Protect Aotea v Auckland Council
[2022] NZHC 1428
•17 June 2022
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 2.
4 As defined in the Marine and Coastal Area (Takutai Moana) Act 2011, s 9.
To provide access to these structures for such vessels, the seabed must be dredged around the port structures and in the shipping channel from there to deeper water.
[6] Dredged material needs to be dumped. POAL proposes to dump dredged material at the Cuvier Disposal Site (CDS) in an area which lies approximately 27 nautical miles east of Cuvier Island, at a depth of approximately 700 metres. Cuvier Island lies north of the Mercury Islands and approximately halfway between them and Aotea / Great Barrier Island. The location of the CDS is outside the territorial sea of New Zealand,5 and is therefore outside of the CMA. Accordingly, no coastal permit or other type of resource consent under the RMA can be required in respect of the disposal of dredged material in that location.
[7] The CDS is however within New Zealand’s Exclusive Economic Zone (EEZ).6 Accordingly, POAL requires a marine dumping consent under s 62 of the EEZ Act in accordance with the Exclusive Economic Zone and Continental Shelf (Environmental Effects – Discharge and Dumping) Regulations 2015. The CDS is an authorised location under these Regulations.
[8] Prior to POAL’s application for the dredging consents in issue, it had obtained a marine dumping consent, granted by the Environment Protection Authority (EPA) on 27 June 2019 and expiring on 27 June 2054.7 This consent authorises the disposal of not more than:
(a)50,000 cubic metres of dredged material from maintenance dredging and 400,000 cubic metres of dredged material from capital dredging in any 12 month period;8 and
(b)2,000,000 cubic metres of dredged material from capital dredging over the term of the consent.
5 Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, s 3.
6 Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, s 9.
7 EEZ400011.
8 Thus, the maximum disposal of material from maintenance dredging over the 35 year term of the consent is 1,750,000 cubic metres.
[9] I note that Protect Aotea and Protect Our Gulf have each also applied for judicial review of this non-notified dumping consent decision.
[10] In October 2019, POAL applied for two dredging resource consents – one to undertake capital dredging in the Waitematā Navigation Channel Precinct and adjacent to Fergusson Wharf in the Port Precinct of the General Coastal Marine Zone in the regional coastal part of the Auckland Unitary Plan (AUP), and one to undertake maintenance dredging in the same areas.
[11] The purpose of capital dredging is to deepen a berthing area or channel, excavating the areas to depths that have not previously been dredged. In this case, the proposal was to deepen the existing Waitematā navigation channel from a depth of
12.5 metres below the chart datum for the Rangitoto channel to 14-14.2 metres. This will accommodate larger vessels. The purpose of maintenance dredging is to maintain the depth achieved by the capital dredging, removing accumulated sediment.
[12] In the relevant locations, the proposed capital dredging is a restricted discretionary activity under the AUP and the proposed maintenance dredging is a controlled activity.
[13] Auckland Council’s reporting officer opined that the effects of the two consents would overlap and that they should be considered together and bundled as a restrictive discretionary activity overall. The independent hearing Commissioners appointed by the Council accepted the contrary submission on behalf of POAL and decided that the consents should not be bundled because the effects of the two activities do not overlap and are capable of being, and logically must be, undertaken separately as distinct operations over time. However, the hearing Commissioners heard the applications together.
[14] In their decision dated 6 August 2020, the hearing Commissioners granted both consents. They found that POAL was entitled to rely on its marine dumping consent as an existing resource consent and as a component of the existing environment. While finding that the cultural effects of dredging and marine dumping are interconnected and that they may be of some significance, the hearing Commissioners concluded that
they had no jurisdiction to make any findings in relation to the marine dumping given that the EEZ marine dumping consent is in place (that is, a lawful component of the existing environment), and that the disposal activity and location is outside of the Auckland Region and the scope of the RMA.
[15]The dredging consents authorise:
(a)capital works dredging of a maximum of 2,500,000 cubic metres of seabed material over 15 years; and
(b)maintenance dredging of a maximum of 525,000 cubic metres over 35 years.
Decision of the Environment Court on preliminary issues
[16] The Environment Court decision addressed two preliminary issues in advance of the substantive hearing of the appeals:
(a)whether the two applications for resource consents made by POAL should be bundled, so that they are assessed and determined together; and
(b)whether the effects of dumping dredged material outside the CMA but within New Zealand’s EEZ are a relevant consideration in the assessment and determination of the resource consents.
[17] This appeal is concerned with the effects of dumping dredged material outside the CMA, not with bundling. The Court’s decision on the effects preliminary issue was set out at the beginning of the judgment:
B: On the effects of dumping dredged material outside the CMA:
a)While the effects of dumping dredged material outside the CMA are within the scope of the actual and potential effects on the environment of allowing the dredging activities, where there is a sufficient consent of a marine consent authority under the EEZ Act there is no basis on which a consent authority under the RMA or the Environment Court on appeal can undertake any competing assessment of those matters.
b)POAL’s marine dumping consent forms part of the existing environment and the dredging consents sought by POAL may not be refused on the ground that there should be no offshore dumping.
[18] On this issue, the Environment Court’s analysis proceeded as follows. First, the Judge addressed the application of the RMA to the territory of New Zealand, including the CMA but not beyond, and the application of the EEZ Act beyond the CMA. The Judge identified their directly comparable purposes.
[19] Turning to the scope of relevant effects under s 104(1)(a) of the RMA, the Judge identified the general principle that the consequential effects of allowing the activity may not be relevant if they are too remote or unrelated.9 He effectively found (although expressed in the negative) that the dredging and dumping activities have a clear causal relationship in terms of both nexus and remoteness: without dredging, there would be no dumping; and without the ability to dump, dredging would not occur. The consequential effects of allowing the dredging activity therefore include the effects of disposal of dredged material.10 I interpolate that Protect Aotea characterises this as a factual finding that is not susceptible to challenge whereas POAL claims in its cross-appeal that this finding is an error of law.
[20] Next, the Judge referred to s 104(2) of the RMA and said there are no permitted activities relating to dredging in either the Port Precinct or the Waitematā Navigation Channel Precinct, so no effect that might be excluded by s 104(2) is relevant.11 The Judge also noted there are other specific effects excluded by Parliament for policy reasons, but said none of those is relevant here.12
[21] In relation to the restricted discretionary activity of capital dredging, after referring to biophysical effects, the Judge referred to mana whenua values. Although there was no evidence before the Court at this preliminary stage, the Judge proceeded on the assumption that under the broad provisions of ss 6(e), 7(a) and 8 of the RMA, the relationship of Māori with Te Moana-nui-a-Kiwa, their role as kaitiaki of the
9 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [58].
10 At [59].
11 At [60]
12 At [61].
moana and the Treaty principles of protection and participation all include or support values which may be relevant to these appeals within the scope of the discretion as restricted by the AUP.13
[22] The Judge concluded that effects, including on mana whenua values, on the environment, including the environment beyond the CMA, are within the discretion of the consent authority whether to grant or refuse the application for resource consent to undertake capital dredging.14
[23] In relation to the “environment” under the RMA, the Judge found that while the RMA applies throughout the territory of New Zealand but not beyond it, the environment is not so limited. The boundary of the territorial sea does not limit the extent of assessment of the effects of dredging in the CMA on the environment. The extent of the environment is not limited by the scope of the RMA and extends beyond the CMA.15
[24] However, the Judge went on to say that such consideration must also be consistent with other relevant legislation where there is another regulatory regime in place.16 He observed that the assessment of consistency between regulatory regimes includes whether the consent authority or the Environment Court can, and if so how it should, have regard under the RMA to effects on the environment of an activity which has been granted consent under the other regime.
[25] The Judge said that a comparison of the regimes under the RMA and the EEZ Act indicates substantial similarities or at least consistent treatment. The EEZ Act is founded on a similar purpose of sustainable management of resources. There is an application and consenting framework requiring assessment of activities in a similar manner to that under the RMA.17 The Judge referred to similarities and differences between the regimes, including in relation to matters of concern to Māori, while noting that it was not the Environment Court’s function on appeal (as opposed to the
13 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [65].
14 At [67].
15 At [68], [70] and [73].
16 At [75].
17 At [77].
High Court’s function in the judicial review proceedings) to address alleged shortcomings in the EPA decision.18
[26] Having acknowledged differences between the regimes, the Judge said that what is substantially more important is whether the issues that are likely to affect the environment, and in particular in this case the issues that the parties have raised in their appeals, are dealt with on some equivalent basis, so that there can be proper consideration of whether a consent granted under the EEZ Act adequately deals with the matters of concern in proceedings before this Court.19
[27]I set out the Judge’s conclusion to that question in full:
Conclusion on consideration of effects of dumping
[86] The purpose of setting out the required elements for and listing certain parts of the EPA’s decision is to show that the EPA did consider those matters in reaching its decision on POAL’s application for a marine dumping consent under the EEZ Act. Having done that, there is no basis for this Court to say that there is a gap in the regulatory scheme in relation to those matters in the EEZ which would justify a consent authority or this Court on appeal in undertaking such assessment under the RMA for the purposes of determining the capital and maintenance dredging consents in the CMA. I find that the consenting regime under the EEZ Act is comprehensive and that consents granted under that regime should be treated as comparable to those granted under the RMA.
[87] I also find that consideration of the adverse effects on the environment of dumping dredged material at the CDS is within the scope of the matters to which regard was required to be had by the marine consent authority under the EEZ Act. There is no jurisdiction under the RMA to make any decision in relation to any marine dumping consent. There is no basis on which the holder of a marine consent can be required to have that consent reviewed by a consent authority or this Court under the RMA. I therefore conclude that while the effects of dumping dredged material outside the coastal marine area are within the scope of the actual and potential effects on the environment of allowing the dredging activities, where there is a sufficient consent of a marine consent authority under the EEZ Act there is no basis on which a consent authority under the RMA or this Court on appeal can undertake any competing assessment of those matters.
[88] It follows that POAL’s marine dumping consent forms part of the existing environment. The effects of exercising it are anticipated by that consent and controlled by the conditions attaching to it. While the dumping and its effects are relevant to the proposed dredging activities, being connected and proximate to them, the fact that there is a sufficient consent granted by an
18 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [84].
19 At [85].
appropriate marine consent authority obviates the need for any further assessment. On that basis, the dredging consents sought by POAL may not be refused on the ground that there should be no offshore dumping.
[28] I interpolate that Mr Gardner-Hopkins submitted this reference to the “existing environment” appears to be a reference to, or reliance on, Queenstown Lakes District Council v Hawthorn Estate Ltd, which provides that an unimplemented consent can be treated as part of the existing environment if it is likely to be given effect to.20 Also, in its cross-appeal POAL takes issue with these findings that rely on the grant of the EEZ dumping consent. POAL seeks to rely on the existence of the separate EEZ Act regime itself, rather than a consent granted under it.
Approach on appeal
[29] This Court’s approach on appeal from a decision of the Environment Court is not in dispute. Appeals such as this are limited to questions of law,21 where the role of the courts of general jurisdiction “is confined to correction of legal error”; “an appellate court whose jurisdiction is limited to matters of law is not authorised under that guise to make factual findings”.22 This was emphasised by the Supreme Court in Bryson v Three Foot Six Ltd in the employment context where there is a similarly limited appellate jurisdiction. The Supreme Court stated:23
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the
20 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA).
21 Resource Management Act 1991, s 299(1).
22 Estate Homes Ltd v Waitakere City Council [2006] 2 NZLR 619 (CA) at [198] (overturned on appeal on other grounds, see Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149).
23 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
true and only reasonable conclusion contradicts the determination”.24 Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test…
[30] The early RMA decision of a Full Court of the High Court in Countdown Properties (Northlands) Ltd v Dunedin City Council is often cited as the leading RMA judgment in this context.25 It stated that this Court will interfere with decisions of the Planning Tribunal (now the Environment Court) only if it considers that the Tribunal:26
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[31] The error of law must also be material to the decision under appeal for relief to be granted.27
Summary of each party’s position
[32] Given the different positions of the three parties, involving appeal, support on somewhat different grounds, and cross-appeal, it is helpful to summarise each party’s position at this point before identifying the issues for determination.
24 Edwards v Bairstow [1956] AC 14 (HL) at 36. Lord Radcliffe was adopting dicta of the Lord President (Normand) in Inland Revenue v Fraser [1942] SC 493 at 497 and Lord Cooper in Inland Revenue Commissioners v Toll Property Co Ltd [1952] SC 387 at 393.
25 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC). See also Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [28]-[32]; and Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]-[54].
26 Countdown Properties (Northlands) Ltd v Dunedin City Council at 153.
27 Manos v Waitakere City Council [1996] NZRMA 145 (CA) at 148; and SKP Inc v Auckland Council [2020] NZHC 1390, (2020) 21 ELRNZ 879 at [35].
Protect Aotea
[33] Mr Gardner-Hopkins, for Protect Aotea, submitted that mana whenua see the dumping as integrally and intimately connected to the dredging, and as having significant effects on numerous mana whenua values – disregarding tikanga, desecrating customary fishing grounds, affecting taonga species and mauri, and impacting whanaungatanga relationships.
[34] He submitted that these effects of the dumping must be taken into account by the Environment Court when considering the effects of the dredging consent under s 104 of the RMA. This follows from the importance of these mana whenua values in decision making on consent applications under ss 6(e), 7(a) and 8 of the RMA. Those “strong directions”, as well as the principles of Te Tiriti o Waitangi / Treaty of Waitangi themselves, must inform the interpretation of the RMA – including its consenting framework, definitions, and questions of nexus and remoteness. He submitted they weigh heavily against excluding the effects of the dumping on mana whenua values from consideration in assessing the dredging consent application on a jurisdictional basis, if not determine the question and therefore require those matters to be carefully considering in assessing the dredging consent application.
[35] He submitted that, there being no fundamental jurisdictional bar, there is no basis for treating the dumping consent as part of the “existing environment” or applying it as a “permitted baseline” to reach the same outcome when:
(a)the dumping consent would not be exercised to anywhere near the same extent, if the dredging consent were not granted (and applying Hawthorn in these circumstances would be an error of law); and
(b)there is no permitted baseline available under s 104(2) in respect of consents at all, let alone those granted under the EEZ Act rather than the RMA.
[36] He submitted that, with such findings, the Environment Court can proceed to take into account the effects on mana whenua values arising out of the exercise of the
dumping consent, as a consequential effect of the dredging consent. The weight that the Environment Court then gives such effects will be a matter for it in the usual way.
Protect Our Gulf
[37] The key difference in Protect Our Gulf’s case in support of the appeal was Ms Haazen’s submission that a marine dumping consent granted under the EEZ Act is not equivalent to a consent granted under the RMA in light of the different range of considerations that apply, and that the Environment Court was in error in applying a “gap” analysis.
POAL
[38] Ms Carruthers, for POAL, submitted that in considering whether the relevant effects of allowing capital dredging extend to the end use effects of disposal in the CDS (given the possibility of the dumping permit being utilised for the disposal), the Environment Court erred in law by failing to consider whether the nexus was broken and finding that without the proposed dredging there would be no dumping when there was no evidence to support that finding. In relation to nexus, she submitted that the Environment Court erred in law as it failed to take into account whether the nexus was broken by:
(a)the “but for” test; and/or
(b)the existence of a separate legislative regime in the EEZ where the range of relevant considerations is similarly comprehensive.
[39] In the alternative, Ms Carruthers submitted that when assessing the effects on the environment of allowing the dredging activity application:
(a)the “environment” includes the consequential activity of disposal of maintenance dredging material; and
(b)the “effects” of the consequential activity of disposal of capital dredging material can be disregarded using the permitted baseline.
Questions of law
[40] Mr Gardner-Hopkins submitted the questions of law raised in Protect Aotea’s notice of appeal and POAL’s notice of additional (cross) appeal can be consolidated as follows:
Question 1: Can the effects of dumping dredged seabed material outside the CMA be taken into account by the Environment Court when considering:
(a)the effects of the dredging consent; and/or
(b)allowing the excavation and removal of seabed material from the AUP Waitematā Navigation Channel Precinct and Port Precinct?
Question 2: If so, does either:
(a)the approach in Hawthorn;28 or
(b)the permitted baseline;
allow the Environment Court to disregard most or all of the effects that could be generated by full implementation of the EEZ permit?
[41] There is a risk of overlap between questions 1 and 2 and between the parts of each question. To avoid that, and to reflect the parties’ different arguments, question 1 may be addressed as follows:
(a)whether the Environment Court erred in law by failing to consider whether the nexus between dredging and dumping activities was broken by the “but for” test;
(b)whether consents under the RMA and EEZ Act regimes are equivalent; and
28 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA).
(c)if so, whether the Environment Court erred in law by failing to consider whether the existence of a separate comparable regime in the EEZ breaks the nexus between dredging and dumping activities and precludes a consent authority under the RMA or the Environment Court on appeal undertaking any competing assessment of the effects of dumping.
[42] I will deal with the issues in this sequence rather than separate the appeal and cross-appeal.
Question 1: Relevance of effects of dumping when considering dredging consent
[43]I start with some common ground as to the applicable principles.
[44] Section 104(1)(a) of the RMA provides that when considering an application for a resource consent the consent authority must, subject to Part 2,29 have regard to any actual and potential effects on the environment of allowing the activity. Each term is important.
[45]“Effect” is defined broadly:30
In this Act, unless the context otherwise requires, the term effect … includes—
(a)any positive or adverse effect; and
(b)any temporary or permanent effect; and
(c)any past, present, or future effect; and
(d)any cumulative effect which arises over time or in combination with other effects—
regardless of the scale, intensity, duration, or frequency of the effect, and also includes—
(e)any potential effect of high probability; and
29 Resort to Part 2 is required where the plan may not adequately address the matters referred to in ss 5 to 8: RJ Davidson Family Trust v Marlborough District Council [2018] 3 NZLR 283 (CA) at
[47] and [74]-[75]; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76 at [186].
30 Resource Management Act 1991, s 3.
(f)any potential effect of low probability which has a high potential impact.
[46] Effects that are so small or so remote as to de minimis can be disregarded.31 Consideration of effects is also subject to limitations of causation – nexus – and remoteness.32
[47]“Environment” is also broadly defined to include:33
(a)ecosystems and their constituent parts, including people and communities; and
(b)all natural and physical resources; and
(c)amenity values; and
(d)the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters.
[48] Sometimes the environment is referred to as the “receiving environment”, as it receives the activity and its effects. As I will address further in relation to question 2 below, it may be considered not only in its existing state but also in its future state. Here, the environment includes the utilisation of existing dredging consents. Question 2 addresses whether it includes the existing dumping consent.
[49] As indicated, the relevant effects are those of “allowing the activity”. Here the dredging activity is excavating and removing material from the seabed. Disposal is a consequential activity. Disposal in the CMA covered by the AUP would be a separate activity requiring resource consent.
[50] It is also relevant that s 104(1)(b) requires consideration of the “frame” of the district plan.34 Here, the AUP refers to mana whenua values in the objectives, the purpose of the General Coastal Marine Zone and the relevant rules. The purpose of
31 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 576; and Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at [106].
32 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [117]-[119]; Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76 at [81]-[82].
33 Resource Management Act 1991, s 2.
34 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at [10].
the General Coastal Marine Zone is to provide for use and development that has a functional or operational need to be undertaken in the CMA, and to manage conflicts between activities, while (among other things) providing for mana whenua values in accordance with tikanga Māori.
[51] Te Tiriti o Waitangi / Treaty of Waitangi is of particular relevance to the interpretation of the RMA given the “strong directions” in Part 2.35 As the Supreme Court said recently in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board,36 Treaty clauses must be given a broad and generous construction. The significance of the strong directions in Part 2, particularly in ss 6 to 8 and Treaty principles is not in issue. Nor is there any real suggestion they are inadequately reflected in the AUP such that reference to Part 2 is necessary to add to the evaluative exercise.37
[52] For a restricted discretionary activity, the relevant effects are limited to those the consent authority has identified as such in its plan.38 For a controlled activity, a consent authority must grant the resource consent (unless it has insufficient information to determine whether or not the activity is a controlled activity) and may impose conditions only for those matters over which control is reserved.39
[53] Against this framework, the relevant question for the Commissioners and the Environment Court was whether the effects of dumping dredged material outside the CMA but within New Zealand’s EEZ are a relevant consideration in the assessment and determination of the resource consents.
35 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC) at [21]. See also Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [25]-[27] and [88]; and RJ Davidson Family Trust v Marlborough District Council [2018] 3 NZLR 283 (CA) at [52].
36 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, [2021] NZSC 127 at
[151] and [296].
37 RJ Davidson Family Trust v Marlborough District Council [2018] 3 NZLR 283 (CA) at [47] and [74]-[75]; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76 at [186].
38 RMA, s 104C.
39 RMA, s 104A.
Nexus applying “but for” test – POAL cross-appeal
[54] I deal first with Ms Carruthers’ submission on the cross-appeal that the Environment Court erred in law by failing to consider whether the nexus was broken by the “but for” test and finding that without the proposed dredging there would be no dumping when there was no evidence to support that finding.
[55] In relation to the “but for” test, Ms Carruthers submitted that the Court erred in law as it failed to take into account whether the nexus was broken by the “but for” test when:
(a)the EEZ dumping permit authorises 50,000 cubic metres of maintenance dredged material to be disposed at the CDS annually (amounting to 1,750,000 cubic metres during the life of the consent) and the existing maintenance dredging consents held by POAL enable 50,000 cubic metres to be dredged annually; and
(b)POAL is not obliged to dispose of any material dredged under the dredging consent in issue at the CDS.
[56] As indicated above, Mr Gardner-Hopkins characterised the Court’s conclusion in relation to nexus and remoteness as a factual finding that is not susceptible to challenge on this appeal.
[57] I accept, as Ms Carruthers submitted, that the dredging consent in issue does not impose any obligation on POAL to dispose of dredged material at the CDS. I also accept that the Environment Court’s assessment of nexus and remoteness did not distinguish between capital and maintenance dredging. I accept too that the relevant effects are those of allowing the activity for which consent is sought, not the effects of activities for which there are already existing consents.
[58] In relation to the dumping of maintenance dredging material, POAL’s dumping consent authorises dumping of dredged material from the source site (port precincts and shipping channel). POAL has existing dredging consents in relation to that site:
(a)An August 2007 maintenance dredging consent for an average of 35,000 cubic metres annually up to a maximum of 175,000 cubic metres in any five year period until August 2027.40
(b)A November 2016 maintenance dredging consent for no more than 15,000 cubic metres of material per calendar year (or alternatively a cumulative amount of up to 75,000 cubic metres within any five year period) to a maximum of 300,000 cubic metres until November 2036.
[59] As Ms Carruthers submitted, disposal of maintenance dredging in accordance with these existing consents can occur regardless of the outcome of the dredging consent application in issue. Indeed, she advised that disposal has in fact occurred. At least for the next five years, these existing maintenance dredging consents combine to authorise maintenance dredging of 50,000 cubic metres per year, which coincides with the amount of dumping authorised under the marine dumping consent. Insofar as POAL has these existing maintenance dredging consents, I accept that dredging and dumping may occur.
[60] Even so, I do not accept that the Environment Court erred in law by failing to take into account whether the nexus was broken by the “but for” test. The Court considered nexus, including in a “but for” sense, and made a factual finding. Its understandable focus was on nexus and remoteness between the dredging for which consent was being sought and dumping of that dredged material. In essence, POAL is challenging a factual finding on the basis it is undermined insofar as POAL has existing maintenance dredging consents for 50,000 cubic metres per year. But this volume is modest compared with the volume of capital dredging for which consent is sought.41 It is not a case where there was no evidence to support the Court’s finding of nexus.
40 Ref. 34673. The current application provides that the maintenance dredging activities that are subject to the application will be limited to the Waitematā Navigation Channel Precinct and that part of the Port Precinct that is occupied by the Fergusson North berth. The existing maintenance dredging permit (ref. 34673) for the berths and approaches of the balance of the downtown Port Management Areas will continue to apply and is not proposed to be altered.
41 Consent is also sought for further maintenance dredging, but the dumping consent limits the volume dumped to the volume permitted under the existing maintenance dredging consents until 2027.
Equivalence of the RMA and EEZ Act consents – Protect Our Gulf
[61] I deal next with Ms Haazen’s submission that a marine dumping consent granted under the EEZ Act does not have equivalence to a consent granted under the RMA in light of the different range of considerations that apply, and that the Environment Court was in error in applying a “gap” analysis.
[62] As a preliminary point, Ms Carruthers submitted this argument was outside the scope of the appeal. However, while not raised explicitly in the notice of appeal and not a separate focus of Mr Gardner-Hopkins’ submissions, I accept that Ms Haazen’s submission is within the scope of Protect Aotea’s ground challenging the Court’s finding that the fact that there is a sufficient consent granted by an appropriate marine consent authority obviates the need for any further assessment. In any event, the equivalence of the regimes underpins POAL’s cross-appeal that the presence of a separate legislative regime on all fours with the RMA breaks any nexus or makes the connection too remote. Ms Carruthers was certainly in a position to deal with it.
[63] In submitting that consents under the RMA and EEZ Act were different, Ms Haazen noted that in Trans-Tasman Resources the Supreme Court and Court of Appeal identified relevant differences. She submitted that the EEZ Act reflected an international convention on dumping – that narrower purpose gave rise to a narrower focus.42 However, the two main relevant differences identified in Protect Our Gulf’s submissions were the lack of an equivalent to ss 6 and 7 of the RMA and the limited rights of participation in marine dumping applications.
[64] The Judge acknowledged these differences between the RMA and EEZ Act regimes.43 He considered that the absence of purpose provisions in the EEZ Act which correspond to ss 6 and 7 of the RMA was not significant in light of the detailed list of matters that must be taken into account. Specifically in relation to matters of concern to Māori, the Judge noted that the decision of the EPA granting the dumping consent:
42 The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Convention).
43 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [81]-[84].
(a)recorded that 60 Māori organisations or groups (being iwi authorities and applicant groups for customary marine title or protected customary rights) were sent letters advising them of the application;
(b)stated that the EPA’s external expert reviewers, Ngā Kaihautū Tikanga Taiao, being the EPA’s Māori Advisory Committee, had been commissioned to report on the Māori perspective of the potential impacts of the application;
(c)addressed Māori existing interests in its decision as required by s 59(2)(b) of the EEZ Act;
(d)noted other relevant marine management regimes, including the Māori Fisheries Act 2004, as required by s 59(2)(h) of the EEZ Act; and
(e)considered Māori perspectives on the potential effects on cultural values and interests.
[65] To this I add, since the Supreme Court’s judgment in Trans-Tasman Resources was delivered after the Judge’s decision, that the Supreme Court concluded in its unanimous summary:44
In considering the effect of the Treaty of Waitangi clause in s 12 of the EEZ Act, all members of the Court agreed that a broad and generous construction of such Treaty clauses, which provide a greater degree of definition as to the way Treaty principles are to be given effect, was required. An intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear. Here, s 12(c) provided a strong direction that the [decision-making committee of the EPA] was to take into account the effects of the proposed activity on existing interests in a manner that recognises and respects the Crown’s obligation to give effect to the principles of the Treaty. It followed that tikanga-based customary rights and interests constitute “existing interests” for the purposes of the s 59(2)(a) criterion, including kaitiakitanga and rights claimed, but not yet granted, under the Marine and Coastal Area (Takutai Moana) Act 2011.
Further, drawing on the approach to tikanga in earlier cases such as Takamore v Clarke, all members of the Court agreed that tikanga as law must be taken into account by the [decision-making committee of the EPA] as “other
44 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, [2021] NZSC 127 at [8]-[9] (footnotes omitted).
applicable law” under s 59(2)(l) of the EEZ Act where its recognition and application is appropriate to the particular circumstances of the consent application at hand.
[66] Whether the dumping consent reflected these requirements is for the judicial review proceedings, not this appeal.
[67] The Judge did not consider the participatory dimension under the RMA to be a significant factor for comparison, noting it has been reduced substantially by successive amendments over the years.45
[68] I do not consider the Judge erred in conducting a regulatory gap analysis or in finding that the consenting regime under the EEZ Act is comprehensive and that consents granted under that regime should be treated as comparable to those granted under the RMA. That is not to undermine the point that tangata whenua evidence on tikanga, matauranga Māori, identification of wāhi tapu and wāhi taonga can only be expressed by mana whenua.
Consequence of equivalence – cross-appeal
[69] Having concluded that the Environment Court did not err in finding that the consenting regime under the EEZ Act is comprehensive and that consents granted under that regime should be treated as comparable to those granted under the RMA, the next issue concerns the consequence of that finding.
[70] The Court’s decision at the beginning of the judgment indicates two standalone conclusions.46 However, reading the judgment’s conclusion as a whole,47 the Court decided that the consequence of the finding of comparable consent regimes was that POAL’s marine dumping consent was a “sufficient consent” which forms part of the existing environment and obviates the need for any further assessment of the dumping and its effects when considering the proposed dredging activities under the RMA.48
45 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [82].
46 See this judgment at [17] above.
47 At [86]-[88], set out in this judgment at [27] above.
48 I apprehend the Court’s reference to “sufficient consent” was not intended to suggest that an RMA consent authority or the Environment Court on appeal is required to review the merits of the marine consent authority’s decision to ascertain whether relevant effects, for example cultural values, were sufficiently considered.
Protect Aotea’s challenge to the existing environment conclusion is addressed in question 2 below. The Court’s decision was not based on a determination that the existence of a comparable consent regime in the EEZ breaks the nexus between dredging and dumping activities. That is evident because the Court in its conclusion confirmed its nexus and remoteness finding when it said “the dumping and its effects are relevant to the proposed dredging activities, being connected and proximate to them”.49
[71] POAL’s cross-appeal seeks to support the Court’s ultimate conclusion on the ground that the existence of a comparable consent regime did break the nexus between the dredging and dumping activities. Even though POAL agrees with the Environment Court that the dumping permit is a “sufficient consent”, Ms Carruthers submitted that the Court erred in finding that a “sufficient consent” to dispose of the dredged seabed material at the CDS is what obviates the need for any further assessment of the effects of dumping of dredged material. She submitted there was no need to assess the sufficiency of the dumping permit. Instead, she submitted that what obviates the need to assess the effects of dumping dredged material is that there is a sufficient permitting regime in place to control those dumping effects. She submitted it is the regime, not the consent granted under that regime, that breaks the nexus. She submitted that failing to address this important distinction cuts across both the ability for an applicant to apply for either the RMA approval or the EEZ approval first and the need for a consistent approach to the assessment of effects regardless of the order chosen. If upheld, the effects of consequential disposal in the EEZ would be assessed by the Environment Court under the RMA if an EEZ permit was not held but would not be assessed by the Environment Court under the RMA if an EEZ permit was held. POAL accepts this distinction was not as clearly spelled out in the written submissions filed with the Environment Court.
[72] Mr Gardner-Hopkins submitted that the existence of the separate EEZ Act regime, and any EEZ consent granted under it, cannot obviate the need for a consent authority to take into account the effects of dumping seabed material in the EEZ. He submitted this is little different from a consent authority under the RMA taking
49 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [88].
into account maritime safety or airport safety issues even though those matters are also addressed in marine transport or civil aviation regimes; effects on protected species when specific Wildlife Act approvals are required; or effects on historic heritage when Heritage New Zealand Pouhere Taonga approvals are also required. He submitted the existence of another statutory regime, and approvals granted thereunder, do not obviate the need to consider, under the RMA, effects that are otherwise sufficiently connected and not too remote and within the environment as defined under the RMA. How those effects are weighed is a matter for the consent authority, including deference given to any other regime, but that is a matter of judgement, rather than jurisdiction.
[73] He also submitted that the existence of the EEZ Act cannot be a hard jurisdictional bar to taking into account consequential effects when considering an application for resource consent under the RMA without clear legislative intent, which would have been entirely possible through an amendment to the RMA. By contrast, he submitted that Parliament has excluded specific effects such as those of trade competition (s 104(3)(a)) and, until recently, the discharges to air of greenhouse gasses on climate change (s 104E). The effects of aircraft overflying are also excluded (s 9(5)) although in a different way. On the other hand, he submitted there are numerous examples where effects of an activity (or an activity that is a consequence of a primary activity) are required to be considered despite that activity (or a consequential one) also needing an approval under some other legislative regime.50
[74] Mr Gardner-Hopkins also submitted that the capital works dredging consent itself has a linkage to the EEZ dumping consent at condition 12:
In the event the dredged material is to be disposed in reliance on EPA permit EEZ 400011, the information required under condition 12(j) must include a copy of the most recent Sampling Results provided under Condition 7 of that
50 Director of Civil Aviation v Planning Tribunal [1997] NZRMA 513, [1997] 3 NZLR 335 at 340 (CAA and Resource Management); Dart River Safaris Ltd v Kemp [2001] NZRMA 433 at [60] (Maritime Safety and Resource Management); Paprzik v Tauranga District Council (1992) 1 NZRMA 73, [1992] 3 NZLR 176 at [81] (Liquor Licensing and Resource Management); Attorney- General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532, [2019] 3 NZLR 876 at [58] (Fisheries Act and Resource Management); Summerset Villages (Lower Hutt) Ltd v Hutt City Council [2020] NZEnvC 176 (Archaeological Authority and Resource Management); Weston Lea Ltd v Hamilton City Council [2021] NZEnvC 149 (Wildlife Act and Resource Management); and Mt Iron Junction Ltd v Queenstown Lakes District Council [2021] NZEnvC 53 (Hazardous Substance Test Location Certificates and Resource Management).
permit including sediment characterization, contaminant levels and biosecurity risk.
[75] Protect Aotea accepted that this proceeding is not an opportunity to turn the appeal on the dredging consents into an appeal against or collateral challenge to the dumping permit. However, Mr Gardner-Hopkins submitted that does not mean that the effects of the dumping on mana whenua values cannot be taken into account in considering the dredging consents. He submitted this is not so different from considering the consequential effects of any range of activities, some of which will be “lawful” and do not require separate consent and some of which will require separate authorisations.
[76] Mr Gardner-Hopkins noted that the EEZ Act provides that in the case of certain applications – but not for dumping consents – a marine consent authority must take into account the nature and effect of other marine management regimes.51 This was the case in Trans-Tasman Resources.52 He also submitted that the Supreme Court in Trans-Tasman Resources required a thorough consideration of effects in the CMA. By parity of reasoning, he submitted that the same level of consideration was required for an activity in the CMA with effects in the EEZ. He submitted that if an RMA consent is required, the dumping effects would need to be taken into account, accepting that the decision maker could take into account the marine consent authority’s EEZ Act assessment.
[77] I deal first with Mr Gardner-Hopkins’ reference to a hard jurisdictional bar. Ms Carruthers did not suggest that the effects of dumping in the EEZ – whether characterised as consequential or end use effects – are excluded from consideration as a matter of statutory interpretation of the RMA following the enactment of the EEZ Act. In other words, it was not suggested that the subsequent enactment of the EEZ Act impliedly excluded the effects of activities in the EEZ from RMA consideration as a matter of statutory interpretation. There is nothing explicit in the RMA or the EEZ Act excluding consideration under the RMA of effects that are the subject of a marine dumping consent under the EEZ Act. As Mr Gardner-Hopkins submitted, clear
51 Section 59(2)(h).
52 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, [2021] NZSC 127, [2021] 1 NZLR 801.
legislative intent would be required to exclude such consideration under the RMA given the broad ambit of s 104(1)(a) and the strong directions in Part 2, particularly ss 6 to 8, and Treaty principles. If that were intended, s 104 of the RMA could have been amended when the EEZ Act was enacted in 2012.
[78] Turning to whether the finding of comparable consent regimes breaks the nexus between dredging and dumping activities, and whether there was an error of law, Ms Carruthers submitted that the Court erred in law by failing to consider whether the nexus was broken by the existence of that separate regime to control dumping effects in the EEZ. The formulation of this submitted error as one of failing to consider no doubt reflects acceptance of the limits of a s 299 appeal on questions of law. As mentioned in the context of POAL’s earlier submission relating to “but for” causation, Mr Gardner-Hopkins submitted that the Court’s conclusion in relation to nexus and remoteness was a factual finding that is not susceptible to challenge on this appeal.
[79] As indicated, the Environment Court made findings that the dredging and dumping activities have a clear causal relationship in terms of both nexus and remoteness, and that the consequential effects of allowing the dredging activity therefore include the effects of disposal of dredged material. That finding was made in the context of effects including, relevantly, effects on cultural values. The Court also considered the EEZ Act regime and made a finding that the EEZ Act regime is comparable to the RMA (which POAL supports). Then, as indicated, in its conclusion the Court confirmed its nexus and remoteness finding when it said “the dumping and its effects are relevant to the proposed dredging activities, being connected and proximate to them”. At least in part, that is a factual finding as Mr Gardner-Hopkins submitted. It is also strained to say that the Court failed to consider whether the nexus was broken by the existence of that separate regime to control dumping effects in the EEZ.
[80] In any event, it would only be an error of law to fail to consider whether the nexus between dredging and dumping activities was broken by the existence of the EEZ Act regime if that were a mandatory consideration. The real question is whether
the Court erred in law by failing to conclude that the existence of the comparable EEZ Act regime meant that any nexus was broken.
[81] I acknowledge Ms Carruthers’ submission that not treating the EEZ Act regime as breaking the nexus would cut across the ability for an applicant to apply for either the RMA approval or the EEZ approval first — in the sense that a dumping consent is necessary before the consequential effects of the dumping can be rendered irrelevant to the dredging consent application as part of the existing environment. But POAL chose to apply for the dumping consent first in any event.
[82] I accept Ms Carruthers’ submission that this case differs from Trans-Tasman Resources in certain respects.53 In that case, an activity occurring in the EEZ would cause effects across the boundary in the CMA. That case proceeded on the basis there was no activity in the CMA requiring separate RMA consent (albeit Mr Gardner- Hopkins said that position was reserved). The Supreme Court held relevantly that the EEZ Act, which required consideration of “the nature and effect of other marine management regimes”, required consideration of the objectives of the RMA and New Zealand Coastal Policy Statement, and the outcomes sought to be achieved by those instruments, in the area affected by the proposal and whether the proposal would produce effects within the CMA inconsistent with the outcomes sought to be achieved by the RMA regime. Here, the dumping, the effects of which are consequential to the dredging, requires a separate marine consent under the EEZ Act. As well as that marine consent required for dumping in the EEZ, the dredging activities in the CMA require RMA consent. I therefore do not accept that parity of reasoning with Trans- Tasman Resources requires consideration in this case of effects in the EEZ. Although it also concerned cultural values, that case did not involve the nexus issue that arises here.
[83] Nexus and remoteness issues involve factual assessment. As the Supreme Court majority said in West Coast ENT Inc v Buller Coal Ltd, when considering whether to take into account effects of consequential activities, questions of fact and
53 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, [2021] NZSC 127, [2021] 1 NZLR 801.
degree are likely to arise.54 It said so in the context of accepting that effects on the environment of activities which are consequential on allowing the activity for which consent is sought have sometimes been taken into account by consent authorities, particularly so in respect of consequential activities which are not directly the subject of control under the RMA.
[84] Ms Carruthers referred to my statement in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council that the presence of other regulatory controls may mean that allowing the activity does not cause the relevant end use effect.55 However, I did not suggest that other regulatory controls necessarily mean, as a matter of law, that allowing the activity does not cause the relevant end use effect. Indeed, as Ms Carruthers acknowledged, I had already said that I did not consider that the lack of other regulatory controls was determinative.56
[85] Ms Carruthers submitted that the presence of another comprehensive regulatory control regime should be determinative because the EEZ Act is specifically concerned with regulating the effects of disposal in the EEZ. I have already accepted that the EEZ Act regime is comparable to the RMA, applying in a different location, and I accept the EEZ Act is specifically concerned with regulating the effects of disposal in the EEZ. Some of Mr Gardner-Hopkins’ examples where approval is required under another legislative regime are distinguishable given those different regimes are less aligned.
[86] Even so, in the absence of a statutory exclusion, I consider that nexus and remoteness between the dredging and dumping activities involve a factual assessment. Accepting that the finding of comparable consent regimes involves statutory comparison does not preclude this.
[87] Ms Carruthers also submitted that allowing the effects of disposal in the EEZ to be re-assessed via these appeals would be contrary to existing case law principles.
54 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [119], referring to Beadle v Minister of Corrections EnvC Wellington A074/2002, 8 April 2002. See also Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76 at [136].
55 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76 at [153].
56 At [135] and [139].
But re-assessment is not the result of the Environment Court’s decision. It did not ignore and supplant the separate legislative regime applicable to disposal in the EEZ. It precluded re-assessment under the RMA by treating the marine dumping consent as part of the existing environment. POAL’s concerns about re-assessment or collateral challenge are properly considered in that context. Nor did the Environment Court seek to regulate extra-territorial effects in the sense discussed in West Coast ENT Inc v Buller Coal Ltd.57
[88] For these reasons, I do not consider the Environment Court erred in law by failing to consider or conclude that the existence of the comparable EEZ Act regime broke the causal relationship between dredging and dumping activities in terms of nexus and remoteness so that consequential dumping effects are necessarily irrelevant when considering the dredging consents under the RMA. I do not consider the existence of a comparable consent regime in the EEZ is determinative as a matter of law.
[89] I add that the Environment Court’s treatment of the marine dumping consent as part of the existing environment has advantages over treating the EEZ Act regime as breaking the nexus as a matter of law. It enables the RMA consent authority and the Environment Court on appeal to consider the scope of the particular consent and if it is likely to be given effect to, as explained further in relation to question 2.
65 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [64].
66 At [66].
receiving environment (beyond the subject site) to be considered under s 104(1)(a), can include the future environment. That is separate from whether, on the subject site, the permitted baseline concept, as it had developed, incorporated both what was permitted by the plan and what had been consented, as Bayley and Arrigato indicated.
[115] In any event, the permitted baseline concept has been the subject of legislative amendment.67 Section 104(2) of the RMA now provides:
When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect.
[116] The permitted baseline in s 104(2) has no direct application here. It applies to the effects of activities that are permitted in a national environmental standard or plan. Mr Gardner-Hopkins submitted there is no direct equivalent to plans in the EEZ regime – activities are permitted by regulation. In any event, s 104(2) has no application to the effects of activities that are permitted by consents granted under the EEZ Act.
[117] That is not the end of the matter, however. Ms Carruthers submitted that the statutory amendment was only a partial codification of the concept of the permitted baseline, referring to Save Kapiti Inc v New Zealand Transport Agency as a case in which this Court approved the ongoing inclusion of resource consents in the permitted baseline.68 That case concerned a designation.
[118] In Rodney District Council v Eyres Eco-Park Ltd,69 referred to by Mr Enright, Allan J considered that s 104(2) modified the common law permitted baseline approach by enacting a discretion when none formerly existed and by limiting the permitted baseline to the effects of activities permitted by the plan (also described as
67 In the Resource Management Amendment Act 2003, which came into effect after the consent under consideration in Hawthorn. Reference to a national environment standard was added by s 83(2) of the Resource Management (Simplifying and Streamlining) Amendment Act 2009.
68 Save Kapiti Inc v New Zealand Transport Agency [2013] NZHC 2104 at [77].
69 Rodney District Council v Eyres Eco-Park Ltd [2007] NZRMA 1 at [23], a case concerning existing use rights (appeal allowed on other grounds: Rodney District Council v Eyres Eco-Park Ltd [2007] NZCA 13, [2007] NZRMA 320).
confining the role of analysis of the existing environment to an assessment of the receiving environment), but did not otherwise supplant the common law.70
[119] Mr Gardner-Hopkins submitted that s 104(2) supplanted the previous permitted baseline concept, including by making it discretionary. While he accepted the regimes are sufficiently similar such that Hawthorn could be extended to a marine consent under the EEZ Act, he did not accept the same applied to the permitted baseline, at least in part because s 104(2) does not apply. But he also submitted that, even if a permitted baseline is available at common law, there are very good reasons weighing against its application. He referred to the discretionary nature of the permitted baseline, which required consideration of whether the application of the baseline might have the effect of overriding the important provisions of Part 2, including ss 6(e), 7(a) and 8, of the RMA and the inappropriateness of exercising it as a jurisdictional barrier at a preliminary stage without an understanding of all relevant evidential matters. Ms Carruthers submitted that Mr Gardner-Hopkins’ submission about Part 2 is answered by the Environment Court’s finding after comparison of the regimes.
[120] In Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu, the Court of Appeal said:71
[91] In the RMA context, the environment and the permitted baseline concepts are critically different. Both are discrete statutory considerations. The environment refers to a state of affairs which a consent authority must determine and take into account when assessing the effects of allowing an activity; by contrast, the permitted baseline provides the authority with an optional means of measuring – or more appropriately excluding – adverse effects of that activity which would otherwise be inherent in the proposal.
[121] The submissions indicate there is still uncertainty as to whether s 104(2) modified or supplanted the permitted baseline. This may be because, as indicated above, some of the cases used the term permitted baseline to incorporate what was permitted by a plan and what had been consented. In any event, the effect of s 104(2) was that disregarding the adverse effects of activities permitted in a plan (or national environmental standard) became discretionary. Whether the permitted activity is
70 Rodney District Council v Eyres Eco-Park Ltd [2007] NZRMA 1 at [28]-[30].
71 Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu [2013] NZCA 221.
fanciful would be relevant to that discretion.72 Section 104(2) did not affect the Court’s approach to whether activities that have been consented are part of the existing environment. Disregarding the adverse effects of activities that have been consented but where the consent is unimplemented depends on whether the consent appears likely to be implemented such that it is considered part of the existing environment under Hawthorn.
[122] At least in relation to the receiving environment (beyond the subject site), I consider there is no further category whereby the adverse effects of an activity that has been consented, but the consent is unimplemented, can be disregarded under the permitted baseline where implementation is not fanciful, rather than as part of the existing environment under Hawthorn where the appears likely to be implemented threshold applies. In particular, in this case the effects of the consequential activities of disposing capital and maintenance dredging material should not be treated differently so that the effects of disposing capital dredging, if they could not be disregarded as part of the “environment”, can be disregarded using the permitted baseline on the basis that the dumping permit will be utilised to dispose of the capital dredging if consent is granted. As the Court of Appeal said in Hawthorn,73 the permitted baseline is simply an analytical tool that excludes from consideration certain effects of developments on the site that is subject to a resource consent application. It is not to be applied for the purpose of ascertaining the future state of the environment beyond the site.
[123] In any event, application of the permitted baseline involves the exercise of a discretion. The Environment Court did not consider the permitted baseline so as to address the discretion. While the application of the permitted baseline is raised as an additional question by POAL, it is not a ground of the cross-appeal that the Environment Court failed to do so. Ms Carruthers responsibly did not go further than submitting that the Environment Court would have exercised its discretion if it had considered the issue and that it would be safe for this Court to do so. Even if I had concluded that the effects of disposing capital dredging material could potentially be
72 See also Nash v Queenstown Lakes District Council [2015] NZHC 1041 at [64].
73 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [27].
disregarded using the permitted baseline, I would have also remitted this to the Environment Court rather than exercised the discretion on this s 299 cross-appeal.
Conclusion
[124] For these reasons, I conclude that the Environment Court did not err in law in deciding that the dumping and its effects are relevant to the proposed dredging activities, being connected and proximate to them, nor in deciding that POAL’s marine dumping consent forms part of the existing environment.
Result
[125]The appeal and cross-appeal are dismissed.
Gault J
Solicitors / Counsel:
Mr JDK Gardner-Hopkins, Barrister, Wellington
Ms L Thornton (appellant’s instructing solicitor), Lyall & Thornton, Auckland Ms D Hartley and Ms A Buchanan, DLA Piper, Auckland
Ms B S Carruthers, Barrister, Auckland
Mr D J Minhinnick and Mr P G Senior (second respondent’s instructing solicitors), Russell McVeagh, Auckland
Mr Rob Enright, Barrister, Wanaka
Ms Ruby Haazen, Barrister, Waiheke Island
Mr T Greenwood (Protect Our Gulf Incorporated’s instructing solicitor), Greenwood Law, Waiheke Island
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