Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council

[2023] NZHC 399

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-73

[2023] NZHC 399

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review

BETWEEN

ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INC

Applicant

AND

SOUTHLAND DISTRICT COUNCIL

First Respondent

AND

NEW BRIGHTON COLLIERIES LIMITED

Second Respondent

Hearing:

18–19 July 2022, further submissions 1, 7 and 9 September 2022

Appearances:

A W McDonald and Y Downing for Applicant

M G Conway and H P Harwood for First Respondent
R J Gordon and K R Walker-Clements for Second Respondent

Judgment:

6 March 2023

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 6 March 2023 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INC v SOUTHLAND DISTRICT COUNCIL [2023] NZHC 399 [6 March 2023]

Introduction

[1]                 Bathurst Resources Ltd (Bathurst) is seeking to establish a new coal mine in Southland to be operated by its wholly-owned subsidiary, New Brighton Collieries Ltd (New Brighton).

[2]                 The Royal Forest & Bird Protection Society of New Zealand Incorporated (Forest & Bird) seeks review of the decision by the Southland District Council (the Council) to:

(a)enter into an access arrangement with New Brighton in relation to Council-owned commercial forestry (freehold) land at Ohai (the Property) for coal exploration; and

(b)authorise its officers to negotiate an access arrangement regarding the Property for mining purposes.

(the Core Decision)

[3]                 Forest & Bird says the Core Decision was improperly made as a matter of procedure and is inconsistent with considerations relating to anthropogenic climate change. It seeks a declaration that the Core Decision was unlawful and an order quashing it.

Factual background

[4]                 The Property is located adjacent to State Highway 96 between Ohai and Nightcaps, with flat rolling hill country topography. Bathurst owns and operates the Takitimu coal mine near Nightcaps. The pit at Takitimu has limited remaining coal resources which are expected soon to be exhausted. In close proximity to Takitimu is a known coal deposit, commonly referred to as “New Brighton”, which sits beneath the Property. Bathurst has been considering the New Brighton deposit as a possible economic option to meet continuing demand.

[5]                 In December 2020, Bathurst approached the Council to discuss exploration and potential mine development on the Property (the Proposal). Following initial discussions, by letter on 25 January 2021, Bathurst:

(a)provided notice under s 59 Crown Minerals Act 1991 (CMA) that New Brighton intended to obtain an access arrangement for the purpose of exploration over the Property; and

(b)asked the Council to make an in-principle decision in relation to an access arrangement for mining, subject to the results of drilling that would be undertaken.

[6]                 The Proposal was considered by Council staff including the Governance and Democracy Manager, the Commercial Infrastructure Manager, the team leader for resource management, and the Council’s policy analyst. Staff also sought independent external advice on the Proposal.

[7]                 Officers then prepared a report (the “Recommendation Report”) for consideration by the Services and Assets Committee of the Council (the Committee) at the 23 March 2021 meeting.

[8]                 The Council had in place a Significance and Engagement Policy (S&E Policy) (discussed below from [38]). In the Recommendation Report, the Committee directly addressed the significance of the Proposal under a heading “Assessment of Significance”, which read:

45This issue could be considered to have some impact for “the current and future social, economic, environmental or cultural wellbeing of the district or region” as per Council’ current Significant [sic] and Engagement Policy. However, the matter specifically relates to a particular block of Council’s commercial forest estate, rather than a broader scale policy at a district, community or even forest estate as a whole.

46Although there may possibly be a high degree of interest in this issue from the community and affected stakeholders, not all interested parties will necessarily be directly impacted or face consequences. For this reason, the matter may not be considered significant, although is possibly approaching a significance threshold.

[9]                 The Recommendation Report contained a discussion of “Community Views”. The Council staff there noted:

34Community views have not been sought with respect to this issue and no specific engagement activities have taken place. Staff anticipate the community holding a wide range of views on this topic so there is a high risk that any engagement exercise would be inconclusive. Further, if the decision is escalated to the Ministry level, there is a risk that the weight of local views would be diminished.

35Community views would be considered through the resource consent process associated with mine development.

(“the 14 April Community View discussion”)

[10]The Recommendation Report made the following recommendations:

That the Services and Assets Committee:

(a)Receives the report titled “Access to Commercial Forest at Ohai for Coal Exploration and Mining” dated 16 March 2021.

(b)Determines that this matter or decision be recognised “as not” significant in terms of Section 76 of the Local Government Act 2002.

(c)Determines that it has complied with the decision-making provisions of the Local Government Act 2002 to the extent necessary in relation to this decision; and in accordance with Section 79 of the Act determines that it does not require further information, further assessment of options or further analysis of costs and benefits or advantages and disadvantages prior to making a decision on this matter.

(d)Agrees to consider the three options available for coal exploration access to Ohai commercial forest and note that whichever option is chosen will be of neutral cost impact to Council.

(e)Agrees to recommend to Council that officers proceed with one of the options below:

(i)Option 1 – Enter into access agreement for exploration and agree, subject to negotiation, to an access agreement for mine development; or

(ii)Option 2 – Enter into access agreement for exploration but do not agree at this stage to further mine development, instead allowing for consideration of community views; or

(iii)Option 3 – do not enter into access agreement for exploration nor an access agreement for mine development.

(f)Agrees that if the Committee determines to recommend Option 1 or 2, that it also recommends to Council that the Group Manager of Services and Assets is delegated to execute such an agreement.

[11]              On 23 March 2021, the Committee met to consider the Recommendation Report. The Committee was made up of all Councillors and was chaired by the Deputy Mayor. Due to uncertainty regarding whether the Committee had the necessary delegated authority, it was decided that the Committee should make a recommendation to Council on the Proposal and that the Council would make a final decision. The Recommendation Report was treated as confidential and was considered with the public excluded from the meeting. Before the public were excluded, New Brighton’s representatives presented to the Committee their proposed exploration activities, and described the potential mining operation and their activities in Southland generally.

[12]              Committee members discussed the Recommendation Report and the issues. Members discussed the community views that were held or were likely to be held; the importance of mining activities to local communities, business and the economy; and climate change impacts of entering into the access arrangement.

[13]At the conclusion of the discussion, the Committee adopted recommendations

(a) to (d) and (e)(i), ((e)(i) being “Option 1”) (set out at [10] above). It also adopted recommendation (f) with changes:

Agrees that if the Committee determines to recommend Option 1 or 2, that it also recommends to Council that the Group Manager of Services and Assets,

Chief Executive and Chair of the Services and Assets Committee are is delegated to execute such an agreement.

[14]              The Committee forwarded its recommendation to the Council as an amended version of the Recommendation Report (amended so as to reflect the Committee’s conclusions).

[15]              The Council met on 14 April 2021 to consider the Proposal and the Committee’s Recommendation. The Committee’s report to Council, entitled “Access to Commercial Forest at Ohai for Coal Exploration and Mining” (the Committee Report), was identical in all material respects to the Recommendation Report, aside

from    the    “Recommendation”   section,    which    was   amended   to   reflect    the recommendation made by the Committee.

[16]              The Committee Report was discussed by the Council, with many of the topics and context discussed at the Committee again covered, and some additional comments. The Council’s Group Manager, Matthew Russell, has provided an affidavit as to his involvement in the relation to the Proposal and, in particular, at the Committee meeting (23 March) and at the Council meeting (14 April). Mr Russell deposes that the Council discussed the following matters (along with others):

(a)the Council’s understanding of what views the community would hold regarding the Proposal;

(b)whether community engagement on the Proposal was necessary;

(c)the impact on climate change if the Council were to grant access for mining; and

(d)the ability of New Brighton to request an arbitrator determine the access arrangement if the Council did not consent to the Proposal and the potential that, if the matter is referred to arbitration, the Council might lose the ability to ensure New Brighton goes through a fully-notified consent application process.

[17]              Under a heading “Community Views” the Committee adopted and set out from the Recommendation Report the 14 April Community View discussion.1

[18]              The Committee Report describes the decision-making as taking place in the context of “likely mine development”. The Council treated it as confidential. The public were excluded from the 14 April meeting. The Report referred to the matter as a “climate change decision” from a policy perspective and recorded that:

There is limited strategy or framework regarding climate change that would guide this particular decision. This may compound the impact or precedent

1 Above at [9].

from this decision with respect to future climate change decisions. Because of this, the matter has a risk of being considered a test decision.

[19]              Of the three options earlier identified by Council officers (above at [10]), the Committee recommended to Council Option 1 (entry into access agreement for exploration and, subject to negotiation, to an access agreement for mine development).

[20]At the 14 April meeting, the Council resolved:

That the Council:

(a)Receives the report titled “Access to Commercial Forest at Ohai for Coal Exploration and Mining” dated 7 April 2021.

(b)Determines that this matter or decision be recognised “as not” significant in terms of Section 76 of the Local Government Act 2002.

(c)Determines that it has complied with the decision-making provisions of the Local Government Act 2002 to the extent necessary in relation to this decision; and in accordance with Section 79 of the Act determines that it does not require further information, further assessment of options or further analysis of costs and benefits or advantages and disadvantages prior to making a decision on this matter.

(d)Agrees to consider the three options available for coal exploration access to Ohai commercial forest and note that whichever option is chosen will be of neutral cost impact to Council.

(e)Agrees that officers proceed to – enter into an access agreement for exploration and agree, subject to negotiation, to an access agreement for mine development and with the condition that the applicant applies for a publicly notified resource consent.

(f)Agrees that the group manager of Services and Assets, chief executive and chair of the Services and Assets Committee are delegated to execute such an agreement.

(the Decision).

[21]              Accordingly, in reaching the Decision the Council found the matter not to be significant in terms of its S&E Policy and determined under s 79 Local Government Act (LGA) it did not require further information.

[22]              The Decision was effected by the Council and New Brighton executing a contract entitled “Exploration Access Arrangement” dated 5 May 2021 (Access

Agreement). The access rights for exploration recorded in the Access Agreement were registered over the titles to the relevant land, as provided for by s 83 CMA. The Access Agreement had a defined term, commencing on 5 May 2021 and expiring 30 June 2022. New Brighton in fact concluded its exploration activities in August 2021. The Access Agreement contained an acknowledgement as to the capacity in which the Council entered it:

[7.2] [New Brighton] acknowledges that [the Council] has entered into this Agreement in its capacity as a landowner and nothing in this Agreement or representation made by or on behalf of [the Council] binds [the Council] in its regulatory capacity as a consenting authority under the [Resource Management Act] in respect of the [Property] or in the exercise of any of its powers under its bylaws.

Forest & Bird’s application for review

[23]              By its application for judicial review, Forest & Bird sought a declaration that the Decision was unlawful and an order quashing the Decision.

[24]              For a first cause of action Forest & Bird pleaded that there had been a number of errors of law, which were then grouped in counsel’s submissions — I consider them in this judgment under the following headings:

(a)failure to act in accordance with s 14 LGA principles ([53]–[80]);

(b)failure to properly apply the S&E Policy ([81]–[98]);

(c)failure to consider community views as preferences under s 78 LGA ([99]–[119]);

(d)failure to consider the scientific consensus on anthropogenic climate change ([120]–[130]);

(e)failure to take account of Council plans and policies and the LGLCC Declaration ([131]–[145]);

(f)legally erroneous reasoning as to a “loss of control” ([146]–[155]); and

(g)legally erroneous reasoning through Council’s failure to inform itself ([156]–[161]).

[25]              As a second cause of action, Forest & Bird pleaded that the Council had acted unreasonably by making the Decision because “it is unreasonable to facilitate the expansion of coalmining operations in the District in view of identified climate change considerations”. This ground of review is discussed below at [162]–[174].

Strike-out application

[26]              New Brighton applied on 31 August 2021 for an order striking out Forest & Bird’s statement of claim. On 4 November 2021, Associate Judge Johnston, following a hearing, declined to rule on the strike-out application. He directed instead that the application be heard together with the substantive judicial review application.2 The Associate Judge reasoned that the necessary consideration of the merits meant that the Court would need to have all available affidavit evidence before it before reaching a concluded view on the merits. At this hearing Mr Gordon has not pressed for a determination of the interlocutory application and it will be formally dismissed given the Court is determining the issues substantively. Accordingly, there will be no costs awarded in relation to the interlocutory application.

Legislative schemes

[27]Two legislative schemes are relevant.

Crown Minerals Act 1991 (CMA)

[28]              The CMA establishes a statutory regime in relation to Crown-owned minerals. The responsible Minister may issue permits in relation to prospecting, exploring, or mining for minerals.3 New Brighton holds permits for prospecting and exploration in relation to the Property.4 Section 54(2) CMA requires a permit holder, before any prospecting, exploring or mining takes place on the identified land, to obtain an access

2      Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [2021] NZHC 2977 at [35].

3      Crown Minerals Act, s 25.

4      Minerals Exploration Permit 40625 — permits to prospect and explore for Crown owned mineral. New Brighton does not hold a permit to mine in relation to the Property.

arrangement either through agreement with each owner and occupier of the land or by an arbitrator’s determination. For minerals other than petroleum (such as coal) there are special requirements to be met before the alternative of an arbitrator’s determination may be adopted. I return to that below from [146].

[29]              In this case, Bathurst sought and obtained (in the form of the Access Agreement) an agreement in writing with the Council, in the Council’s capacity as the owner of the Property.

Local Government Act 2002 (LGA)

[30]              The Council is a “territorial authority” in terms of the LGA. As such, the Council’s operations are subject to the provisions of the LGA. As described in s 3 of the LGA, the LGA does four things in particular in order to provide for democratic and effective local government that recognises the diversity of New Zealand communities, namely:

(a)states the purpose of local government; and

(b)provides a framework and powers for local authorities to decide which activities they undertake and the manner in which they will undertake them; and

(c)promotes the accountability of local authorities to their communities; and

(d)provides for local authorities to play a broad role in promoting the social, economic, environmental, and cultural well-being of their communities, taking a sustainable development approach.

[31]              Central to concerns raised by Fish & Game is the proposition that the four community “well-beings” identified in s 3(d) LGA (being social, economic, environmental and cultural) were neglected by the Council when making the Decision and entering into the access arrangements.

The climate change context

[32]              Forest & Bird asserts that the Decision was unlawful because in various ways the Decision disregarded the contribution the extraction and use of coal from the

Property would have on climate change. Mr McDonald summarised the proposition in his introductory submissions:

The Council’s decision was improperly made as a matter of procedure and in the context of a phenomenon that is one of the most critical issues of our time. Anthropogenic climate change has profound implications for the Southland District (District) and those who live there.

The extraction and use of coal to generate energy is a major contributor to climate change. Facilitating new coal mining operations is inconsistent with the urgent action required to keep global heating at safe levels.

Forest & Bird says that the Council’s decision-making process was fundamentally flawed, and that the decision was unreasonable as a matter of law.

[33]              By an introductory paragraph to its statement of claim, Forest & Bird also related its claims to the impact of activities upon climate:

This application is concerned with the preservation of New Zealand’s natural environment and it is brought solely in the public interest, having regard to the urgent need to reduce the impact of human activity on the climate.

[34]              By its statement of claim, Forest & Bird then pleaded matters under headings “Scientific consensus on climate change”, “Coal’s contribution to climate change” and “Impacts of climate change on the Southland District”.

[35]              Mr McDonald’s introductory submissions (above at [32]) broadly summarised the “scientific consensus” pleadings which contained assertions that:

(a)youth and future generations will be disproportionately affected by the impacts of climate change;

(b)the Southland District and its communities will be significantly impacted by the effects of climate change; and

(c)New Zealand’s transition to zero net carbon by 2050 can be achieved only if coal use is rapidly phased out.

[36]Forest & Bird supported its application through five deponents:

(a)Rick Zwaan, the Regional Conservation Manager (Otago/Southland) of Forest & Bird. He exhibited documents of the Council and other bodies and information relating to the Decision;

(b)Gemma Marnane — the National Communications Manager at Forest & Bird Youth — as a 20 year old, with a strong connection to Southland and its communities. She deposed as to the concerns that she and other young people have for the future and in particular the concern that activities such as coal mining will have negative environmental impacts on the district, outweighing any short-term economic benefit;

(c)George Curzon-Hobson — the Chief Policy Lead at Forest & Bird Youth — as a 17 year old, he deposed as to his work on environmental matters, the immense alarm the climate crisis has for many young people and the strong objection that Forest & Bird Youth has to the Council allowing access for coal exploration and/or development of mining operations at Ohai;

(d)Professor Timothy Naish — he deposed, as a climate and earth scientist, as to his expertise and as to what he understands to be the consensus of the global scientific community on the causes and effects of climate change and required mitigation steps. He referred to the contribution of fossil fuel combustion and industrial processes to total greenhouse gas emissions and to the work of the (New Zealand) Climate Change Commission — its demonstration pathway for electricity generation and industrial heating shows coal being phased out by 2025 and reduced by 80 per cent in food processing by 2035. He stated that New Zealand’s transition to zero net carbon by 2050 can only be achieved if coal use is phased out (replaced by biofuels). He said climate change will disproportionately affect youth and future generations, and there will be significant ramifications for Southland. In an updating affidavit, he referred to further work of the Intergovernmental Panel on Climate Change (IPCC) as strengthening understanding that all aspects of the climate system are being influenced by continued emissions of

greenhouse gases. He set out statistics relating to the burning of coal worldwide and opined that the immediate decarbonisation of the energy sector is central to all mitigation pathways that keep earth’s climate when in safe operating limits;

(e)Professor (Emeritus) Ralph Sims — a scientist who has been a lead author for four IPCC reports. He opined that the expansion or development of new coalmining operations anywhere in the world is entirely irresponsible from a climate change perspective. He stated there is no need to develop any new coalmines either globally or in New Zealand and that there are sufficient reserves and supply of coal already available from existing lines to meet the requirements of industry during the phasing out of coal as an energy source for industrial processes and power generations. He referred to observations made during the (Southland District) Council’s decision-making process as to the potential importation of coal to meet New Zealand’s domestic requirement — he stated New Zealand has proven technically and economic recoverable coal reserves that would last for 2000 years at annual consumption rates. He rejected any suggestion that any product (whether New Zealand coal or other) can be defined as “clean coal”. He took issue with a statement of Craig Pilcher, wherein Mr Pilcher referred to a Ministry for the Environment (the Ministry) document (April 2021) as “providing for the use of coal until at least 2037”. Professor Sims explained it is the consultation document which in fact sets out proposals to put in place a clear “phase out” date for the use of coal in low and medium process heat by 2037. He noted the consultation document confirms that “phasing out the use of coal in process heat is the priority” and that “one of the biggest opportunities to reduce CO2 emissions in Aotearoa is through the decarbonisation of processed heat”.

The respondents’ pleadings

[37]              The respondents, by their respective statements of defence, admitted the pleadings as to the existence of climate change, the significant contribution of energy to greenhouse gas emissions and that coal currently makes up a portion of the global primary energy supply. They plead insufficient knowledge of other detailed allegations and therefore deny those. New Brighton, in particular, pleads that New Zealand has an intended transition to a zero net carbon economy but pleads that such a target will take time to achieve, with the energy needs of New Zealand’s economy still needing to be met during the transition.

[38]New Brighton pleaded two affirmative defences:

(a)the Decision is not unreasonable because it is the decision of a private landowner to enter into a commercial contract; and

(b)review would be futile and the issues raised are moot because the agreed exploration has been completed and any mining is dependent upon other authorisation, including a resource consent which would itself proceed on a fully-notified basis.

Other policy/declarations

LGA regime for “significant decisions”

[39]              Section 76 LGA provides for decision-making, including in relation to “significant decisions” (under s 76(3)(b)).

[40]              “Significant”, pursuant to s 5, LGA means in relation to a decision, one that has a high degree of significance.

Significance and Engagement Policy

[41]Section 76AA LGA requires every local authority to adopt an S&E policy.

[42]The purpose of an S&E policy is:5

(a)to enable the local authority and its communities to identify the degree of significance attached to particular issues, proposals, assets, decisions, and activities; and

(b)to provide clarity about how and when communities can expect to be engaged in decisions about different issues, assets, or other matters; and

(c)to inform the local authority from the beginning of a decision-making process about—

(i)the extent of any public engagement that is expected before a particular decision is made; and

(ii)the form or type of engagement required.

[43]A policy adopted under s 76AA(1) LGA may be amended from time to time.6

[44]The Council adopted its S&E Policy on 10 March 2021.

[45]              The S&E Policy says that the Council will follow a three-step process to inform decision-making:

[46]Council will follow a three-step process to inform decision-making:

Step 1 - determine significance - Council will use particular factors to decide if a matter is of higher or lower significance. This part of the policy also gives guidance on what to do if a matter is of high significance.

Step 2 - identify community views - Council will determine what it knows about community views and identify if there is a need for more information.

Step 3 - deciding on an approach to community engagement - the level of significance and what Council wants to know about community views will guide Council on an appropriate level of engagement, and how and when to engage. This part of the policy provides clarity on how and when communities can expect to be engaged in different issues. It also identifies how Council will respond to community preferences about engagement.

5      Local Government Act 2002, s 76AA(2).

6      Section 76AA(4).

[47]              The S&E Policy at Step 1 states that decisions will be considered on a case by case basis, with the following factors of equal weighting to be taken into account:

(a)the likely impact/consequences of the issue, decision or proposal on the current and future social, economic, environmental or cultural wellbeing of the District.

(b)the effect on people who are likely to be particularly affected by or interested in the issue, decision or proposal.

(c)the financial and non-financial costs and implications of the issue, decision or proposal on Council’s capability and capacity.

(d)the scale of any proposed change to levels of service.

(e)the ownership or function of a strategic asset.

[48]              Forest & Bird identifies factors (a) and (b) as particularly applicable to the Council’s decision-making in this case. It is common ground that factors (d) and (e) had no application.

[49]              The S&E Policy also requires the Council to also take into account knowledge it has previously gained about the community and its views on an issue in order to assess whether the matter has a high level of significance.

[50]              The S&E Policy also states, under a heading “For some matters that are not considered significant”:

In general, where a matter is not considered significant under this policy, Council is unlikely to seek additional information on community views. However, in some situations where Council staff deem community involvement or notification is appropriate, informal feedback or notification processes may be followed.

Local Government Leaders’ Climate Change Declaration

[51]              In 2017, a group of 40 local authority mayors and chairs joined in signing the Local Government Leaders’ Climate Change Declaration (“LGLCC Declaration”). The Mayor of Southland District (Gary Tong) was one of the signatories. By its pleading Forest & Bird asserted (incorrectly) the Council is a signatory to the LGLCC Declaration — the Mayor was the signatory and the Council (of Southland District) has not in fact resolved to adopt the Declaration.

[52]              That said, Forest & Bird invokes aspects of the LGLCC Declaration as matters the Council was required to consider when reaching the Decision. In particular, the Declaration contains an acknowledgment of the importance and urgent need to address climate change for the benefit of current and future generations. It also contains “Council Commitments” to developing and implementing ambitious action plans that reduce greenhouse gas emissions and sets out important “guiding principles” for responding to climate change, including precaution; stewardship and kaitiakitanga; equity and justice; understanding; and co-operation and resilience.

First ground of review – failure to act in accordance with s 14 LGA principles

Forest & Bird’s pleading

[53]              Forest & Bird pleads the Council erred by failing to consider, or making errors in the consideration of, the statutorily mandatory considerations in s 14 LGA.

The s 14 LGA regime

[54]              Section 14(1) LGA lists a set of principles relating to local authorities. The three invoked by Forest & Bird being in (1), (b) (c) and (h) relevantly read:

14       Principles relating to local authorities

(1)In performing its role, a local authority must act in accordance with the following principles:

…

(b)a local authority should make itself aware of, and should have regard to, the views of all of its communities; and

(c)when making a decision, a local authority should take account of—

(i)the diversity of the community, and the community’s interests, within its district or region; and

(ii)the interests of future as well as current communities; and

(iii)the likely impact of any decision on each aspect of well-being referred to in section 10:

…

(h)in taking a sustainable development approach, a local authority should take into account—

(i)the social, economic, and cultural well-being of people and communities; and

(ii)the need to maintain and enhance the quality of the environment; and

(iii)the    reasonably   foreseeable   needs    of    future generations.

[55]              Section 78 LGA requires the local authority, in the course of its decision- making process in relation to a matter, to give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matters.

[56]              The application of the principles identified in s 14 LGA is provided for in     s 79(2)(a) LGA. Section 79(1) makes it the responsibility of a local authority to make, in its discretion, judgements about how to achieve compliance with the decision-making requirements under ss 77 and 78 that is largely in proportion to the significance of the matters affected by the decision. Section 79(2) then provides that the local authority, in making judgements under s 79(1), must have regard to the significance of all relevant matters and (amongst other matters) the principles set out in s 14 LGA.

[57]              Section 80 LGA requires the local authority when making a decision, if its decision is significantly inconsistent with any policy adopted by the local authority, or any plan requires by statute, to clearly identify the inconsistency and the reasons for it.

Submissions

[58]              For Forest & Bird, Mr McDonald, invoked the s 79(2) provision that the local authority “must have regard” to the principles set out in s 14. He submitted the s 14 requirements are thereby express mandatory considerations. Mr McDonald submitted that, in the way the Council approached its decision-making, its focus was on coal’s major contribution and impact in the District and on the Council facilitating mining on its own land. Under the “advantages” identified under the Committee’s Option 1, there was listed “supports significant District employer and related communities”. In

this way, in Mr McDonald’s submission, the Council addressed only half the picture required for decision-making.

[59]              Mr McDonald submitted the Council neglected to have regard to the principles he identified in s 14 through a failure to focus on the impact of the mining of coal against the immediate need for de-carbonisation, not only at a national but also a regional level. In Mr McDonald’s submission, the Council (in terms of s 14) failed to have proper regard to the views of all its communities, the interests of future as well as current communities, and a sustainable development approach that has regard to the four community “well-beings” (above at [31]).

[60]              Mr McDonald submitted the Council had very little latitude for error when making the Decision. Mr McDonald cited the observations of Palmer J in Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council (Hauraki CCA) that the intensity of review of decisions about climate change by public decision-makers is similar to that for fundamental human rights.7 His Honour remarked that, depending on their context, decisions about climate change deserve heightened scrutiny.

[61]              That said, Mr McDonald submitted it does not require a “heightened scrutiny” for the Decision to be found unlawful in this case by reference to a breach of s 14 principles, as that breach is simply one of a number.

[62]              Both Mr Conway and Mr Gordon (for the Council and New Brighton respectively) took issue with Forest & Bird’s characterisation of s 14 as containing “mandatory requirements” and of the proposition that “heightened scrutiny” is to be applied to this Decision. They submitted the Council, as it acted, had applied the s 14 principles.

Discussion — “mandatory requirements”

[63]              The role of s 14 LGA in the context of the LGA as a whole requires consideration. The LGA, as it now exists (in the form of the 2002 Act), stands in

7      Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 3228, [2021] 3 NZLR 280 [Hauraki CCA] at [51].

contrast to the predecessor legislation (the Local Government Act 1974 and the Municipal Corporations Act 1954) which were highly prescriptive and contained detailed powers and obligations for many of local authorities’ functions. Such was explained in the Explanatory Note to the Local Government Bill 2001, which spoke of a:8

… shift from a detailed and prescriptive style of statute (that focuses councils on compliance with detailed legislative rules) to a more broadly empowering legislative framework that focuses councils on meeting the needs of their communities.

[64]              Hence s 12(2) LGA which cloaks local authorities with a general power of competence, constrained by the purpose of local government (under s 10) and (under s 11) the role of a local authority. Subject to those constraints, a local authority has full capacity to do anything a body corporate may do so long as it is:9

(a)for the purpose of performing its statutory role;

(b)wholly or principally for the benefit of its district or regime; and

(c)not contrary to the LGA, any other Act, or the general law.

[65]              Part 6 of the LGA (particularly ss 75-83) sets out specific provisions in relation to local authority decision-making. Part 6 does not generally prescribe or limit substantive powers but rather sets out procedural requirements that apply in the exercise of those powers.

[66] Section 79 LGA (summarised at [56] above) provides direction to local authorities on how to comply with their decision-making obligations. Section 79(1)(a) makes local authorities responsible, in their discretion, for making judgements as to how to comply with ss 77 and 78 requirements in a way that is “largely in proportion to the significance of the matters affected by the decision”, determined in accordance with the S&E Policy (as adopted under s 76AA LGA). Section 79(2) does not require the local authority to have regard to s 14 principles when making decisions — the

8      Local Government Bill 2001 (191-1) (Explanatory Note).

9      LGA, s 12(2)–(5).

requirement is focused on the discretionary judgements the local authority makes under s 79(1) about how to achieve compliance with s 77 and 78.

[67]              Against this background, unsurprisingly counsel did not refer to any decision based purely on a breach of s 14. The reason for that has been explained academically:

(a)In Kenneth Palmer’s Local Government Law in New Zealand, the author describes s 14 as containing statements of principle which may be useful in interpreting or applying other provisions of the Act, rather than quantifiable requirements; and10

(b)Dr Dean Knight has observed that “it is expected that [the Courts] will fence off these principles as being non-justiciable and point to the processes of political accountability as being the central control mechanism to enforce compliance”.11

In other words, councillors are to be held accountable for the implementation of s 14 principles through the ballot box at election time rather than through review in this Court.

[68]              Very recently, in All Aboard Aotearoa Inc v Auckland Transport, one challenge was to a decision of the Auckland Council’s Planning Committee endorsing the Regional Land Transport Plan.12 The applicant challenged the Planning Committee’s endorsement on the basis that the Committee did not have proper regard to the interests of the future as well as current communities as required under s 14 LGA.13 Venning J identified the status of the s 14 principles:14

I agree with the respondents’ submission that the principles in s 14 of the LGA are not mandatory requirements enforceable in their own right, but rather are a guide to the Council’s exercise of its powers and functions.

10 Kenneth Palmer (ed) A to Z of New Zealand Law (online ed, Thomson Reuters) at 37.5.10.1.

11 Dean Knight “Democracy and the Consideration of Community Views: Obligation and  Observance” in C Charters, Dean R Knight (ed) We, The People’s: Participation in Governance (Victoria University Press, Wellington, 2011) at 284.

12 All Aboard Aotearoa Inc v Auckland Transport [2022] NZHC 1620.
13 See [219].

14 At [220].

[69]I respectfully adopt that passage as correctly stating the law.

[70]              It was against the background of this empowering legislative framework that the Council came to consider the decision it had to make as a landowner under the CMA. The Decision was being made because New Brighton, as a holder of permits for prospecting and exploration (but not mining) in relation to the Property, had requested a grant of right of access under s 59 CMA over the Council’s land. The Council, in responding to that request, was not exercising any regulatory power. The request made of the Council for access to the Property under the CMA was a pre- requisite to New Brighton gaining access to the land (for any of the identified purposes, namely prospecting, exploring or mining). But the decision to grant access did not in any legal or logical sense amount to an approval, let alone a permission, to mine for coal. Nor was it a decision as to the Council’s position on any issue relating to climate change. Such was reflected in New Brighton’s acknowledgement expressly contained in the Access Agreement (above at [22]). The Council’s required decision under the CMA was as to access. The rights New Brighton needed if it was to explore and to mine had to be granted through other processes.

[71]              The fact the Council was granting access to the Property for stated purposes is of fundamental relevance to the context. The Council’s decision did not authorise or set in motion the mining of coal on the Property. The grant of the existing permit to explore and any subsequent grant of a permit to mine in relation to the Property were (if applied for) matters for the responsible Minister under the CMA. The consenting process for any mining activities under the RMA if applied for would be for the Council to determine in the exercise of its regulatory functions under the RMA.

Discussion — “heightened scrutiny”

[72]              Returning then to the standard of review required in relation to the Council’s decision-making, a focal point for recent discussion in this area has been the decision in Hauraki CCA.15 It was cited by Mr McDonald for the proposition that the gravity

15     Hauraki CCA, above n 7, at [45].

of the subject-matter (climate change) may require the Court to exercise “heightened scrutiny” over the decision-making and a greater “intensity of review”.16

[73]              The concept of a variable standard of review is not without its complications (as identified by Cooke J in New Zealand Council of Licensed Firearms Owners Inc v Minister of Police).17 The approach to “intensity of review” has not been settled.18

[74]              This is not a case which ultimately turns on the differences or tensions between recent observations as to the intensity of review. The recent discussion had its origin (in Hauraki CCA) in an analogy drawn between cases turning on fundamental human rights and those focused on climate change decision-making. I have referred above at

[51] to the LGLCC Declaration. It was the decision of a Council not to approve the Mayor’s signing of the Declaration that was the subject-matter of Hauraki CCA. The Declaration contains “Council Commitments”. The decision under review in Hauraki CCA therefore was a “decision about climate change”.19 The Court recognised that, if the LGLCC Declaration were both signed by the Mayor and approved by the Council, that could create a legally enforceable legitimate expectation as to how the Council would in future deal with the physical impacts of climate change.20 The Council was being asked to state its commitments in relation to climate change, with enforceable obligations potentially flowing.21

[75]   The decision in this case was not a “climate change” decision in the sense that term was employed in Hauraki CCA. The decision for the Council in this case was whether and on what terms to grant access to its land (with one of the purposes of such access (mining) having potential implications for climate change). While, to that extent, there was a climate change context in which the Council’s access decision was being made, it is incorrect to equate the decision to a “climate change decision” in the Hauraki CCA sense.

16 At [51].

17     New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456 at [85]–[85].

18     See, for instance, Cripps v Attorney-General [2022] NZHC 1532 at [188], citing Ministry of Justice v Kim [2021] NZSC 57, [2021] 1 NZLR 338 at [51].

19     At [1], [51].

20     Hauraki CCA, above n 7, at [1].

21 At [32].

[76]   Assuming (without deciding) that Hauraki CC correctly identifies a requirement of “heightened scrutiny” for certain types of decisions, the decision in this case was not within a relevant class. “Normal” scrutiny has to be applied.

Discussion — a failure to consider s 14 LGA Principles?

[77]   The first, fundamental answer to the first ground of review (alleged non- compliance with s 14 LGA) is that any failure of the Council to have regard to the non-mandatory s 14 principles does not invalidate the Decision.

[78]   Had that not been the case, I would in any event have found that Forest & Bird has not established that the Council in fact failed to consider the s 14 principles. This was a decision in relation to access to land under the CMA. The Council was not the body charged by statute with authorising the exploration for or mining of minerals. The Council’s consideration of principles therefore needed to relate to the relatively narrow question of the impact of New Brighton’s entry onto the land (should access be granted). The Committee had expressly reported to Council (above at [9]) that community views had not been sought, with staff anticipating (clearly correctly) the community would hold a wide range of views on the topic of coal exploration and mining at Ohai. That said, the Committee recorded that there would be a consideration of community views through any resource consent process associated with any mine developments.

[79]   Given the issue before the Council was the question of access, for the purposes of s 14 the level of regard to the diversity of community views was sufficient. Some would be in favour, probably strongly. Some would be opposed, probably strongly. It accorded with a principled approach, in those circumstances, for the Council to take the view that adverse community views, whether based on issues of anthropogenic climate change or otherwise, should not cut across the narrow issue of whether to grant access and that the appropriate context for further consideration of community views and impacts would be when (if at all) New Brighton came to seek the necessary consents or permissions to extract any coal.

[80]   The Council was also entitled to take into account the consideration identified by the Committee (above at [13])(d)). As I find below from [146], in the event the

Council refused New Brighton access, there was a statutory means under the CMA by which New Brighton could achieve through the Minister an arbitrated decision. There was therefore a route, albeit of difficulty, whereby the Council might lose the ability to ensure New Brighton went through a fully notified consent application process. The Council’s decisions to incorporate into the access agreement entered into with New Brighton an agreement for a publicly notified resource consent process (above at [16(e)) added a measure of protection of the scope for community views.

Second ground of review – failure to properly apply the S&E Policy

Forest & Bird’s pleading

[81]   Forest & Bird pleaded the Council had failed to consider, or properly consider, or correctly interpret or apply its S&E Policy, the relevant provisions of which are summarised at [45]—[50] above.

Submissions

[82]   Mr McDonald submitted the Decision was plainly a matter of “high significance” when assessed against the factors set out in the S&E Policy. He referred to three particular matters:

(a)the impact/consequences of the Decision, when its climate change ramifications are considered, will have a major impact on the current and future social, economic, environmental or cultural wellbeing of the District;

(b)facilitating the burning of fossil fuel, in light of the climate crisis, will impact all current and future constituents of the District; and

(c)the financial and non-financial costs of facilitating the expansion of coalmining operations in the current environment will be high, given the District’s susceptibility to the effects of climate change, and noting the billions of dollars’ worth of homes, businesses and infrastructure at risk.

[83]   Mr McDonald referred to Step 1 in the S&E Policy three-step process for decision-making (above at [46]). He referred in particular to the requirement upon the Council, under Step 1, to consider the “effect on people who are likely to be particularly affected by or interested in the issue, decision or proposal”.

[84]   Mr McDonald suggested the Committee, in the Recommendation Report, had focused on people who would be particularly affected or “impacted” by the Decision and not also on people “interested in the issue”.22 He referred in particular to paragraph 46 of the Recommendation Report (above at [8]), which I reproduce here for convenience:

Although there may possibly be a high degree of interest in this issue from the community and affected stakeholders, not all interested parties will necessarily be directly impacted or face consequences. For this reason, the matter may not be considered significant, although is possibly approaching a significance threshold.

[85]   Mr McDonald submitted the Council had thereby failed to apply one of the factors (numbered (b)) identified at Step 1 of the S&E Policy.

[86]   Mr McDonald additionally submitted that the Council had failed to implement its S&E Policy by failing to secure information about the views and preferences of those likely to be affected.

[87]   Mr McDonald finally submitted the Council had not properly assessed the significance of the Decision because it failed to consider four particular matters, being the s 14 LGA principles; the scientific consensus on climate change; the Council’s other policies and plans; and the LGLCC Declaration.

[88]   As I consider (and dismiss) the grounds of review relating to those four matters under separate headings in this judgment, I will not further consider them under this heading. I instead now examine Mr McDonald’s initial arguments made under this heading.

22     Referring to s 78 LGA and the relevant provision of the S&E Policy (above at [47]).

[89]   For the Council, Mr Conway focused first on the Forest & Bird contention that the Decision had a high degree of significance.

[90]   Mr Conway cited observations of Philip Joseph in Constitutional and Administrative Law in New Zealand:23

Arguments of wrong weight address “value judgments rather than questions of law” and are prone to intrude on the decision maker’s domain.

… The ground of “wrong weight” may masquerade under several guises. If the weighting of relevant factors is not “within the bounds of reason”, the decision may be struck down as Wednesbury unreasonableness…

[91]   In Mr Conway’s submission, the weighting to be given to the various considerations was a matter for the Council, according to value judgements, and did not involve an issue for the Court on judicial review, except in relation to the unreasonableness cause of action. Mr Conway emphasised the Council is required under s 79(1) to exercise “its discretion” in relation to the judgements made under s 79 CMA.

[92]   Mr Conway referred to the Council records, and the evidence of Mr Russell, as indicating the Council carefully considered the significance of the Decision against the requirements of s 79(1) LGA and the S&E Policy, determining as resolution (b) (above at [20]) that the Decision was not “significant”. Mr Conway referred to the exercise of judgement involved when the Recommendation Report concluded “the matter may not be considered significant, although it is possibly approaching a significance threshold”.

[93]   Mr Conway noted that the principles of consultation (set out in s 82 LGA) are not a required consideration when a local authority is determining a decision’s significance. He referred to the observation of the Court of Appeal in Wellington City Council v Minotaur Custodians Ltd (Minotaur) that the s 82 principles apply when a council does choose to consult. In other words, the principles do not apply if the decision is to not consult.24

23     Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 1017 and 1018.

24     Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 [Minotaur]: see below at [109].

Discussion — the significance of the Decision

[94]   The Council had in place its S&E Policy. For identified reasons, as initially stated in the Recommendation Report (above at [8]), the decision Council had to make was not viewed as having met the significance threshold, “significant” in this context referring to a decision that has a high degree of significance).25

[95]   Therefore, in terms of s 79 LGA, the Council in making, in its discretion, the judgement about how to achieve compliance with ss 77 and 78 had a responsibility to ensure it was “largely in proportion” to the level of significance the Council found to be established.

[96]   The information before the Council, both through the work of its Committee at the 23 March meeting and of the full Council at the 14 April meeting, plainly identified the likelihood the community would hold diverse views on the Proposal. All such views would be able to be considered through the resource consent process should mine development be pursued. In its Report, as substantially adopted by the Council, the Committee recognised the competing sets of community interests: on the one side in relation to a relatively high reliance on coal resource for employment and to provide energy for industry, while on the other side recognising that others might attach a higher priority to climate change considerations, including by reference to the recent Climate Change Commission draft recommendations.

[97]   Mr McDonald’s submission under this head focused on the distinction between people likely to be particularly affected by a decision and those “interested” in the decision, noting the Council’s reference to the fact that “not all interested parties will necessarily be directly impacted or face consequences”. I consider the Council’s express reference to “direct impact or consequences” unremarkable in the context of a decision concerning access. The understandable point being recorded may be viewed as a statement of the obvious — the grant of access to the Property at most would represent a preliminary step towards mine development, with no direct impact during the period of access. The matter recorded by the Council cannot reasonably be interpreted as the Council excluding from its consideration others who rather than

25 See s 5 LGA, above at [40].

being affected by mining simply hold views about the industry or the issues that arise. The Council’s view clearly was that all such persons — whether simply interested or directly affected — would have the opportunity for their views and the impact on them to be taken into account during later processes.

[98]   I accept Mr Conway’s submission that, in the decision-making process, it was clearly front of mind for councillors that the community would hold a range of views on any coal mining that might occur in the future. None of the parties here disputes the correctness of such a conclusion. In those circumstances, and having regard to the justifiable conclusion that the decision on the Proposal was not a “significant decision”, the decision to not seek community views or to enter into some other form of community engagement before entering an access agreement was a proper exercise of the discretion reserved to the Council under s 79(1) LGA on how to comply with ss 77 and 78 LGA.

Third ground of review — failure to consider community views as preferences under s 78 LGA

Forest & Bird’s pleading

[99]   Forest & Bird pleads the Council failed to ascertain or properly consider community views, as required by s 78 LGA.

Section 78 LGA

[100]Section 78 LGA provides:

Community views in relation to decisions

(1)A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.

(2)[Repealed]

(3)A local authority is not required by this section alone to undertake any consultation process or procedure.

(4)This section is subject to section 79.26

26     See also LGA, s 14(1)(b).

[101]   Section 79 LGA, to which s 78 is subject, identifies it is “the responsibility of a local authority to make, in its discretion, judgments” as to particular matters. Those include, under s 79(1)(a):

79(1)(a)about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the policy under section 76AA; and

[102]   In his written submissions for this hearing, Mr McDonald invoked the 2009 decision of the Court of Appeal in Whakatane District Court v Bay of Plenty Regional Council (Whakatane).27

[103]   Mr McDonald initially submitted that Whakatane is authority for the proposition that s 78 LGA requires conscious steps to be taken by the decision-maker to secure information on the views and preferences of those likely to be affected in relation to the proposal and an actual and intentional consideration of that information. (In his oral submissions Mr McDonald withdrew the qualifier “conscious”).

[104]   In Whakatane, the Court of Appeal (allowing an appeal from the High Court) set aside decisions of the Regional Council (known as Environment Bay of Plenty or “EBOP”) whereby EBOP had amended its long-term Council community plan to permit relocation of EBOP’s head office from Whakatane to Tauranga. As found by the Court of Appeal, the decision to shift the head office and many personnel from Whakatane to Tauranga was a “significant decision” as that term is used in s 76(3)(b)

LGA.28

[105]   Under s 76(1) LGA, the EBOP decision in Whakatane had to be made in accordance with the applicable provisions of ss 77, 78, 80, 81 and 82. Because it was a “significant” decision, the EBOP under s 76(3)(b) had to ensure, before making the decision, that the s 76(1) requirements were appropriately observed.

[106]   The appeal decision in Whakatane turned in particular on whether EBOP had “given consideration to the views and preferences” of the relevant members of the

27     Whakatane District Court v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826 (CA) [Whakatane] at [72]–[73].

28     Whakatane, above n 27, at [11].

community as required by s 78(1). The Court of Appeal held that EBOP had not complied with s 78, there being no evidence of actual consideration of community views and preferences:29

[72]      To “give consideration to the views and preferences” of the relevant members of the community is not achieved by mere knowledge of such views and preferences. It comprises two steps. The first is for EBOP to secure information as to such views and preferences. As a legal person it must do so by the conduct of natural persons which will be attributed to it by law. The information may be held by councillors; it may be held by an agent of EBOP holding an appropriate delegation. We accept that some information of that kind was held by EBOP via its councillors and perhaps via Mr Bayfield. Some of the information obtained by Deloitte would have informed its report and so become knowledge of EBOP.

[73]      There remains however the second step – of actually considering that information for the purposes of stages 1 and 2. The Judge considered that could occur “accidentally”. It is not logically impossible that EBOP could have “accidentally” done enough in its engagement with those likely to be affected to comply with s 78(2). But the prescriptive nature of s 78(2), particularly when read with s 77, makes it inherently unlikely that there would be “accidental” compliance. There is simply no factual basis for the submission that that occurred.

[74]      The submission that it did, like EBOP’s argument that the consideration of community views is to be given “in the course of the decision-making process” and work in the various stages may overlap, fails to meet the problem that it was for EBOP to show it had carried out its statutory obligation. No document and no other evidence was adduced to show it had in the course of its decision-making process in relation to the matter of siting the head office, given consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter:

(a)at the stage at which the problems and objectives related to the matter are defined:

(b)at the stage at which the options that may be reasonably practicable options of achieving an objective are identified:

[75]That is the simple end of the matter.

[107]   It is to be noted that s 78(2) LGA — which mandated the staged consideration the Court of Appeal was considering in Whakatane — was repealed after the decision in Whakatane was delivered.30

29     Whakatane, above n 27, at [72]–[74].

30     Local Government Act 2002 Amendment Act 2010, s 9. Section 78(2) LGA previously required:

(2)That consideration must be given at—

(a)the stage at which the problems and objectives related to the matter are defined:

(b)the stage at which the options that may be reasonably practicable options of achieving an objective are identified:

[108]   The Court of Appeal revisited the operation of Pt 6 LGA in Minotaur.31 The case concerned judicial review of Council decisions in relation to consultation over parking policy — the relevant period was 2010 when the provisions of s 78(2) (considered in Whakatane). A landlord complained that the Council had irrationally failed to consult it over the changes.

[109]   In Minotaur, the Court of Appeal rejected the concept of an obligation to consult or to adopt a particular consultation process, explaining:32

[35]      Section 78(1) provides that a local authority must, in the course of its decision making, give consideration to the views and preferences of persons likely to be affected by, or have an interest in, the matter. Subsection (2) provides that the views and preferences of affected persons or those who have an interest in the matter must be considered at four stated stages of decision- making.

[36]    Note, however, that subs (3) makes it clear that s 78 does not itself generate an obligation to consult or indeed to adopt any particular consultation process or procedure. Rather, consultation is one of a number of options for obtaining information about the views and preferences of those affected or with an interest. Subsection (4) restates that the section is subject to the wide implementation discretion in s 79.

…

[38]   The effect of this provision [s 82] is that, when a council does choose to consult, certain “principles” apply to the particular forms of consultation the council adopts …

(footnote omitted)

Submissions

[110]   Forest & Bird asserts the Council did not ascertain or properly consider community views and that, to the contrary, steps were deliberately not taken to ascertain community views. Particular reliance was placed on the 14 April community view discussion (above at [12]), confirming that “community views have not been sought”.

(c)the stage at which reasonably practicable options are assessed and proposals developed:

(d)the stage at which proposals of the kind described in paragraph (c) are adopted.

31     Minotaur, above n 24.

32     At [35]–[36].

[111]   For Forest & Bird, Mr McDonald invokes s 78 LGA and submits the Council did not give proper consideration to the members of the community. He refers to the material indicating the Council contemplated the possibility a significant section of the community might be opposed to new coalmining using Council land. He notes the observations in the Recommendation Report and the Committee Report as to community views not being sought and there having been no specific engagement activities. He notes that the Recommendation Report, in relation to Option 1 (as subsequently adopted by the Council) recorded as a disadvantage of the option that it did not provide time for comprehensive community engagement and consideration of community views.

[112]   Mr McDonald referred to the Court of Appeal decision in Whakatane, observing that the Court in that case had held that “where there was no evidence adduced to show the necessary intention or consideration, it was ‘the simple end of the matter’”.33

[113]   For the Council, Mr Conway emphasised the nature of the Council decision required to be made, namely whether to enter into an access arrangement. For mining to take place, New Brighton required a suite of other approvals.

[114]   Mr Conway noted Mr Russell’s evidence that at both the committee meeting (23 March) and the meeting of the full Council (14 April) members had discussed whether or not it was necessary to gauge community views given that the Council, as landowner, was simply providing access to the land (and not permission to mine).  Mr Conway noted the observations in the Recommendation Report that staff anticipated the community holding a wide range of views on the topic so there was a high risk that any engagement exercise would be inconclusive.

[115]   Mr Conway referred to the Council’s wide implementation discretion under   s 79 LGA and the fact that under s 78 consultation is an option for obtaining information about community views rather than an obligation — these matters having been established in the Court of Appeal’s guidance in Minotaur (as set out at [109] above).

33     Whakatane, above n [27].

[116]   Mr Conway observed that the Court of Appeal decision in Whakatane was in relation to a decision found to be significant (unlike the decision in this case) and that, even in Whakatane, the Court recognised that relevant information to community views may already be held by Council, without fresh engagement activities being undertaken.

Discussion — the consideration of community views as preferences

[117]   The Council’s responsibility under s 79(1) LGA was to make, in its discretion, judgements about how to achieve compliance with ss 77 and 78. The latter provision is that which requires the local authority to give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter. But the judgement to be made by the Council is to be “largely in proportion to the significance of the matters affected by the decision …”

[118]   Here the justified determination of the Council was that the Decision was not significant.

[119]   That decision flowed from the nature of the proposal, being a proposal to access the Property. The conclusion reached at [95]—[99] above — in relation to the significance of the Decision — applies equally here. The decision to neither seek community views nor enter into some other form of community engagement before entering the access agreement was a proper exercise of the Council’s discretion under s 79(1) LGA.

Fourth ground of review — failure to consider the scientific consensus on anthropogenic climate change

Forest & Bird’s pleading

[120]   Forest & Bird pleads the Council erred by failing to consider the global scientific consensus on climate change. Related to that pleading are further pleadings that the Council erred by failing to consider other relevant matters, including:

(a)the Council’s plans and policies identifying and/or recognising the challenges posed by climate change;

(b)the LGLCC Declaration;

(c)the impact of climate change on youth and future generations, whether in Southland or generally; and

(d)the interests of future as well as current communities.

Submissions

[121]   For Forest & Bird, Mr McDonald characterised the Decision as a decision “to facilitate the extraction of coal from Council land and its subsequent combustion”. Alternatively he referred to the subject matter as being “the facilitation of coalmining operations and their contribution to climate change”.

[122] In its statement of claim Forest & Bird pleaded a number of matters under a heading “Scientific consensus on climate change” and some further matters under a heading “Coal’s contribution to climate change”, with Mr McDonald’s very broad summary as set out above at [35].

[123]   The Council, by its pleading, acknowledges that climate change exists, that energy is a significant contributor to greenhouse gas emissions and that coal currently makes up a portion of global primary energy supplier and recognises that matters relating to climate change asserted by the plaintiffs represent statements made by some in the scientific community but otherwise (because “it does not have the necessary technical expertise to plead to the matters”) denies Forest & Bird’s allegations on climate change.

[124]New Brighton’s pleadings in this regard were similar to those of the Council.

[125]   Mr McDonald submitted the impact of the Decision on climate change was a relevant consideration (to be taken into account by the Council under s 79(2) LGA) and that, in assessing the significance of that consideration, the Council had to consider the scientific consensus on climate change. He submitted that the Council plainly did not take into account the global consensus.

[126]   For the Council, Mr Conway submitted the matters of “scientific consensus” pleaded by Forest & Bird are of a general nature that cannot create a legal requirement that it be taken into account. He further submitted that the “relevant matters” to be taken into account under s 79(2) LGA take their meaning from s 79(1)(a) — the “relevant matters” are a shorthand for “the matters affected by the decision as determined in accordance with the [Council’s S&P Policy]”.

[127]   Mr Conway submitted that it is relevant that New Zealand’s response to climate change, and any emissions generated from burning coal, is addressed at a national level under the Climate Change Response Act 2002.

[128]   Finally, Mr Conway rejected any suggestion the Council had failed to turn its mind to the issue of climate change — he referred to repeated references in the Recommendation Report to the climate change context, as well as the evidence of Mr Russell who confirmed that councillors had given consideration to climate change, and the coalmining industry in particular, and had discussed community views relating to climate change.

Discussion

[129]   Once the Council determined that the Proposal did not, in terms of the S&E Policy, involve a “significant” matter (as I have found the Council was justified in concluding) the Council could not be required to bring into consideration on this access issue matters that Forest & Bird (and others) may categorise as matters of scientific consensus on climate change. The examination of such matters and any attempt on the part of the Council to reach its own view on the validity of the assertions involved could reasonably be viewed by councillors as a disproportionate response to the matters affected by the Decision. That decision, as s 79(1) requires, was for the judgement of the Council, in its discretion.

[130]   I accordingly accept the submission of Mr Conway that the manner in which matters of climate change were weighed by the Council in the Decision were questions of merit (or, in terms of s 79(1)) judgement in the Council’s discretion) for the elected members. The Council’s consideration of the diversity of views that would exist, supportive of coalmining on the one hand and of responding to climate change on the

other, cannot be regarded as a failure of the Council’s responsibility (under s 79 LGA) when deciding how to achieve compliance with ss 77 and 78 LGA when considering a request for access under the CMA.

Fifth ground of review — failure to take account of Council plans and policies and the LGLCC Declaration

Forest & Bird’s pleading

[131]Forest & Bird pleads the Council erred by failing to consider:

(a)the LGLCC Declaration; and

(b)the Council’s plans and policies identifying and/or recognising the challenges posed by climate change.

[132]   In his written submissions, Mr McDonald identified one plan — namely the District Plan — and one policy — namely the S&E Policy.

Submissions — s 80 LGA

[133]   For Forest & Bird, Mr McDonald invokes the requirement upon local authorities, under s 80(1) LGA, to identify “inconsistent decisions”, that section providing:

(1)If a decision of a local authority is significantly inconsistent with, or is anticipated to have consequences that will be significantly inconsistent with, any policy adopted by the local authority or any plan required by this Act or any other enactment, the local authority must, when making the decision, clearly identify—

(a)the inconsistency; and

(b)the reasons for the inconsistency; and

(c)any intention of the local authority to amend the policy or plan to accommodate the decision.

[134]   For the Council, Mr Conway noted that s 80 is an accountability provision, requiring the Council to identify when it is making decisions that are significantly inconsistent with certain plans and policies and to state its reasons for doing so and

any intent to alter the plan or policy accordingly (emphasis added). Mr Conway noted that s 80 does not prevent inconsistent decisions, instead requiring them to be identified and acknowledged.

[135]   Mr Conway observed not every previous council statement or policy position is the subject of s 80 — a policy to be affected must be one that has been adopted by the Council and a plan to be affected must be one required by statute. Secondly, the inconsistency with such plan or policy has to be “significant”. The s 80 identification of inconsistencies therefore does not apply to documents of low significance, or in the context of inconsistencies that are minor.

[136]   In Mr Conway’s submission, this ground of Forest & Bird’s challenge incorrectly treats s 80 as imposing a mandatory consideration in an administrative law sense whereas s 80, properly understood, imposes a reporting or acknowledgement requirement on the Council that is only engaged in certain circumstances.

Discussion — s 80 LGA

[137]   The approach Mr Conway invites to the application of s 80 LGA is correct. The focus, of s 80 is upon identification of significant inconsistencies, articulation of how the inconsistency arises and whether the affected policy or plan is intended to be amended. A breach of s 80 does not serve to invalidate the affected decision. Any invalidation of the decision would have to flow from an error that goes to the vires of the decision itself.

Submissions — LGLCC Declaration

[138]   Mr McDonald submitted that the LGLCC Declaration has “mandatory relevancy in the context of climate change decisions”.

[139]   Mr McDonald identified that the Declaration set out seven “Guiding Principles” for decision-making on climate change, beginning with precaution (“acting now to avoid the existential threat of climate change”).

[140]   Mr McDonald submitted the Council acted in breach of s 80 LGA by failing to consider the LGLCC Declaration and the Guiding Principles.

[141]   Mr Conway observed the Council has neither been a signatory to nor adopted as policy the LGLCC Declaration. As such, the Guiding Principles and other content of the Declaration cannot constitute a mandatory consideration although they are matters that may be considered in the Council’s discretion.

[142]   Additionally, Mr Conway submitted the Declaration was by its nature very general and aspirational and has little relevance to the Decision.

Discussion

[143]   The LGLCC Declaration did not become a policy (let alone a plan) of the Council by signature of its Mayor. Nor has it been subsequently adopted as policy by the Council itself.

[144]   Accordingly, questions of inconsistency between the Decision and the Declaration do not arise under s 80 LGA.

[145]   Had the Declaration constituted a relevant policy, the situation would still have failed to constitute a “significant inconsistency” given that the Decision is one as to an agreement for access and not mining.

Sixth ground of review — legally erroneous reasoning as to a “loss of control”

Process

[146]   Under s 59 CMA, Bathurst gave notice to the Council of New Brighton’s intention to obtain an access arrangement for the purpose of exploration over the Property.

[147]In the Recommendation Report, it had been recorded that the CMA:

… outlines a process where [New Brighton] may advance access agreement, if Council and [New Brighton] are unable to reach agreement, this involves

measures including appointment of an arbitrator and escalation to the minister which may result in control over the issue at a local government level.

[148]   It appears to have been Forest & Bird’s understanding of the CMA that the Council in fact had a veto right under the CMA, which the Council overlooked. Forest & Bird understood s 55 CMA prevented an arbitrator from determining an access arrangement for exploration or mining (except in the case of petroleum) unless the landowner agrees.

[149]Section 55(1) CMA provides:

55 Restrictions on determination of  access  arrangements  by arbitrators

(1) Subject to section 66, or to any agreement between each owner and occupier of the land and the person desiring access, an arbitrator shall not be entitled to determine an access arrangement in respect of prospecting or exploration for, or mining of, a mineral other than petroleum.

[150]   Section 66 CMA (as referred to in s 55) makes provision for a permit holder to apply for a declaration (issued by the Governor-General) that an arbitrator may proceed to determine an access arrangement on the grounds of public interest. Through s 66(3) it provides for steps to be taken by the Minister in this way:

(3)If the Minister, after considering the application and the [chief executive's] report, considers that there are sufficient public interest grounds to support the application, the Minister shall cause to be served on the owner and occupier of the land a notice in writing of the application, and of the Minister's preliminary views, and stating that the owner and occupier have a period of 3 months, after the date on which the notice was served, to either—

(a)Enter into an access arrangement with the permit holder; or

(b)Consent in writing to an arbitrator determining an access arrangement; or

(c)Make representations to the Minister as to why a declaration should not be made under this section.

[151]   Section 66(5) then provides for the making of an Order in Council for a declaration that the access arrangement may be determined by an arbitrator.  By  subs (6) it is then provided:

(6) A consent given or declaration made under this section shall entitle an arbitrator to proceed to determine an access arrangement between the applicant under this section and the owner and occupier of the land concerned; and any such arrangement shall be effective in respect of the land to which it relates.

Mr Russell’s evidence

[152]   Mr Russell deposed that, having regard to the access mechanism under the CMA, elected members expressed their concern that, if the decision-making process were left to an arbitrator, the Council would lose the ability to ensure community views were attained for a notified resource consent process.

[153]That discussion led to the Council Resolution (e), as set out at [20] above.

Submissions

[154]   Mr McDonald submitted, by reference to s 55 CMA, the Council had overlooked a veto right it holds under the CMA.

Discussion

[155]   As submitted by Mr Conway, there is no right of veto in s 55 CMA, because  s 55 is subject to the declaration procedure made available under s 66. While the concept of “public interest grounds” sufficient to support an application under s 66 is likely to substantially restrict the prospect of successful applications under that section, the councillors (contrary to Forest & Bird’s contention) were correct when they did not regard the Council as having an (absolute) right of veto over the access decision.

Seventh ground of review — legally erroneous reasoning through Council’s failure to inform itself

Introduction

[156]   This ground of review — an alleged failure by the Council to identify and accept material relating to climate change issues — is closely related to the third ground (failure to consider the scientific consensus on anthropogenic climate change) (above from [120]).

Forest & Bird’s contention

[157]   Although not expressly pleaded, Forest & Bird (through Mr McDonald’s submissions) contended the Council had failed to take reasonable steps to ascertain the facts and circumstances relevant to the Decision.34 Mr Russell’s evidence was that, during the 14 April 2021 meeting, councillors observed that the alternative to mining cleaner coal in New Zealand was to import “dirty” coal from overseas, with no viable alternative in New Zealand’s energy mixed coal at that stage.

[158] Mr McDonald “submitted” that the evidence of Professor Sims (summarised at [36](e) above) negates the suggestion there is any product that can be defined as “clean coal”.

Submissions

[159]   Mr McDonald submitted that, had the Council taken proper steps to inform itself (in relation to climate change and coalmining issues), the Decision may well have been different.

[160]   Mr Conway noted the jurisdictional difficulty with asking this Court to make findings of fact in a judicial review context or asking the Court to conclude that the Council should have placed more weight on certain facts. Mr Conway also referred to aspects of Professor Sim’s evidence in more detail, making observations as to what is not stated in the evidence (such as the relative carbon content of the Southland coal resource as opposed to an imported alternative).

Discussion

[161]   As in relation to the earlier discussion (above from [94]), it is key background that the Council had determined under its S&E Policy the Decision was not “significant”. The Council recognised the diversity of views that the community would hold relating to climate change and the potential contribution (of mining and subsequent burning) of coal to climate change. In that context it was open to

34     Citing Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [94].

councillors to turn their minds to the trade-off between locally sourced and imported coal. Having recognised that issues of that nature existed, it was reasonably open to the Council (in relation to an access decision that did not reach the “significant” threshold) to decide that the appropriate time to obtain community views (and any further information) was in any resource consenting process when the actual extraction of coal would be considered.

Second cause of action – unreasonableness

Forest & Bird’s pleading

[162]Forest & Bird pleaded:

By making the Decision the [Council] acted unreasonably in that it is unreasonable to facilitate the expansion of coalmining operations in the District in view of:

(a)The global consensus on anthropogenic climate change and the urgent need to reduce greenhouse gas emissions;

(b)The effects and predicted effects of climate change on the District and its current and future community;

(c)The contribution that the further extraction of coal will make to climate change.

Unreasonableness as a ground of review

[163]   The Court of Appeal’s judgment in Wellington City Council v Woolworths New Zealand Ltd (No 2) (Woolworths) identifies when administrative decisions may be invalidated as “unreasonable”.35 Richardson P, delivering the judgment of a full court, observed:36

For the ultimate decisions to be invalidated as “unreasonable”, to repeat expressions used in the cases, they must be so “perverse”, “absurd” or “outrageous in [their] defiance of logic” that Parliament could not have contemplated such decisions being made by an elected council.

[164]   A different formulation, to the same effect, is that of Palmer J in Hu v Immigration and Protection Tribunal.37 There his Honour observed:

35     Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537.

36     At 552.

37     Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2].

Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable. That may involve the adequacy of the evidential foundation of a decision or the chain of logical reasoning in the application of the law to the facts. Unremarkably, unreasonableness, also termed irrationality, is to be found in the reasoning supporting a public decision.

[165]   This formulation of the test for unreasonableness has recently been endorsed by the Court of Appeal in CP Group Ltd v Auckland Council.38

[166]   As further observed by Palmer J in Hu, three scenarios assist in identifying what amounts to an “insupportable or untenable” ultimate conclusion:39

(a)if the decision is not supported by any evidence;

(b)if the evidence is inconsistent with or contradictory to the decision; or

(c)if the only reasonable conclusion contradicts the decision (where there is “a material disconnect in the chain of logic from a fact or a legal proposition to a conclusion, a decision may be unreasonable and therefore unlawful”.

Submissions

[167]   Mr McDonald submitted the only reasonable conclusion available to the Council in this case contradicted the decision to enter into an access agreement. He submitted that the decision in this case was “patently a perverse one”.

[168]   For these propositions Mr McDonald fell back on the matters relied upon in relation to earlier grounds — the statutory function of the Council to promote the four wellbeings; the “global scientific consensus” on anthropogenic climate change and the proposition the Council, by granting access, is “actively facilitate new coalmining operations” in confliction with the notion of phasing down the use of coal.

38     CP Group Ltd v Auckland Council [2021] NZCA 587 at [135].

39     Hu, above n 37, at [30], citing Edwards v Bairstow [1956] AC 14 (HL).

[169]   In response, Mr Conway referred to s 12(2) LGA as the source of the Council’s general power of competence, balanced by the purpose of local government set out in s 10, its role in s 11 and the rights and powers conferred by any other enactment. The effect of s 12(2)—(5), within these constraints, means that a local authority has full capacity to do anything a body corporate may do so long as:

(a)it is for the purposes of performing its statutory role;

(b)it is wholly or principally for the benefit of its district or region; and

(c)it is not contrary to the LGA, any other Act or the general law.

[170]   In this case, the context is the Council was managing its commercial forest portfolio. As a forest owner, the Council had the discretion provided by Parliament under the CMA to enter into an access arrangement with the holder of a CMA permit under the CMA.

[171]   Mr Conway submitted the Council’s entry into such arrangement does not fall within any of the tests identified by the Court of Appeal in Woolworths — “perverse”, “absurd”, or “outrageous in defiance of logic”.

Discussion

[172]   The decision for the Council in this case, arising under the CMA, was whether or not to enter into an access arrangement.

[173]   The concerns raised by Forest & Bird as to climate change implications, central to its earlier grounds of review, are equally central on this final ground of review. While Forest & Bird and a significant portion of the Southland community may quite reasonably wish to be heard on steps that may lead to coalmining, there was nothing in the Council’s approach to the access decision that reaches the stringent test of unreasonableness. It was reasonable, in reaching the access decision, that the Council have regard to the fact there would be later opportunities for consultation and input at the point when the actual extraction of coal was for consideration. It was reasonable for the Council to effectively defer any consideration of climate change matters at a

point when the level of consultation and factual enquiry would have become more proportionate to the subject matter (that is to the issue of whether extraction of coal should occur rather than to the issue of whether the holder of a CMA permit might have access to the Council’s land.

[174]   Significantly Forest & Bird’s allegation that the Council acted unreasonably is expressly premised on the basis that the Council unreasonably “facilitated the expansion of coalmining operations in the District”. There is a material difference between facilitation — that is making something easier — and approving or giving that thing a “legal go-ahead”. It is clear from the record that councillors appreciated they were not giving “the expansion of coalmining operations in the District” the legal go-ahead. The Council focused, in accordance with the scheme of the CMA, on the access arrangement being requested by New Brighton under the CMA. While it may be semantically correct to describe an access arrangement as something that “facilitates” a subsequent expansion of coalmining, it is fundamentally important to considering the reasonableness of the Council’s approach that the Council, by agreeing to enter into an access arrangement, was not approving the expansion of coalmining.

[175]   There was a distinct logic to the Council’s approach in reaching the Decision. The Decision falls well short of being “perverse” or “absurd”.

Outcome on Forest & Bird’s grounds of review

[176]   None of Forest & Bird’s grounds of review has been upheld. The application for review will accordingly be dismissed.

New Brighton’s affirmative defences

[177] New Brighton pleaded two affirmative defences, as summarised at [38] above. Mr Gordon presented detailed submissions in relation to each of those affirmative defences (in addition to his submissions directly in response to Forest & Bird’s pleaded grounds of review).

[178]   Given the findings already made in this judgment, it is unnecessary that I rule on the affirmative defences.

Costs

[179]   I reserve the costs and disbursements of the proceeding. In the event counsel are unable to agree, costs will be determined on written submissions (four-page limit), counsel for the respondents to file and serve within ten working days after this judgment and counsel for the applicant to file and serve within five working days thereafter. In the event no memoranda are filed within those time limits, the order of the Court (without further order) will be that the applicant is to pay to each of the respondents costs on a 2B basis together with their reasonable disbursements to be approved by the Registrar.

Orders

[180]I order:

(a)the strike out application is dismissed;

(b)the application for review is dismissed; and

(c)costs and disbursements are reserved.

Osborne J

Solicitors:

Lee Salmon Long, Auckland Simpson Grierson, Auckland

Minter Ellison Rudd Watts, Wellington