Protect Aotea v Auckland Council - [2022] NZHC 1428

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1847 [2022] NZHC 1428

UNDER the Resource Management Act 1991

IN THE MATTER

of an appeal under s 299 of the Resource Management Act 1991

BETWEEN

PROTECT AOTEA

Appellant

AND

AUCKLAND COUNCIL

First Respondent

PORTS OF AUCKLAND LIMITED

Second Respondent

Hearing: 2 February 2022

Appearances:

JDK Gardner-Hopkins for the Appellant

No appearance by or for the First Respondent

B S Carruthers and P G Senior for the Second Respondent

R Haazen and R B Enright for Protect Our Gulf Incorporated

Judgment:

17 June 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 17 June 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

PROTECT AOTEA v AUCKLAND COUNCIL [2022] NZHC 1428 [17 June 2022]

[1] Protect Aotea appeals against a decision of the Environment Court dated 14 September 2021 on preliminary issues in appeals challenging Auckland Council’s decision to grant a dredging consent to Ports of Auckland Ltd (POAL) under the Resource Management Act 1991 (RMA).1 Protect Our Gulf Incorporated was also an appellant in the Environment Court and appeared in this Court in support of Protect Aotea’s appeal.

[2] The issues relate to the relevance under the RMA of the effects of dumping dredged material outside the territorial sea of New Zealand in accordance with a marine dumping consent under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act). The Environment Court concluded that the dredging consents sought by POAL may not be refused on the ground that there should be no offshore dumping.

[3] POAL supports the Environment Court’s ultimate conclusion but says by way of additional (cross) appeal that the Environment Court should have reached its decision differently.

Factual background

[4] Protea Aotea is a registered charitable trust mandated to speak for many iwi and hapū holding mana whenua in respect of POAL’s dredging and dumping sites.2 Protect Our Gulf is a community group largely based on Waiheke Island with interests in adverse effects to the Waitematā and Hauraki Gulf including waters beyond Aotea / Great Barrier Island where the majority of dredged material will be dumped.

[5] POAL occupies the coastal marine area (CMA3) and the marine and coastal area4 and adjacent land of the port at or near 1-19 Quay Street, Auckland with structures for the berthing of large vessels in order to load and unload freight.

1      Protect Aotea v Auckland Council [2021] NZEnvC 140; Chief Environment Court Judge D A Kirkpatrick sitting alone under s 279(1)(c) and (e) of the RMA.
2      Protect Aotea is supported in its appeal by Ngāti Rongo, Ngāti Rehua Ngāti Wai ki Aotea Trust Board (the mandated hapū authority for Ngāti Rehua), the Ngātiwai Trust Board (mandated Iwi Authority for Te Iwi ō Ngātiwai), and the Ngāti Paoa Trust Board (iwi authority for Ngāti Paoa).
3      As defined in the Resource Management Act 1991, s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 1428
Decision Date: 17 June 2022

CaseChat Overview and Summary

Protect Aotea appeals against a decision of the Environment Court to reject its challenge to the Auckland Council's grant of a dredging consent to Ports of Auckland Ltd under the Resource Management Act 1991 (RMA). The Environment Court found that the effects of dumping dredged material outside the coastal marine area (CMA) but within New Zealand's exclusive economic zone (EEZ) were not a relevant consideration in the assessment and determination of the consents, as there was a sufficient consent of a marine consent authority under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act). The appeal raises issues about whether the Environment Court erred in law by failing to consider whether the nexus between dredging and dumping activities was broken and whether the permitted baseline allows the Environment Court to disregard most or all of the effects that could be generated by full implementation of the EEZ permit. The court concluded that the Environment Court did not err in law by failing to consider whether the nexus between dredging and dumping activities was broken and that there was no error of law in deciding that POAL's marine dumping consent forms part of the existing environment. The appeal and cross-appeal are dismissed.

Orders