Poutama Kaitiaki Charitable Trust v Taranaki Regional Council
[2020] NZHC 3159
•1 December 2020
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2020-443-005
[2020] NZHC 3159
UNDER THE Resource Management Act 1991 (RMA) IN THE MATTER
of an appeal from a decision of the
Environment Court pursuant to section 299 of the RMA
BETWEEN
POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE
Appellants
AND
TARANAKI REGIONAL COUNCIL
First Respondent
NEW PLYMOUTH DISTRICT COUNCIL
Second Respondent
NEW ZEALAND TRANSPORT AGENCY
Third Respondent
TE RŪNANGA O NGĀTI TAMA TRUST
Section 301 Party
TE KOROWAI TIAKI O TE HAUĀURU INCORPORATED
Section 301 Party
CIV-2020-443-020 UNDER THE
Resource Management Act 1991 (RMA)
IN THE MATTER
of an appeal from a decision of the
Environment Court pursuant to section 299 of the RMA
BETWEEN
TE KOROWAI TIAKI O TE HAUĀURU INCORPORATED
Appellant
POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE v TARANAKI REGIONAL COUNCIL [2020] NZHC 3159 [1 December 2020]
AND NEW ZEALAND TRANSPORT AGENCY
First Respondent
NEW PLYMOUTH DISTRICT COUNCIL
Second Respondent
TE RŪNANGA O NGĀTI TAMA TRUST
Section 301 Party
POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE
Section 301 Party
Hearing: 24–26 August 2020; further submissions received after the hearing. Most recently dated 20 and 24 November 2020 Appearances:
M and R Gibbs in person for Appellants S Grey for Appellants (D and T Pascoe)
H Harwood for First and Second Respondent P Beverley and D Allen for Third Respondent P Majurey and V Morrison-Shaw for
Te Rūnanga o Ngāti Tama Trust R Haazen and R Enright for
Te Korowai Tiaki o Te Hauāuru Incorporated (leave to withdraw)
Judgment:
1 December 2020
JUDGMENT OF GRICE J
Contents
Introduction[1]
Background[10]
The roading project[17]
Appeal on question of law[30]
Conduct of the appeal[47]
The grounds of appeal[52]
Appeal Ground One: error of law in making an interim decision[53]
Analysis – interim decision[55]
Final determinations[57]
Requirements of timeliness[67]
The Pascoes’ land and compensation[74]
Other statutory authorities[88]
Conclusion on interim decision[91]
Appeal Ground Two: customary and cultural rights, tikanga, mana whenua and kaitiaki[93]
Approach of the Environment Court to determination of cultural issues[96]
Ms Pascoes’ ancestral connections[121]
Other cultural connections[128]
Application to adduce new evidence on appeal[135]
Joint appellants’ chronology[147]
Te Kāhui Māngai listing of Poutama[152]
Conclusion on cultural issues[170]
Appeal Grounds Three and Four: other adverse effects of the project[171]
Haul road and storage yard location[180]
Construction effects[202]
Conclusion on temporary works: haul road and storage yard[217]
Loss of part of transcript[232]
Ecological and related adverse effects[238]
Other effects on the Pascoes[243]
Present negotiations[246]
New Zealand Bill of Rights (NZBORA)[249]Summary of conclusions[252]
Ground One: Error of law in making an interim decision:[254] Ground Two: Customary and cultural rights, tikanga, mana whenua and kaitiakitanga[254] Ground Three: Failure to assess, avoid, remedy or mitigate adverse effects, including construction, noise, social, cultural, spiritual, ecological and economic and cumulative effects[254]
Ground Four: Error of law in failing to consider avoidance of harm by relocating the haul road
[254]
Further Memoranda[257]
Costs[262]
Attachment 1: Summary of grounds of appeal and particulars[1]
Appeal Ground One: error of law in making an interim decision[1] Appeal Ground Two: customary and cultural rights, tikanga, mana whenua and kaitiaki.[2] Appeal Grounds Three and Four: relating to other effects of the project[3]
Introduction
[1] The New Zealand Transport Agency (Waka Kotahi), which is responsible for the New Zealand state highway system, is undertaking a programme of improvements to State Highway 3 connecting the Taranaki and the Waikato regions. Over Mount Messenger (Te Ara o Te Ata) approximately 60 kilometres north east of New Plymouth, it intends to replace a 7.4 kilometre highway that is no longer safe or fit for purpose.
[2] The replacement road is not on the line of the existing highway. The line of the replacement 6 kilometres lies to the east of the existing highway and will run through the Mangapepeke Valley. This appeal is against the interim decision of the Environment Court relating to the required consent and approval of designation paving the way for the construction of that new portion of highway. The construction will take about four years. During that time a haul road and storage yard will be built for temporary use. The temporary works will be removed, and the underlying land reinstated at the end of construction.
[3] In its decision the Environment Court1 determined that Ngāti Tama held mana whenua and exercised kaitiakitanga over the project area.2
[4] Waka Kotahi require nearly 21 hectares of Ngāti Tama land to be designated and acquired for the new road as well as temporary use of approximately 17 hectares. That land had been returned to Ngāti Tama under a Treaty settlement.3 The project will have adverse effects on land and resources over which Ngāti Tama exercises kaitiakitanga including significant adverse cultural and ecological effects. The Environment Court indicated that it was satisfied that those effects would be appropriately addressed through conditions that could only be implemented if there was an agreement between Waka Kotahi and Ngāti Tama for acquisition of the land, and a Further Mitigation Agreement. Those agreements had not been finalised at the time of the hearing.4
[5] The only other large piece of privately held land, which Waka Kotahi need for the project, is 11.2 hectares of land belonging to Mr and Mrs Pascoe. A further
13.5 hectares of their land will also be required during the four-year construction period. At approximately 100 metres away the road will be 20 metres closer to their house than the present road. The view will be softened by regenerated vegetation on the valley floor and the fact the highway will be in a box cutting to the north.5
[6] The Pascoes have lived on their family farm in the Mangapepeke Valley since they were married over 30 years ago. Mr Pascoe’s family acquired the farm 65 years ago and he has lived there since he was born. The Pascoes claim cultural rights over the land and claim that the adverse effects on them and their land resulting from the roading project, temporary works including a haul road and storage yard and construction effects in particular were not properly considered and/or taken into account by the Environment Court.
1 Director-General of Conservation v Taranaki Regional Council [2018] NZEnvC 203.
2 At [333].
3 Ngāti Tama Claims Settlement Act 2003.
4 Director-General of Conservation v Taranaki Regional Council, above n 1, at [214] and [469].
5 At [164].
[7] The Pascoes’ homestead and outbuildings are near the site of the proposed temporary storage yard and haul road which will be used for the storage of equipment and access to the construction site. The level of activity on and around the yard and haul road, from a practical point of view, will make occupation of the Pascoes’ home during the construction period problematic.6
[8] The Poutama Kaitiaki Charitable Trust Inc is a charitable trust set up as a vehicle for Poutama, a Māori grouping claiming tangata whenua and other cultural connections to the project area. In this appeal its primary position is that it exercises mana whenua and kaitiakitanga over the land.7 The Environment Court considered that Ngāti Tama had mana whenua and exercised kaitiakitanga over the project land but that Poutama had no cultural connection for the purposes of the project under the Resource Management Act 1991 (the Act). Poutama appeals against that finding.
[9] The joint appellants say the Environment Court should not have made an interim decision and it made final determinations that were in error of law. They seek the Environment Court’s interim decision be quashed.8
Background
[10] Waka Kotahi had been planning this project for many years. It commenced consideration of the alternatives in earnest in 2016. Once it had formed a view on the preferred position for the road it followed the required statutory procedure to designate the project land and obtain the resource consents. This included both seeking approval to issue the Notice of Requirement (the NOR) to designate the project land and seeking the resource consents from the New Plymouth District Council and the Taranaki District Council. The councils jointly appointed an independent Commissioner to hear the applications. The applications were heard over several days in August and October 2018.
6 The Environment Court considered the noise during the construction period would make it untenable for the Pascoes to continue to live in the house: Director-General of Conservation v Taranaki Regional Council, above n 1, at [157].
7 A second appeal by Te Korowai was withdrawn at the commencement of the hearing. It also withdrew as a section 301 party in this appeal.
8 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council HC New Plymouth CIV-2020-443-5, 11 March 2020.
[11] The independent Commissioner decided that the resource consents should be granted subject to various conditions. The Commissioner recommended to Waka Kotahi that its NOR to alter an existing designation for the project be confirmed subject to conditions.9 The Agency accepted this recommendation subject to two changes, which are not relevant here.10
[12] The Director-General of Conservation, Te Korowai Tiaki O Te Hauāuru (Te Korowai) and Ngāti Tama, as well as the present joint appellants, Poutama and Mr and Mrs Pascoe, appealed the Commissioner’s decisions to the Environment Court. The Environment Court heard the appeals in July 2019 and delivered an interim decision on 20 December 2019.11
[13] The reason for the decision being issued as an interim decision was that in order to finalise a number of conditions, in particular those relating to mitigation of ecological and cultural adverse effects, a final agreement was needed between Waka Kotahi and Ngāti Tama.
[14] Waka Kotahi, from the outset of the project, had indicated that it would not acquire Ngāti Tama’s land compulsorily. It took that approach, referred to with approval by the Environment Court, because the land had been returned to Ngāti Tama to redress confiscation of its land in the 19th century. It was not appropriate for the Crown to compulsorily acquire it back. Given that indication the Environment Court issued the interim decision and was not prepared to complete its consideration of the appeal until it was advised that the acquisition and Further Mitigation Agreement had been finalised.12 Negotiations between Waka Kotahi and Poutama were largely completed by the end of the Environment Court hearing. The Court put in place a timetable for the parties to file memoranda and make further
9 The Councils’ decision is dated 8 December 2018. For convenience I will refer to both the Notice of Requirement and Resource Consents together as the consents.
10 Director-General of Conservation v Taranaki Regional Council, above n 1, at [9].
11 At [470].
12 At [214].
submissions. If necessary, it indicated it would reconvene the hearing to consider the agreement and relevant conditions before it would make its final decision.13
[15] Without an agreement to acquire the land and the Further Mitigation Agreement with Ngāti Tama, Waka Kotahi could not go ahead with the project. Ngāti Tama was owner and held mana whenua and exercised kaitiaki over the land, and the Further Mitigation Agreement was integral to not only the cultural effects, but to the proposed conditions relating to wide-ranging ecological and related mitigation conditions.14
[16] The conditions proposed by the Environment Court included a comprehensive restoration package and the establishment of an ecological review panel.15 The Environment Court commented on the generosity of Waka Kotahi’s proposed in-perpetuity restoration package.16 If that was put in place the Court indicated that it would be satisfied about the proposals for the mitigation of adverse effects on the ecology of the Pascoes’ land as well as the project as a whole.17 However, that was dependent on the agreement between Ngāti Tama and Waka Kotahi. The Environment Court said:18
[214] Having carefully evaluated all this evidence and on the basis that the Project is constructed and operated in accordance with the Agency's proposed conditions of consent for ecology (although not agreed to by the Pascoes and Poutama), we make an interim finding that following mitigation, the immediate and long-term ecological effects of the Project will be appropriately addressed. However, our finding cannot be finalised until we know whether or not the Agency has reached agreement with Te Rūnanga [O Ngāti Tama Trust] to acquire the Ngāti Tama Land.
13 The timetable was extended partly as a result of the imposition of the Alert levels due to COVID-19. Counsel advise that the agreements have now been finalised and the Environment Court has issued a further minute to progress the matter.
14 Director-General of Conservation v Taranaki Regional Council, above n 1, at [214].
15 At [186].
16 At [209].
17 At [188]–[197] and [212].
18 At [214].
The roading project
[17] The Environment Court provided an overview of the background to the project in Part A. The introduction to its reasons reads as follows:19
[1] The New Zealand Transport Agency (the Agency) is undertaking a programme of improvements on State Highway 3 (SH3) which connects the Taranaki and Waikato regions. It is a requiring authority under s 167 of the Resource Management Act 1991 (RMA/Act). It is a Crown entity, and its objective is set out in s 94 of the Land Transport Management Act 2003 (LTMA) to:
undertake its functions in a way that contributes to an effective, efficient, and safe land transport system in the public interest.
[2]Its functions under the LTMA include:
(a) to contribute to an effective, efficient, and safe land transport system in the public interest:
…
(c) to manage the State highway system, including planning, funding, design, supervision, construction, and maintenance and operations, in accordance with this Act and the Government Roading Powers Act 1989 ...
[3] In meeting its objective and undertaking its functions under the LTMA the Agency must, among other things, exhibit a sense of social and environmental responsibility. The Agency must also use its revenue in a manner that seeks value for money.
[4] As part of its improvement programme the Agency has identified that the existing 7.4km long Mount Messenger section of the state highway located some 58km north-east of New Plymouth has:
• Steep grades, a tortuous alignment and restricted forward visibility;
• Significant lengths with no or only limited shoulders;
• A narrow tunnel at the summit;
• Vulnerability to interruption of service by breakdowns, crashes, landslips and rockfalls;
• Limited alternative route options when service is interrupted, with alternative route options being limited and involving significantly longer travel times (especially for freight).
[5] These constraints translate to problems with safety, route resilience (including road closures with no suitable alternatives), poor road geometry
19 Director-General of Conservation v Taranaki Regional Council, above n 1, at [1]–[5] (footnotes omitted).
and low speeds which, when combined, mean the road is no longer fit for purpose.
[18] The Environment Court noted it was considering both the NOR approval process and the application for resource consents. In relation to the NOR, the Court was required to have regard to the considerations required of a territorial authority when making a recommendation under s 171 RMA.20 That section provides:21
Recommendation by territorial authority
…
(1)When considering a requirement and any submissions received, a territorial authority must, subject to Part 2, consider the effects on the environment of allowing the requirement, having particular regard to–
(a)any relevant provisions of–
a national policy statement:
(ii)a New Zealand coastal policy statement:
(iii)a regional policy statement or proposed regional policy statement:
(iv)a plan or proposed plan; and
(b)whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work if–
(i)the requiring authority does not have an interest in the land sufficient for undertaking the work; or
(ii)it is likely that the work will have a significant adverse effect on the environment; and
(c)whether the work and designation are reasonably necessary for achieving the objectives of the requiring authority for which the designation is sought; and
(d)any other matter the territorial authority considers reasonably necessary in order to make a recommendation on the requirement.
(1B)The effects to be considered under subsection (1) may include any positive effects on the environment to offset or
20 Resource Management Act 1991, s 174(4).
21 Director-General of Conservation v Taranaki Regional Council, above n 1, at [24].
compensate for any adverse effects on the environment that will or may result from the activity enabled by the designation, as long as those effects result from measures proposed or agreed to by the requiring authority.
…
[19]The Environment Court went on to say:22
[26] Secondly, the Agency has sought resource consents for certain aspects of the Project. All consent applications were assessed as a single bundle. The overall activity status is discretionary. We are obliged to consider the matters outlined in ss 104, 104B (discretionary activities) and 105 and 107, which relate to discharge permits.
[27] Our consideration under ss 171 and 104 is subject to Part 2 of the RMA.
…
[31] In any event we were advised that, out of caution, Mr Roan had provided a ‘fulsome Part 2 assessment’. We agree with this approach.
[32] Part 2 matters engaged by the Project are s5, s6(a), 6(c)-(f) and 6(g), s 7(a)-(d), s 7(f) and s7(i), and s 8.
[20] Part 2 of the Resource Management Act 1991 contains the purpose and principles of the Act. The purpose is sustainable management of resources, including the “avoiding, remedying, or mitigating any adverse effects of activities on the environment”.23 That Part also requires anyone exercising functions and powers under the Act relating to resources to recognise and provide for matters of national importance. These matters include, relevantly in this case, the protection of ecological resources and the recognition and provision for “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga”,24 as well as protection of protected customary rights.25 Section 7 provides for other matters to which particular regard must be had, including kaitiakitanga and the ethic of stewardship. Section 8 requires the taking into account of the principles of the Treaty of Waitangi.
22 Director-General of Conservation v Taranaki Regional Council, above n 1, at [26]–[27] and [31]–
[32] (footnotes omitted).
23 Resource Management Act 1991, s 5(2)(c).
24 Resource Management Act 1991, s 6(e).
25 Section 6(g).
[21] The selection for the route of the new highway followed an assessment process. The online option (the present route) was not considered feasible.
[22] The selected alternative had a number of features that meant the adverse effects required extensive consideration. The site and surrounding environment was described as follows:26
[46] … The existing SH3 corridor north and south of Mount Messenger follows relatively open rural valleys: the Mangapepeke valley in the north and the upper Mimi valley in the south. Pastoral farming/grazing is the predominant land use along the valley flats. These lowland areas are separated by very steep, topographically complex hill country, with indigenous forest contiguous to the east of SH3 and indigenous forest and farmland to the west.
[47] The wider area extends from the coastal terraces south of the Tongaporutu River, south to the pastoral flats of the Mimi valley, west to the coast and the Paraninihi/White cliffs and east to the Mount Messenger forest. In general terms, the wider area is predominantly steep to very steep hill country.
[48] Settlement patterns within the wider Project area are sparse and determined predominantly by the access afforded from SH3. A small number of dwellings are located at Ahititi (at the intersection of Mokau and Okau Roads) and occasional dwellings are present along the SH3 corridor itself.
[49] Landowners affected most significantly by the Project are the Pascoes and Te Rūnanga. They are major landowners on the designation route and each will lose land if the NOR is confirmed.
[50] The new highway route follows a roughly north-south alignment along the floor of the Mangapepeke valley over land owned by Te Rūnanga at the southern end and the Pascoes at the northern end.
[51] The Pascoes' farm comprises some 250 ha. Only a small portion of the overall 250 ha of farmland is farmed with the balance having been left in its natural state. Mr Pascoe said that he and his family had been able to live off the land to survive and made ends meet through pig hunting and possum trapping in the valley.
[52] Te Rūnanga entered into a Deed of Settlement with the Crown in December 2001. That Deed and the Ngāti Tama Claims Settlement Act 2003 settled Ngāti Tama's historical Treaty of Waitangi claims. As part of the settlement, approximately 37 hectares of the Mount Messenger Scenic Reserve and approximately 227 hectares of the Mount Messenger Conservation Area were returned to Ngāti Tama as cultural redress. Of this land approximately 22 hectares is required for the road and another
15.9 hectares is required for the duration of the construction period.
26 Director-General of Conservation v Taranaki Regional Council, above n 1, at [46]–[54] (footnotes omitted).
[53] The Mount Messenger area contains a number of cultural, ecological and landscape features that establish the environmental context. These features have been described in the Assessment of Environmental Effects (AEE) (Section 8), the Technical Reports, the Māori Values Assessment (MVA) provided to the Transport Agency by Te Rūnanga and in the evidence of Mr Roan. These features include:
•Cultural features: Ngāti Tama exercise mana whenua over the Mount Messenger area and the land associated with the Project. Ngāti Tama provided an MVA that highlights cultural values in relation to the wider area and the land affected by the Project. The Whitecliffs and Mount Messenger area is known to Ngāti Tama as Paraninihi and is referred to as 'Te Matua Kanohi o Ngāti Tama Whanui', 'The parent face of Ngāti Tama'. Paraninihi provides the base for Ngāti Tama's sustenance and connection to the whenua, awa and moana. The area affected by the Project has been and remains an area of major importance to Ngāti Tama as an important part of their rohe, traditions, customs and identity;
•A significant proportion of the land through which the Project traverses, along with the Paraninihi land immediately west and east of the Transport Agency's SH3 landholding, is vested in Te Rūnanga;
•Ecological features: The Project footprint sits within a wider area of forested indigenous native vegetation running from the coastal margins inland to the lowland mountains. It includes the Parininihi and the Mount Messenger forest. The Parininihi land to the west of SH3, previously known as "Whitecliffs Conservation Area", is mainly primary forest of approximately 1,332 ha and centred on the Waipingao Stream catchment. Ngāti Tama have led the protection and restoration of biodiversity values and the removal of pests from the Paraninihi land since the late 1990s. These areas will not be affected by the Project. The dominant forest on the Ngāti Tama block to the east of SH3, through which the Project alignment traverses, has not had consistent pest control and is in a poor condition, reflecting the effects of browsers and pests. Within the immediate Project area the Mimi Stream swamp forest is of greatest ecological significance;
•Landscape features: The Project alignment is contained within two valley systems, being the Mangapepeke valley in the north and the upper Mimi valley in the south. Their steeper upper slopes have higher naturalness characteristics, while the lower parts of the valleys occupy a modified pastoral rural landscape. This land is not subject to a significant landscape notation in the District Plan. The Paraninihi landscape to the west of SH3, away from the Project alignment, is scheduled in the District Plan as a regionally significant landscape.
[54] The land required by the NOR is zoned 'Rural Environment' in the New Plymouth Operative District Plan (District Plan). SH3, to the west of the proposed designation, is designated in the District Plan for 'Roading Purposes' (DP Ref N36).
[23] The numerous adverse effects of the project were assessed and considered by both the Commissioner and then on appeal by the Environment Court. The common bundle of documents ran to over 200 volumes. The evidence before the Commissioner and the Environment Court ran to thousands of pages, including maps, drawings, design and engineering information and project material, as well as evidence from planners, consultants and experts in various disciplines dealing with the effects of the project. Various witnesses were cross-examined by the parties at the hearing and the members of the Court also questioned them.
[24] There were design and other changes made over the course of the project’s development. As the designers and engineers received feedback from the various experts (such as ecologists, engineers and other interested parties) they made changes to accommodate the feedback.
[25] The landscape and visual effects resulting from the proposed new portion of state highway, insofar as they affected the Pascoes, were not a specific issue on appeal but the adverse cultural, spiritual and, to a more limited extent, ecological effects were raised in this appeal. The following provides an overview:27
[161] The Agency acknowledged that the Project will have adverse landscape, visual and natural character effects, but observed that outstanding natural features and landscapes are avoided.
[162] A detailed analysis of those effects was undertaken on behalf of the Agency by landscape architect Mr GC Lister, for the Council hearing. It was accepted by the Commissioner that landscape and visual effects will be appropriately addressed by the proposed conditions and the ELMP.
[163] For the Pascoes, the landscape, visual and character qualities of the valley are entwined with its ecological and spiritual qualities. Mr Pascoe described the effects of the Project on him and his wife in these terms:
Loss of habitat, edge effects, loss of our significant trees, loss of our threatened species, effects on our hydrology, the pure air, the healing qualities of our valley should be protected ...
27 Director-General of Conservation v Taranaki Regional Council, above n 1, at [161]–[167] (footnotes omitted).
[164] The ecological effects of the Project are addressed in a later section of this decision. With respect to the visual effects, Mr Lister acknowledged that two houses will be adversely affected by the Project, being the Pascoes' and another at 2750 Mokau Road. He recorded that the Pascoes' house currently has views to the existing highway at a distance of approximately 120m. The proposed alignment is closer (at approximately 100m distance), which will add to the visual effects of the highway. He noted, however, that the highway will be in a 160m-long box cutting extending from opposite the house to the north that will soften views, as will the proposed revegetation of the valley floor. He considered, taking those factors together, that the adverse visual effects following revegetation would be "moderate-low".
[165] Mr Lister accepted that there will be localised "high" adverse effects of the Project on the natural character of Mangapepeke Stream and its margins. However, he concluded that the proper context for assessing natural character is the valley as a whole along the length of the Project. From that perspective Mangapepeke Stream and its margins are considered to have moderate natural character and the adverse effects on the stream will likewise be moderate. These effects will be remedied by measures aimed at restoring the whole valley to a natural system.
[166] Mr Lister similarly accepted that there will be adverse effects within the Mimi valley from loss of natural landscape features (bush and stream) and the visual impact of the highway. Various measures are proposed by way of mitigation and are outlined in the ELMP.
[167] We accept Mr Lister's evidence as set out above and the Commissioner's findings on landscape, visual and natural character effects.
[26] The Commissioner’s findings in respect of many of the effects were not in issue before the Environment Court. It said:28
[115] There are a number of obvious effects of the Project which were not in dispute before us. The evidence provided by the Agency addressing traffic and transportation effects, economic effects, engineering and hydrology was essentially untested by the parties in the hearing.
[116] The Project will inevitably generate other effects including effects or potential effects on:
·Recreation;
·Heritage-archaeology and historic;
·Water from construction;
·Traffic from construction;
·Noise and vibration from construction;
·Air quality and dust from construction;
28 Director-General of Conservation v Taranaki Regional Council, above n 1, at [115]–[116].
·Lighting from the road;
·Natural hazards;
·Soil contamination;
·Hazardous substances.
We rely on the findings of the Commissioner as to those effects being acceptable.
[27] By the time of the Environment Court hearing, the focus had narrowed to wildlife and ecological issues (DOC’s appeal); the cultural effects of the project and the inclusion of Mr and Mrs Pascoe in the kaitiaki forum group (Ngāti Tama’s appeal); consultation, biodiversity and taonga species (Te Korowai’s appeal), as well as the issues raised by the Pascoes and Poutama in their joint appeal.29 These were summarised by that Court as follows:30
[16] Notwithstanding that Poutama and Mr and Mrs Pascoe had different interests they lodged two joint appeals challenging the resource consent and the NOR Decisions. The appeals set out what they said were 52 errors in the Commissioner's Decision to grant the resource consents and the NOR Decision.
[17] In substance, despite being put in several different ways, the Appellants' case raised the following issues:
· Consultation/engagement was inadequate;
· Alternatives - the Agency's consideration of alternatives was inadequate; the 'online' option is a viable alternative;
· The following effects of the Project on the Appellants, particularly the Pascoes, are such that the NOR should be cancelled and resource consents refused: construction, operational, ecological, amenity, social and landscape effects.
· Cultural - it is claimed that:
·Poutama and Mrs Pascoe are tangata whenua;
·The Pascoe land is within the rohe of Poutama;
·Poutama are an iwi exercising mana whenua and kaitiakitanga over the Project area;
·Mrs Pascoe has whakapapa to Poutama;
29 Director-General of Conservation v Taranaki Regional Council, above n 1, at [10]–[15].
30 At [16]–[17].
·Mr and Mrs Pascoe are kaitiaki of their land;
·The Agency did not recognise them as tangata whenua, which means that they have been deprived of the recognition given to Ngāti Tama and the recognition that the Act requires under s 6(e), 7(a) and 8.
[28] The Environment Court summarised its findings on the core issues which emerged from the Pascoe/Poutama appeals before it, as follows:
(a)The Waka Kotahi consideration of alternative sites or methods of undertaking the project was adequate.31
(b)The Agency’s consultation was “detailed and extensive”.32
(c)Ngāti Tama holds mana whenua over the project area and should be the only body referred to in the conditions addressing cultural matters.33
(d)Ms Pascoe and her family had not established the kaitiaki or whanaungatanga relationships or exercised the associated tikanga that would require recognition under the Act.34
(e)Poutama are not tangata whenua with mana whenua in the project area and should not be recognised in any consent conditions addressing kaitiakitanga.35
(f)That the project would have significant ecological adverse effects but those effects would be “appropriately addressed” through the proposed conditions in the event Ngāti Tama agreed to the acquisition of its land by Waka Kotahi.36
[29] Insofar as the NOR was concerned, Waka Kotahi, under s 171(1)(c) of the Act, was required to have regard to whether the work and designation were reasonably
31 Director-General of Conservation v Taranaki Regional Council, above n 1, at [458].
32 At [460].
33 At [462].
34 At [463]–[464].
35 At [467].
36 At [469].
necessary for achieving the objectives of Waka Kotahi.37 The Environment Court found that the NOR met three of the four objectives of Waka Kotahi. First, it would enhance the safety of travel on the State Highway 3;38 secondly, it would enhance resilience and journey time reliability;39 and thirdly, it would contribute to the enhanced local and regional economic growth and productivity by improving connectivity and reducing journey times.40 The fourth objective of Waka Kotahi related to managing the long-term, cultural, social land use and other environmental effects as far as possible by avoiding, remedying or mitigating any such effects through route and alignment selection, highway design and conditions.41 The Court concluded it could not make a final determination as to whether that objective would be met. A significant part of the Agency’s ability to avoid, remedy and mitigate the effects rested on compliance with the proposed conditions addressing cultural and ecological effects which were to be contained in the agreements with Ngāti Tama. At the date of the decision the land had not been acquired and the agreement on other “key elements” had not been reached.42
Appeal on question of law
[30] Section 299 of the Act allows a party to a proceeding before the Environment Court to appeal to the High Court on a question of law on any decision, report, or recommendation of the Environment Court. The onus of establishing that the Environment Court erred in law rests on the appellants.43
[31] The Supreme Court in Bryson v Three Foot Six Ltd, discussed what amounts to a question of law for appeal purposes.44 From that and other authorities, and for present purposes, the tribunal may have made an error of law if it:
37 Director-General of Conservation v Taranaki Regional Council, above n 1, at [69]–[70].
38 At [428].
39 At [433].
40 At [436].
41 At [437].
42 At [438].
43 Smith v Takapuna City Council [1988] 13 NZPTA 156 (HC) at [159].
44 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27]. The Supreme Court has revisited this topic on other occasions such as in Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 4 and Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153.
(a)Applied a wrong legal test;45
(b)Reached a factual finding that was “so insupportable – so clearly untenable – as to amount to an error law”;46
(c)Came to a conclusion that it could not reasonably have reached on the evidence before it;47
(d)Took into account irrelevant matters;48 or
(e)Failed to take into account matters that it should have considered.49
[32] Procedural errors historically associated with judicial review may amount to a point of law in an appeal.50
[33] The Supreme Court in Vodafone51 suggested that the issue was whether the decision-maker misinterpreted what was required by the legislation. In addition, if what was done was so misconceived that it was clearly wrong and an unlawful decision, an appeal would succeed. This might be where there was no evidence to support the decision, or the true and the only conclusion contradicts the decision.52 However, that is rare. That the Court would have reached a different conclusion of itself does not allow interference on appeal if the decision on appeal was a permissible option. This presents a very high hurdle.53
45 Bryson v Three Foot Six Ltd, above n 44, at [24].
46 At [26].
47 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at [153].
48 May v May (1982) 1 NZFLR 165 at [170].
49 At [170].
50 Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council [2015] NZHC 2343 at [45], contemplating a breach of natural justice.
51 Vodafone New Zealand Ltd v Telecom New Zealand Ltd, above n 44, at [50].
52 At [52].
53 Bryson v Three Foot Six Ltd, above n 44, at [27].
[34] A question about facts and the evidence or the inferences and conclusions drawn from them by the decision-maker may sometimes amount to a question of law. However, as this Court said in Marris:54
… It is not, however, every allegation of a lack of factual basis or incorrect or inappropriate inferences or conclusions from the evidence which will turn the issue of fact into a question of law. In other words, it is not sufficient merely to allege that there is no sufficient evidence as has been done in the case, to raise the point of law. …
[35]In a similar vein the Court of Appeal in Chorus Ltd v Commerce Commission
warned that:55
In the absence of a right of general appeal it is not the role of the Court in an appeal on a question of law to undertake a broad reappraisal of the Commission’s factual findings or the exercise of its evaluative judgments. …
[36] The Court must be vigilant in resisting attempts by litigants to use an appeal to the High Court as a mechanism to re-litigate factual findings made by the Environment Court.56 At the same time, it is possible for findings of fact to amount to an error of law. As noted recently in Lau v Auckland Council there are two primary hurdles that need to be jumped when an appeal is founded almost entirely on criticisms of factual findings:57
(i)First, the appellant will need to show a seriously arguable case that factual findings by the Environment Court are actually incorrect. An appeal court will not interfere where there is an available evidential basis for the Court’s finding.
(ii)Second, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that: (1) the Court has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and (2) the errors of fact are so significant and extensive that the Environment Court, had it properly directed
54 Marris v Ministry of Works and Development [1987] 1 NZLR 125 at [127]. This decision related to similar provisions in the predecessor to the Resource Management Act 1991: the Town and Country Planning Act 1977. See also Northern Action Incorporated v Local Government Commission [2018] NZHC 2823 [“NAG v LGC (2018)”] at [68]–[70].
55 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112].
56 Heybridge Developments Ltd v Bay of Plenty Regional Council (2011) 16 ELRNZ 593 (HC) at [3]; citing New Zealand Suncern Construction Ltd v Auckland City Council [1997] NZRMA 419 (HC) at [426].
57 Lau v Auckland Council [2017] NZHC 1010 at [6](d) (footnotes omitted).
itself, may well have reached a different decision overall on the matter before it.
[37] It must generally be the want of evidence, rather than the weight of the evidence, that forms the basis of an argument that factual errors are such as to constitute an error of law.58
[38] The decision-maker must generally provide reasons which are intelligible, adequate and enable an understanding of why the matter has been decided in the way it has and why the conclusions have been reached on important issues. The reasons need only to refer to the main issues in dispute, not every material consideration.59 The decision must show that the decision-maker has addressed its mind to the criteria it was required apply.60 Failing to articulate all the reasoning does not amount to an error of law “provided it is made clear that the Court has turned its mind to the relevant statutory provisions and had evidence to justify a conclusion”.61
[39] How much weight the Environment Court chooses to give relevant policy or evidence is a matter solely for the Environment Court. This cannot be reconsidered as a question of law.62 Similarly, the merits of the case dressed up as an error of law will not be considered.63 Planning and resource management policy are, for obvious reasons, matters that will not be considered by this Court.64
58 Moriarty v North Shore City Council [1994] NZRMA 433 (HC) at 437; Hunt v Auckland City Council HC Auckland HC41/95, 31 October 1995 at [9]; Skinner v Tauranga District Council HC Auckland AP98/02, 5 March 2003 at [13]; and Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [31].Marris v Ministry of Works and Development [1987] 1 NZLR 125 (HC); Raceway Motors Ltd v Canterbury Regional Planning Authority [1976] 2 NZLR 605 (SC); Centrepoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 (CA).
59 South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36] per Lord Brown of Eaton-under-Heywood.
60 Bovaird v J [2008] NZCA 325, [2008] NZAR 667 at [74].
61 Contact Energy Ltd v Waikato Regional Council (2007) 14 ELRNZ 128 (HC) at [92]; citing
Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 at [513]–[514].
62 Stark v Waitakare City Council HC Auckland HC5/94, 28 June 1994 at [4]. See also Moriarty v North Shore City Council, above n 58.
63 Young v Queenstown Lakes District Council [2014] NZHC 414, (2014) 18 ELRNZ 1 at [19]; citing
Sean Investments Pty Ltd v MacKeller (1981) 38 ALR 363 (FCA).
64 Russell v Manukau City Council [1996] NZRMA 35 (HC). To similar effect: Friends of Pakiri Beach v Auckland Regional Council [2009] NZRMA 285 (HC) at [28].
[40] In Countdown Properties (Northlands) Ltd the High Court warned against interfering with findings of fact and identifying errors of law, saying:65
Moreover, the Tribunal should be given some latitude in reaching findings of fact within its areas of expertise: see Environmental Defence Society Inc v Mongonui County Council (1987) 12 NZTPA 349 at 353.
Any error of law must materially affect the result of the Tribunal’s decision before this Court should grant relief: see Royal Forest and Bird Protection Society Inc v W A Habgood Ltd (1987) 12 NZTPA 76 at 81-82.”
…
[41] It is insufficient for an error of law simply to be identified. The error must be a material one, impacting the final result reached by the Environment Court.66
[42] In Guardians of Paku Bay Association Inc v Waikato Regional Council, the High Court recognised the deference to be shown to the Environment Court as an expert tribunal when determining planning questions:67
[33] The High Court has been ready to acknowledge the expertise of the Environment Court. It has accepted that the Environment Court’s decisions will often depend on planning, logic and experience, and not necessarily evidence. As a result this Court will be slow to determine what are really planning questions, involving the application of planning principles to the factual circumstances of the case. No question of law arises from the expression by the Environment Court of its view on a matter of opinion within its specialist expertise, and the weight to be attached to a particular planning policy will generally be for the Environment Court.
[43] These comments are particularly apt in this case where experts in relevant areas of expertise sat on the Court. The Environment Court in this case comprised three Judges (two Environment Court Judges and one Māori Land Court Judge) and two Environment Court Commissioners. Counsel noted that it was relatively rare for a full court to hear an application of this type. A quorum usually consists of one Environment Court Judge and one Commissioner.68
65 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 47, at [153].
66 At [153].
67 Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 58, at [33] (footnotes omitted).
68 The Court comprised Environment Court Judges Dwyer and Dickey, Judge Doogan (Māori Land Court Judge), Commissioner Bunting (with a background in engineering) and Commissioner Bartlett (with a background in geography and botany/ecology).
[44] The Environment Court made no final determination on the ecological and cultural effects. It could not do so in the absence of evidence that the agreements with Ngāti Tama were finalised. Therefore, I have considered the appeal as it relates to the final findings on the other effects. I have also considered the conclusions on the evidence it made in the course of its consideration of the ecological and cultural effects. The issue left at large was whether Ngāti Tama and Waka Kotahi would finalise their agreement on the land acquisition and the Further Mitigation Agreement.69
[45] The joint appellants pursue their appeal against the interim decision first, on the basis an interim decision should not have been made on the evidence available or, in the alternative, the Environment Court should have required agreement with the Pascoes in relation to the acquisition of their land and compensation in the same way it was requiring agreement with Ngāti Tama. Further grounds of appeal relate to the final determinations made in the interim decision. This appeal can only be against the final decisions or findings made. Whether or not the appeal should proceed against the interim decision, rather than awaiting the final decision, was an issue considered at case management conferences and the parties were of the view it was appropriate to proceed in relation to the findings made in the interim decision.70
[46] Before I move on to consider the grounds of appeal filed in this Court, the manner in which the joint appellants have conducted their case to date warrants some comment.
Conduct of the appeal
[47] The grounds in the joint appellants’ original notice of appeal71 filed in this Court were largely based on the conclusions that the Environment Court reached on
69 Director-General of Conservation v Taranaki Regional Council, above n 1, at [95]–[97].
70 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council HC New Plymouth CIV-2020-443-5, 11 March 2020 [Minute No 1]; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council HC New Plymouth CIV-2020-443-5, 9 April 2020 [Minute No 2]; and Poutama Kaitiaki Charitable Trust v Taranaki Regional Council HC New Plymouth CIV-2020-443-5, 10 July 2020 [Minute No 3].
71 The notice of appeal was dated 21 January 2020.
cultural issues.72 The remedies sought related to recognising Poutama’s claims to mana whenua, and its kaitiakitanga over the project land, as well as its status as an iwi authority for the purposes of the Act.
[48] Prompted by concerns expressed by Clark J at a case management conference that the grounds of appeal did not appear to involve questions of law,73 the joint appellants amended their notice of appeal.74
[49] Ms Grey was briefed by the Pascoes after the appeal to this Court had been lodged. The joint appellants reformulated their grounds of appeal in an amended notice of appeal.75
[50] Mr and Mrs Pascoe and Poutama collaborated in the conduct of this appeal. Mr Gibbs and Ms Gibbs had represented the Pascoes as well Poutama before the Environment Court. Ms Grey was instructed by Mr and Mrs Pascoe although in practical terms she led the appeal for both the Pascoes and Poutama. Ms Marie Gibbs, for Poutama, supplemented Ms Grey’s submissions, in particular, relating to matters concerning Poutama’s claims to mana whenua and cultural issues. Her brother, Mr Russell Gibbs of Poutama assisted her. Neither are lawyers but had also appeared before the Commissioner and at the Environment Court. They associate with Poutama although they are Pākehā.76 Ms Gibbs explained that their role in representing Poutama was as supporters but did not indicate a lack of Māori leadership in Poutama.
[51] A significant issue for Poutama in the appeal was its concern that the Environment Court had undermined its standing and put in jeopardy its right to be consulted by local authorities and other bodies in the region on matters such as resource management consents. Poutama is listed as an iwi agency for those purposes on a website list maintained by Te Puni Kōkiri called Te Kāhui Māngai. Poutama says
72 In the preamble the notice of appeal refers to "significant adverse effects from the Project on Poutama including the Pascoe whānau…". The notice also references that significant adverse cultural effects include “ecological effects”.
73 Minute No 1, above n 70.
74 The amended notice of appeal was dated 15 July 2020.
75 The Court pointed out the difficulties to the joint appellants at a case management conference: Minute No 1, above n 70.
76 Director-General of Conservation v Taranaki Regional Council, above n 1, at [343]. See below at [118]–[120].
this listing is recognition of Poutama’s mana whenua and kaitiakitanga in the region. It says that its status in general has been eroded by a “side wind” as a result of the Environment Court decision. Therefore, it says the decision is ultra vires. I will deal with this issue later in my decision.77
The grounds of appeal
[52] The first ground of appeal relates to the interim nature of the decision. The appeal has its primary focus on the cultural findings of the Environment Court as well as the effects of the project on the Pascoes and their land, particularly in relation to the temporary works that will be in place for the period of construction. A number of points under the grounds of appeal were only addressed in passing or not addressed at all. Attached is a copy of the four grounds of appeal and a summary of the particulars under each ground.78
Appeal Ground One: error of law in making an interim decision
[53] The joint appellants say that the Environment Court should not have issued a decision that was only interim. The decision should have been made final based on the evidence before it. In the alternative, they say that the Environment Court’s interim decision should have dealt with the Pascoes’ land acquisition and compensation package in the same way as that of Ngāti Tama, in that the interim decision should have required the finalisation of those arrangements with the Pascoes before the decision would be made final.
[54] The particulars under this ground were that the Environment Court erred in making an interim decision as:
(a)There was no certainty that Waka Kotahi would acquire the Ngāti Tama land.
77 See below at [152]–[170].
78 Attachment 1.
(b)The Court failed to treat the Pascoes the same as Ngāti Tama in that their land had not been acquired and would require a side agreement to deal with the significant adverse effects if the project proceeded.
(c)Waka Kotahi had not obtained from the Department of Conservation an authority under s 53 of the Wildlife Act 1953 “to catch alive or kill” kiwi and other native wildlife. Such an authority would be required to enable the relocation of kiwi and other native wildlife.
(d)The Environment Court had incomplete information and so should not have made an interim decision.
(e)The decision on the project was not timely as required by the Resource Management Act.
Analysis – interim decision
[55] Mr Beverley, for Waka Kotahi, submitted that it was well established that the Environment Court was entitled to make interim decisions. He pointed to the decision in Mawhinney79 in which the High Court considered whether an interim decision had been made for the purposes of time running for an appeal. Wylie J said:
[88] … the Environment Court can, in appropriate cases, issue an interim decision notwithstanding the absence of any express provision in this regard in the Act. It can do so pursuant to s 269. An interim decision may well be appropriate where the Court is able to reach conclusions on a number of issues, but cannot finalise its decision, because it has insufficient material to enable it to determine some matter which requires adjudication or because it wants to give the parties the opportunity to comment on or advance a particular issue. Resource management planning frequently calls for a large number of judgments, on a host of disparate issues. It can therefore be unrealistic to expect the parties to have finalised their position on all matters ultimately requiring a determination from the Court. Indeed, they may be unable to do so until the Court has made a decision on other matters. In such circumstances, and they are not meant to be exhaustive, it may well be appropriate for the Court to issue an interim decision.
79 Mawhinney v Auckland Council (2011) 16 ELRNZ 608 (HC).
[56] In Motiti Avocados Ltd, Andrews J, in considering whether a final determination had been made by the Environment Court, commented:80
[55] The question arises as to whether an “interim decision” is a “decision” as that word is used in s 299. Having reviewed the authorities cited to me, I accept that an “interim decision” is a “decision” for the purposes of being appealable, if it finally resolves a particular issue. I also accept that an “interim decision” may include “preliminary determinations” on particular issues and “final determinations” on other issues.
[56] The more difficult issue is determining whether a determination on a particular issue is “preliminary” or “final”. I adopt, with respect, the comments of Wylie J in Mawhinney v Auckland Council:
In my view, no “bright line” rule is possible. Each interim decision must be considered in its own terms. If an interim decision finally decides a substantive issue between the parties, then there is a decision in respect of that issue in terms of s 299, notwithstanding that some other issue may be left for further consideration. If an interim decision does not finally decide a substantive issue, and leaves it for the parties to return to Court, then there is no decision in terms of s 299.
Final determinations
[57] As noted above, the question as to whether or not it was appropriate to hear this appeal before a final decision was issued by the Environment Court was considered at a case management conference on 9 July 2020.81 Ms Grey, on behalf of the joint appellants, had expressed some concern about the appeal hearing proceeding as scheduled. The present amended notice of appeal had been filed.82
[58] Waka Kotahi noted that the appeal should proceed even if Ngāti Tama rejected the proposals, which were set out in the agreement for acquisition of land and for further mitigation, at the special general meeting due to be held the following weekend. Even if the agreement was not ratified at that meeting, Waka Kotahi submitted it could be ratified at a subsequent meeting. Ms Grey agreed that the appeals needed to be determined.83 Therefore, the hearing proceeded on the basis of the grounds set out in the amended notice of appeal.
80 Motiti Avocados Ltd v Minister of Local Government [2013] NZHC 1268, at [55]–[56] (footnotes omitted).
81 Minute No 3, above n 70.
82 Minute No 1, above n 70, at [3] and [5].
83 Minute No 3, above n 70, at [4]–[7].
[59] In Gardez,84 the Environment Court, presided over by Judge Jackson, noted that once a final determination had been made on a substantive issue, the Court became functus officio and an appeal lies to the High Court.85 The labelling of a decision as “interim” is not itself determinative.86 The test, it said, was whether in substance the interim decision:87
(a)decides the whole proceedings or, at least, one or more particular issues conclusively (in which case the Court is functus officio on each such issue); or
(b)leaves the matter open for parties to return to the Court with further submissions and/or not evidence notwithstanding the views expressed at the interim stage.
[60] Very few decisions, whether described as interim or not, are fully provisional. In most cases an interim decision decides some issues and leaves others “usually subordinate issues still to be decided”.88 An example is, for instance, a decision which resolves a question about the wording of objectives and policies but adjourns issues about rules to implement those objectives and policies to be determined either by the party, or failing agreement by the Court.89
[61] The High Court in Mawhinney cited Gardez with approval noting the questions were:90
·what has the Court decided?
·and what has it left undecided?
[62] As Wiley J in Mawhinney noted, there was no “bright line” rule possible and each interim decision must be considered in its own terms. If an interim decision finally decides a substantive issue between the parties, then there is a decision in
84 Gardez Investments Ltd v Queenstown Lakes District Council EnvC Christchurch C95/05, 4 July 2005.
85 At [39].
86 At [40].
87 At [40]; citing Marlborough Aquaculture Ltd v Chief Executive of the Ministry of Fisheries [2003] NZAR 362 (HC) at [21].
88 Gardez Investments Ltd v Queenstown Lakes District Council, above n 84, at [41].
89 At [41].
90 Mawhinney v Auckland Council, above n 79, at [95]; quoting Gardez Investments Ltd v Queenstown Lakes District Council, above n 84.
respect of that issue in terms of s 299 (appeal) of the Act, notwithstanding that some other issue may be left for further consideration.
[63] The Court also emphasised that “resource management planning frequently calls for a large number of judgments, on a host of disparate issues. It can therefore be unrealistic to expect the parties to have finalised their position on all matters ultimately requiring a determination from the Court”.
[64] The purpose of a final determination may be to give the parties certainty so the case may be progressed to the next stage.91 In addition, a determination may be final notwithstanding it will be subject to minor changes. Even if a determination leaves open a machinery provision to enable later resolution of some issues or for a return to the decision-maker on a point, there may be a final determination capable of appeal.92 A final determination may be made in relation to the rights of one party.93
[65] In this case, the Court did not finally determine the appeals but noted it would have regard to the findings set out in its summary of findings.94 Those findings are set out as follows:
Alternatives
[458] We have determined that the Agency's consideration of alternative sites, routes or methods of undertaking the Project was adequate.
[459] We observe that the online option (staying within the existing SH3 alignment) was considered and not chosen, primarily for reasons of cost, constructability and cultural values.
Consultation
[460]The Agency's consultation was detailed and extensive.
Cultural effects
[461] There are significant adverse cultural effects from the Project on Ngāti Tama which are yet to be resolved.
91 Fox v Christchurch City Council HC Christchurch CIV-2008-409-898, 5 December 2008 at [51].
92 Mawhinney v Auckland Council, above n 79, at [90]; citing Wellington City Council v Australian Mutual Providence Society HC Wellington AP47/91, 15 May 1991.
93 Hahei Developments Ltd v Thames Coromandel District Council [2005] NZRMA 21 at [35] and [55](b).
94 Director-General of Conservation v Taranaki Regional Council, above n 1, at [471].
[462] We have found that Ngāti Tama has mana whenua over the Project area and it is appropriate that it be the only body referred to in conditions addressing cultural matters.
[463] Mrs Pascoe and her family have not established on the evidence that they have and are able to maintain the whanaungatanga relationships or exercise the associated tikanga that would require recognition under Part 2 of the Act.
[464] We have found that Mrs Pascoe is not kaitiaki in the sense the term 'kaitiakitanga' is used in the Act. The relationship the Pascoes have with their land is one of stewardship.
…
Poutama
[467] We have found that Poutama are not tangata whenua exercising mana whenua over the Project area. It follows, therefore, that it is not appropriate that it be recognised in any consent conditions addressing kaitiakitanga that may issue.
Mr and Mrs Pascoe
[468] There is no doubt that the Project will have significant adverse effects on the Pascoes and their land. The adverse social impact of the Project on the Pascoes is severe. We consider, however, that proposed condition 5A will mitigate those effects to the extent possible if the Project is approved and proceeds and the Pascoes accept the Agency's offer to buy their house, the land on which it sits, and the other land that is required for the Project.
Ecology
[469] We consider that the Project will have significant adverse effects on the area that it affects, but that those effects will be appropriately addressed through the proposed conditions in the event that Te Rūnanga agree to transfer the Ngāti Tama Land to the Agency.
Conditions
[470] Except for those proposed conditions we have addressed in this decision, we are presently unable to find that the proposed conditions, on their own, appropriately avoid, remedy or mitigate the effects of the Project. It may be that those effects can only be adequately addressed through the proposed conditions, the acquisition of the Ngāti Tama Land, and the Agreement for Further Mitigation. Until we know whether or not the acquisition has been agreed, the related agreement entered into (and whether any further amendments to conditions are required as a consequence of such agreements) we cannot finally determine these appeals.
[66] The issue of construction noise as it affects the Pascoes, if they remain in their home during the period of construction, remains open for further consideration. The Environment Court proceeded “on the basis that the Pascoes will relocate (as they
indicated they would) should the project proceed. If necessary, we will hear from the Pascoes on that matter as part of any final determination”.95
Requirements of timeliness
[67] Ms Grey pointed out that the decision in Mawhinney had predated amendments to the Act under the Resource Management Amendment Act 2013, which introduced a number of general requirements for timeliness and limits for taking specified steps in consent processes.96 While there was no specified time limit for issuing a decision by the Court, she noted that s 269, which had been referred to in Mawhinney, had been amended by the insertion of s 269(1A) so that s 269 now reads:97
269 Court procedure
(1)Except as expressly provided in this Act, the Environment Court may regulate its own proceedings in such manner as it thinks fit.
(1A)However, the Environment Court must regulate its proceedings in a manner that best promotes their timely and cost-effective resolution.
(2)Environment Court proceedings may be conducted without procedural formality where this is consistent with fairness and efficiency.
(3)The Environment Court should recognise tikanga Māori where appropriate.
(4)The Environment Court may use or allow the use in any proceedings, or conference under section 267, of any telecommunication facility which will assist in the fair and efficient determination of the proceedings or conference.
[68] Ms Grey argued, in her oral submissions, that the Environment Court, in issuing an interim decision, had not met the requirement for a timely resolution of this matter as required by s 269(1A). She noted the project had been going for some years and not making a final decision further prolonged matters. Ms Grey said that the Environment Court should have specifically considered whether to issue an interim decision as opposed to making a final decision. If it had issued a final decision, she
95 Director-General of Conservation v Taranaki Regional Council, above n 1, at [454].
96 The respondents’ written submissions referred to s 103A of the Act. However, that does not apply to hearings on appeal.
97 Emphasis added.
said it would have had to refuse the consents and decline approval of the NOR. The appellants said the Environment Court had failed to consider that option and therefore was in breach of public law principles of fairness and reasonableness.
[69] Section 269(1A) requires the Environment Court to regulate its proceeding in a manner that best promotes “timely and cost-effective resolution”. Section 269(1A) is a general direction akin to the provision in the High Court Rules specifying that the objective of the rules is to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application.98 It does not impose a requirement on the Court to specifically address that provision every time the Court takes a procedural step or makes an interim decision. It therefore made no error in failing to specifically refer to address that provision before it made its interim decision.
[70] The Environment Court noted that Waka Kotahi had endeavoured to persuade it to confirm the NOR pending the agreement by Ngāti Tama to sell its land.99 However, the Court said it could not reach a final decision on all matters before it unless it knew whether or not agreement had been finalised between Te Rūnanga and Waka Kotahi.100 It concluded:
[482] This is an interim decision of the Court because there is no certainty as to whether or not the Agency can acquire from Te Rūnanga the land necessary to implement the Project and finalise an Agreement for Further Mitigation.
[483] In light of the Agency's assurance that it will not compulsorily acquire the Ngāti Tama land, the Court is not prepared to complete its consideration of the NOR and resource consents absent advice from Te Rūnanga that it has agreed to the acquisition and further mitigation.
[484] That is because we cannot determine that the effects of the NOR and the Project will be appropriately addressed until we receive advice on that acquisition and further mitigation.
[485]This proceeding is adjourned until 31 March 2020.
[486] On that date we direct that the Agency is to file a memorandum advising the Court of the state fits negotiations with Te Rūnanga.
98 High Court Rules 2016, r 1.2.
99 Director-General of Conservation v Taranaki Regional Council, above n 1, at [472].
100 At [472].
[71] The matter was adjourned beyond the 31 March date. Counsel has advised that the agreement was finalised following its approval at a special AGM by Te Rūnanga o Ngāti Tama Trust and formal approval by Waka Kotahi.
[72] The Commissioner’s decision was released in December 2018. The hearing of the Environment Court appeal was in July 2019, and the interim decision was delivered by that Court in December 2019. Matters have been necessarily further delayed by this appeal. Counsel noted that the Environment Court has been advised of the finalisation of the agreement with Ngāti Tama and it is now in a position to consider further submissions to enable it to make its final decision.
[73] The Environment Court made no error of law by issuing an interim decision based on the information it had before it. It required further evidence before it could be satisfied on the cultural and ecological effects. That further evidence related to the finalisation of agreements with Ngāti Tama, which were integral to the avoidance, remediation or mitigation of those effects.101
The Pascoes’ land and compensation
[74] I now turn to consider whether the Environment Court should have made its decision interim subject to the finalisation of the acquisition of the Pascoes’ land (whether by compulsory acquisition or by agreement) and agreement with the Pascoes for compensation in the same way as it did for the acquisition of Ngāti Tama land and Further Mitigation Agreement.
[75] The Environment Court had determined that Ngāti Tama were tangata whenua, held mana whenua and exercised kaitiakitanga in terms of the Act for the purposes of this project. Waka Kotahi advised the Court that the Ngāti Tama land would not be compulsorily acquired due to its cultural significance to that iwi. The land had been returned by the Crown under a Treaty settlement. The Environment Court was required to recognise and provide for the Ngāti Tama ancestral relationship, culture and traditions connected with the project area, as a matter of national importance under
101 Director-General of Conservation v Taranaki Regional Council, above n 1, at [438] and [469]– [470].
s 6(e) of the Act. The Court was also required to have particular regard to kaitiakitanga exercised by Ngāti Tama under s 7(a) of the Act. In addition, it was required to take account of the principles of the Treaty.102 The acquisition of the land by agreement with Ngāti Tama and the finalisation of the Further Mitigation Agreement were therefore central to the Court’s findings on the cultural and ecological effects.
[76] The Environment Court noted that in the normal course it would “not concern” itself with the acquisition of land for a particular work because the Public Works Act 1981 sets out the powers for that to occur, whether by agreement or by compulsory acquisition.103 However, it considered the acquisition of the Ngāti Tama land was in a special category. It said:104
[241] In considering the cultural effects of the Project we do not think the proposed conditions can be separated from the fact that the Agency has not yet acquired the Ngāti Tama Land. The two are inextricably intertwined. The proposed conditions provide the means by which certain effects of the Project can be appropriately addressed. On their own, they do not, however, appropriately address the significant cultural effects of the Project. We can only be satisfied on that point if Te Rūnanga advises us that an agreement has been reached with the Agency as to sale of the Ngāti Tama Land and on other key elements it seeks by way of mitigation and offset/compensation.
[242] Te Rūnanga has made it clear in this hearing that appropriate recognition of and protection for, Ngāti Tama's interests relies on:
• The proposed conditions of consent which include provision for Ngāti Tama feedback in terms of route selection and design; an ongoing role in the Project through the KFG and cultural monitoring; and recognition and provision for cultural uses (such as of significant trees), an ecological restoration package;
• Agreement to sell their land; and
• An agreement (if reached) containing key elements intended to further mitigate and offset/compensate the effects (Agreement for Further Mitigation).
[243] We were advised by Mr MPJ Dreaver who gave evidence on this subject for the Agency that elements of the Agreement for Further Mitigation discussed to date include:
• Recognition by the Agency of the cultural association of Ngāti Tama with the Project area;
102 Resource Management Act 1991, s 8.
103 Director-General of Conservation v Taranaki Regional Council, above n 1, at [439].
104 At [241]–[243] (footnotes omitted).
• A land exchange involving property in Gilbert Road;
• A payment to help address the cultural impact of the Project on Ngāti Tama interests;
• An environmental mitigation package, including the opportunity for Ngāti Tama to control and manage the mitigation on their ancestral lands;
• A process to help enhance the relationship between Ngāti Tama and the Department of Conservation;
• Commitments to maximise housing, work and business opportunities for Ngāti Tama members arising from the Project;
• Cultural input by Ngāti Tama into the design and implementation of the Project;
• Cultural monitoring by Ngāti Tama of works associated with the Project; and
• Establishment of a Trust Fund to be held in trust for Ngāti Tama cultural purposes.
[77]The Environment Court concluded:105
[438] A significant part of the Agency's ability to avoid, remedy and mitigate the effects of the Project rests on compliance with the proposed conditions addressing cultural and ecological effects. At present there is a major obstacle, namely that the Agency has not acquired the Ngāti Tama Land which is needed for the Project and the ecological enhancement. It has assured Ngāti Tama and the Court that it will not compulsorily acquire that land. As at the date of this interim decision the land has not been acquired, and agreement on other 'key elements' referred to in Te R[ū]nanga's opening submissions has not been reached.
[439] Until that land has been acquired and agreement reached, the Project is to all intents and purposes 'incomplete'. …
[78] The relationship between the Pascoes and the land, and their role in the mitigation conditions, was not in the same category as that of Ngāti Tama. At the same time the Environment Court acknowledged that the social and other effects of the project on Mr and Mrs Pascoe were significantly adverse. It said:106
[160] The social effects of the Project on Mr and Mrs Pascoe are significantly adverse. The part of the valley in which· their house and farm is located will be split in two by the proposed road. We heard how important the valley is to them, and what value they place on it as a place of
105 Director-General of Conservation v Taranaki Regional Council, above n 1, at [438]–[439].
106 At [160].
healing. Their part of the valley will be forever changed by the Project. We accept that there are serious adverse effects of the Project on the Pascoes.
[79] However, the Environment Court concluded that the adverse effects could be mitigated to the extent possible by comprehensive conditions. It concluded that the conditions it intended to impose would mitigate the adverse social impacts of the project on the Pascoes to the extent possible.107
[80] Part of the Pascoes’ land was to be acquired for the new road. The Environment Court was aware that there would be negotiations between Waka Kotahi and the Pascoes concerning that and compensation. It noted it would be the Pascoes’ decision as to whether they sold other parts of their land, including the homestead. It noted:108
[452] Long term measures would be dependent on whether the Pascoes elected to sell the land required for the new highway including their existing home. If they elected to sell, then the Agency has offered to build them a new home incorporating material salvaged from their existing home and to provide them with temporary accommodation while the new home was being built. In addition, there are offers to install fencing to prevent stock accessing the PMA [proposed pest management area], $15,000 for landscaping at the new home and $55,000 of additional planting at a location to be agreed on their land. A new walking track would also be established on the floor of the Mangapepeke valley.
[453] If the Pascoes decide against selling all of their property, the Agency has offered to work with them to develop a plan for visual planting adjacent to their home to screen views of the new highway. The $55,000 additional planting offer would also remain.
[81] Ms Grey, in her reply, said that the negotiations between Waka Kotahi and the Pascoes were not going well. She said that if the Environment Court’s interim decision had been made subject to acquisition of the Pascoes’ land and agreement as to compensation as it had been in relation to Ngāti Tama, it would assist the Pascoes to achieve a better outcome.
107 Director-General of Conservation v Taranaki Regional Council, above n 1, at [468]. See above at [65] for the paragraph in full.
108 At [452]–[453].
[82] The Act is concerned with the proposed activities’ effects “not the nature of the applicant’s legal rights or interests in the particular land”.109
[83] It is often the practice for the acquisition of land to take place after the consents and designations have been approved. The Court of Appeal in MacLaurin v Hexton Holdings Ltd said:110
[47] … The structure of the Resource Management Act is such that “any person” may apply for resource consents affecting land over which they might have no ownership or other rights … What consent authorities are concerned with is the proposed activity’s effects, not the nature of the applicant’s legal rights or interests in the particular land. …
[84] The separate processes under the Public Works Act for the acquisition of the Pascoes’ land and compensation sit outside the Resource Management Act. They are independent and separate.111 The Land Valuation Tribunal is the statutory tribunal set up to deal with land acquisition and disturbance payments and has specialist expertise in those areas. The Environment Court plays no part in that process.
[85] This is not a case of similar cases being treated differently. Ngāti Tama’s position and its relationship with the land and resources was significantly different to that of the Pascoes’.
[86] Having considered and been satisfied that the adverse effects on the Pascoes and their land under the Act were appropriately avoided, remedied or mitigated to the extent possible, the Environment Court was entitled to leave the land acquisition and compensation to be dealt with through other processes.
[87] The Environment Court did not err in law in failing to make the interim decision subject to an agreement concerning acquisition and compensation for the Pascoes’ land.
109 MacLaurin v Hexton Holdings Ltd [2008] NZCA 570, (2008) 10 NZCPR 1 at [47].
…
[110] One of the Pascoes' major issues was the fact that the Agency did not resource them so that they 'could effectively participate'. They felt that they should have been resourced for all aspects of the Project. They also considered that the Agency should have established a framework and process for their ongoing engagement. They drew comparisons with the resourcing that was provided to Te Rūnanga.
…
[113] … we are satisfied that the Agency's consultation was extensive and detailed. It may wish to consider in future the desirability of maintaining (as far as possible) consistent points of contact when consulting with individuals.
[227] The Environment Court observed that there was no statutory obligation on a requiring authority to consult but that consultation was the best practice.244 The Court was satisfied that there had been appropriate engagement and consultation with the Pascoes (and Poutama) in the circumstances. It noted the consultation “was detailed and extensive”245 and it found that Waka Kotahi’s consultation with Poutama and the Pascoes was adequate.246 It acknowledged that for the Pascoes the complexities, combined with the fear and upset at losing a significant part of their land and home, made the process of engaging with Waka Kotahi extremely difficult.247 The Environment Court noted that the relationship with Waka Kotahi and the interests of the Pascoes had not been assisted by their chosen advocates.248
243 Director-General of Conservation v Taranaki Regional Council, above n 1, at [108], [110] and
[113] (footnotes omitted).
244 At [105].
245 At [460].
246 At [107].
247 At [108].
248 At [112].
[228] At the Environment Court hearing the Pascoes participated fully, gave evidence and made submissions, as well as questioning witnesses through their advocates (Mr and Mrs Gibbs). The Environment Court specifically referred to the extensive questioning from Ms Gibbs, in particular, about the potential for adverse ecological effects from the project on the Pascoes’ land.249
[229] The Environment Court regularly has parties appearing before it who represent themselves or are assisted by non-lawyer advocates. It is experienced at conducting the hearings involving self-represented litigants and adapts its processes to accommodate a more inquisitorial and less formal approach. An example of the Court’s hands-on approach is apparent from the transcript in relation to the Pascoes’ concerns about the effects of construction and how they might be appropriately managed. The following exchange was recorded between a member of the court and Ms Pascoe:
Q............ if we look at 5(a)(i) on the list, there’s the discussion is fortnightly
with the construction manager on construction effects and mitigation for upcoming construction activities including for a six week period ahead of you. So would that be an opportunity to address some of those concerns you were worried about?
A. Some but not all because as works progress, things change.
Q. So if we move down to (ii) then, it’s details of substantive design or construction method changes, so where things change, so would that help with addressing the changes with the construction manager?
A. I still feel that we need to be there to address the issues as they arrive…
Q.Just tell us what you mean when you say “participate”, you said it two or three times?
A. To be there to actually be on the ground, to try to have an input into where things are going to be or, you know, like in planting and that sort of thing.
Q. Well, we’ve asked NZTA to come back with its mitigation and offset proposals. I need to bear that in mind and I imagine – I understand now what you’re saying and I think that’s probably what’s envisaged.
[230] The participation sought by Ms Pascoe was captured in the proposed Condition 5A referred to above. That proposal also responded to the appellants’
249 Director-General of Conservation v Taranaki Regional Council, above n 1, at [188].
submission that Waka Kotahi should have had a framework and process for their ongoing engagement.250 The conditions provided for a dedicated liaison person for the Pascoes as well as site visits for them and a workshop with the technical experts, as well as assistance and support to ensure the Pascoes could effectively participate. For instance, by the provision of internet connection and IT support, as well as various payments, for example, for their time to attend a workshop.
[231] No error of law is apparent in relation to the issues raised concerning the amount of material involved in the project or the participation afforded to the Pascoes. No issues of natural justice arise.
Loss of part of transcript
[232] Late in the appeal hearing, in the course of her reply Ms Grey mentioned that part of the transcript of the Environment Court hearing, which contained the oral evidence of Mr Pascoe, had not been transcribed. She said that may have resulted in the Court not being fully aware of the effects on the Pascoes.251 It appears there had been difficulties with the sound quality earlier in the hearing.252 Ms Grey submitted that the lack of the transcript of Mr Pascoe’s evidence to assist the Court in its deliberations meant that the members of the Court were deprived of information which showed the full extent of the effects of the project on the Pascoes.
[233] The incomplete transcript was referred to in a footnote to the decision referring to comments made by Mr Pascoe that the Court had captured in the members’ notes.253 It said:
[112] We acknowledge the Agency's approach to this issue. It was apparent to us, however, that Mr and Mrs Pascoe were overwhelmed by the process. Mr Pascoe agreed that there were "too many people, too many plans" in reference to the discussions he and Mrs Pascoe had with the Agency.[63] The Pascoes were vulnerable and lost their legal representation at an important time in the process, which intensified their feelings about the impact of the Project on them. Aside from those factors, for reasons we explain more fully
250 Director-General of Conservation v Taranaki Regional Council, above n 1, at [110].
251 This point was not raised in the Notice of Appeal.
252 There is no reason given for the gap in the transcript.
253 Director-General of Conservation v Taranaki Regional Council, above n 1, at fn 63 of [112]. Footnote 63 at [112]. A note at the beginning of the notes of evidence that the notes had been transcribed from a poor quality sound recording indicates that the loss of parts of the transcript was because of technical difficulties.
later, their relationship with the Agency and their interests were adversely affected by advocacy on their behalf from Poutama, Mr R Gibbs and Ms Gibbs.
[63] Notes taken at hearing - Transcript incomplete.
[234] The transcript is an aid for the Court. It is not the evidence. The issue raised by Ms Grey is that the Court, in the absence of the transcript, might not have appreciated the significance of the effects on the Pascoes. It is apparent from the judgment that is not the case.
[235] It is apparent from the decision that the Court listened to and made notes where necessary, in the course of Mr Pascoe’s evidence. The Court was alive to the effects of the project on the Pascoes as is evident from its comments, which I have set out above.254
[236] The decision of the Environment Court was based on a considerable amount of expert evidence and input. Along the way adjustments were made to the proposals to deal with various effects that would be caused by the project and in response to concerns expressed by the Pascoes. An example was the new proposed conditions developed by Waka Kotahi as far as possible to deal with the concerns raised by the Pascoes in the course of the hearing.255
[237] In summary, the Environment Court was very much alive to the effects on the Pascoes and their land of the project a as whole, as well as, in particular, the haul road and storage yard. It recorded that Waka Kotahi had proposed additional measures to be considered in conditions and would continue to take steps to ensure the concerns of the Pascoes were taken into account in the ongoing process of construction.256
Ecological and related adverse effects
[238] In her submissions Ms Grey submitted that the Pascoes had carefully nurtured the land and looked after, among other things, its ecology. The evidence before the Environment Court was that the relevant project land farmed by the Pascoes was of
254 See above at [122]. See also Director-General of Conservation v Taranaki Regional Council, above n 1, at [108], [110] and [468].
255 Director-General of Conservation v Taranaki Regional Council, above n 1, at [157] and [444].
256 At [445] and [446].
relatively low quality ecologically in the main. Ms Grey said that while that may be the case from a technical ecological point of view, nevertheless, the Pascoes had looked after the land and it was a special place for them on which they hunted and gathered food.
[239] The natural character, landscape, and visual effects on the Pascoes and their land were considered. These were entwined with the ecological and spiritual qualities and were specifically referred to by the Court, as I have set out above.257
[240] In addition, the Environment Court heard expert evidence on many aspects of ecology including pest management, wildlife including kiwi, as well as the methodology of a proposed restoration package. The importance of Ngāti Tama’s ongoing involvement in any restoration package was emphasised.258 Mr MacGibbon, the ecological expert for Waka Kotahi, was subjected to extensive questioning on the adverse ecological effects from the project on the Pascoes’ land.259
[241]In conclusion the Court said:260
[469] We consider that the Project will have significant adverse effects on the area that it affects, but that those effects will be appropriately addressed through the proposed conditions in the event that Te Rūnanga agree to transfer the Ngāti Tama Land to the Agency.
[242] There is no error of law apparent in relation to the consideration of the ecological and related adverse effects by the Environment Court.
Other effects on the Pascoes
[243] As to the social effects on the Pascoes, the Court accepted the findings of Ms McBeth, the planning expert who gave evidence on behalf of the New Plymouth District Council. It said:261
257 See above at [25]; referring to Director-General of Conservation v Taranaki Regional Council, above n 1, at [161]–[167].
258 At [174].
259 At [188].
260 At [469].
261 At [158]–[159].
Social effects – the Pascoes
[158] In her s 42A report the New Plymouth District Council's reporting officer Ms RL McBeth (who also gave evidence at the hearing) was initially of the view that there would be "significant social impacts on the Pascoes' amenity, way of life and wellbeing". Ms McBeth did not consider that the effects on Mr and Mrs Pascoe could readily be mitigated or offset by way of conditions on the designation, stating that "the severity of these effects will need to be considered in evaluation of the overall merits of the proposal". In her statement following the s 42A report, Ms McBeth had formed the view that, while acknowledging the serious social impact on Mr and Mrs Pascoe, among other effects, on balance the NOR with suggested conditions is consistent with the purpose of sustainable management under s 5 of the RMA.
[159] Ms McBeth confirmed in her evidence to the Court that while the amenity effects on Mr and Mrs Pascoe had been addressed through the contents of the management plans, the effects on their way of life and wellbeing were still to be addressed.
[244] The Court was entitled to cross refer and rely on Ms McBeth’s s 42A report to reach that conclusion.262 The Environment Court then went on to consider the remaining social effects on the Pascoes and reached the conclusion that while the project would have significant adverse effects on the Pascoes and their land and the adverse social impact would be severe, it considered that proposed condition 5A would mitigate those effects to the extent possible if they accepted the offer to buy their house and the land on which it sits as well as the other land that was required for the project.263
[245] Effects will always be unavoidable for large-scale, linear projects and the Act does not purport to be a “no effects statute.”264 It was for the Environment Court to consider those effects and reach a conclusion on the basis of the evidence whether these were sufficiently avoided, remedied or mitigated, in the context of the project applications as a whole. It did so.
Present negotiations
[246] The Pascoes noted that there would be significant effects on them if they stayed in the house during the construction period. Options were available for relocating (to
262 Resource Management Act 1991, s 113(3)(a)(ii).
263 Director-General of Conservation v Taranaki Regional Council, above n 1, at [468].
264 Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council (number 2) [2013] NZHC 1346, [2013] NZRMA 293 at [52].
an alternative suitable property to be located and paid for by Waka Kotahi) or Waka Kotahi building the Pascoes an alternative house up to a set value. Ms Grey said these came with other strings that the Pascoes found unattractive.
[247] The Court is not privy to the details of the negotiations between the Pascoes and Waka Kotahi, nor did Waka Kotahi have the opportunity to comment on them. In any event, these negotiations and the agreements on compensation are matters outside the scope of this appeal.
[248] The Environment Court has left the door open for further consideration of the noise in the event the Pascoes do remain in the house during construction.
New Zealand Bill of Rights (NZBORA)
[249] Under the third ground of appeal was an allegation of breaches of the New Zealand Bill of Rights Act (NZBORA) in respect of the Pascoes. The particulars referred to the implications of the removal of rights enjoyed by land owners and the principles of natural justice and fairness in breach of s 27 (which states that every person has the right to natural justice) and s 28 (which states that other rights and freedom are not abrogated or restricted only by reason of not being included in NZBORA).
[250] These were not matters raised in the Environment Court, so unsurprisingly it did not refer to them in its decision. Even if in general terms this particular did properly raise a question of law that it was appropriate to deal with in this appeal, there is nothing in it. The Pascoes were given ample opportunity to be heard and test the evidence before the Commissioner as well as before the Environment Court. I have referred to their participation in the Environment Court hearing in some detail above.265 There was no breach of natural justice or unfairness in the circumstances.
[251] The right to enjoy one’s land is necessarily subject to lawful processes which govern and limit those rights. The effect of s 4 of NZBORA is that no court in relation to any enactment shall decline to apply any provision of an enactment by reason only
265 See above at [219]–[231].
that the provision is inconsistent with any provision of NZBORA. This applies to provisions of the Resource Management Act. In this case the provisions of the Act have been applied to reach decisions as to the resource consents and the approval of the Notice of Requirement. No NZBORA implications arise here.266
Summary of conclusions
[252] I have dealt with the specific points that were pursued on submissions. They raised no questions of law.
[253] A broad assertion was made in the third ground of appeal that the Environment Court had failed to assess a range of adverse effects, separately and/or cumulatively. That broad assertion raises no questions of law but rather invites this Court to embark on an unfocused assessment of the factual matters and evidence before the Environment Court. That is not the function of this Court on an appeal.
[254] The joint appellants have not established any questions of law under the grounds of appeal:
Ground One: Error of law in making an interim decision:
(a)The Environment Court did not err in making an interim decision rather than a final decision pending agreement on the land purchase and Further Mitigation Agreement between Ngāti Tama and Waka Kotahi. Ngāti Tama maintains a relationship with its ancestral land and is mana whenua and kaitiaki in the project area. This required special provision and recognition under the Act and it was open to the Environment Court to issue an interim judgment pending finalisation of the agreement.
266 Fullers Group Ltd v Auckland Regional Council HC Auckland M1077/98, 21 August 1998 at [14]; affirmed by the Court of Appeal in Fullers Group Ltd v Auckland Regional Council [1999] NZRMA 439 (CA).
(b)The Environment Court had all necessary material before it in order to issue an interim decision and make final determinations in relation to the relevant issues.
(c)The adverse effects of the project on Mr and Mrs Pascoe and their land were properly considered and taken into account of in terms of the requirements of the requirements of the Act. The Environment Court was satisfied with the proposed conditions to avoid, remedy, or mitigate the effects, to the extent possible.
(d)It did not err in law by not requiring arrangements for land acquisition and compensation between the Pascoes and Waka Kotahi to be dealt with independently.
Ground Two: Customary and cultural rights, tikanga, mana whenua and kaitiakitanga
(a)The Court undertook an assessment of the cultural issues arising from the project as required under the Act. It concluded on evidence before it that Ngāti Tama were tangata whenua, held mana whenua and were entitled to exercise kaitiakitanga in relation to the project land. It had adequate evidence on which to base that conclusion and gave reasons for its conclusion.
(b)It concluded on the evidence Ms Pascoe could not establish whakapapa or cultural connections to be recognised under the Act. Nor did the fact that she was Māori give her the cultural connection to the land as required under the Act.
(c)The Environment Court properly considered the cultural issues as required under the Act, particularly as referred to in s 6(e) (provide for the relationship with ancestral lands); s 7(a)(aa) (have regard to kaitiakitanga) and s 8 (take into account the principles of the Treaty of Waitangi).
(d)It did not act in an ultra vires manner when it concluded that Poutama’s entry as an “iwi authority” in the Te Kāhui Māngai register maintained by Te Puni Kōkiri was neutral in the context of its assessment of the evidence.
Ground Three: Failure to assess, avoid, remedy or mitigate adverse effects, including construction, noise, social, cultural, spiritual, ecological and economic and cumulative effects
(a)The Environment Court heard a considerable amount of evidence from various experts in the specialist areas. No errors in its consideration and evaluation of that evidence have been pointed to or are apparent.
(b)It concluded that the effects of the project on the Pascoes and their land was significant but that the conditions proposed would mitigate the effects to the extent possible in the circumstances. It had adequate evidence on which to base that determination.
(c)The Pascoes raised no new matters in this Court that had not been properly dealt with by the Environment Court.
(d)The Environment Court took into account the cumulative effects of the project on the Pascoes and their land as all relevant effects and in particular those raised by Mr and Mrs Pascoe before the Environment Court.
(e)No breach of NZBORA has been established.
Ground Four: Error of law in failing to consider avoidance of harm by relocating the haul road
(a)The location of the haul road and storage area, which are temporary works for the period of construction, was the subject of considerable attention at the Environment Court hearing. The Environment Court considered the effects of the haul road and its location as well as the nature of the terrain including possible flooding.
(b)It made no error in its assessment of the proposal and the granting of consent on the basis of the proposal as to the location and construction of the temporary haul road and storage yard and allowing some flexibility in the management of their construction.
[255] Mr and Mrs Pascoe may not accept the Environment Court’s findings as to fact, but no errors of law have been established. It set out in its decision the matters which it was required to under s 133 of the Act and covered the main issues that were in contention, summarised the evidence heard and set out its main findings on the principal issues.
[256] The appellants have not established a threshold question of law required in this appeal.267 The appeal is dismissed.
Further Memoranda
[257] At the conclusion of the appeal hearing I requested the parties to identify the most useful maps of the area involved. The Environment Court had included in its decision an elevation model looking from the south to the north along the alignment, which was useful.268
[258] The parties were unable to agree on the appropriate maps, therefore, I do not intend using any of the maps provided in the memoranda.
[259] I had also asked for a summary of references to the areas of land in question, which was supplied as a table by Waka Kotahi, the Councils and Ngāti Tama in their joint memorandum. No issue is taken by the joint appellants with the accuracy of that information, which is largely cross-referenced to the evidence.
[260] Waka Kotahi, Ngāti Tama and the two councils on the one hand, and the joint appellants on the other, each provided separate memoranda. The memoranda of the joint appellants raised a number of matters of evidence and submission, in particular,
267 Bryson, above n 44.
268 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council HC New Plymouth CIV-2020-443-5, 28 August 2020.
concerning negotiations and details about the siting of various works and arrangements made for managing matters such as the septic tank for the Pascoes’ homestead. These matters are outside the ambit of this appeal as I have noted earlier.
[261] The joint appellants suggested that changes may be made by Waka Kotahi to the haul road route following the Environment Court hearing and this appeal. If Waka Kotahi proposes making any material changes that are not covered by the resource consents or are outside the designation under the approved Notice of Requirement, Waka Kotahi would be required to apply to the Environment Court for variations. That is also a matter outside this appeal.269
Costs
[262] If the parties are unable to agree on costs, any application together with supporting memorandum should be filed and served within five working days of the date of this judgment. Any response is to be filed by memorandum within a further five working days and any reply within a further three working days.
Grice J
Solicitors:
Sue Grey Lawyer, Nelson for the appellants
Simpson Grierson, Wellington for the first and second respondents Buddle Findlay, Wellington for the third respondent
Atkins Holm Majurey, Auckland for Te Rūnanga o Ngāti Tama Trust
Tu Pono Legal Limited, Rotorua for Te Korowai Tiaki o te Hauāuru Incorporated
269 In relation to amendments to the Notice of Requirement, see Director-General of Conservation v New Zealand Transport Agency, above n 214, at [16] and [26]. In relation to the scope and changes to resource consent applications, see Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149 at [29]; Collins v Northland Regional Council [2013] NZHC 3039 at [27]; and Sustainable Ventures Limited v Tasman District Council [2012] NZEnvC 235 at [32].
Attachment 1: Summary of grounds of appeal and particulars
Appeal Ground One: error of law in making an interim decision
[1] The particulars under this ground were that the Environment Court erred in making an interim decision as:
(a)There was no certainty that Waka Kotahi would acquire the Te Rūnanga land.
(b)The Court failed to treat the Pascoes the same as Ngāti Tama in that their land had not been acquired and would require a side agreement to deal with the significant adverse effects if the project proceeded.
(c)Waka Kotahi had not obtained from the Department of Conservation an authority under s 53 of the Wildlife Act “to hunt or kill” kiwi and other native wildlife. Such an authority would be required to enable the relocation of kiwi and other native wildlife.
(d)The Environment Court had incomplete information and so should not have made an interim decision.
(e)The decision on the project was not timely as required by the Resource Management Act.
Appeal Ground Two: customary and cultural rights, tikanga, mana whenua and kaitiaki.
[2] In summary, the particulars under this ground are that the Environment Court erred in law in:
(a)Assuming that only one iwi (Ngāti Tama) could have mana whenua, kaitiakitanga or tikanga or other cultural rights over land in breach of s 6 which requires the recognition and provision for the relationship of Māori with their cultural traditions and their ancestral lands, water sites and other taonga.
(b)Not recognising that determination of mana whenua and kaitiakitanga over any Rohe is a matter for Māori themselves. In the case of Poutama, as it is recorded by Te Kāhui Māngai (a list of iwi maintained by Te Puni Kōkiri) which listed ngā hapū o Poutama for the purposes of consultation on Resource Management Act issues.
(c)Misstating the appellant’s case which was “that Poutama including Debbie Pascoe’s ancestral connection is to the Poutama tribe and Rohe as a whole, including to the wider project area, and the Pascoe Whānau land in the Mangapepeke valley”.
Appeal Grounds Three and Four: relating to other effects of the project
[3]Appeal Ground Three
(a)The haul road and storage areas close to the Pacoes’ home will produce effects which are too adverse for the Pascoe whānau to live on to live in their home during the four year plus construction period.
(b)Failing to consider all of the individual effects or the cumulative effects on Poutama, including the Pascoe whānau, and how each of these effects would be avoided, remedied or mitigated individually and cumulatively.
(c)The Court failed to consider the significant effects (as defined by s 3) including social, amenity, noise, economic, health and safety, their physical, cultural and spiritual relationship with their lifestyle and land and cumulative effects during construction and after construction.
(d)The Court erred in law by making a determination without evidence that an agreement was in place to provide the alternative accommodation that the Court had identified was required or without assessing all the individual and cumulative effects of the project on the Poutama, including the Pascoe whānau, and how these would be avoided, remedied or mitigated.
(e)The decision was conditional on a future agreement with Ngāti Tama but not conditional on any agreement with the Pascoes.
(f)Failure to consider the New Zealand Bill of Rights implication, implications of the removal of rights enjoyed by landowners, the principles of natural justice and fairness in breach of ss 27 and 28 of the New Zealand Bill of Rights and interference with other rights and freedoms.
[4]Appeal Ground Four
(a)Failing to consider Poutama’s request for relocation of the haul road to avoid or mitigate the effects on Poutama, including the Pascoe whānau and the wider environment.
(b)Failing to consider alternatives.
(c)Failing to consider avoiding or mitigating the significant harm on the Pascoe whānau and the environment. Insufficient evidence to assess the effects of the haul road.
(d)Failing to consider relocation of the haul road to the north side of the streams and wetlands.
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