Save Kapiti Inc v New Zealand Transport Agency

IN THE SUPREME COURT OF NEW ZEALAND

SC 89/2013
[2013] NZSC 123

BETWEEN	SAVE KAPITI INCORPORATED Applicant
AND	NEW ZEALAND TRANSPORT AGENCY Respondent

Court:	Elias CJ, William Young and Glazebrook JJ
Counsel:	R J B Fowler QC for Applicant J J M Hassan and K E Viskovic for Respondent H C Andrews and J Duffin for Board of Inquiry into the MacKays to Peka Peka Expressway Proposal
Judgment:	14 November 2013

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicant is to pay the respondent costs of $2,500 and reasonable disbursements to be fixed, if necessary, by the Registrar.

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REASONS

The proposed appeal concerns the decision of a Board of Inquiry which confirmed a notice of requirement (resulting in a designation) and granted resource consents associated with the proposed MacKays to Peka Peka Expressway. An appeal to the High Court was dismissed[1] and the applicant now seeks leave to appeal, an application that falls to be determined under subss 149V(6)–149V(7) of the Resource Management Act 1991.
[1]Save Kapiti Inc v New Zealand Transport Agency [2013] NZHC 2104.
The proposed Expressway will render redundant the earlier proposed Western Link Road (WLR) for which a designation and resource consents were already in place. The applicant sought to rely on what is known as the “receiving environment” principle which, along with the related “permitted baseline” principle, are discussed in a number of Court of Appeal judgments – including Bayley v Manukau City Council;[2] Smith Chilcott Ltd v Auckland City Council;[3] Arrigato Investments Ltd v Auckland Regional Council;[4] Queenstown–Lakes District Council v Hawthorn Estate Ltd;[5] and Auckland Regional Council v Living Earth Ltd.[6] These cases – and s 104(2) of the Act – deal with the extent to which decision-makers, when addressing the actual and potential effects on the environment of allowing a particular activity under s 104(1)(a), should allow for the future state of the environment, and thus its state as modified by activities already permitted by the relevant planning instruments or existing unimplemented resource consents.
[2]Bayley v Manukau City Council [1999] 1 NZLR 568 (CA).
[3]Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473 (CA).
[4]Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA).
[5]Queenstown–Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA).
[6]Auckland Regional Council v Living Earth Ltd [2009] NZRMA 22 (CA).
The argument for the applicant is that the WLR should have been taken into account as part of the environment. The underlying contention is that if the WLR was so taken into account, benefits attributed to the Expressway would no longer apply because they would already be provided for by the WLR. This argument was dismissed by the Board of Inquiry[7] and by the High Court.[8]
[7]Final Report and Decision of the Board of Inquiry into the MacKays to Peka Peka Expressway Proposal (April 2013) at [163]–[187].
[8]Save Kapiti Inc, above 1, at [59]–[81].
Whether or not the jurisprudence concerning the permitted baseline or receiving environment requires reconsideration by this Court does not arise on the proposed appeal. The purpose of that jurisprudence is to exclude or limit arguments about effects on the environment which are already permitted. The approach of the applicant is entirely different. Its argument is that the benefits attributed to the Expressway should be ignored to the extent that the same benefits would be generated by the WLR if it was built. But if the WLR was in place, the Expressway would not be constructed. Therefore, any attempt to assess the impact on the environment of the proposed Expressway on the assumption that the WLR was in place would be entirely artificial.
For these reasons, we are not persuaded that a further appeal is justified either to the Court of Appeal or to this Court.

Solicitors:
Brandons, Wellington for Applicant
Chapman Tripp, Wellington for Respondent

Save Kapiti Inc, an incorporated society, sought leave to appeal against the New Zealand Transport Agency's decision to confirm a notice of requirement and grant resource consents for the MacKays to Peka Peka Expressway. The decision of a Board of Inquiry had been upheld by the High Court, and the society now sought leave to appeal to the Supreme Court. The court was required to determine whether the applicant's argument that the Western Link Road should have been taken into account as part of the environment and that the benefits attributed to the Expressway should be ignored if the same benefits would be generated by the WLR, was sufficient to warrant a further appeal.

The court found that the applicant's argument was based on the idea that if the WLR was in place, the Expressway would not be constructed, and therefore, any attempt to assess the impact on the environment of the proposed Expressway on the assumption that the WLR was in place would be entirely artificial. The court was not persuaded that the applicant's argument was sufficient to warrant a further appeal. The court also noted that the purpose of the jurisprudence concerning the permitted baseline or receiving environment was to exclude or limit arguments about effects on the environment which are already permitted, and that the approach of the applicant was entirely different.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs of $2,500 and reasonable disbursements to be fixed, if necessary, by the Registrar. The court held that the applicant's argument was not sufficient to warrant a further appeal, and that the decision of the Board of Inquiry and the High Court should stand. The court did not find it necessary to reconsider the jurisprudence concerning the permitted baseline or receiving environment, as it was not relevant to the applicant's argument.

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