Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Transport Agency

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 25/2021
[2024] NZSC 26

BETWEEN	ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCOPORATED Appellant
AND	NEW ZEALAND TRANSPORT AGENCY Respondent

Hearing: Further submissions:	16–18 November 2021 11–12 May 2022
Court:	Winkelmann CJ, William Young, Glazebrook, Ellen France and Williams JJ
Counsel:	S R Gepp, M C Wright and P D Anderson for Appellant V E Casey KC, V S Evitt and J W E Parker for Respondent G C Lanning and C J Ryan for Auckland Council as Interested Party R B Enright for Ngāti Whātua Ōrākei Whai Māia Limited as Interested Party P F Majurey and D T K Ketu for Ngāti Maru Rūnanga Trust, Te Ākitai Waiohua Waka Taua Incorporated, Ngāi Tai ki Tāmaki Trust and Ngāti Tamaoho Trust as Interested Parties
Judgment:	11 April 2024

JUDGMENT OF THE COURT

A The appeal is allowed.

B The matter is remitted to the Board of Inquiry for reconsideration in line with the terms of this judgment.

C Costs are reserved.
____________________________________________________________________

REASONS

Winkelmann CJ, Ellen France and Williams JJ	[1]
Glazebrook J	[183]
William Young J	[367]

WINKELMANN CJ, ELLEN FRANCE AND WILLIAMS JJ
(Given by Williams J)

Table of Contents

Para No
Introduction	[1]
The East West Link	[1]
Required approvals	[10]
Notices of requirements	[12]
Resource consents	[14]
Inquiry process	[21]
Decisions under appeal	[23]
The Board	[23]
High Court	[26]
The issues	[28]
One: the s 104D gateway	[29]
Two: ss 104 and 171 and the effect of the NZCPS	[32]
Three: offsets, compensation and the “bucket approach”	[34]
Mana whenua issues	[36]
Policies and objectives relevant to this case	[37]
Policies in the NZCPS	[40]
Avoiding adverse effects on indigenous biodiversity	[40]
Infrastructure and development	[43]
Objectives and policies in the AUP	[47]
AUP(rps) biodiversity overlay policies	[48]
Infrastructure and development policies in the AUP(rps)	[51]
The AUP (plans) introduction	[55]
AUP(plans) biodiversity and SEA overlays	[56]
AUP(plans) infrastructure objectives and policies	[64]
AUP(plans) reclamation policies	[68]
Why avoid policies are so important	[72]
A fair appraisal of the AUP read as a whole	[79]
A fair appraisal of the NZCPS read as a whole	[92]
Recap on NZCPS policies	[94]
Can the NZCPS avoid policies tolerate the AUP exceptions?	[99]
Overall conclusion so far	[113]
Application of objectives and policies to the EWL	[114]
The facts briefly recapped	[115]
The policies briefly recapped	[117]
A summary of the exceptions pathway	[118]
The Board’s reasons	[128]
The High Court decision	[138]
Analysis	[141]
The framework	[142]
A regression to overall judgment	[144]
Conflating s 171 and the AUP policies	[149]
Acceptable adverse environmental effects	[163]
Conclusion on the Board’s approach	[168]
The High Court and “have regard”	[169]
A final comment	[171]
Offsets, compensation and the bucket approach	[173]
Summary of conclusions	[180]
Disposition	[181]

Introduction

The East West Link

The New Zealand Transport Agency | Waka Kotahi (Waka Kotahi) builds and maintains Aotearoa’s state highways. This appeal relates to Waka Kotahi’s proposal to construct the East West Link (EWL), a new four‑lane arterial road in Auckland connecting State Highway 1 (SH 1) at Penrose/Mt Wellington to State Highway 20 (SH 20) at Onehunga. It is intended to run along the northern shore of the Māngere Inlet, at the north‑eastern corner of the Manukau Harbour (the Harbour).
Important context for this proposal is that Auckland is a rapidly growing city. When Waka Kotahi filed the necessary applications and notices for the EWL in December 2016, the accompanying East West Link: Assessment of Effects on the Environment (AEE) report estimated Auckland’s population at 1.4 million.[1] By 30 June 2021 that estimate had increased to 1.72 million according to the Auckland Council website, an increase of 23 per cent.[2] This growth must be accommodated within Auckland’s location along a narrow isthmus set between the Waitematā and Manukau Harbours. Geography has two important implications for the EWL. First, Auckland’s perimeter is dominated by coastline, much of which is ecologically vulnerable. Second, this means that options for enhancing Auckland’s road network to meet present and future needs are physically constrained. This appeal is primarily about the way in which the objectives and policies of the Auckland Unitary Plan (AUP) and those of the New Zealand Coastal Policy Statement (NZCPS) navigate this acute tension between urban intensification and coastal protection.[3]
[1]East West Link: Assessment of Effects on the Environment (NZ Transport Agency | Waka Kotahi, December 2016) [AEE] at 10.
[2]Auckland Council | Te Kaunihera o Tāmaki Makaurau “Te taupori o Tāmaki Makaurau | Auckland’s population” Auckland Plan 2050 < Unitary Plan: Operative in Part [AUP]; and “New Zealand Coastal Policy Statement 2010” (4 November 2010) 148 New Zealand Gazette 3710 [NZCPS]. Any references to the AUP in these reasons refer to the version provided to us by the parties to the appeal. Some parts of the AUP were not included in the excerpts submitted by the parties, but any changes to these parts since the date of the Board decision are not material for the purposes of this appeal.
In 2015, the industrial and manufacturing area encompassing Onehunga, Penrose, Mt Wellington and Ōtāhuhu provided 10 per cent of Auckland’s employment with an estimated workforce of over 68,000.[4] The area contributed some $4.7 billion annually in 2012, or 7.5 per cent of Auckland’s gross domestic product. It is also the main transport hub for the upper North Island. Key factors in that respect are that it is close to Auckland International Airport, transected by the country’s main rail corridor and contains three inland ports. Construction of a more efficient link through this area connecting SH 1 and SH 20 has been a priority project in Auckland’s spatial plan for some time.[5]
[4]Final Report and Decision of the Board of Inquiry into the East West Link Proposal: Volume 1 of 3 – Report and Decision (21 December 2017) [Board decision] at [242]; and AEE, above n 1, at 207–208.
[5]Board decision, above n 4, at [12]–[14].
The Board of Inquiry (the Board) summarised the EWL’s expected benefits as follows:[6]
(a)improved and more reliable travel time;
(b)accessibility that supports business growth and economic prosperity;
(c)improved safety and connected communities; and
(d)the provision of environmental improvements and social/community opportunities to the local area.
[6]At [11].
But as Powell J noted in the High Court, while the northern shore of the Manukau Harbour has been heavily modified, the Māngere Inlet (the Inlet) remains ecologically significant, particularly, but not only, as a habitat and food source for shorebirds and relatively rare or threatened migratory seabirds.[7] The Board recorded the relevant evidence in the following terms:[8]
[465] It is also uncontested that the inter-tidal areas of the Inlet are a feeding and roosting area for various shore birds. Dr Bull noted that:
“A diverse assemblage of species were recorded foraging on the Māngere Inlet intertidal mudflats and included NZ pied oystercatcher (At Risk), bar-tailed godwit (At Risk), pied stilt (At Risk), lesser knot (Threatened), wrybill (Threatened), northern NZ dotterel (Threatened), royal spoonbill (At Risk), white-faced heron (Not Threatened), red-billed gull (Threatened) and black-backed gull (Not Threatened).”
[466] The significance of the Inlet for those species was confirmed by Dr Lovegrove, who identified its particular significance as a key feeding and roosting site and departure point for the endemic wrybill plover (Nationally Vulnerable). He stated that the wrybill has a global population of c5,000 birds, with up to 1,200 of these having been reported in the Māngere Inlet. This was corroborated by Dr Bull.
[7]Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2021] NZHC 390, [2021] NZRMA 303 (Powell J) [HC judgment] at [4].
[8]Board decision, above n 4 (footnotes omitted, emphasis in original).
Further, a portion of the proposal area above the shoreline contains relatively rare survivor lava shrubland and raupō wetland as well as mangrove to saltmarsh to freshwater wetland gradients. Primary areas of focus in terms of likely adverse effects include:
(a)permanent loss and compromise of wading bird and shorebird habitats (roosting and feeding areas) along the Inlet shoreline due to reclamation, construction of boardwalks and the placement of piers supporting a viaduct to span the Anns Creek Estuary; and
(b)permanent loss of, or other adverse impacts on, lava shrubland and raupō, and on gradient complexes around Anns Creek above the
north-eastern corner of the Inlet.
These impacts will occur in areas that are identified and protected by objectives, policies and rules in the AUP. As Powell J noted, the likely environmental effects of the project are such that, from the outset, it has been controversial.[9]
[9]HC judgment, above n 7, at [4].
In response to some of the concerns expressed, Waka Kotahi proposed a package of compensatory, offset and improvement measures that it submits avoids, remedies or mitigates adverse effects. Waka Kotahi also submitted that the project’s ecological cost would effectively be counterbalanced by its ecological benefits. For example, the “almost ruler-straight”[10] northern shoreline of the Inlet would be recontoured to provide an alignment that is at least reminiscent of the original shoreline; stormwater for the entire 611 ha catchment would be redirected for treatment through a newly constructed wetland complex before discharge into the Inlet; and groundwater contaminated with leachate from three local landfills would be diverted by a new bund and treated.
[10]Board decision, above n 4, at [474].
Further, as mitigatory and offset measures, Waka Kotahi proposed to:
(a)buy Ngā Rango e Rua o Tainui, a privately owned island of about 0.33 ha located in the centre of the Inlet, to establish alternative shorebird roosting sites there;
(b)provide other new roost structures in the Inlet and further protection for seabird habitat elsewhere in the Harbour;
(c)carry out 30 ha of ecological restoration and habitat enhancement in the project area, including provision of replacement raupō planting for the area to be lost; and
(d)undertake pest control and enhancement measures for threatened or
at risk avifauna at sites in the South Island with particular focus on the wrybill plover population.

Required approvals

Because Auckland Council is a unitary authority,[11] all approvals required for the project are subject to the objectives, policies and rules of the AUP. The AUP is a combined planning document comprising Auckland’s regional policy statement, regional coastal plan, regional plan and district plan. For clarity, where we intend to refer specifically to the provisions of one or other of the policy statement or plans within the AUP, we will include those references in brackets—for example, AUP(rps) or AUP(plans). As to the latter, we generally use the plural plans to cover all three embedded plans—regional coastal, regional and district. We will use the generic form AUP when intending to refer to the entire document.
[11]Local Government (Auckland Council) Act 2009, s 6.
The EWL requires approvals for a combination of notices of requirement (NORs) and resource consents to facilitate the following works:
(a)a new four-lane arterial road between the existing SH 20 Neilson Street Interchange in Onehunga and SH 1 at Mt Wellington, and connection of the new arterial road to SH 1 via two new ramps south of the Mt Wellington Interchange;
(b)the widening of SH 1 and an upgrade of the Princes Street Interchange;
(c)reconfiguration of the Neilson Street Interchange and surrounding roads, including a trench on the southern side of the Interchange, with a local bridge connecting Onehunga Harbour Road to Onehunga Wharf;
(d)new commuter and recreational cycle paths alongside the EWL, and a new pedestrian and cycle connection across Ōtāhuhu Creek;
(e)new local road connections to and from the EWL main alignment and associated roading improvements;
(f)grade-separation at the intersection with Great South Road/Sylvia Park Road;
(g)reclamation of 18.4 ha along the northern foreshore of the Māngere Inlet to construct:
(i)parts of the EWL main alignment;
(ii)stormwater treatment areas;
(iii)headlands to form a naturalised coastal edge; and
(iv)recreational space; and
(h)a bund to intercept contaminated runoff from three historic landfills before it enters the Māngere Inlet.

Notices of requirement

There are two NORs proposed for inclusion as designations in the district plan provisions of the AUP: the first for the construction, operation, and maintenance of the EWL between Onehunga and Ōtāhuhu, and the second to alter the SH 1 designation to accommodate the EWL.
NORs are governed by Part 8 of the Resource Management Act 1991 (RMA). Waka Kotahi is a network utility operator and requiring authority in terms of s 166.[12] This gives it a kind of priority status. It can notify the Council that works or proposed works for which it has responsibility should be included in the relevant district plan. This is done by a NOR.[13] In the ordinary course of events, on receipt of a NOR, the responsible council may inquire into it and recommend to the requiring authority that it confirm, modify or withdraw the NOR, or that conditions be imposed.[14] The requiring authority then makes its own decision on the NOR. It may accept or reject the council’s recommendation, but its decision is subject to a right of appeal on the merits to the Environment Court.[15] When a NOR is included as a designation in the district plan, its terms take effect as rules in that plan, effectively rendering the designated works permitted activities for which land use consents under s 9(3) are not required.[16] Section 171 relevantly provides:
[12]Resource Management (Approval of New Zealand Transport Agency as Requiring Authority) Order 1992, cl 2; “Resource Management (Approval of Transit New Zealand as Requiring Authority) Notice 1994” (3 March 1994) New Zealand Gazette No 1994-go1500; “Resource Management (Approval of NZ Transport Agency as a Requiring Authority) Notice 2015” (19 November 2015) New Zealand Gazette No 2015-go6742; and “The Resource Management (Approval of New Zealand Transport Agency as a Requiring Authority) Notice 2023” (18 September 2023) New Zealand Gazette No 2023-go4371.
[13]Resource Management Act 1991 [RMA], s 168(2). See also s 166 definition of “designation”.
[14]Section 171(2).
[15]Sections 172 and 174.
[16]Sections 175(2)(a) and 176(1)(a). See also s 9(3) as to the requirement for resource consents.
171     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—
(i)       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 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.
…

Resource consents

In part because of its intended location in the coastal marine area (CMA), significant aspects of the EWL fall under Auckland Council’s separate regional council jurisdiction.[17] The NORs cannot authorise those aspects, as NORs only immunise a public work from the need to obtain consents to contravene a rule in a district
plan—that is, a rule promulgated by Auckland Council acting in its capacity as a territorial authority.[18] Resource consents are still required under ss 9(2), 12, 13, 14 and 15 as these relate to contravention of regional or regional coastal plan rules rather than district plan rules. They are also required for contravention of any district plan rule which is not expressly covered by a NOR.[19] Twenty-four resource consents must be obtained. These comprise:
(a)four coastal permits in relation to construction activities including reclamations, deposition, waste disposal and placement of structures in the CMA;
(b)six water permits for works in water courses and associated drainage and diversion activities;
(c)five discharge permits for discharges of contaminants into air or onto land or water, and discharges of stormwater;
(d)one land use consent for end purpose activities on the proposed foreshore reclamation land;
(e)one land use consent for the operation of a temporary concrete batching plant; and
(f)seven land use consents relating to works on existing contaminated soil, other earthworks, vegetation alteration and removal, siting of new network infrastructure, and construction of new impervious road surfaces.
[17]Section 30.
[18]Sections 9(3), 175(2)(a) and 176(1)(a).
[19]Section 9(3).
Some of the foregoing activities, and all of the contentious ones in terms of effects, are non-complying under the AUP(plans) in terms of s 87A(5) of the RMA. As the AUP usefully explains, activities are accorded non-complying activity status where greater scrutiny of the proposed activity is required. This may be because, for example, the activity is not anticipated in the place proposed, it is likely to have significant adverse effects on the existing environment, the environment is particularly vulnerable or, more generally, the activity is less likely to be considered appropriate in that place.[20]
[20]AUP, Policy A1.7.5.
It is common ground that, for consenting purposes, the proposal’s scale and complexity meant the appropriate approach was to bundle all relevant activities into a notional single activity to be classified as non-complying.

To obtain the necessary resource consents, the EWL must be evaluated against the list of relevant considerations in s 104, the controlling provision for all resource consent applications whatever their activity status. Though by no means identical, the considerations under s 104 are similar to those for NORs under s 171.
Since the EWL is a non-complying activity, it must also pass through one or other of the two gateways in s 104D. Both ss 104 and 104D require the consent authority to have regard to the proposal’s environmental effects and to the relevant provisions of any applicable plans. But s 104D adds a second, more focused filter. It provides that consent for a non-complying activity may only be granted if either its adverse effects on the environment will be no more than minor or the activity itself is not contrary to the objectives and policies of the relevant plan.
Section 104D relevantly provides:
104D Particular restrictions for non-complying activities
(1)Despite any decision made for the purpose of notification in relation to adverse effects, a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that either—
(a)the adverse effects of the activity on the environment (other than any effect to which section 104(3)(a)(ii) applies) will be minor; or
(b)the application is for an activity that will not be contrary to the objectives and policies of—
(i)the relevant plan, if there is a plan but no proposed plan in respect of the activity; …
…
If the s 104D gateway test is satisfied, the applications must then be considered in the ordinary way under s 104. Section 104 relevantly provides as follows:
104     Consideration of applications
(1)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2 and section 77M, have regard to–
(a)any actual and potential effects on the environment of allowing the activity; and
(ab)any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and
(b)       any relevant provisions of—
…
(iv)      a New Zealand coastal policy statement:
(v)a regional policy statement or proposed regional policy statement:
(vi)      a plan or proposed plan; and
(c)any other matter the consent authority considers relevant and reasonably necessary to determine the application.
…

Inquiry process

The applications relevant to the EWL were filed with the Environmental Protection Agency pursuant to s 145 of the RMA. Following the Agency’s recommendation, the Minister for the Environment and the Minister of Conservation considered the EWL to be a proposal of national significance for the purpose of Part 6AA. The Ministers appointed a Board of Inquiry under s 149J to consider the proposal. The effect of this “call in” under Part 6AA is to foreshorten the applicable appellate pathways. Appeals are only on a question of law and must be brought in the High Court.[21] In general terms, the Board of Inquiry replaces Auckland Council as consent authority but, unlike the Council, it has the power of final decision on the NORs.[22] The Board, for the purposes of inquiry into the EWL, comprised four members including a retired High Court judge acting as Chair.
[21]Section 149V.
[22]Section 149P(4)(b). Contrast s 171(2).
A total of 689 submissions were received following notification of the proposal, including a submission in support of the proposal by Auckland Council. According to the Board, 85 per cent of the submissions opposed the proposal. The scale of the proposal meant inquiry procedures were purpose designed. They involved prehearing expert conferencing and ongoing evidence exchange. Conferencing was separated into 24 subheadings and, as the needs of the process evolved, continued into the hearing process itself. The Board sat for 49 days over a period of some 12 weeks and in due course issued a decision comprising 356 pages, excluding two volumes of appendices and consent conditions.

Decisions under appeal

The Board

The Board found that, although the proposal would have more than minor adverse effects on the environment, it was not contrary to the objectives and policies of the AUP for the purposes of the s 104D gateway. On that issue, the Board framed its conclusion in this way:[23]
[664] While the Proposal is concluded to be contrary to a small number of policies or subclauses of policies, the Board does not consider those individually or cumulatively as reason to conclude that the Proposal is repugnant to the policy direction of the [AUP(plans)] with respect to the resource consents sought. The Board’s conclusion is that where the Proposal infringes policies, neither individually nor cumulatively do those infringements tilt the balance for s 104D purposes against the Proposal as a whole.
[23]Board decision, above n 4.
The Board’s conclusion as to the need for the EWL was in these terms:[24]
… the Board is satisfied that “an EWL” servicing the Onehunga-Southdown industrial area, would be a highway of strategic and national importance. The evidence satisfies it that such a highway is long overdue and is urgently needed to provide better freight transport links to an area of national and regional significance.
[24]At [266].
The Board then concluded that the adverse effects of the proposal, though in some areas significant,[25] could be avoided where possible and adequately remedied or mitigated in all other instances.[26] This meant that, with some modifications, the resource consents could be granted under s 104 and the designations confirmed under s 171.[27]

High Court

[25]See for example at [471].

[26]At [1391].

[27]At [1398].

In the High Court, Powell J confirmed the Board’s decision. As to the s 104D threshold, he found that:[28]
… when the relevant objectives and policies of the AUP are properly reconciled it is apparent that the AUP provides a specific, albeit narrow, framework for the consideration of infrastructure proposals rather than automatically excluding them at the s 104D stage. … I conclude that when the relevant chapters are properly construed the AUP was never intended to categorically block infrastructure projects such as the proposed EWL at the s 104D stage as to do so would preclude the very analysis envisaged in chapter E26 [which contains the relevant AUP infrastructure policies].
[28]HC judgment, above n 7, at [68].
In relation to the substantive decisions under ss 104 and 171, the appellant argued in the High Court that the AUP policies directed the Board to avoid adverse effects on vulnerable areas and the proposal could not satisfy that requirement.[29] Further, if, contrary to that submission, it was accepted that the objectives and policies of the AUP could accommodate the proposal, then the AUP was inconsistent with the NZCPS which required such effects to be avoided, and the NZCPS is the predominant document and must be applied.[30] The Judge rejected these arguments. He concluded:
[86] By any measure, I am satisfied that the Board has had as it was required to do regard/particular regard to the NZCPS in the course of its consideration of the proposed EWL. Having done so it was therefore entirely open to the Board to reject, as it did, the submission made on behalf of Ngāti Whātua and Forest and Bird that the specific wording of the NZCPS somehow trumped the provisions of the AUP, and, likewise, for the Board to instead prefer the relevant provisions of the AUP to the extent that these differed from the NZCPS.

The issues

[29]At [9] and [21]–[23].

[30]At [9] and [72].

There are three broad categories in which issues arise for determination.

One: the s 104D gateway

At the Board hearing, Waka Kotahi and Auckland Council accepted that the adverse environmental effects of the EWL will be more than minor.[31] The Board therefore had to be satisfied for the purposes of s 104D(1)(b) that the activity “will not be contrary to the objectives and policies” of the AUP(plans).
[31]Board decision, above n 4, at [615].
As noted, the Board and the High Court accepted that the EWL could pass through this gateway, although for different reasons. The Board found that the s 104D(1)(b) test permits an overall assessment of the relevant AUP(plans) objectives and policies, such that a measure of internal inconsistency did not necessarily mean the EWL was contrary to them.[32] The High Court, on the other hand, found that although the EWL was contrary to certain protective objectives and policies, they could, on careful analysis, be reconciled with infrastructure objectives and policies, leaving a “specific, albeit narrow, framework” through which the EWL could pass.[33]
[32]At [662]–[664].
[33]HC judgment, above n 7, at [68].
The issues under s 104D are:
(a)Is locating major infrastructure in vulnerable coastal environments inconsistent with the AUP(plans)’s indigenous biodiversity “avoid” policies?[34]
(b)If yes to (a), can such a proposal nonetheless not be contrary to the AUP(plans)’s objectives and policies for the purposes of s 104D?
(c)If yes to (b), is there an inconsistency between the NZCPS and the AUP(plans) such that the relevant “avoid” policy in the NZCPS should effectively prevail?

Two: ss 104 and 171 and the effect of the NZCPS

[34]We use the term “avoid policies” throughout these reasons to refer to those policies in the AUP and NZCPS that require the avoidance of adverse environmental effects. See our discussion below at [72] and following.

This issue arises if the proposal passes through the s 104D gateway. It relates to the Board’s merits assessment of the resource consent applications under s 104 and the NORs under s 171. “Regard” (under s 104) or “particular regard” (under s 171) must be had to any applicable objectives and policies promulgated under the RMA. At the risk of belabouring the point, this cascade of RMA instruments operates at national level (relevantly in this case in the NZCPS); at regional level in regional policy statements, regional plans and regional coastal plans; and at local level in district plans. But, in the case of Auckland, its policy statements and plans are consolidated into the single AUP.
As will be seen, on the view we take of the AUP’s objectives and policies, the real focus under this issue is the effect of the requirement to have regard/particular regard to the relevant avoid policy in the NZCPS. Does this duty mean consent authorities must give effect to that policy? This issue is therefore similar, but not identical, to issue (c) above at [31]. To avoid unnecessary repetition, we will address them together.

Three: offsets, compensation and the “bucket approach”

Section 104(1)(ab) allowed the Board to take account of proposed measures which were likely to “offset or compensate” expected adverse effects by providing a countervailing positive effect.[35] Waka Kotahi proposed various offsets to compensate for the project’s harms, including habitat loss due to the proposed reclamation and other shoreline and terrestrial works.
[35]Section 171(1B) is of similar effect with regard to notices of requirement. We note there is an issue regarding when these provisions entered into force, but we agree it is not material in this case for the reasons Glazebrook J gives below at [229], n 256.
The first issue under this heading is whether offsets can be deployed to “avoid” specific adverse effects expressly required by an applicable plan or policy statement to be avoided. A second issue is whether compensatory measures deployed in accordance with Waka Kotahi’s “bucket approach” can, by balancing different effects, render the proposal consistent overall with relevant objectives and policies. These category three issues are logically relevant to issue categories one and two above.

Mana whenua issues

For completeness, we note that Ngāti Whātua Ōrākei Whai Māia Ltd (Ngāti Whātua Ōrākei) raised mana whenua issues before us, in support of the appeal by Royal Forest and Bird Protection Society of New Zealand Inc (Royal Forest and Bird). However, we accept the submission of Ngāti Maru Rūnanga Trust, Te Ākitai Waiohua Waka Taua Inc, Ngāi Tai ki Tāmaki Trust and Ngāti Tamaoho Trust that these issues were not part of the appeal to the High Court and that it is therefore inappropriate to deal with them.[36]

Policies and objectives relevant to this case

[36]See also the reasons of Glazebrook J below at [186], n 181 and William Young J at [372].

There are three applicable layers of objectives and policies: those in the NZCPS, the AUP(rps) and the AUP(plans). The AUP(plans) is a particular focus of the s 104D issue because of the terms of s 104D(1)(b), and the NZCPS is a focus in the ss 104/171 issue, but all objectives and policies are either directly or indirectly relevant to both of these issues.
Throughout this cascade there is tension between providing for development that meets community need and protecting vulnerable elements of the environment from such development. This is unsurprising. It is the tension built into the definition of sustainable management in s 5(2). It is particularly acute in Auckland and the AUP’s provisions accurately reflect that extra dimension.
To avoid repetition, we will summarise the effect of all relevant objectives and policies in a single preliminary section, before turning to address the three issue categories.

Policies in the NZCPS

Avoiding adverse effects on indigenous biodiversity

Sections 62(3) and 67(3) provide that the AUP must give effect to the NZCPS. It must therefore be expected that the policies of the NZCPS will be reflected in the more place- and subject-specific provisions of the AUP. Further, ss 104(1)(b)(iv) and 171(1)(a)(ii) require consent authorities to consider the NZCPS directly. The NZCPS is therefore an important and powerful driver of decision-making under the RMA.
Policy 11 of the NZCPS is central to this appeal. It provides as follows:[37]
[37]Footnotes omitted.
To protect indigenous biological diversity in the coastal environment:
(a) avoid adverse effects of activities on:
(i)indigenous taxa that are listed as threatened or at risk in the New Zealand Threat Classification System lists;
(ii)taxa that are listed by the International Union for Conservation of Nature and Natural Resources as threatened;
(iii)indigenous ecosystems and vegetation types that are threatened in the coastal environment, or are naturally rare;
(iv)habitats of indigenous species where the species are at the limit of their natural range, or are naturally rare;
(v)areas containing nationally significant examples of indigenous community types; and
(vi)areas set aside for full or partial protection of indigenous biological diversity under other legislation; and
(b)avoid significant adverse effects and avoid, remedy or mitigate other adverse effects of activities on:
(i)areas of predominantly indigenous vegetation in the coastal environment;
(ii)habitats in the coastal environment that are important during the vulnerable life stages of indigenous species;
(iii)indigenous ecosystems and habitats that are only found in the coastal environment and are particularly vulnerable to modification, including estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh;
(iv)habitats of indigenous species in the coastal environment that are important for recreational, commercial, traditional or cultural purposes;
(v)habitats, including areas and routes, important to migratory species; and
(vi)ecological corridors, and areas important for linking or maintaining biological values identified under this policy.
As can be seen, Policy 11 is strongly worded, especially in paragraph (a) in relation to the protection of rare or threatened indigenous ecology, habitats and taxa. It directs that relevant adverse effects on indigenous biodiversity must be avoided.

Infrastructure and development

Policy 6 of the NZCPS relates to development generally in the coastal environment and Policy 10 relates to reclamation specifically. Policy 6 relevantly provides:
(1)In relation to the coastal environment:
(a)recognise that the provision of infrastructure [is] … important to the social, economic and cultural well-being of people and communities;
(b)consider the rate at which built development and the associated public infrastructure should be enabled to provide for the reasonably foreseeable needs of population growth without compromising the other values of the coastal environment;
…
(2) Additionally, in relation to the coastal marine area:
…
(c)recognise that there are activities that have a functional need to be located in the coastal marine area, and provide for those activities in appropriate places;
(d)recognise that activities that do not have a functional need for location in the coastal marine area generally should not be located there; …
…
Infrastructure is expressly supported and future planning around infrastructure is encouraged. A key qualifying criterion for a CMA location is “functional need”, meaning “the need for a proposal or activity to traverse, locate or operate in a particular environment because the activity can only occur in that environment”.[38] Where there is such a need, the directive is to provide for the activity in “appropriate places”. As will be seen, the AUP takes a more expansive approach by accepting that “operational need” may also suffice; “operational need” refers to “the need for a proposal or activity to traverse, locate or operate in a particular environment because of technical, logistical or operational characteristics or constraints”.[39]
[38]Ministry for the Environment | Manatū Mō Te Taiao National Planning Standards (November 2019) at 58. For example, most structures to support shipping activities must be located in a marine environment.
[39]At 62. For example, if terrestrial locations would displace a community or be prohibitively expensive, an operational need to locate a structure or activity in the marine environment may be established.

Policy 10 of the NZCPS relates specifically to reclamation. It relevantly provides:
(1) Avoid reclamation of land in the coastal marine area, unless:
(a)land outside the coastal marine area is not available for the proposed activity;
(b)the activity which requires reclamation can only occur in or adjacent to the coastal marine area;
(c)there are no practicable alternative methods of providing the activity; and
(d)the reclamation will provide significant regional or national benefit.
…
(3)In considering proposed reclamations, have particular regard to the extent to which the reclamation and intended purpose would provide for the efficient operation of infrastructure, including … coastal roads …
…

This policy contains important elements which, it will be seen, are replicated in the AUP. They are central to resolving this appeal. Reclamation is to be avoided and will only be supported exceptionally, if three elements are met. First, it must be the case that there is no practicable alternative method of solving the transport problem.[40] Second, it must be that the proposed solution “can only occur” in (or adjacent to) the CMA.[41] Third, the proposed solution must bring significant regional or national benefit. In the present case, these elements mean Waka Kotahi must demonstrate there is no practicable method of solving the transport problem other than building a new road, there is no alternative to an alignment requiring reclamation, and the EWL will bring significant regional or national benefit. For completeness, we note that reclamation for infrastructure generally (and coastal roading specifically) is identified as a subcategory by Policy 10(3) and given a measure of priority in the assessment.

Objectives and policies in the AUP

[40]We take the term “activity” in Policy 10(1)(c) to be a reference, in this case, to transportation. Of course, it is possible to read “activity” narrowly so that it applies only to the road but this seems inconsistent with the very broad language of the policy, construing it purposively.

[41]This may include, as we shall see, circumstances in which the absence of alternatives to a CMA location is because there is no available land outside that area: NZCPS, Policy 10(1)(a).

At the AUP level, relevant objectives and policies “recognise” the importance of maintaining a roading network that meets the economic and social needs of Auckland’s growing population.[42] Other objectives and policies, equally relevant, direct decision makers to “avoid” adverse effects on vulnerable indigenous avifauna, vegetation and ecosystems.[43] The AUP navigates that tension by acknowledging that it may be necessary in exceptional circumstances to “recognise” that some level of infrastructure may need to be located in vulnerable environments where adverse effects must be “avoided”. For instance, in their explanation and principal reasons for adopting the infrastructure objectives and policies in the RPS section of the AUP, the drafters explained:[44]
Infrastructure can have adverse effects on the environment, including on sites and areas specifically identified for their high values as well as on neighbouring activities. Sometimes infrastructure must be located in sensitive areas because of the location of development and to achieve appropriate degrees of efficiency. Managing the reciprocal effects of infrastructure on more sensitive areas … is required as Auckland grows and intensifies. Conflicts or incompatibilities between adjoining land uses need to be avoided as far as practicable or mitigated where avoidance is not practicable, in order to protect valued parts of the environment while ensuring that the operation of infrastructure is not unreasonably compromised.

AUP(rps) biodiversity overlay policies

[42]AUP, Policy E26.2.2(1) and (14)–(15).

[43]See for example Policy D9.3(9).

[44]Policy B3.5 (emphasis added).

After the NZCPS, the next document in the RMA hierarchy is the AUP(rps) which forms chapter B of the AUP. The AUP(rps) must give effect to the NZCPS and, in turn, the AUP(plans) must give effect to the AUP(rps). Included in the AUP(rps) are protective indigenous biodiversity policies and specific infrastructure and coastal development policies.
Policy B7.2.2 is the protection side. It provides the criteria for selecting marine and terrestrial locations marked for special protection. These are called Significant Ecological Areas (SEAs). They are listed in schs 3 and 4 of the AUP. They operate as overlays on the operative underlying zones and impose additional protective controls.[45] These overlays are central to the appeal. They are one side of the infrastructure vs coastal environment tension that, as noted, is built into the AUP. The scale of the tension across the region is reflected in the fact that 71.5 per cent of Auckland’s urban area abuts a SEA marine overlay. Policy B7.2.2 provides as follows:
[45]Policy B7.2.2(5).
B7.2.2. Policies
(1)Identify and evaluate areas of indigenous vegetation and the habitats of indigenous fauna in terrestrial and freshwater environments considering the following factors in terms of the descriptors contained in Schedule 3 Significant Ecological Areas – Terrestrial Schedule:
(a)representativeness;
(b)stepping stones, migration pathways and buffers;
(c)threat status and rarity;
(d)uniqueness or distinctiveness; and
(e)diversity.
(2)Include an area of indigenous vegetation or a habitat of indigenous fauna in terrestrial or freshwater environments in the Schedule 3 of Significant Ecological Areas – Terrestrial Schedule if the area or habitat is significant.
(3)Identify and evaluate areas of significant indigenous vegetation, and the significant habitats of indigenous fauna, in the coastal marine area considering the following factors in terms of the descriptors contained in Schedule 4 Significant Ecological Areas – Marine Schedule:
(a)recognised international or national significance;
(b)threat status and rarity;
(c)uniqueness or distinctiveness;
(d)diversity;
(e)stepping stones, buffers and migration pathways; and
(f)representativeness.
(4)Include an area of indigenous vegetation or a habitat of indigenous fauna in the coastal marine area in the Schedule 4 Significant Ecological Areas – Marine Schedule if the area or habitat is significant.
(5)Avoid adverse effects on areas listed in the Schedule 3 of Significant Ecological Areas – Terrestrial Schedule and Schedule 4 Significant Ecological Areas – Marine Schedule.
The key control is the requirement at B7.2.2(5) that adverse effects in the SEAs must be avoided. This reflects the language of NZCPS Policy 11.

Infrastructure and development policies in the AUP(rps)

The development and infrastructure side is contained in Policies B3 and B8. Policies B3.2.2(3) and (6), for example, relevantly provide:
(3)Provide for the locational requirements of infrastructure by recognising that it can have a functional or operational need to be located in areas with natural and physical resources that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal environment, historic heritage and special character.
…
(6)Enable the development, operation, maintenance and upgrading of infrastructure in areas with natural and physical resources that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal environment, historic heritage and special character while ensuring that the adverse effects on the values of such areas are avoided where practicable or otherwise remedied or mitigated.
These acknowledge that there will be occasions where infrastructure may need to be sited in overlay areas. If that is the case, proposals must ensure that adverse effects on protected environmental values are avoided where practicable, or otherwise remedied or mitigated.
Policy B8.3.2 provides for development (including reclamation) in the coastal environment. B8.3.2(3) and (9) relevantly provide:
(3)Provide for use and development in the coastal marine area that:
(a)have a functional need which requires the use of the natural and physical resources of the coastal marine area;
(b)are for the public benefit or public recreation that cannot practicably be located outside the coastal marine area; [or]
(c)have an operational need making a location in the coastal marine area appropriate and that cannot practicably be located outside the coastal marine area; …
…
Reclamation
(9)Avoid reclamation of land in the coastal marine area unless all of the following apply:
(a)land outside the coastal marine area is not available for the proposed activity;
(b)the activity which requires reclamation can only occur in or adjacent to the coastal marine area;
(c)there are no practicable alternative methods of providing for the activity; and
(d)the reclamation will provide significant regional or national benefit.
According to these policies, development may be acceptable in the CMA, subject to strict criteria. Specifically, there must be a functional need for such location. If functional need cannot be established, there must be no practicable alternative to a CMA location and additional requirements must also be met: either the development is for the public benefit or public recreation, or there is an operational need making location in the CMA appropriate. Note, as presaged, the addition of “operational” alongside functional need to locate in the CMA. This extends the qualifying criterion in NZCPS Policy 6(2)(d) which “generally” permits only functional need. We address the significance of this issue below.[46] Reading the NZCPS and AUP together, we understand operational need as only exceptionally justifying the location of a development in the CMA. Finally, reclamation is specifically mentioned, alongside additional criteria lifted from NZCPS Policy 10. It is to be avoided unless there is no other practicable method of solving the problem (in this case, the transport problem), the proposed solution “can only occur” in (or adjacent to) the CMA,[47] and the reclamation will provide significant regional or national benefit.

The AUP(plans) introduction

[46]See below at [112].

[47]See above at [46].

The approach of the AUP(plans) to the development vs protection tension is reflected in the protective overlay policies in D9.3, the infrastructure objectives and policies in E26.2, and the coastal activity policies in F2.2.3, especially as the last mentioned relates to reclamation. There are other relevant AUP(plans) objectives and policies, but these three are at the heart of the contest and provide what is needed for a proper assessment of the AUP’s approach to this conundrum.

AUP(plans) biodiversity and SEA overlays

Chapter D incorporates all overlay categories. Generally speaking, they contain special protections over and above those in the underlying zones, for the protective purposes expressed in the overlay categories. These categories include, for example, historic heritage, built environment and mana whenua overlays.
D9 contains the objectives and policies that populate the vulnerable environment or biodiversity overlays referred to as SEAs. In the CMA they are designated SEA-M (for marine), while land‑based SEAs are designated SEA-T (for terrestrial).[48] In this case, the proposal area is within, or adjacent to, both SEA-M and SEA-T overlays.
[48]AUP, Policy D9.1.1–D9.1.2.
Marine overlays are then split into two categories: SEA-M1, which broadly relates to particularly vulnerable marine environments, threatened or rare species and the like; and SEA-M2, which relates more generally to indigenous species, ecosystems and habitats with characteristics deserving of a level of protection.[49] The protective policies are stronger for the former.[50] The proposal area contains both M1 and M2 overlays.
[49]Policy D9.1.2.
[50]See for example Policy D9.3(13)–(14) and (16).
D9 contains strong avoid policies which push back against the infrastructure and coastal activity policies. The overlays take their lead from NZCPS Policy 11 and AUP(rps) B7. Relevant D9 objectives and policies are as follows:
D9.2. Objectives [rcp/rp/dp]
(1)Areas of significant indigenous biodiversity value in terrestrial, freshwater, and coastal marine areas are protected from the adverse effects of subdivision, use and development.
(2)Indigenous biodiversity values of significant ecological areas are enhanced.
…
D9.3. Policies [rcp/rp/dp]
Managing effects on significant ecological areas – terrestrial and marine
(1)Manage the effects of activities on the indigenous biodiversity values of areas identified as significant ecological areas by:
(a)avoiding adverse effects on indigenous biodiversity in the coastal environment to the extent stated in Policies D9.3(9) and (10);
(b)avoiding other adverse effects as far as practicable, and where avoidance is not practicable, minimising adverse effects on the identified values;
…
(8)Manage the adverse effects from the use, maintenance, upgrade and development of infrastructure in accordance with the policies above, recognising that it is not always practicable to locate and design infrastructure to avoid significant ecological areas.
Protecting significant ecological areas in the coastal environment
(9)Avoid activities in the coastal environment where they will result in any of the following:
(a)non-transitory or more than minor adverse effects on:
(i)threatened or at risk indigenous species (including Maui’s Dolphin and Bryde’s Whale);
(ii)the habitats of indigenous species that are at the limit of their natural range or which are naturally rare;
(iii)threatened or rare indigenous ecosystems and vegetation types, including naturally rare ecosystems and vegetation types;
(iv)areas containing nationally significant examples of indigenous ecosystems or indigenous community types; or
(v)areas set aside for full or partial protection of indigenous biodiversity under other legislation, including the West Coast North Island Marine Mammal Sanctuary.
(b)any regular or sustained disturbance of migratory bird roosting, nesting and feeding areas that is likely to noticeably reduce the level of use of an area for these purposes; or
(c)the deposition of material at levels which would adversely affect the natural ecological functioning of the area.
(10)Avoid (while giving effect to Policy D9.3(9) above) activities in the coastal environment which result in significant adverse effects, and avoid, remedy or mitigate other adverse effects of activities, on:
(a)areas of predominantly indigenous vegetation;
(b)habitats that are important during the vulnerable life stages of indigenous species;
(c)indigenous ecosystems and habitats that are found only in the coastal environment and are particularly vulnerable to modification, including estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh;
(d)habitats of indigenous species that are important for recreational, commercial, traditional or cultural purposes including fish spawning, pupping and nursery areas;
(e)habitats, including areas and routes, important to migratory species;
(f)ecological corridors, and areas important for linking or maintaining biological values; or
(g)water quality such that the natural ecological functioning of the area is adversely affected.
(11)In addition to Policies D9.3(9) and (10), avoid subdivision, use and development in the coastal environment where it will result in any of the following:
(a)the permanent use or occupation of the foreshore and seabed to the extent that the values, function or processes associated with any Significant Ecological Area – Marine is significantly reduced;
(b)any change to physical processes that would destroy, modify, or damage any natural feature or values identified for a Significant Ecological Area – Marine in more than a minor way; or
(c)fragmentation of the values of a Significant Ecological Area – Marine to the extent that its physical integrity is lost.
…
(13)In addition to Policies D9.3(9) and (10), avoid structures in Significant Ecological Areas – Marine 1 (SEA-M1) except where a structure is necessary for any of the following purposes:
…
(d)to benefit the regional and national community, including structures for significant infrastructure where there is no reasonable or practicable alternative location on land, or elsewhere in the coastal marine area outside of a Significant Ecological Area – Marine 1(SEA-M1).
…
For present purposes, the key provisions in relation to the SEA-M overlays are D9.3(9) and (10). Paragraph (9) generally corresponds to the higher vulnerability SEA-M1 overlays. It directs that “non-transitory or more than minor adverse effects” on the habitats of rare indigenous species, and threatened or rare indigenous ecosystems and vegetation must be avoided,[51] as must “regular or sustained disturbance” of migratory birds’ roosting, nesting and feeding areas where it is likely this would “noticeably reduce” their use.[52] Paragraph (10) generally relates to the SEA‑M2 overlays which cover less vulnerable locations. It directs that in certain circumstances, “significant adverse effects” must be avoided on the indigenous species, ecosystems and habitats within the overlay.
[51]Policy D9.3(9)(a).
[52]Policy D9.3(9)(b).
Significantly, D9.3(9) and (10) were added following settlement of an appeal to the High Court by Royal Forest and Bird.[53] Whata J accepted the, by then, agreed view of the parties that Policy B7.2.2(5), requiring adverse effects to be avoided in the SEAs, had not been given proper effect in the original terms of D9.3.[54] He also accepted that NZCPS Policy 11 required the addition of (9) and (10).[55] Policy 11(a)[56] maps broadly onto the new D9.3(9) and the locations to be selected for SEA-M1 overlays, and Policy 11(b)[57] maps generally onto D9.3(10) and the locations to be selected for SEA-M2 overlays.
[53]Royal Forest and Bird Protection Society of New Zealand Inc v Auckland Council [2017] NZHC 980, (2017) 20 ELRNZ 390.
[54]At [36] and [39].
[55]At [36]–[403], [49], [56] and 404–409.
[56]Regarding the avoidance of adverse effects on threatened, rare or at risk taxa, ecosystems, vegetation types and habitats.
[57]Regarding the avoidance of significant adverse effects on indigenous vegetation, habitats, ecosystems and species.
On the other hand, it must also be noted that D9.3(13)(d) contemplates, as an exception, the location of structures for significant infrastructure in SEA-M1 overlays. Once again, the strict requirements are that such structures are necessary to benefit the regional and national community and there are no practicable alternative locations outside SEA-M1 overlays.[58] Also significant for present purposes is D9.3(8), which addresses the tension point in a tentative fashion. It affirms the importance of managing adverse effects in SEAs in a way that avoids these effects, while recognising that it is not always practicable to locate and design infrastructure to avoid SEAs.
[58]We note, for completeness, that Policy D9.3(13)(d) uses the phrase “no reasonable or practicable alternative location” (emphasis added). However, we take “reasonable” to mean the same as “practicable” when the AUP is read in line with the NZCPS.
At this stage, it is appropriate to note the key distinction between our approach to the construction of the relevant polices and that taken by Glazebrook J. Our interpretation of the policies in D9.3 illustrates this difference. Glazebrook J considers that D9.3(8) and (13) are not exceptions to D9.3(9) and (10). Instead, she considers D9.3(9) and (10) to be paramount.[59] In our view, that construction of the D9.3 policies is incorrect. As we say with reference to authorities at [79]–[80] below, the relevant policies must be read “as a whole” in order to get at the true intent of the drafter. This means the internal relationships between policies in D9.3 and their connection, in turn, with related policies such as those in F2 and E26 must be understood. Taking this approach, D9.3(8), (9) and (10) are meant to be read together as a cohesive whole.[60] It must be remembered that when D9.3(8) was drafted, D9.3(9) and (10) did not exist. The latter were inserted by consent in the High Court in a case in which the effect of D9.3(8) and its relationship with D9.3(9) and (10) were not in issue.[61] Of equal importance is the fact that D9.3(8) covers the same ground as D9.3(13)(d), the policy that captures the circumstances in which “significant infrastructure” may be located within SEA-M1s. That policy would be neutralised if it was entirely subject to D9.3(9), this because infrastructure of any significance is likely to have adverse effects which cross the threshold in D9.3(9). It is necessary, and plainly intended, that the D9.3, F2 and E26 policies be read together; otherwise, what could “no practicable alternative location” possibly mean?

AUP(plans) infrastructure objectives and policies

[59]Below at [264].

[60]See the reasons of Glazebrook J below at [264].

[61]See above at [61].

The relevant objectives of the AUP(plans) in relation to infrastructure are as follows:
E26.2.1. Objectives [rp/dp]
(1)The benefits of infrastructure are recognised.
…
(3)Safe, efficient and secure infrastructure is enabled, to service the needs of existing and authorised proposed subdivision, use and development.
(4)Development, operation, maintenance, repair, replacement, renewal, upgrading and removal of infrastructure is enabled.
…
(9)The adverse effects of infrastructure are avoided, remedied or mitigated.
The relevant policies are as follows:
E26.2.2. Policies [rp/dp]
(1)Recognise the social, economic, cultural and environmental benefits that infrastructure provides, including:
(a)enabling enhancement of the quality of life and standard of living for people and communities;
…
(c)enabling the functioning of businesses;
(d)enabling economic growth;
(e)enabling growth and development;
(f)protecting and enhancing the environment;
(g)enabling the transportation of freight, goods, people; and
…
(2)Provide for the development, operation, maintenance, repair, upgrade and removal of infrastructure throughout Auckland by recognising:
(a)functional and operational needs;
(b)location, route and design needs and constraints;
…
(d)the benefits of infrastructure to communities [within] Auckland and beyond;
…
Adverse effects of infrastructure
(4)Require the development, operation, maintenance, repair, upgrading and removal of infrastructure to avoid, remedy or mitigate adverse effects, including, on the:
…
(d)environment from temporary and ongoing discharges; and
(e)values for which a site has been scheduled or incorporated in an overlay.
(5)Consider the following matters when assessing the effects of infrastructure:
(a)the degree to which the environment has already been modified;
(b)the nature, duration, timing and frequency of the adverse effects;
(c)the impact on the network and levels of service if the work is not undertaken;
(d)the need for the infrastructure in the context of the wider network; and
(e)the benefits provided by the infrastructure to the communities within Auckland and beyond.
(6)Consider the following matters where new infrastructure or major upgrades to infrastructure are proposed within areas that have been scheduled in the Plan in relation to natural heritage, Mana Whenua, natural resources, coastal environment, historic heritage and special character:
(a)the economic, cultural and social benefits derived from infrastructure and the adverse effects of not providing the infrastructure;
(b)whether the infrastructure has a functional or operational need to be located in or traverse the proposed location;
…
(d)whether there are any practicable alternative locations, routes or designs, which would avoid, or reduce adverse effects on the values of those places, while having regard to E26.2.2(6)[(a)–(c)];
(e)the extent of existing adverse effects and potential cumulative adverse effects;
(f)how the proposed infrastructure contributes to the strategic form or function, or enables the planned growth and intensification, of Auckland;
(g)the type, scale and extent of adverse effects on the identified values of the area or feature, taking into account:
(i)scheduled sites and places of significance and value to Mana Whenua;
(ii)significant public open space areas, including harbours;
…
(v)natural ecosystems and habitats; and
(vi)the extent to which the proposed infrastructure or upgrade can avoid adverse effects on the values of the area, and where these adverse effects cannot practicably be avoided, then the extent to which adverse effects on the values of the area can be appropriately remedied or mitigated.
(h)whether adverse effects on the identified values of the area or feature must be avoided pursuant to any national policy statement, national environmental standard, or regional policy statement.
These policies and objectives acknowledge the importance of infrastructure for Auckland’s growth, development and quality of life. They also acknowledge that infrastructure can have significant adverse effects on communities and the environment. One mechanism the AUP(plans) uses to address development-related adverse effects is the SEA overlays already discussed. These are the focus of the policies in E26.2.2(6).
E26.2.2(6) requires consideration of a number of constraining factors before a proposal located in a SEA can be supported. Once again, and critically in terms of this appeal, they include the requirement to show functional or operational need to locate within a SEA and that there are no practicable alternative locations.[62] This policy also cross-references the higher order documents, thereby requiring consideration of whether the overlay area is subject to any avoid policy in the NZCPS or the AUP(rps).[63]

AUP(plans) reclamation policies

[62]AUP, Policy E26.2.2(6)(b) and (d).

[63]Policy E26.2.2(6)(h).

Chapter F of the AUP(plans) relates to coastal zone activities and contains policies in relation to reclamations. As the proposal involves relatively significant reclamations, these policies are relevant. In general terms, reclamations are to be avoided in the CMA except in exceptional circumstances:
F2.2.3. Policies [rcp]
(1)Avoid reclamation and drainage in the coastal marine area except where all of the following apply:
(a)the reclamation will provide significant regional or national benefit;
(b)there are no practicable alternative ways of providing for the activity, including locating it on land outside the coastal marine area;
(c)efficient use will be made of the coastal marine area by using the minimum area necessary to provide for the proposed use, or to enable drainage.
(2)Where reclamation or drainage is proposed that affects an overlay, manage effects in accordance with the overlay policies.
(3)Provide for reclamation and works that are necessary to carry out any of the following:
…
(e)enable the construction and/or efficient operation of infrastructure, including but not limited to, ports, airports, roads, pipelines, electricity transmission, railways, ferry terminals, and electricity generation; or
(f)create or enhance habitat for indigenous species where degraded areas of the coastal environment require restoration or rehabilitation.
…
(6)Consider where the adverse effects of drainage or reclamation cannot be completely avoided, remediated or mitigated on site, compensating for those adverse effects by additional or enhanced public access or public facilities or environmental enhancement or restoration.
Consistently with the infrastructure policies, and again, critically in terms of this appeal, the effect of F2.2.3 is that reclamations will be allowed if the regional or national benefit is significant, there are no practicable alternatives to reclamation in a CMA, and the area to be reclaimed is the minimum necessary.[64] Again, the overlay policies are referenced; a significant policy directive at F2.2.3(2) is that the effects of reclamation within SEAs must be managed in accordance with the relevant overlay policies, which in this case, as noted, are in D9. On the other hand, reclamation is enabled (“provide for”) where it supports the usual forms of infrastructure,[65] and there is an acknowledgement that it may be necessary to consider options short of avoidance.[66] Whether the specific reference to D9 is intended to override support for infrastructure and the options for remediation and mitigation (rather than avoidance) is a matter for further consideration.
[64]Policy F2.2.3(1).
[65]Policy F2.2.3(3)(e).
[66]Policy F2.2.3(6).
The activity status table at rule F2.19.1 reflects this approach of allowing exceptions to avoid policies for significant infrastructure in a revealing way. The table is part of the AUP(plans) and gives effect to F2.2.2 and F2.2.3 by inserting rules that apply specifically to the SEA-Ms governed by D9. In SEA-M1 overlays, reclamation is generally prohibited—meaning consent cannot even be applied for—unless it falls into one of the exceptions listed in the activity table. Leaving to one side exceptions relating to existing reclamations and the provision of public access (the scale of which would necessarily be minor), the activity table classifies infrastructural reclamation as a non-complying activity, regardless of scale.
In other words, and this is crucial to the structure of the regime overall, infrastructural reclamation is contemplated as an exception to the firm requirement to avoid adverse impacts of development in SEA‑M1 overlays, even where it is more than minor in scale. It might be said that more than minor infrastructural reclamation is not the same as reclamation with more than minor adverse effects, but, realistically, there is likely to be a high degree of overlap between the two concepts. In a sense, this rule contains the rub that is at the centre of the present appeal.

Why avoid policies are so important

So, taking their lead from s 5 itself, the NZCPS and AUP both set up the same tension between recognising and providing for the needs of communities while, at the same time, avoiding adverse effects on the vulnerable environments in which those communities live. Within this frame, directive policies, such as policies requiring particular environmental impacts to be avoided, have greater potency than other non- or less directive policies. This Court’s decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd (King Salmon) explains why, so it is appropriate to refer to it at this juncture.[67]
[67]Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 [King Salmon].
King Salmon involved a plan change under Part 5 rather than a resource consent. At issue was a proposal to make specific provision in the Marlborough Sounds Resource Management Plan for aquaculture in a coastal area with significant landscape values.[68] Policy 8 of the NZCPS provides that lower order documents should recognise the significant contribution of aquaculture to the wellbeing of people and communities. On the other hand, NZCPS Policies 13 (preservation of natural character) and 15 (protection of natural features and landscapes) direct that adverse effects on outstanding natural character, features and landscapes must be avoided.
[68]The plan change as originally proposed made provision for eight discrete sites, but the appeal related to only one of them. The consent application that followed in relation to the appeal site was addressed by this Court in Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 40, [2014] 1 NZLR 673.
The Board of Inquiry in King Salmon used a technique referred to as “overall judgment”, under which NZCPS policies found to be in tension could be re-weighted according to the priorities of the particular region. This meant a “recognise” policy could carry more weight than an “avoid” policy according to local preference.
The majority in this Court found an overall judgment approach was not permitted. “Avoid”, it held, carried its ordinary meaning of “not allow” or “prevent the occurrence of”,[69] and avoid policies directed an outcome for which provision had to be made in lower order documents. It was not sufficient for councils merely to take that into account when promulgating their own plans. Rather, the Court found, the requirement that lower order plans must “give effect” to the NZCPS was a strong directive which lower order plans were obliged to implement.[70] This suggested, the Court considered, an obligation to avoid inappropriate development “might be thought to provide something in the nature of an ‘environmental bottom line’” for lower order policy statements and plans.[71] That said, Policies 13 and 15 did not prohibit development. Their focus was the avoidance of inappropriate development.
[69]King Salmon, above n 67, at [96] per Elias CJ, McGrath, Glazebrook and Arnold JJ.
[70]At [77] per Elias CJ, McGrath, Glazebrook and Arnold JJ; and RMA, s 67(3)(b).
[71]King Salmon, above n 67, at [103] per Elias CJ, McGrath, Glazebrook and Arnold JJ.
On the other side of the scale, Policy 8(a) encourages recognition of the importance of aquaculture by enabling its location in “appropriate places”. Thus, the Court found, “inappropriate” could do the work of reconciling apparently conflicting policies.[72] Nonetheless, the primary point is that avoid policies have particular potency in the hierarchy of NZCPS policies with implications all the way down the RMA cascade.
[72]At [98]–[105] and [126] per Elias CJ, McGrath, Glazebrook and Arnold JJ.
King Salmon is relevant in two ways. The first is that, generally speaking, directive policies will take priority over other policies wherever they appear in the hierarchy. The fact that the focus in King Salmon was the NZCPS is not particularly material to the application of this principle. Experience so far suggests that where directive policies appear in lower order documents, they have taken their cue from the NZCPS anyway. The second aspect is that the specific language of directive policies is important. It will provide the best guidance on how policies that are in tension may be reconciled. In King Salmon, “inappropriate” did that work.
But, as we suggest in the next section, there is also one important issue that King Salmon does not address.

A fair appraisal of the AUP read as a whole

Sections 104(1)(b)(v) and (vi), and 171(1)(a)(iii) and (iv), require regard/particular regard be had to any “relevant provisions” of the AUP. Section 104D(1)(b)(i) asks whether the proposal is contrary to “the objectives and policies” of the relevant plan. In considering the correct approach to s 104D, the Court of Appeal in Dye v Auckland Regional Council explained that “a fair appraisal of the objectives and policies read as a whole” is required.[73] In other words, isolating and de-contextualising individual provisions in a manner that does not fairly reflect the broad intent of the drafters must be avoided. The approach will be the same under ss 104 and 171.
[73]Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [25] per Gault, Keith and Tipping JJ.
That does not mean all objectives and policies can simply be put in a blender with the possible effect that stronger policies are weakened and weaker policies strengthened. Rather, attention must be paid to relevant objectives and policies both on their own terms and as they relate to one another in the overall policy statement or plan. As the Environment Court noted in Akaroa Civic Trust v Christchurch City Council, the interpretive exercise must acknowledge that some policies will, in context, be more important than others.[74] The way in which inevitable tensions between policies are identified and worked through in the documents must be grappled with. As King Salmon held, the mere presence of tension does not open up an unfettered discretion to choose between unequal policies.[75] On the other hand, the presence of tension between stronger and weaker policies will not always be resolved in favour of the stronger. Ecosystems are complex and dynamic, as is the impact of human communities located within them. Fact and context will be important in determining how tensions between policies will be resolved.
[74]Akaroa Civic Trust v Christchurch City Council [2010] NZEnvC 110 at [74] per Judge Jackson.
[75]King Salmon, above n 67, at [129]–[130] per Elias CJ, McGrath, Glazebrook and Arnold JJ.
With the foregoing in mind, we begin with a fair appraisal of the AUP(plans) objectives and policies as relevant to this case:
(a)The strong “avoid” language in D9.3, mandated by B7.2.2(5), means that constructing major infrastructure in SEA overlays will almost always be contrary to the objectives and policies of the AUP(plans), in terms of s 104D, if adverse effects breach applicable thresholds for the relevant SEA—in particular, the non-transitory or more than minor effects and significant adverse effects thresholds. We say almost always because, as we have summarised, there are narrowly defined exceptions built into the framework.
(b)The fact that the High Court added D9.3(9) and (10) to bring the AUP(plans) into line with the AUP(rps) and NZCPS suggests that avoid policies in D9 will override the infrastructure focused “recognise and provide for” policies in E26 in almost all cases. This is particularly apparent in light of the express reference to the relevance of AUP(rps) and NZCPS avoid policies in E26.2.2(6)(h).
(c)Furthermore—and despite the enabling reclamation and infrastructure policies in F2.2.3, B3 and B8—significant reclamation in SEA-Ms is likely to be contrary to the general coastal zone activity policies in chapter F, given the express reference in F2.2.3(2) to managing effects within overlays in accordance with the requirements of relevant overlays.
Picking up on the point we make at (a), the difficult question that must be resolved in this appeal is how wide the gap in the avoid policies is. If the adverse effects thresholds in D9.3(9) and (10) are hard lines that may not be exceeded in any circumstances, that gap is very narrow indeed. Any development in SEAs that contravenes them, including infrastructural development, will not just be inconsistent with the particular avoid policy; it will be contrary to the objectives and policies of the AUP(plans) overall in terms of s 104D. This is first because the tension between protection of Auckland’s vulnerable coastal environments and provision for better infrastructure is an essential feature of the AUP and cannot be ignored. If relevant policies clearly resolve this tension in favour of “avoid”, that outcome also reflects the intention of the AUP(plans) objectives and policies “read as a whole”. Second, the D9.3(9) and (10) thresholds might be seen to do the work that “inappropriate” development did in King Salmon. That would require the softer “recognise” and “provide” standards in E26 to give way to the directive “avoid” whenever those thresholds are breached, these being “something in the nature of a bottom line”.[76]
[76]At [132] per Elias CJ, McGrath, Glazebrook and Arnold JJ, although these comments in King Salmon were made in the context of different policies in the NZCPS.
If that were the correct approach, the EWL would likely be contrary to the AUP(plans) objectives and policies given the uncontested finding that the EWL’s adverse effects will be more than minor, including, clearly, in the SEAs.
But that analysis is too rigid to be applied to the AUP policies and the challenges of the Auckland environment. King Salmon dealt with a very different scenario to the one before the Court in this case. The proposed plan change in that case would have reclassified aquaculture in “avoid” areas from prohibited to discretionary and included policies to ensure consent for new marine farms would ultimately be obtained. It would have turned a flat ban into a permissive regime, in obvious disregard of avoid policies. This Court’s firm stance against such a proposal is not surprising.

The EWL context is different in material ways. First, infrastructure is a public good. In terms of the first part of the s 5(2) definition of sustainable management, adequate infrastructure is a precondition to any community’s well-being, health and safety, not least that of the country’s largest commercial entrepôt. While E26 and F2.2.3 both cross-reference the SEAs, it must not be overlooked that E26.2.2(6) and F2.2.3(3) and (6) also highlight infrastructure’s importance. There is also cross‑recognition of infrastructure in the avoid policies themselves. D9.3(13)(d) accepts that there may be a need for structures associated with “significant infrastructure” even in the most sensitive SEA-M1 areas and D9.3(8) acknowledges that sometimes avoiding adverse effects will be impossible.

The Board’s findings as to inconsistency with Policy D9.3(9)

[509]New Zealand Rail Ltd, above n 498; Dye, above n 499; and Akaroa Civic Trust, above n 500.

The Board’s conclusions as to inconsistency with Policy D9.3(9) were summarised in this way:
[605]    … the Board accepts that there will be permanent loss of feeding and roosting areas for shore birds, including threatened and at-risk species. Such effects must be considered significant but … the proposed coastal works will not result in loss of habitat that is sufficiently rare that it would impact on the overall populations of those species, or the presence of those species within the Māngere Inlet or adjacent coastal areas. The Board is satisfied that the potential impacts that the Proposal will have on shore birds can be adequately mitigated and offset, with some modification of the design and construction methodology. … [E]xcluding sub-tidal dredging (with the exception of the Anns Creek tidal channel works) and removal or modification of the headlands will reduce ecological effects. The Board finds that those changes to the Proposal would positively influence the effects / mitigation balance. Consequently, it will become less finely balanced and less dependent on every element of the package having a direct ecological benefit with respect to marine ecology and avifauna.
…
[610]    The Board accepts Ms Myers’ evidence that the adverse effects within Anns Creek East have been avoided to the greatest extent practicable by pushing the Proposal alignment as far north as possible … so as to avoid the most intact lava shrubland habitats and the threatened plant habitats, and minimise construction access impacts. While experts agree that like-for-like mitigation of effects on the lava shrubland ecosystems is difficult, the Board accepts that restoration and enhancement of existing ecosystems is more likely to succeed than establishing new ecosystems.
[611]    The Board also finds that the mitigation and offsets now offered will adequately address the effects of that construction activity and the shading that will occur on completion of the works. This includes the additional planting in Anns Creek Reserve, additional pest control throughout Anns Creek and extending the management period for those areas as direct mitigation for terrestrial and coastal effects on those environments.
…
[1373] The Proposal does impact on feeding and roosting grounds of shorebirds, some of which are threatened or endangered. These effects challenge the biodiversity provisions of the [AUP] … The biodiversity provisions are also engaged by the effects of the Proposal through Anns Creek, and particularly Anns Creek East. This has required very careful consideration by the Board. For the reasons discussed in chapter 14.2 of this Report, the Board’s finding is that the effects will be adequately avoided, mitigated or
off-set and that the effects will not put at risk species populations, or types of habitat.

The Board’s conclusions as to s 104D(1)(b)

The Board’s substantive assessment in relation to s 104D(1)(b) started with whether the Proposal complied with Policy F2.2.3(1) of the AUP and concluded that it did. Given that this aspect of the Report has attracted criticism by the majority, I will deal with it separately. Before I do, a brief summary of other the aspects of the Board’s approach is appropriate.
The Board concluded that the Proposal was also consistent with other relevant elements of chapter F of the AUP.
The Board then turned to chapter D9 of the AUP and particularly the policies in D9.3(9). In passages which I have already set out, it concluded that implementation of the Proposal would cause some effects that were required to be avoided by Policy D9.3(9). It found no other inconsistencies with the AUP avoid policies that are said to be material for present purposes.[510]
[510]The Board found that there would be limited effects on views from a particular cemetery that possibly involved inconsistency with a policy protecting, inter alia, views from sites of historical significance: Board Report, above n 497, at [655].
It expressed its conclusions in this way:[511]
[662]    The Board is persuaded … that the approach taken by the Environment Court in Akaroa Civic Trust v Christchurch City Council is appropriate to adopt. … In some consent applications a provision may be so central to a proposal that it sways the s104D decision, but generally the s104D assessment will be made across the objectives and policies of the plan as a whole and not determined by individual provisions. The Board finds that the latter applies in this case, notwithstanding that there are indeed some inconsistencies between the NZTA Proposal and relevant objectives and policies, particularly in the areas of reclamation and biodiversity. In doing so, the Board has given measured weight to the word “avoid”, which is clearly not a direction to be ignored.
[663]    On balance, the Board finds that the Proposal is not contrary to the objectives and policies of the [AUP] when considered as a whole. Its consideration has given particular focus to the provisions most directly relevant to the activities with noncomplying status but has also recognised … broader planning assessments … . The Board is left in no doubt that its conclusion would be strengthened if it were to look in detail at every relevant objective and policy (of which there are many), rather than those provisions of most relevance, as it has done.
[664]    While the Proposal is concluded to be contrary to a small number of policies or sub-clauses of policies, the Board does not consider those individually or cumulatively as reason to conclude that the Proposal is repugnant to the policy direction of the [AUP] with respect to the resource consents sought. The Board’s conclusion is that where the Proposal infringes policies, neither individually nor cumulatively do those infringements tilt the balance for s104D purposes against the Proposal as a whole.

The Board’s discussion of Policy F2.2.3(1)

[511]Footnotes omitted.

Because the error attributed to the Board involves s 171(1)(b) of the RMA, it is appropriate to set that provision out. It relevantly provides:
(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—
…
(b)whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work if—
…
(ii)it is likely that the work will have a significant adverse effect on the environment; …
…
Given the significance of this to the outcome of the appeal, it is also appropriate to set out the relevant passage of the Report in full:[512]
[512]Footnotes omitted and emphasis added. Emphasis and typographical error in [624] changed.
[621]    Later in chapter 15.12 of this Report, the Board undertakes the statutory assessment required by s171(1)(b) of the RMA as to whether adequate consideration has been given to alternative routes or methods for undertaking the work. The Board explores the process used by NZTA for identifying and evaluating corridor and alignment alternatives using Multi Criteria Analysis (MCA) methodology, and briefly outline the “Long List” comprising 16 corridor options, the six options selected to the next stage of the MCA (alignment evaluation) plus the OBA option, which led to the selection of the preferred option.
[622]    It will become clear that the potential need for reclamations for the Proposal in locations of high environmental value were balanced against the potential opportunities for environmental betterment. A central component of NZTA’s reasoning for accepting a foreshore alignment with the associated reclamations was that it would provide the most enduring transport benefit.
[623]    In the context of its consideration of the [AUP] provisions most relevant to the proposed reclamations, it is critical for the Board to be satisfied that the EWL alignment is indeed the option that provides the most enduring transport benefits to the extent that those benefits are necessary and that there are no “practicable alternatives” to achieve that outcome.
[624]    Mr Burns, when addressing the Board on Policy F2.2.3(1)(b) submitted:
“[T]he test is not whether this is the best, or cheapest, option for NZTA’s road, or whether it is justified by transport outcomes, but simply whether there are any practicable ways of putting the road somewhere else.”
[625]    The Board disagrees. The analysis undertaken by Mr A Murray, which contributed to the balancing of all factors in choosing the proposed alignment, must be relevant to whether there is a practicable alternative. It is not appropriate, under the detailed and integrated option selection process undertaken, to apply such a simplified interpretation of “practicable alternative” i.e. whether any road can be located elsewhere, regardless of how inferior its transport, walking and cycling, or public transport benefits may be.
[626]   For these reasons, the Board is indeed satisfied that there is no “practicable alternative” to the route NZTA proposes. The Board reaches this conclusion simply because it is satisfied that NZTA’s scrutiny of alternative routes did not produce any enduring transport solution other than the selected route.
[627]    In consideration of Policy F2.2.3(1), the Board finds:
(a)While some submissions considered that NZTA had selected the wrong alignment, and that the Proposal should not extend into the CMA, it was common ground that the EWL would provide significant regional benefit. The Board is also satisfied that given the significant contribution that the Penrose-Mt Wellington area makes to the Auckland economy and employment, the EWL can reasonably be concluded to have significant national benefit.
(b)If unencumbered by topography or development, it is intuitive that there will be a practical alternative landward route suitable for the provision of a road. However, the areas surrounding the Māngere Inlet are fully developed with industrial, commercial and residential land uses. As discussed in chapter 15.12 of this Report, the Board is satisfied with NZTA’s evidence on the assessment of alternatives and enduring transport benefits conferred by the chosen alignment. Therefore, it finds that there are no “practicable alternative” ways of providing for the objectives of the Proposal in a manner that avoids the proposed reclamations and coastal occupation. The Board accepts that in refining the EWL alignment, NZTA has sought to balance a range of effects, including ecological, business disruption, cultural and social. In turn, that alignment has necessitated mitigation in the general form and scale of that proposed.
(c)As discussed in chapter 14.2 of this Report, the Board finds that efficient use will be made of the coastal marine area by using the minimum area necessary to provide for the proposed use. The scale and form of the reclamations has been developed through an integrated design process and is now the minimum necessary to mitigate landscape, visual, severance and amenity effects. Additional efficiency has been achieved by using the wetlands within the reclamations to treat stormwater runoff from the developed hinterland, and to provide an alternative upgraded treatment option for landfill leachate.
[628]    As a result, the Board finds that the Proposal is generally consistent with, and not contrary to, Policy F2.2.3(1) of the [AUP]. …

The errors attributed to the Board

The majority is of the view that the Board carried over its conclusions in relation to the assessment required by s 171(1)(b) of the RMA (which focused on the adequacy of NZTA’s consideration of the alternatives) into its consideration of Policy F2.2.3(1). In this way it is said that the Board inappropriately jumped to the conclusion in relation to Policy F2.2.3(1)(b) that it was satisfied that there were “no practicable alternative ways” of providing for the activity, including locating it on land outside the coastal marine area.[513]
[513]At [1372].
The majority also criticises other broadly associated aspects of the Board’s reasoning. Most particularly, the majority considers that the Board was required to, but did not, approach the case on the basis that the Proposal was “presumptively inconsistent with and contrary to relevant objectives and policies and should not be approved except in narrowly defined exceptional circumstances”.[514] Associated with this, there is said to have been a “regression to overall judgment” on the part of the Board and there are also criticisms of the specificity or otherwise of the Board’s reasons.[515]

Should the appeal be allowed on the basis proposed?

[514]Above at [168].

[515]See the reasons of the majority above at [144]–[148].

In considering consistency with Policy F2.2.3(1), the Board took into account the exercise it had carried out under s 171(1)(b). This is unsurprising given that the evidence in relation to s 171(1)(b) was also relevant to Policy F2.2.3(1)(b). It would be remarkable if an expert Board, headed by a retired judge, had made the elementary error of conflating the two issues. Indeed, in the passage from the Report that I have set out,[516] the Board recognised the nature of the exercise that was required. I say this because:
(a)A comparison of [621] and [623] of the Report shows that the Board recognised that there was a clear distinction between its review function under s 171(1)(b), focused on the adequacy of NZTA’s consideration of alternatives, and the related but separate question of whether it was, itself, satisfied that there were no practicable alternatives.
(b)The conclusion expressed in [626] confirms that the Board itself was satisfied as to the absence of practicable alternatives. The reference back to the s 171(1)(b) issue is not indicative of error. If detailed analysis revealed that there was no practicable alternative, the conclusion that there was indeed no such practicable alternative might be thought to reasonably follow.
(c)Although the Board put great weight on NZTA’s analysis, the findings underpinning the conclusion expressed that are set out in [627] are expressed in terms that show that they represent the view of the Board and not NZTA.
[516]See above at [415].
As I have noted, there were other associated criticisms by the majority of the Board’s approach, namely that:
(a)it was required to but did not approach the case on the basis that the Proposal was “presumptively inconsistent with and contrary to relevant objectives and policies and should not be approved except in narrowly defined exceptional circumstances”;
(b)it had “regressed” to an “overall judgment” approach; and
(c)its reasons were insufficiently detailed and specific.
I can most conveniently deal with these criticisms together:
(a)The criticisms are premised in large part on the view that the “have regard to” obligations in ss 104 and 171 meant that the Board was bound by the avoid policies.[517] However, the Board applied the “have regard to” language of the statute in accordance with the ordinary meaning of the words used and what must have been a deliberate decision by the legislature not to impose “give effect to” obligations. In my view, it was right to do so.
(b)As the majority notes, the Board was required to weigh incommensurables, an exercise that the majority recognises as requiring a “considered approach”.[518] Such an approach necessarily requires an “overall judgment” as to the weight to be given to the competing incommensurables. I accept that it follows from King Salmon that if a particular consideration (such as an avoid policy) is of trumping effect, there is no scope for an overall judgment approach. But given that the majority recognise that a weighing exercise was required, I see no justification for criticising the Board for using the expression “overall judgment”.
(c)The Board was required to approach the case in accordance with the statutory framework provided by s 104D and ss 104 and 171. That framework makes no reference to presumptions against the grant of consent to be displaced only “in narrowly defined exceptional circumstances”. I think it inappropriate for the courts to impose what in effect are jurisdictional threshold requirements that are not firmly based in the legislation and I cannot interpret the AUP policies as imposing a threshold requirement expressed in that way.
(d)The reasons of the Board that are now said to be inadequate were not challenged by the parties before us. We do not have all of the relevant evidence given, and submissions made, to the Board that related to the issues in respect of which its reasons are now criticised. I am of the view that such criticisms ought not to be made in the absence of all relevant material.
[517]See above at [108]–[109] and [169].
[518]Above at [143].
There are related issues that concern me:
(a)The issues on which the majority proposes to allow the appeal were not amongst the questions of law on which the appeal to the High Court was based. Further, they were addressed in neither the notice of appeal to this Court nor the written submissions of the appellant.
(b)I accept that in the course of argument, concerns were put to counsel along the lines that the Board’s approach to Policy F2.2.3(1) may have been inappropriately based on its consideration of the separate s 171(1)(b) issue. However, those concerns were not picked up in a detailed way by counsel for the appellant who, in her reply, argued merely that the “no practicable alternative” conclusion of the Board warranted what she called “a hard look”. The debate on this issue was necessarily at a high level as the printed record on the case did not include the evidence as to practicable alternatives that the Board had relied on. As well, and significantly to my way of thinking, no one in the course of argument before us identified a practicable alternative that the Board could fairly be said to have wrongly overlooked.
(c)More generally, the appeal succeeds on the basis of a legal approach that had not been identified prior to the hearing before us and was the subject of no more than cursory discussion at that hearing. The Report that is set aside was delivered more than six years ago, was the culmination of a streamlined process under Part 6AA of the RMA, and concerned a matter of national significance. The Court is remitting all issues to the Board. It is unclear, at least to me, whether the Board can legally or practically be reconstituted, whether the practical result will be that the whole process must be repeated and, if not, how the reconsideration will be effected.

Conclusion as to s 104D(1)(b)

I am of the view that the Board was entitled to conclude that the relatively limited and inconsequential inconsistencies with the D9.3(9) policies did not mean that the Proposal was contrary to the AUP objectives and policies, with the result that it was open to the Board to find that the s 104D(1)(b) gateway test was satisfied. As will be apparent, I see no relevant error of law by the Board.

The application of ss 104 and 171 of the RMA

I can deal with this aspect of the case relatively briefly.
The challenge to this part of the Board’s conclusions rested primarily on contentions as to what was said to be the controlling effect of the NZCPS and AUP avoid policies—contentions that I have already rejected based on my interpretation of those policies and their significance in respect of the ss 104 and 171 decisions. As it happens, I see no error in the Board’s approach.

Concluding remarks

For the reasons given, I would dismiss the appeal.

Solicitors:

P D Anderson, Royal Forest and Bird Protection Society of New Zealand Incorporated, Christchurch for Appellant
Buddle Findlay, Auckland for Respondent
Simpson Grierson, Auckland for Auckland Council as Interested Party
N T E Strong, Ngāti Whātua Ōrākei Trust, Auckland for Ngāti Whātua Ōrākei Whai Māia Limited as Interested Party
McCaw Lewis, Hamilton for Ngāti Maru Rūnanga Trust, Te Ākitai Waiohua Waka Taua Incorporated, Ngāi Tai ki Tāmaki Trust and Ngāti Tamaoho Trust as Interested Parties

at [3.1]–[3.2]. The Panel said that the NZCPS places “places a clear emphasis on providing for activities in the coastal marine area that have a functional need to locate there, and generally not providing for activities that do not”: at [3.2]. The Panel, however, expressed concern “that some infrastructure, including roads, cables and pipelines, might have to be routed for considerable extra distances to go around inlets or harbours when they could more efficiently cross the coastal marine area”: at [3.2]. It said that: “While these activities did not have a functional need to be in the coastal marine area, there may be very good operational and/or efficiency reasons why it would be appropriate to enable these activities to be in the coastal marine area”: at [3.2] (emphasis added). It seems that the Panel thought its approach was supported by the National Policy Statement on Electricity Transmission, which provides that decision makers must consider constraints on environmental protection measures (including avoidance) imposed by the technical and operational requirements of the network: “National Policy Statement on Electricity Transmission” (13 March 2008) 58 New Zealand Gazette 1631, Policy 3. But the use of operational need as a justification for development in the AUP goes further than just providing for electricity transmission.

[2024] NZSC 26

11 April 2024