year and the specific experience of those local people who have given evidence about the value of their connection with Ōwairaka and the value they place on it.
Significance of the decision
[118] Fifth, the applicants note that the felling of the trees is an extremely significant decision in the context of Ōwairaka, which will result in “immediate radical and permanent change.
The respondents’ submissions
[119] The Maunga Authority and the Council refute any obligation to consult. Their submissions are in two categories – first disputing any statutory obligation to consult regarding the decision under review (or any parallel common law duty), and second outlining the extent of the consultation which occurred.
The statutory context
[120] Both the Maunga Authority and the Council contend that the statutory framework points away from the duty asserted by the applicants. Both the Reserves Act and the Collective Redress Act specifically provide for consultation before certain decisions affecting a reserve are made. These include:
(a)preparing the IMP and Annual Operational Plan for the Tūpuna Maunga;68
(b)preparing motu plans;69
(c)declaring a reserve to be a national reserve;70
68 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, ss 58(3) and 60(5).
69 Sections 89–101.
70 Reserves Act 1997 s 13.
(d)classifying and changing the classification of reserves;71
(e)vesting reserves;72
(f)adopting and amending a management plan;73
(g)revoking a conservation management plan;74
(h)setting aside a wilderness area;75
(i)granting a right of way or easement over a reserve (in some circumstances);76
(j)granting a licence for a communications station;77
(k)granting certain permits, leases and licences over a reserve;78 and
(l)commencing or contracting for the afforestation of a reserve.79
[121] By contrast, there is no express obligation to consult before exercising any of the general powers relating to recreation reserves in s 53 or before making a decision to which s 42 applies.
[122] Both the Maunga Authority and the Council submit that these examples reflect a conscious Parliamentary distinction in the Reserves Act between situations when public consultation is required and when it is not. Against that background, the Maunga Authority submits that it neither necessary nor appropriate to read in common law or other consultation obligations in relation to the Ōwairaka project.
In my view, the principles to be applied to the plaintiff’s contention that the Council’s decision in this case was unreasonable are well-settled and follow the Wednesbury test. The Council’s decision may be set aside if the decision was so irrational that no decision maker, acting reasonably, could have arrived at that decision.
[309] In Webster v Auckland Harbour Board Cooke P framed this as a decision “outside the limits of reason”.201
[310] Mr McNamara says there is nothing to suggest, based on the information Mr Kaye had before him, that his assessment of the level of adverse effects was so irrational that no decision-maker, acting reasonably, could have arrived at the
200 Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council
[2014] NZHC 3405, [2015] NZRMA 113 at [52] (footnotes omitted).
201 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 131; cited in Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [190].
Notification Decision he did. The Council’s decision that the adverse effects were no more than minor was one that was reasonably open to it.
[311] Mills v Far North District Council involved evidence filed by members of the community in order to challenge the reasonableness of a council’s conclusion that the environmental effects of a proposal were minor or less-than-minor.202 Justice Fitzgerald dismissed the relevance of those affidavits, stating:203
Nor are the subjective and non-expert views of members of the community, expressed in several additional affidavits adduced by the applicants, relevant or persuasive for these purposes. While I accept those views are no doubt genuinely and firmly held, many activities for which resource consent is sought will be unpalatable to some members of the community. That does not make them unreasonable.
[312] Her Honour was not satisfied, on the available evidence, that the Council’s notification decision was a decision no reasonable consent authority could have reached.204
[313] In the Council’s submission the same conclusion must be reached here. The Council’s determination as to the level of adverse effects was not so irrational that no decision-maker, acting reasonably, could have arrived at it. Nor was it outside the limits of reason.
Analysis
[314]The applicants acknowledge that Mr Kaye was aware of the factors set out at
[307] above. They say that having that knowledge it was unreasonable for him to reach the Notification Decision he arrived at.
[315] An articulation of the reasonableness test in this context is contained in Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council:205
202 Mills v Far North District Council [2018] NZRMA 113, at [52] (footnotes omitted).
203 At [192].
204 At [193].
205 Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council
[2014] NZHC 3405, [2015] NZRMA 113 at [52] (footnotes omitted).
[52] … In my view, the principles to be applied to the plaintiff’s contention that the Council’s decision in this case was unreasonable are well settled and follow the Wednesbury test. The Council’s decision may be set aside if the decision was so irrational that no decision maker, acting reasonably, could have arrived at that decision.
[316] The evidence of the applicants’ experts Mr Barrell and Mr Blakely provides the basis for their view that the Council’s decision not to notify the Application was unreasonable.
[317] On the other hand, the Maunga Authority has provided affidavit evidence from Dr Mitchell, who has extensive experience in the planning and resource management area. Dr Mitchell reviewed the information that was before Mr Kaye and comments on the process undertaken for the resource consent. He concludes:206
“20. On the basis of those technical assessments, the conclusions reached in the notification decision regarding adverse effects are, in my opinion, logical and appropriate. I would add further that in light of the conclusions of the various technical specialists, I consider that it would have been inappropriate for the notification decision to have reached a different conclusion.
30. In my opinion, the Auckland Council followed a valid and appropriate process when determining that the subject resource consent application should be processed without public notification.”
[318] In Mills, as in this case, the Court was faced with competing expert evidence as to whether the effects on the environment would be more than minor. Justice Fitzgerald noted:207
What that analysis invites, however, is no more than a “battle of experts”. I anticipate that in areas such as this, which involve value judgements and subjective views, a range of experts could come to a range of conclusions.
[319] As in Mills, the issues in dispute in this case involve judgements and subjective views. A range of experts can come to a range of conclusions. Ms Norman, as an applicant, and other members of the community, have filed affidavits in support of the application for review, setting out what are plainly genuine and strongly held views on these questions. However, they are not relevant or persuasive for this purpose. Many activities for which resource consent are sought will be undesirable from the
206 Unsworn Affidavit of Dr Philip Hunter Mitchell, filed April 2020.
207 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [191].
perspective of some members of the community. That does not make the Council’s decision unreasonable.
[320] On the evidence before me I am not satisfied that the Council’s Notification Decision was a decision that no reasonable consent authority could have reached. I do not discern any error of approach or unreasonableness in the conclusion reached. It is not enough that others may have reached a different conclusion. The decision is not unreasonable or irrational in the sense required.
Public Notification: “special circumstances”
[321] The applicants challenge Mr Kaye’s decision (for the Council) under s 95A that public notification was not required because there are no special circumstances that warrant public notification.208
[322]The relevant passage from the Notification Decision reads:
Under step 4, there are no special circumstances that warrant the application being publicly notified because there is nothing exceptional or unusual about the application, and the proposal has nothing out of the ordinary run of things to suggest that public notification should occur. The proposal reflects the directions and purposes set out in the approved Integrated Management Plan (IMP) administered by the Tūpuna Maunga o Tāmaki Makaurau Authority.
[323] That was informed by the relevant passage of the Notification and Substantive Report, which read:
Special circumstances are those that are:
·exceptional or unusual, but something less than extraordinary;
·outside of the common run of applications of this nature; or
·circumstances which makes notification desirable, notwithstanding the conclusion that the adverse effects will be no more than minor.
In this instance I have turned my mind specifically to the existence of any special circumstances and conclude that there is nothing exceptional or unusual about the application, and that the proposal has nothing out of the ordinary run of things to suggest that public notification should occur as:
208 Under the Resource Management Act 1991, s 95A(9).
• The proposed tree removals and ancillary works (including management techniques), and the management of the open space zoned land is generally consistent with the direction of the AUP:OP as applied through the discretion of the relevant activities of the AUP:OP, with the range of matters relevant to the development provided for in the plan specifically as either restricted discretionary or discretionary activities. Furthermore, the assessment above has not identified any aspect of the receiving environment or any other factor that would give rise to special circumstances. Therefore, I consider that making of an application for the activity cannot be described as out of the ordinary and giving rise to special circumstances. Therefore in this instance I conclude there are no special circumstances.
[324]The challenge is based on two submissions:
(a)that the portion of the Notification Decision regarding special circumstances failed to take into account relevant considerations; and
(b)it was unreasonable.
Law
[325] Special circumstances are not defined in the RMA. The parties agree that the Court of Appeal’s explanation of “special circumstances” in Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu applies:209
A “special circumstance” is something … outside the common run of things which is exceptional, abnormal or unusual but less than extraordinary or unique. A special circumstance would be one which makes notification desirable despite the general provisions excluding the need for notification.
[326] There is limited scope for judicial review of a decision as to whether special circumstances exist. Justice Venning in Urban Auckland, Society for the Protection of Auckland City and Waterfront v Auckland Council observed that such a decision:210
… involves the exercise of discretion based on the Council’s assessment of the factual position and use of its expertise and judgment.
209 Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu [2013] NZCA 221 at [36] (footnotes omitted); citing White J’s decision below in Te Rūnanga-ā-Iwi o Ngāti Kahu v Carrington Farms Ltd (2011) 16 ELRNZ 664 (HC) at [84], in which White J applied Peninsula Watchdog Group (Inc) v Minister of Energy [1996] 2 NZLR 529 at 536; and citing Murray v Whakatane District Council [1999] 3 NZLR 276 (HC) at 310; affirmed [1999] 3 NZLR 325 (CA).
210 Urban Auckland, Society for the Protection of Auckland City and Waterfront v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 at [137]; citing S&M Property Holdings Ltd v Wellington City Council [2003] NZRMA 193 (HC) at [48].
[327] I also note also Simon France J’s observation in the High Court judgment of Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council, that a Council’s decision as to special circumstances is not immune from review, it “is an area where experience is an important component in assessing whether an application gives rise to special circumstances” and any review “must recognise the familiarity a Council has with resource consent applications”. 211
[328]I turn to the applicants’ submissions.
Failure to take into account relevant considerations
[329] The matters the Commissioner is said to have failed to take into account were, first, the absence of consultation with the public, including local residents and users of the reserve. The applicants refer to the statement in the AEE and statutory assessment provided to Mr Kaye where the Maunga Authority and the Council said that the Authority had engaged with the general public as part of the consultation process for the formation of the IMP, which has “clear expectations with respect to exotic vegetation and the cultural significance of the restoration of the Maunga…”
[330] The applicants say this is assertion rather than information.212 The actual content of the IMP did not reflect “clear expectations with respect to exotic vegetation.” As a consequence, Mr Kaye evidently failed to consider the IMP and what was consulted on.
[331] Second, Mr Kaye failed to take into account the actual content of the IMP. The applicants criticise the statement in his written decision that the proposal “reflected the directions and purposes” of the IMP, when it did not.
[332] Third, Mr Kaye failed to take into account the inconsistency of the Application with the directions set by the AUP. Mr Barrell, who gave expert evidence for the
211 Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council HC Wellington CIV-2007-485-636, 21 November 2007 at [131]. That case was upheld on appeal in Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council [2009] NZCA 73, (2009) 15 ELRNZ 144.
212 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [146] per Tipping J.
applicants, states that the Application was inconsistent with the direction set by chapter
E.16 of the AUP.213 That was a matter relevant to whether there were special circumstances warranting public notification.
[333] Fourth, Mr Kaye failed to take into account the fact that there was almost certain to be a strong public interest in the Application, given the substantial, historic and widespread use of the Maunga by the people of Auckland. The applicants rely by analogy on the finding in Kawau Island Action that:214
In particular, it is the location of the boatshed incorporating the helicopter landing pad on a public beach which gives rise to special circumstances. To that extent, the proposal differs from the example [of a helipad elsewhere in Herne Bay] given by the Council in its decision…which is a more isolated location away from a main beach.
[334] The applicants submit that the felling of 345 mature trees in an urban public space clearly affects users, at least to the same degree as the construction of a helipad on a beach in Herne Bay, and therefore must constitute special circumstances warranting public notification.
The decision was unreasonable
[335] The applicants rely on their previous submissions and Mr Barrell’s evidence that, in his experience of dealing with hundreds of consent applications relating to trees, the Application was “clearly exceptional”.215
The Council’s submissions
[336] The Council emphasises the limited scope of review in this context and that Mr Dales and Mr Kaye are both very experienced resource management practitioners, with many years of experience in their respective roles as reporting planner and independent commissioner. In particular, Mr Kaye has given evidence that he has been the decision-maker on a large number of resource consent applications to remove and/or alter trees. Both are well placed to determine whether a resource consent
213 Unsworn Further Reply Affidavit of Andrew Francis Barrell, filed 21 April 2020, at [8].
214 Kawau Island Action Inc Soc v Auckland Council [2018] NZHC 3306, (2018) 20 ELRNZ 848 at [168].
215 Unsworn Further Reply Affidavit of Andrew Francis Barrell, filed 21 April 2020, at [5].
application is outside the common run of things, exceptional, abnormal or unusual. Their determination was that the Application was not.
[337] Whether there were “special circumstances” was considered in the Notification Recommendation which was received and taken into account by Mr Kaye for the Notification Decision. Both the Notification and Substantive Report and the Notification Decision discuss “special circumstances” in language mirroring the definition in Far North District Council v Te Rūnanga-ā-Iwi O Ngāti Kahu,216 assessing whether the Application featured anything “exceptional or unusual” and whether the proposal featured anything “out of the ordinary run of things”.
[338] The Council submits this was sufficient. The decision-maker turned his mind to the statutory test and reached a clear conclusion, based on his assessment of the factual position and use of his expertise and professional judgement. There is no requirement for a decision-maker to set out and dismiss a range of circumstances (such as those listed in the Amended Statement of Claim or the applicants’ written submissions) that he or she has found not to meet the threshold of special circumstances.
[339] The Council addresses the applicants’ specific allegations regarding the decision in the following terms.
Failure to take into account relevant considerations
[340] The Council says that the true ground for judicial review is a failure to take into account mandatory relevant considerations – those for which consideration is explicitly or impliedly required by the statute in the context.217
[341] For the applicants to be successful, it is not enough to show that a consideration:218
216 Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu [2013] NZCA 221 at [36], [38] and [39].
217 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183.
218 At 183.
(a)was open to the Council to take into account (a permissible relevant consideration); or
(b)would have been sensible or desirable for the Council to take into account; or
(c)is one which another person, including an expert, considers should have been taken into account; or
(d)the Court would have taken into account if it were the primary decision-maker.
[342] Rather, the applicants must establish that Parliament, through the RMA, has required the Council to take the matter into account. Given the limited statutory guidance as to mandatory relevant considerations in this context, this is a very high threshold to overcome.
[343] Further, the RMA must be interpreted in a sensible and practical way. The 2009 amendments to the RMA were intended “to provide greater certainty to councils in relation to non-notification decisions and to facilitate the processing of resource consents on a non-notified basis”.219 Counsel says that the Act’s workability would be undermined if decisions were vulnerable unless they addressed a long list of considerations devised by those who wish to challenge their decisions.
[344] Counsel submits that the Council is a specialist body empowered to make the Notification Decision by Parliament. The mandatory relevant considerations for notification and substantive decisions on resource consent applications under the RMA are accordingly framed in reasonably broad terms to reflect that dynamic – such as “adverse effects on the environment”. Through this broad expression, Parliament intended to give consent authorities latitude to determine what matters are appropriate to take into account, and what weight to give them (subject to overall reasonableness).
219 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA 73 at [40].
[345] As to the specific matters the applicants claim the Council failed to take into account when determining there were no special circumstances warranting public notification, Mr McNamara makes the following submissions.
Alleged absence of consultation
[346] The Council submits there is nothing in the RMA, nor in the case law, that suggests that the nature or extent of consultation (whether under the RMA or any other legislation) that has been carried out is a mandatory relevant consideration when considering whether special circumstances exist. In fact, the RMA specifically provides that a resource consent applicant has no duty under that Act to consult any person about an application.220 An argument that a lack of consultation is in itself a special circumstance warranting public notification is also difficult to support in light of that provision.
Actual content of the IMP
[347]The Council notes that:
(a)the Notification Decision records that Mr Kaye did review the IMP;
(b)Mr Kaye’s affidavit confirms that not only did he consider the IMP, he obtained a copy on his own initiative as a copy was not provided in the materials provided to him by the Council,221 and he amended the draft decision that had been provided to him by Mr Dales to include, when determining there were no special circumstances that warranted public notification, an additional statement confirming his opinion that “the proposal reflects the directions and purposes set out in the approved [IMP] administered by the [Maunga Authority]”; and
(c)in any event the content of the IMP was not a mandatory consideration when deciding whether there were special circumstances that warranted public notification.
220 Resource Management Act 1991, s 36A.
221 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020 at [27] and [33].
Alleged inconsistency with the direction set by the AUP
[348] The Council does not accept that the Application is inconsistent with the direction of the AUP, and relies on the conclusions reached in the Substantive Decision that the proposal was considered to provide for an acceptable outcome in respect of the relevant statutory documents; consistent with the outcomes anticipated by the “Outstanding Natural Features” and “Heritage” overlay provisions of the AUP and with the relevant matters for consideration under the AUP.
[349] However, the Council says that even if the Application was inconsistent with the direction of the AUP, it does not necessarily follow that this was a mandatory consideration the Council should have taken into account when determining if there were special circumstances, or that the inconsistency itself was a special circumstance. In Mills Fitzgerald J considered whether inconsistency with the general policy of the relevant planning documents would give rise to special circumstances and held:222
I do not consider the mere fact that construction of the sheds does not “fit” within the general policy of the District Plan means their construction is exceptional, abnormal or unusual, in the sense of giving rise to special circumstances.
Public interest
[350] The Council says the case law is clear that public interest or concern about an application does not of itself constitute a special circumstance.223
[351] The Council submits that neither the likelihood of public interest, nor the fact that Ōwairaka is visited or used by large numbers of people, is sufficient to constitute a special circumstance, or are mandatory relevant considerations, nor special circumstances.
[352] As to Kawau Island Action Inc Society, the Council says not only are the facts not analogous, but the fact that one consent application has been considered by the
222 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [179].
223 Classic Developments NZ Ltd v Tauranga City Council [2020] NZHC 945 at [53];Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 at [137]; and Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 575.
High Court to be unusual, exceptional or outside the ordinary run of things to warrant public notification provides no assistance and creates no precedent as to whether a completely unrelated consent application might also.224
Unreasonableness
[353] In the Council’s submission, the applicants have failed to meet the high threshold to establish unreasonableness. The Notification Decision’s conclusion that there were no special circumstances that warranted public notification was a decision that was open to Mr Kaye, in light of the factual circumstances, the information before him and on the basis of his experience. Notwithstanding the contrary opinion held by Mr Barrell, Mr Kaye’s decision (for the Council) was not so irrational that no decision- maker, acting reasonably, could have arrived at that decision.
Analysis
[354] The broadness of “special circumstances” in the RMA and the degree of discretion afforded to a council making the determination limit the scope of judicial review in this context. A report providing no elaboration for a conclusion that there are no special circumstances leaves itself open to criticism.225 But “this is an area where experience is an important component in assessing whether an application gives rise to special circumstances: “any review must recognise the familiarity a council has with a resource consent application”.226
[355] Both Mr Dales, in his Notification Recommendation, and Mr Kaye, in his Notification Decision, specifically addressed whether there are special circumstances. They use the language of Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu. I am satisfied that this was more than formulaic. Mr Kaye confirms in his affidavit that he turned his mind to this question.227
224 Kawau Island Action Inc Soc v Auckland Council [2018] NZHC 3306, (2018) 20 ELRNZ 848.
225 Royal Forest & Bird Protection Society Inc v Kapiti Coast District Council HC Wellington CIV-2007-485-636, 21 November 2007 at [131].
226 At [131].
227 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020 at [30].
[356] I address each of the applicants’ specific grounds in turn. In relation to the submission that the Council failed to take into account relevant considerations, the starting point is Cooke J’s statement in CREEDNZ v Governor-General:228
It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision…
[357] The specific concerns the applicants point to under this head are lack of consultation with the public, failure to have regard to the actual content of the IMP, inconsistency with the AUP and the strong public interest.
[358] I accept the Council’s submission that neither the RMA itself, nor relevant case law, requires that the decision-maker consider the nature and/or extent of any prior consultation when considering whether special circumstances exist.
[359] It is clear that Mr Kaye did review the IMP. He specifically sought a copy of it and amended the draft decision prepared by Mr Dales to add a specific statement that in his opinion “the proposal reflects the directions and purposes set out in the IMP]”. What the submissions reveal is a difference of view as to what the IMP conveys, but there is nothing to suggest that I should go behind Mr Kaye’s clear statement which, on its face, reflects that he had read and considered the IMP.
[360] I accept that, as in Mills, consistency with the directions set by a general policy such as the AUP was not a mandatory consideration. While Mr Barrell was of the view that the Application was inconsistent with the direction of the AUP, that was not Mr Dales’ view. In his decision he concluded that the Application was generally consistent with the direction of the AUP. It is not the Court’s function on judicial review to substitute one expert opinion with another.229
[361] The applicants say too that the strong public interest in the subject of the Application was a relevant consideration for the Council decision-maker. However, it
228 CREEDNZ v Governor-General [1981] 1 NZLR 172 (CA) at 183.
229 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [113].
is plain from the authorities that public interest in and of itself does not constitute a special circumstance:230
Further, even major levels of public interest cannot of itself give rise to special circumstances. If that was so, every application where there was any concern expressed by people claiming to be affected would have to be notified.
[362] As to the unreasonableness argument, the applicants rely on the four factors set out at [307] above. I reject that argument for the reasons given at [314]–[320] above.
[363] Finally, the applicants point to Mr Barrell’s expert evidence where he says that the Application was “clearly exceptional”. As above, I consider this an area where a range of experts could come to a range of conclusions.231 Mr Kaye’s decision that there were no special circumstances warranting public notification was one that was open to him. It could not be said to be a decision “outside the limits of reason”.
[364] Overall, I am satisfied that, having regard to the extent and nature of the material that was before Mr Dales and Mr Kaye, and having regard to their expertise, it was open to Mr Kaye to conclude that there were no special circumstances for the purposes of s 95A(4).
Section 95B limited notification: adversely affected persons
[365] Section 95B(8) provides, relevantly, that a consent authority must determine whether “a person is an affected person in accordance with s 95E”. Such persons must be notified under s 95B(9).
[366]Section 95E(1) says:
For the purpose of giving limited notification of an application for a resource consent for an activity to a person under section95B(4) and (9) (as applicable), a person is an affected person if the consent decides that the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).
230 Classic Developments NZ Ltd v Tauranga City Council [2020] NZHC 945 at [53]; citing Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 at [137]; and Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 575
231 At [319].
[367] Mr Kaye decided, with respect to limited notification, that “there are no adversely affected persons.” The applicants say that decision was flawed on four bases, being that:
(a)it was based on inadequate information;
(b)there was a failure to take into account relevant considerations;
(c)it reflected an unlawful balancing of positive and negative effects; and
(d)it was unreasonable.
[368] The applicants’ submissions in relation to (a), (c) and (d) on this head mirror the submissions in relation to s 95A:
(a)Mr Kaye as the Commissioner had inadequate information as to the effects of the tree removal on the use, enjoyment and amenity value for users of and visitors to the reserve.
(b)Mr Kaye failed to take into account the actual content of the IMP and the absence of consultation with the public, including users of the reserve.
(c)Mr Kaye balanced the positive effects arising from the proposed restoration planting against “any landscape and visual effects of the trees removal experienced by people … using the Maunga.” That was an error; the positive effects do not mitigate any negative effects on users, as those effects are not “excluded” or “eliminated.”
(d)Mr Kaye’s decision (for the Council) that cutting down what amounts to almost half the trees in the reserve would not even have a minor effect on users of the reserve was unreasonable.
[369] The applicants also say that Mr Kaye was aware that the proposal was to cut down almost half of the mature trees on the reserve and that the positive effect of the
native planting plan would only be achieved in many years’ time. In those circumstances, they submit any reasonable decision-maker would have concluded that the adverse effect on visitors would be at least “minor.”
Inadequate information
[370] On this point the applicants allege that the Council had inadequate information as to the effects of the tree removals on the use, enjoyment and amenity value for users of/visitors to Ōwairaka and rely on the reasons given in relation to the allegation of inadequate information in respect of the public notification decision.
[371] In response, the Council repeats its submissions that Mr Dales and Mr Kaye had sufficient information on these effects to make the Notification Recommendation and Notification Decision.
Failure to take into account relevant considerations
[372] The applicants claim that the alleged absence of consultation with the public, and the content of the IMP, were relevant considerations that should have been taken into account when deciding whether there were any adversely affected persons.
[373] The Council repeats the submissions made in relation to s 95A and says neither the extent of public consultation, nor the content of the IMP, were mandatory considerations that the Council was required to consider when making the decision whether there were any persons on whom the adverse effects of the Application would be minor or more than minor.
Unlawful balancing
[374] When considering the landscape and visual effects of the tree removals that would be experienced by people with an outlook to, or using Ōwairaka, the Notification Decision includes a reference to “positive effects”. The applicants allege that Mr Kaye has carried out an unlawful balancing of positive and negative effects, and rely on the submissions made in respect of their similar claim regarding the public notification decision.
[375] As noted above, the Council accepts that only the adverse effects of the Application are relevant to notification under the RMA, but repeats its submission that the emphasis in the Notification and Substantive Report and Notification Decision was on the mitigation of the adverse visual effects, and the overall level of effects on people using the Maunga. This approach, the Council says, was not unlawful.
Unreasonableness
[376] The applicants also challenge the Notification Decision’s conclusion that there were no adversely affected persons on the basis that it was unreasonable.
[377] The Council repeats its submission that the very high threshold for unreasonableness is not met. While there may be members of the public who use Ōwairaka for recreation and consider that the Application will have at least a minor adverse effect on them (including some of those that have given evidence on behalf of the applicants), this is not determinative of the reasonableness of the decision.
[378] The Council’s decision that there were no persons on whom the adverse effects would be minor, or more than minor was not so irrational that no decision-maker, acting reasonably, could have arrived at that decision. Nor was it outside the limits of reason.
Analysis
[379] “Minor” is at the lower end of major, moderate and minor effects, but must be something more than de minimis.232 The assessment of whether an effect is “minor” is one of fact and degree, requiring an exercise of discretion by the decision-maker. As Priestly J said in Green v Auckland Council:233
The statutory tests of “minor”, “more than minor” and “less than minor” can only be informed by context. One is dealing with degrees of smallness. Where the line might be drawn between the three categories might not be easily determined.
232 King v Auckland City Council (1999) 11 ELRNZ 122; [2000] NZRMA 145 (HC), at [29](e).
233 Green v Auckland Council [2013] NZHC 2364, [2014] NZRMA 1, at [126] (footnotes omitted).
[380] I repeat the findings I reached in respect of the submissions advanced in relation to public notification. I am not satisfied that the Notification Decision’s conclusion that there were no persons on whom the adverse effects would be minor, or more than minor, was a decision no reasonable consenting authority could have reached.
Limited notification: “special circumstances”
[381] The applicants’ submissions as to the special circumstances test under s 95B mirror those advanced in relation to s 95A. That is, Mr Kaye failed to take into account relevant considerations and made an unreasonable Notification Decision.
Council’s response
[382] The Council relies on the submissions made in relation to the s 95A analysis as to whether there were no special circumstances that warranted public notification and says there were no special circumstances requiring limited notification. This was a decision that was open to Mr Kaye for the Council on the basis of the information available to him and in light of his experience.
Analysis
[383] I repeat my findings on the same issues canvassed at [354] to [364] above. I am not satisfied that the Council erred in reaching its decision that there were no special circumstances that required limited notification.
Result
[384] I decline to make any of the orders sought by the applicants against the first and second respondents.
Costs
[385] I invite the parties to agree costs but, failing agreement, the respondents are to file submissions on costs, each of no more than 10 pages in length within 14 working days of the date of this decision, with the applicants having 14 working days in which to reply with submissions of no more than 10 pages.
[386] Finally, and as I noted at the conclusion of the hearing, I am grateful to all counsel for their comprehensive and helpful written and oral submissions.
Gwyn J
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