Sound (Save Onerahi from undue Noise Disturbance Incorporated) v Whangarei District Council

[2023] NZHC 2988

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-000065

[2023] NZHC 2988

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

SOUND (SAVE ONERAHI FROM UNDUE NOISE DISTURBANCE)

INCORPORATED
Applicant

AND

WHANGAREI DISTRICT COUNCIL

First Respondent

NORTHLAND EMERGENCY SERVICES TRUST

Second Respondent

Hearing:

7 – 8 August 2023

Counsel:

K Anderson, AH Balme and KT Dickson for Applicant PMS McNamara and CJ Ryan for First Respondent

BJ Matheson, DJ Minhinnick and SFD Barnett for Second Respondent

Judgment:

27 October 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 27 October 2023 at 11 am

pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Wynn Williams, Queenstown. Simpson Grierson, Auckland. Russell McVeagh, Auckland. K Anderson, Auckland.

BJ Matheson, Auckland.

SOUND (SAVE ONERAHI FROM UNDUE NOISE DISTURBANCE) INC v WHANGAREI DISTRICT COUNCIL [2023] NZHC 2988 [27 October 2023]

Table of Contents

The case	[1]
Background	[2]
Noise modelling	[17]
The claim	[20]
A preliminary issue	[23]
Did the Council make fundamental errors of law?	[36]
Did the Council fail to consider mandatory considerations?	[53]
Do the decisions contravene the Local Government Act 2002?	Did the
Council fail to consult the Onerahi community?	[63]
Consultation	[93]
Are the decisions unreasonable in the Wednesbury sense?	[104]
Conclusions	[108]
Costs	[109]

The case

[1]                  The Northland Emergency Services Trust1 provides emergency helicopter services to Northland. On 11 November 2021 and 22 September 2022, the Whangarei District  Council2  decided  to   support   Nest’s   relocation   to Whangarei Airport,3 in Onerahi. Save Onerahi from Undue Noise Disturbance Incorporated,4 which represents more than 100 Onerahi residents, seeks to challenge, by judicial review, both decisions. As its name suggests, Sound’s concern is the additional, distinctive noise that would be generated by Nest’s operation at the airport.

Background

[2]The background is not contentious.

[3]                  Nest’s sole purpose is to provide a dedicated air ambulance and emergency rescue helicopter service for the people of Northland. Nest conducted more than 1,100 missions in the year ending 31 January 2023.

1      Nest.

2      The Council.

3      The airport.

4      Sound.

[4]                  Nest operates from a property on Western Hills Drive, Kensington, Whangarei, or what is known as Kensington base. The Council owns the land at Kensington base.

[5]                  Nest must relocate from Kensington base, ironically, because of safety concerns. Kensington base is adjacent Kensington Park, a busy sports ground. The park also means Nest cannot expand despite Northland’s growing population. Nest’s lease of Kensington base site expired in July 2023, but the Council has extended the lease for another three years.

[6]                  In October 2021, Nest approached the Council about moving from Kensington base to the airport. The Council operates the airport and is its airport authority under the Airport Authorities Act 1966. Related land is vested in the Council for airport purposes.

[7]                  As will be evident, the airport is in the suburb of Onerahi. Onerahi is a peninsula. The airport is in the middle of the peninsula, surrounded by homes.

[8]                  On 21 October 2021, councillors attended a workshop in relation to Nest’s proposal.5 Minutes of the workshop record that Nest explained the background to its proposal and why the airport was its preferred location.

[9]                  On 11 November 2021, Nest’s proposal was discussed at an extraordinary Council meeting. The Council decided to support Nest’s relocation “in principle”. The Council authorised its staff to negotiate with Nest about the terms of a lease, and its Chief Executive to execute one if negotiations were successful.6

[10]The Council also decided on 11 November that:

(a)Nest was responsible for meeting all statutory and regulatory requirements, including requirements relating to the District Plan and necessary consents.

5      The workshop was not open to the public.

6      The first decision.

(b)Its staff would develop a communication plan in relation to the Onerahi community, with Nest working alongside the community to allay concerns.

(c)It would investigate the establishment of an airport noise management committee.

[11]              On 21 February 2022, the Council and Nest entered a memorandum of understanding in relation to Nest’s relocation.7

[12]              On 9 May 2022, the Council and Nest held a meeting at the airport to hear community concerns and provide information about Nest’s relocation.

[13]              An airport noise management committee8 was formed by re-animating a subcommittee of the Council that had previously existed to address airport-related noise. The noise committee met repeatedly in 2022.

[14]              On 7 September 2022, the noise committee made several recommendations to address noise arising from Nest’s relocation.

[15]              On 22 September 2022, the Council again met in relation to Nest’s proposal. The purpose of the meeting was to consider the noise committee’s recommendations of 7 September 2022. The Council confirmed its support for Nest’s relocation.9

[16]The Council also decided on 22 September that:

(a)Nest training flights should not occur at Onerahi if Nest relocated to the airport.10

(b)It would enter a stand-alone agreement with Nest to address noise, including  by  complying  with  noise  abatement  procedures  when

7      The MOU.

8      The noise committee.

9      The second decision.

10     Nest had earlier agreed to this aspect.

practicable; and complying with an approved airport noise management plan.11 The noise plan had to be consistent with legislation;  the District Plan; and Council policies.

(c)It would work with the noise committee to:

(i)Update the noise plan and related policies and systems.

(ii)Develop a communication plan, an education programme, or both, in relation to Nest’s relocation.

Noise modelling

[17]              Marshall Day Acoustics12 provides the Council with expert advice in relation to noise, including noise modelling. In May 2020, Marshall Day was asked to consider “the noise implications”13 arising from Nest’s relocation. On 30 November 2020, Marshall Day concluded “if Nest’s operations were included in the compliance assessment at the Airport, there was a risk of exceedances of the allowable noise levels in the District Plan”. However, Marshall Day also observed this may turn on “interpretation issues” in relation to the plan, as to which see [40] onwards.

[18]              Marshall Day conducted further modelling in relation to Nest’s relocation between March 2022 and 4 August 2022, and that modelling was available to the noise committee at its 7 September 2022 meeting. As the modelling is both technical and diagrammatical, I instead capture what Stephen Peakall, an acoustic consultant with Marshall Day, says about the likely impact of Nest’s relocation for the purpose of this litigation:

(a)While the noise will be “greater than the existing level of noise” at the airport, the noise will be “generally consistent” with the levels anticipated by the existing air noise boundary and outer control boundary.

11     The noise plan.

12     Marshall Day.

13     Affidavit of Stephen Peakall dated 31 March 2023 at [4.7].

(b)The     difference    in     noise     experienced     by     the     community “will be marginal”.

[19]An expert retained by Sound has a (very) different view, and I discuss this later.

The claim

[20]              Sound filed its claim on 19 September 2022, that is, after the first decision but before the second. On 14 October 2022, Sound amended its claim to encompass the second decision as well.

[21]Sound contends both decisions are unlawful or improper because:

(a)They contain “fundamental” errors of law.

(b)The Council failed to consider mandatory considerations.

(c)The decisions contravene the Local Government Act 2002.

(d)The Council failed to consult the Onerahi community.

(e)The decisions are unreasonable in the Wednesbury sense.

[22]              All of these arguments are united by a common thread, which for convenience I address as a preliminary issue.

A preliminary issue

[23]              Sound contends both decisions are not ones in principle to support the relocation of Nest to the airport; rather, they are tantamount to final decisions that make Nest’s relocation all but given.

[24]              Sound advances this contention because the decisions authorise Council staff to negotiate the terms of a lease and its Chief Executive to enter a lease absent further input from councillors (as elected members). Sound observes Nest relinquished its option of an alternative site between the first and second decisions. This, it says, is

consistent with Nest’s relocation as having been settled. So too the reference in the MOU to the parties wishing to progress a lease “as soon as possible”.

[25]              Plainly, both decisions make Nest’s relocation to the airport a possibility; Nest could not move there without Council approval as airport authority. Both decisions may also be characterised as getting the ball rolling, in that both provide direction and impetus. In other words, the decisions increase the likelihood that Nest may move to the airport from Kensington base.

[26]              However, these aspects do not make the decisions anything more than they appear to be, namely in principle decisions that facilitate Nest’s potential relocation to the airport. I say this for the reasons below.

[27]              The first decision was expressly identified as being “in principle” only. Evidence on behalf of the Council explains the utility of such a decision: it ensures the time, effort, and cost of negotiations are not wasted by the later (unwelcome) discovery that the proposal was never supported by the Council’s elected members.

[28]              The same is also true of the second decision, albeit some elaboration is required. The minutes accompanying the meeting in relation to the second decision do not contain the phrase “in principle”. Dominic Kula, the general manager of planning and development at the Council, was at the meeting. Mr Kula says the councillors present amended the motion to support Nest’s relocation by adding the phrase “in principle”, then carried the amended motion.

[29]              Council meetings are recorded. Mr Kula has watched the footage of the meeting, which was also livestreamed. Mr Kula says that footage confirms his evidence.14

[30]              Sound advances no objection to Mr Kula’s evidence, which is offered by the Council as additional evidence.15 However, Sound does not accept the minutes are incomplete. It invites me to adopt an orthodox view of the minutes as an accurate

14     Sound offered no objection to this evidence being adduced at the hearing.

15     Handed up at the hearing.

record of what occurred at the meeting, and not go beyond them. This is, after all, why minutes are kept.

[31]              As foreshadowed, I receive and accept Mr Kula’s evidence in the interests of justice.   To  do otherwise would be to act upon an incomplete, inaccurate record.     I, therefore, find the second decision was intended to  be, and  expressed  as being,  in principle.

[32]              Both decisions are subject to significant conditions. For example, under the first, Nest is responsible for meeting all statutory and regulatory requirements, including those imposed by the District Plan. Under the second, the stand-alone agreement between the Council and Nest concerning noise must be “consistent/comply with relevant legislation, Council  policies,  including  the District Plan designations”.

[33]              An obvious but important point should also be recorded: no lease existed at the time of either decision and no lease has been entered subsequently.16 If the terms of a lease are not agreeable to both parties, Nest will not relocate to the airport. Similarly, should it transpire that Nest cannot meet its obligations in relation to noise under the District Plan or otherwise, plainly, there would be no point in Nest entering a lease to relocate there. This is underscored by clause 11 of the MOU, which notes the MOU is not binding, and legal obligations “only … created upon the completion of either a formal agreement or lease”.

[34]              That elected councillors have no further role to play in the process does not change the character of the decisions.

[35]              It follows I am not persuaded that either decision should be treated as determinative of Nest’s relocation in the analysis to come.

16     Affidavit of Dominic Kula dated 3 April 2023 at [8.2].

Did the Council make fundamental errors of law?

[36]              No recitation of authority is required for the proposition that a material error of law by a decision maker exercising public  power  constitutes  a  basis  for  judicial review.

[37]              Sound acknowledges the decisions are not planning decisions. However, it contends four “regulatory drivers” should have affected, influenced, or coloured the decisions, which it says the Council failed to consider or misunderstood. Consequently, Sounds contends the Council made “fundamental” errors of law in relation to both decisions.

[38]Sound identifies the four “regulatory drivers” as:

(a)Section 16 of the Resource Management Act 1991, which provides that every occupier of land shall adopt the best practicable option to ensure that the emission of noise from that land does not exceed a reasonable level.

(b)Section 17 of the same Act, which provides that every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of that person, irrespective of whether the activity is carried on in accordance with any rule or designation. As with s 16, Sound contends s 17 applied to the Council in relation to the emission of noise.

(c)The “District Plan Driver”.

(d)The “Designation Driver”.

[39]              Sound contends the Council “did not identify or consider any information” in relation to (a) or (b) when making the first decision, and thus erred in law in relation to both ss 16 and 17 of the Resource Management Act. Sound acknowledges the

Council had “some information” in relation to (a) and (b) when making the second decision but says the Council did not consider its duties under s 16 of the Act. Furthermore, because the Council’s noise modelling presupposed the existence of significant sound barriers at the airport, it could not determine whether the emission of noise in connection with Nest’s airport operation would be reasonable, or whether the additional, distinctive noise likely generated by that operation would be appropriately remedied or mitigated.

[40]              Sounds contends the “drivers” identified at (c) and (d) mean the Council misunderstood the applicable rules in relation to the emission of noise at the airport. The submission is best introduced with this extract from a report prepared for the meeting at which the first decision was made. I note “NAV 6.7” is a noise rule in relation to helicopters and other aircraft, and “Designation WDC-55 Aerodrome” comprises a set of rules affecting the airport following the designation process:

4.2 District Plan

The Airport would seem the most logical site to relocate NEST’s however operations there are some matters that need consideration as to the impact of such a relocation on the District Plan.

In brief:

•  Designation WDC-55 Aerodrome takes precedence over the District Plan.

•    A helicopter is an “aircraft” and is provided for in the Aerodrome designation.

•  The designation is conditional upon the Plan noise rules.

•    NAV.6.7 (Aircraft and Helicopter Landing Areas) exempts “emergency services” helicopter movements.

It is reasonable to conclude that the operation of helicopters is within the designation for an “Aerodrome”. This is further reinforced by the s 42a and decision/recommendation on the 2005 designation and variation, which refer to submissions about and conditions (including a noise management plan) controlling helicopter flight paths and hovering.

NAV.6.7 exempts “emergency services” helicopter movements. “Emergency services” is defined in the Plan as “the activities of authorities who are responsible for the safety and welfare of people and property in the community and include fire, ambulance and police services. Having said this, while “emergency services” are exempt and the designation does provide for helicopters, they must still comply with the relevant noise rules of the District Plan for those activities deemed non “emergency services”.

NEST are confident that they can satisfy the requirements under the District Plan and it will be for them to demonstrate that this is the case prior to any lease agreement being settled.

[41]              Sounds accepts “Designation WDC-55 Aerodrome takes precedence over the District Plan”. Sounds also accepts a “helicopter is an ‘aircraft’ and … provided for in the Aerodrome designation”, and the “Designation is conditional upon the Plan noise rules”. However, Sounds does not accept NAV 6.7 is the applicable noise rule; it says rule 62.3 of the District Plan is the applicable noise rule.

[42]Rule 62.3 reads:

62.3Noise from Aircraft Operations

a)       Noise from aircraft operations shall be so managed that the rolling 3-month average 24-hour night weighted sound exposure does not exceed 65dBA Ldn at, or at any point outside, the Air Noise Boundary; and

b)      Helicopter hovering (other than hovering included in normal take off landing) is restricted to the area identified as “Helicopter Hovering Area” on Planning Map 46; and

c)       Noise from aircraft operations, measured as the rolling 3-month average 24-hour night weighted sound exposure may exceed the noise limits in Rule 62.3 a) in the event of:

i.     Aircraft landing in an emergency; and

ii.   The operation of emergency flights required to rescue persons from life-threatening situations or to transport patients, human vital organs or medical personnel in a medical emergency; and

iii.     The operation of unscheduled flights required to meet the needs of a national or civil defence emergency declared under the Civil Defence Act 1983.

[43]              Rule 62.3’s exemption in relation “the operation of emergency flights” appears narrower than the “emergency services” exemption in NAV 6.7. Sounds contends it therefore follows the Council—and Nest—wrongly presupposed more of Nest’s noise- generating activities at the airport would be exempted than the law actually allows. The Council and Nest contend NAV 6.7 is the applicable rule, and any misapprehension is Sound’s alone.

[44]              I do not accept Sound’s submission of error, fundamental or otherwise, for five overlapping reasons.

[45]              First, because the Council was acting as a prospective landlord in relation to airport land when it made both decisions, its ballast was an airport authority under the Airport Authorities Act. Approached another way, and as Sound itself recognises, the Council was not making a planning decision in supporting Nest’s relocation to the airport.

[46]              Second, the nature of the decisions tells against Sound’s analysis. A decision by a landlord to grant a lease to a tenant would not ordinarily require an understanding of the Resource Management Act. The word “ordinarily” recognises a caveat. If the landlord knew, or ought to have known, that the tenant could not lawfully operate from the premises because of the existence of a planning requirement ultimately referrable to the Resource Management Act, the position would presumably be different, as in that situation the landlord would appear to be party to an unlawful act by granting a lease to the tenant. Sound’s claim, however, contains no such pleading, and it would be wrong to reconceptualise the case as if it did. In fairness to Sound, it does not argue otherwise.

[47]              Third, the decisions are a step removed from the situation above. They concern in principle support and are not tantamount to Nest’s relocation as having been determined.

[48]              Fourth, it was open to the Council to make its support for Nest’s relocation contingent on Nest meeting all statutory and regulatory requirements, including those imposed by the District Plan. In short, the Council is entitled to assume Nest can conduct its operations at the airport lawfully. Again, Sound does not argue the Council knew, or ought to have known, Nest cannot do so. Relatedly, ss 16 and 17 of the Resource Management Act apply to the occupier of the land, not the owner, and if granted a lease, Nest would be the occupier.17 I do not overlook that s 17 of the Act also applies to activities carried on by or on behalf of another, but it cannot be the case that the activities of Nest—a not-for-profit provider of emergency helicopter services—would be activities by or on behalf of the Council.

17     An owner is often the occupier, but that would not be the position here.

[49]              Fifth, the most favourable case to Sound is distinguishable. Hugh Green Ltd v Auckland Council involved an action for breach of a substantive legitimate expectation, and a claim for judicial review.18 Hugh Green Ltd was a property developer. It developed land in reliance on representations by Auckland Council that the Council would acquire parts of the land for public open space. Despite these representations, the Council decided not to acquire the land from the company.

[50]              Fitzgerald J held provisions of the District Plan concerning public open space were mandatory considerations that should have informed the Council’s acquisition decision. The Judge was satisfied “that when a decision-making body is deciding whether to acquire land identified in an underlying plan as public open space, the provisions and policies of that underlying plan on open public space will be taken into account”.19 Or, as the Judge put it, “it is difficult to see how a decision-maker could properly form a view on whether to acquire land identified as public open space in a District Plan without giving due consideration to what that plan has to say about public open space”.20 The Judge considered “the community’s views, hopes and aspirations in relation to public open space” supported this conclusion.21

[51]              As will be apparent, Hugh Green was not concerned with a decision by a Council acting primarily as an airport authority. Relatedly, the decision in Hugh Green was much more akin to a planning one. Therein lay Fitzgerald J’s point.

[52]              This reasoning makes it unnecessary to address whether NAV 6.7 or rule 62.3 is the applicable noise rule in the District Plan. I acknowledge not doing so will disappoint, not least because considerable argument was devoted by Sound and the Council to this issue. However, there are good reasons not to decide the point, beyond that it is unnecessary to do so:

18     Hugh Green Ltd v Auckland Council [2018] NZHC 2916.

19     Hugh Green Ltd v Auckland Council, above n 18, at [224].

20 At [224].

21 At [227].

(a)It arises indirectly, which is never propitious for the application of common law methodology. Relatedly, judicial review is an awkward mechanism to determine the point, which is not far removed from a challenge to an element of the District Plan.

(b)The issue is a technical, planning law matter. It turns on the airport designation; changes to the District Plan; and clause 20A of schedule 1 to the  Resource  Management  Act,  which  permits  plan  changes  “to correct any minor errors”.

(c)The issue is, therefore, better determined by the Environment Court, a specialist body.22

Did the Council fail to consider mandatory considerations?

[53]              Decision makers of all types frequently consider a raft of things when making decisions. Unsurprisingly, the law requires decision makers exercising public power to consider those things they must consider, or as these are called, mandatory considerations. Failure to consider a mandatory consideration (by a decision maker exercising public power) constitutes reviewable error.

[54]              A leading statement of principle remains that of Cooke J in CREEDNZ Inc v Governor-General:23

A point about the legal principle invoked by the plaintiffs should be underlined. It is a familiar principle, commonly accompanied by citation of a passage in the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228; [1947] 2 All ER 680, 682: “If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters”. More recently in Secretary of State for Education and Science v Tameside Borough Council [1977] AC 1014, 1065; [1976] 3 All ER 665, 695, Lord Diplock put it as regards the statutory powers of a Minister that “. . . it is for a court of law to determine whether it has been established that in reaching his decision . . . he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered . . .”

22     Red Hill Properties Ltd v Papakura District Council (2000) 6 ELRNZ 157 at [29].

23     CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 182–183.

What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision. ...

[55]              Sound contends the Council failed to consider the following matters when making both decisions, all of which it says were mandatory considerations:

Any information on consultation expectations or obligations created from past practice in 2013/14 when the ANMC was consulted on NEST’s 2013 approach to Council to relocate to the airport.

Advice that monitoring of noise levels of the current level of activity at the Airport had not been undertaken, with the consequence that councillors could not be provided with the baseline information that would enable them to assess whether there were any noise compliance issues relating to the limits prescribed by Air Noise Boundary and Outer Control Boundary before considering adding a new noise generating activity at the Airport.

Any information on future levels of noise that would be generated at the Airport with the addition of the NEST activity, including whether the limit prescribed by the Air Noise Boundary could be complied with.

Any information on best practicable options for reducing the exposure of Onerahi residents from exposure to unreasonable noise from Airport activities in the event NEST was permitted to relocate to the Airport, including the option of reducing existing airport activities to ensure the limit prescribed by the Air Noise Boundary was able to be complied with.

Any information on all reasonably practicable options and their respective advantages and disadvantages (contrary to section 77 of the LGA).

Any information on the views and preferences of persons likely to be affected or have an interest in the matter, namely the Onerahi residents (contrary to section 78 of the LGA).

Consideration of any impacts of noise generated by NEST activity at the Airport on the amenity values of existing or future Onerahi residents.

Any potential financial impacts for Council of needing to fund mitigation measures for Onerahi residents, such as double glazing and insulation.

Advice that NEST appeared to be assessing its ability to comply with relevant Airport noise control limits on the basis that none of its helicopter movements would be counted towards relevant noise limits.

Advice relating to the suitability of land previously purchased in the context of its future airport’s location assessment (Site 9 Ruatangata) for use by NEST.

[56]              Sound relies on the evidence of Jon Styles and Carole Doherty in relation to this aspect of its claim.  Mr Styles is an acoustic consultant.  Among other things,  Mr Styles says: helicopter noise is loud and distinctive; Nest’s operation at the airport “will significantly increase the noise effects from the airport, especially at night”; and “the noise levels will be unreasonable  at  a  considerable  number  of  dwellings”. Ms Doherty lives in Onerahi and is a member of Sound. Ms Doherty offers similar evidence (from a lay perspective) as a member of the community.

[57]              Cooke J’s observations in CREEDNZ underscore the importance of clarity in this area of the law. The issue is not whether the considerations would be treated as relevant, even by “many people”; rather, it is whether the Council was obliged to consider them or again, whether the considerations constitute mandatory considerations.

[58]              With the exception of references to the Local Government Act, which I discuss at [63] under other heads of review, Sound does not identify the source of the requirement to consider the matters raised as mandatory considerations. This is significant as a mandatory consideration must be referrable to something else— typically an enactment, decided case, or legal principle—as it is that “something else” that makes a consideration mandatory. In other words, a mandatory consideration must have an identifiable foundation, and Sound does not identify what that foundation is, which in turn suggests there is not one.

[59]              To  the  extent  Sound  may  be  relying  on  ss  16  and  17   of   the   Resource Management Act, these sections, as already noted, concern responsibilities of the occupier of the land. These responsibilities would, therefore, be Nest’s if it relocated to the airport, not the Council’s.

[60]              Furthermore, this aspect of Sound’s claim is essentially a repackaging or repleading of its “regulatory drivers” argument. Rather than citing the four “drivers”—all of which concern the regulation of noise—Sound cites evidential or

process matters concerning noise. But the argument is otherwise the same, and what I said earlier about the “drivers” is equally applicable.

[61]              All of which is to say that while the matters identified by Sound could be considered relevant in the sense identified by Cooke J, they do not constitute mandatory considerations. As I explained earlier, it was open to the Council to assume Nest can conduct its operations at the airport lawfully.

[62]              This conclusion makes it unnecessary to address the Council’s submission that it did consider the potential impact of noise from Nest’s relocation when making both decisions.

Do the decisions contravene the Local Government Act 2002? Did the Council fail to consult the Onerahi community?

[63]              These two grounds of review share elements of fact and law and I approach them together for this reason. I begin with some law.

[64]              Part 6 of the Local Government Act contains principles which apply to all local authority decision making. The important sections in this case are ss 76, 77, 78, 79 and 82, which I capture below:

76Decision-making

(1)Every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81, and 82 as are applicable.

(2)Subsection (1) is subject, in relation to compliance with sections 77 and 78, to the judgments made by the local authority under section 79.

(3)A local authority—

(a)     must ensure that, subject to subsection (2), its decision-making processes promote compliance with subsection (1); and

(b)     in the case of a significant decision, must ensure, before the decision is made, that subsection (1) has been appropriately observed.

(4)For the avoidance of doubt, it is declared that, subject to subsection (2), subsection (1) applies to every decision made by or on behalf of a local authority, including a decision not to take any action.

(5)Where a local authority is authorised or required to make a decision in the exercise of any power, authority, or jurisdiction given to it by this Act or any other enactment or by any bylaws, the provisions of subsections (1) to (4) and the provisions applied by those subsections, unless inconsistent with specific requirements of the Act, enactment, or bylaws under which the decision is to be made, apply in relation to the making of the decision.

(6)This section and the sections applied by this section do not limit any duty or obligation imposed on a local authority by any other enactment.

77Requirements in relation to decisions

(1)A local authority must, in the course of the decision-making process,—

(a)     seek to identify all reasonably practicable options for the achievement of the objective of a decision; and

(b)     assess the options in terms of their advantages and disadvantages; and

(c)     if any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions with their ancestral land, water, sites, waahi tapu, valued flora and fauna, and other taonga.

(2)This section is subject to section 79.

78Community 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.

79Compliance with procedures in relation to decisions

(1)It is the responsibility of a local authority to make, in its discretion, judgments—

(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

(b)     about, in particular,—

(i)the extent to which different options are to be identified and assessed; and

(ii)the degree to which benefits and costs are to be quantified; and

(iii)the extent and detail of the information to be considered; and

(iv)the extent and nature of any written record to be kept of the manner in which it has complied with those sections.

(2)In making judgments under subsection (1), a local authority must have regard to the significance of all relevant matters and, in addition, to—

(a)     the principles set out in section 14; and

(b)     the extent of the local authority’s resources; and

(c)     the extent to which the nature of a decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.

(3)The nature and circumstances of a decision referred to in subsection (2)(c) include the extent to which the requirements for such decision- making are prescribed in or under any other enactment (for example, the Natural and built Environment Act 2023).

(4)Subsection (3) is for the avoidance of doubt.

82     Principles of consultation

(1)Consultation that a local authority undertakes in relation to any decision or other matter must be undertaken, subject to subsections (3) to (5), in accordance with the following principles:

(a)     that persons who will or may be affected by, or have an interest in, the decision or matter should be provided by the local authority with reasonable access to relevant information in a manner and format that is appropriate to the preferences and needs of those persons:

(b)     that persons who will or may be affected by, or have an interest in, the decision or matter should be encouraged by the local authority to present their views to the local authority:

(c)     that persons who are invited or encouraged to present their views to the local authority should be given clear information by the local authority concerning the purpose of the consultation and the scope of the decisions to be taken following the consideration of views presented:

(d)     that persons who wish to have their views on the decision or matter considered by the local authority should be provided by the local authority with a reasonable opportunity to present those views to the local authority in a manner and format that is appropriate to the preferences and needs of those persons:

(e)     that the views presented to the local authority should be received by the local authority with an open mind and should be given by the local authority, in making a decision, due consideration:

(f)      that persons who present views to the local authority should have access to a clear record or description of relevant decisions made by the local authority and explanatory material relating to the decisions, which may include, for example, reports relating to the matter that were considered before the decisions were made.

(2)A local authority must ensure that it has in place processes for consulting with Māori in accordance with subsection (1).

(3)The principles set out in subsection (1) are, subject to subsections (4) and (5), to be observed by a local authority in such manner as the local authority considers, in its discretion, to be appropriate in any particular instance.

(4)A local authority must, in exercising its discretion under subsection (3), have regard to—

(a)     the requirements of section 78; and

(b)     the extent to which the current views and preferences of persons who will or may be affected by, or have an interest in, the decision or matter are known to the local authority; and

(c)     the nature and significance of the decision or matter, including its likely impact from the perspective of the persons who will or may be affected by, or have an interest in, the decision or matter; and

(d)     the provisions of Part 1 of the Local Government Official Information and Meetings Act 1987 (which Part, among other things, sets out the circumstances in which there is good reason for withholding local authority information); and

(e)     the costs and benefits of any consultation process or procedure.

(5)Where a local authority is authorised or required by this Act or any other enactment to undertake consultation in relation to any decision or matter and the procedure in respect of that consultation is prescribed by this Act or any other enactment, such of the provisions of the principles set out in subsection (1) as are inconsistent with specific requirements of the procedure so prescribed are not to be observed by the local authority in respect of that consultation.

[65]              By s 76, every council decision must be made in accordance with such of ss 77, 78, 80, 81 and 82 as are applicable. Section 77 and 78 enact basic standards of decision making. Section 77 requires a council in the course of its decision making process to identify and assess reasonably practicable options. Section 78 requires a

council to give consideration to community views. How the council complies with these requirements is a matter for its discretion under s 79.

[66]              As will be evident, a council must have decision making processes which “promote compliance” with ss 77 and  78.24  But,  when  a  decision  is  a  “significant decision”, a higher standard is engaged; a council must  ensure ss  77 and 78 are “appropriately observed” before that decision is made.25

[67]The Court of Appeal summarised these provisions in this way in

Wellington City Council v Minotaur Custodians Ltd:26

Relevantly for present purposes, subs (1) and (2) provide that consultation decisions must be made in accordance with ss 78 and 82, subject, in the case of compliance with s 78, to the ameliorating effect of s 79. Subsection (3) sets two standards of performance. In respect of “significant decisions”, the local authority must ensure that the provisions contained in subs (1) have been “appropriately observed”. This is the higher of the two standards. Where the matter is not “significant”, the standard is more aspirational: decision-making is only required to “promote compliance” with the provisions referred to in subs (1). Even that lower standard is subject to s 79 as noted.

[68]The Court also said:27

Section 79 begins with the position that it is for the local authority to decide in its discretion how ss 77 and 78 are to be complied with — the fourth such restatement of that principle in Part 6. Importantly, s 79(1)(b)(iv) provides that it is for the local authority to decide the extent and nature of any written record to be kept of the manner in which it has complied with ss 77 and 78. We will return to that provision below.

In summary, Part 6 of the LGA carefully and repeatedly rejects the idea that there is to be found in its provisions any duty to consult with affected or interested parties. Instead, local authorities are given a deliberately broad discretion as to whether to consult, and, if so, how. That does not mean, however, that there are no limits on a council’s discretion. Like all statutory decisions, consultation decisions must be rational and consistent with the objects of the LGA and the particular controlling provisions.

24     Local Government Act 2002, s 76(3)(a).

25     Local Government Act, s 76(3)(b).

26     Wellington City  Council v Minotaur Custodians Ltd  [2017] NZCA 302, [2017] 3 NZLR 464 at [33].

27     At [41]–[42]. Emphasis in original.

[69]              Minotaur confirms there is no general obligation on a council to consult under the Local Government Act. Rather, consultation is one of several options for obtaining information about the views and preferences of interested or affected people in terms of s 78. Three further points should be made at this juncture.

[70]              First, ss 77 and 78 require compliance “in the course of the decision-making process”. The Local Government Act does not require compliance at any particular point in that process. This was not always so. Section 78(2) of the Local Government Act required community views to be considered at four defined stages of the  decision making process. However, this provision was repealed in 2010.28

[71]              Second, the significance of “all relevant matters” is an important consideration in the exercise of a council’s decision making discretion under s 79.

[72]              Third, s 76AA requires councils to adopt a significance and engagement policy which identifies the council’s approach to determining the significance of proposals and decisions, and any criteria or procedures to be used in assessing the extent to which proposals and decisions are significant or may have significant consequences.

Consultation is required in establishing such a policy.29

[73]              I turn to fact, and whether the decisions were significant decisions in the sense mentioned earlier.

[74]              The Council’s applicable significance and engagement policy was adopted in 2020.30 The policy identifies five criteria and provides a “decision is typically considered significant if two or more of these criteria and measures are triggered”:

28     Local Government Act 2002 Amendment Act 2010, s 9.

29     Local Government Act, ss 76AA(5).

30     The policy.

Criteria

Measure

Impact on Council’s direction

Major and long-term

Change in Council’s current level of service

Major and long-term

Level of public impact and/or interest

Major and district-wide, or

Major for an identified community of interest

Impact on Council’s capability (non-cost)

Major and long-term

Net financial cost/revenue of implementation, excluding any financial impact already included in a Long-Term Plan / Annual Plan

Net capital expenditure >10% of total rates in year commenced,

and/or

Net operating expenditure >2.5% of total rates in year commenced

[75]              The Council concluded in relation to each decision that Nest’s relocation to the airport was not a significant decision. Each accompanying report said the proposed decision did not trigger two or more of the criteria in the policy.

[76]              Sound contends each is erroneous because “the relocation of Nest to the airport will have a major impact on an identified community of interest” and the noise committee was not consulted before the first decision. Sound also contends the Council’s application of the policy to the decisions was no more than “box-checking”.

[77]In response, the Council contends:

Although the significance assessment was a matter for the Council itself, arguably none of the five criteria/measures in the [policy] was satisfied, bearing in mind the nature and effect of the First Decision, as explained earlier in these submissions. An “in principle” decision to support NEST’s relocation, as the first step in a process which may or may not end up in actual relocation, did not, objectively speaking, have a major impact on an identified community of interest. The fact that SOUND or its members may regard the matter as important to them is not determinative, especially as they (incorrectly) view the First Decision as a final decision to lease the Airport land.

[78]              Neither of the reports addresses the criteria individually. It would be helpful if the reports had done so, as this would address, at least facially, a contention of box ticking. However, the mere fact the reports do not do so does not constitute error.

[79]              While it is arguable that Nest’s relocation to the airport has a major impact on an identified community of interest—the Onerahi community—it is not seriously arguable any of the other criteria in the policy are engaged. That being so, and irrespective of the lack of engagement of the noise committee before the first decision, it was therefore open to the Council to conclude the decisions were not significant decisions in terms of the policy, despite, of course, their importance to the Onerahi community.

[80]              This brings me to the core contention in this ground of review. As will be recalled,  the  first  decision  was  made  on  11  November  2021;  the  second  on  22 September 2022. For ease of reference, I refer to the report before the first decision as the 2021 report and that before the second as the 2022 report.

[81]Sound contends in relation to the 2021 report:

(a)All reasonably practical options for relocation of Nest were not considered. There was no advice on the options of Nest relocating to the industrial land on which it had an option, of Nest remaining at Kensington base, or Nest relocating to land the Council had purchased in the context of its future airport location work;

(b)There was no statement of or analysis of the advantages and disadvantages of Nest relocating to the airport, and no weighing of those advantages and disadvantages of other options. For example, elected members were not advised that the addition of Nest activity may mean other activities needed to be reduced so that noise levels could be complied with; and

(c)There is no articulation of the views and preferences of the residents likely to be affected by or who had an interest in the decision.

[82]              Sound contends the 2022 report contained only “cursory attempts to refer to options and risks”, and both it and the 2021 report “were devoid of information about the true effect” of Nest’s relocation to the airport. Consequently, Sound contends the decisions failed to promote compliance with ss 77 and 78 of the Local Government Act.

[83]              The Council accepts the 2021 report “did not expressly consider options” but argues this was not required “given the nature and significance of the decision”.  And, in relation to both decisions, it contends the correct focus is “the course of the decision-making process” (in terms of s 77(1)), not the reports alone. The Council says an examination of the course of that process reveals no error.

[84]              I begin with the obvious. Decisions of this nature should not be approached as if they were decisions of a Court, in which everything is carefully balanced and weighed, against a documented set of facts ascertained following forensic inquiry. That is not how local government works, something recognised by the provisions discussed earlier and the decision in Minotaur.

[85]              The first decision is not a model of its kind, essentially for reasons approaching those identified by Sound. However, the Council is right to emphasise the nature and significance of the decision made. Nest approached the Council, needing to relocate, and sought its approval, in principle, to move to the airport. Identification of reasonably practicable options and assessment of advantages and disadvantages rested on a binary foundation: support the proposal—or not.

[86]              The Council recognised its support entailed advantages identified in the 2021 report:

·Whangarei District secures a long-term sustainable helicopter rescue service that benefits all Northland communities.

·Additional recreational capacity [at] Kensington Park to the benefit of sports codes.

·Resolution of conflict between NEST and the Kensington community.

·The establishment of a purpose-built helicopter facility within Whangarei.

·Operational benefits for NEST.

[87]              The Council also recognised its support entailed disadvantages identified in that report:

Communication and engagement will be critical to any shift. The negative impact of transference of a noise issue away from one community to a similar impact on another should not be overlooked …

…

Although not active at present, there has previously been a Community Noise Committee which met regularly to discuss noise issues at the airport … If this proposal is successful it may be prudent to reintroduce such a committee, particularly during the establishment period. …

…

As indicated above the proposed move would require a careful and well- considered communication plan to engage with the local community to allay any concerns, along with mechanisms to consider noise related complaints or concerns going forward (i.e. re-establishment of a noise committee).

None of these issues are irreconcilable and may in the long-term have more positive outcome for the airport operation than the short-term negatives…

[88]              These observations demonstrate the Council appreciated noise would be of concern to the Onerahi community. The absence of information about that noise has caused me to pause. However, the decision was in principle only, and as I stressed earlier, it was open to the Council to assume Nest could operate lawfully at the airport. As will be recalled, the Council determined Nest would be responsible for meeting all statutory and regulatory requirements. Moreover, s 79 recognises a local authority has a margin of appreciation in deciding how ss 77 and 78 are discharged.

[89]              By the time of the second decision, the Council had the benefit of the noise committee’s recommendations, including that Nest training flights should not occur at Onerahi if Nest relocated there, and Marshall Day’s noise modelling. The 2022 report identified a suite of options:

(a)Supporting Nest’s continued operation at Kensington base.

(b)Confirming support for Nest’s relocation.

(c)Not supporting Nest at either site, leaving it to find an alternative.

(d)Actively helping Nest find an alternative site.

[90]              The advantages and disadvantages of these options were identified in the wider material available to the Council before the second decision. For example, the report to the noise committee of 7 September 2022 identified the advantages and disadvantages of Nest’s airport relocation, including noise in relation to the Onerahi community. Section 79 is again relevant too. That not all of this material found its way into the 2022 report is unimportant; s 77(1) of the Local Government Act expressly refers to “the course of the decision-making process”.

[91]              Given all this, I am not persuaded the Council breached that Act in relation to either decision. Had I been of a different view in relation to the first decision, I would have treated the second decision as curing the earlier breach, because the second identified and assessed all reasonably practicable options, and materially, did not presuppose the correctness of the first. In short, the second decision superseded the first rather than being reliant on it.

[92]              Perhaps anticipating this outcome, Sound contends Whakatane District Council v Bay of Plenty Regional Council precludes such reasoning.31 In that case, an in principle decision to relocate the Regional Council’s headquarters to Tauranga was held not to have complied with the Local Government Act as the community’s views were not sought before the decision was made. However, Whakatane District Council was decided when the community’s views had to be considered at four defined stages of the decision making process. As I foreshadowed, this is no longer the law. Indeed, the law was changed following Whakatane District Council.

Consultation

[93]              Sound contends that before making either decision, the Council was obliged to consult:

31     Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826.

(a)The Onerahi community, as both decisions were significant decisions.

(b)The subcommittee that became the noise committee.

[94]              I have already concluded the  decisions  were  not  significant  decisions.  This determination addresses (a). I, therefore, turn to (b), which Sound’s written submissions helpfully capture:32

The Airport Noise Management Plan (which is a requirement of the conditions of the Designation for the Airport) recognises that one of the specific responsibilities of the ANMC is “identifying community concerns relating to aircraft noise”. It was a specialist resource able to provide advice to Council on Airport noise issues, including the community views and preferences on a possible additional operator at the Airport.

The ANMC was consulted when NEST first proposed to relocate in 2014.

The Council made no attempt to constitute and engage with the ANMC before making its 2021 Decision, despite recognising that the ANMC had previously been successful in resolving noise issues at the Airport, and noting that it would be ‘prudent’ to re-establish the ANMC. The Council ultimately resolved to investigate the establishment of an ANMC.

The failure to reform and consult the ANMC when NEST sought to relocate to the Airport in 2021 represents a change of practice from the Council’s previous practice, given that the ANMC had been consulted on a very similar proposal in the past. The change in practice is unexplained.

Failing to constitute and consult (at the very least) the recognised body that had this function is an error in Council’s process. That error is contrary to the principles of the LGA and purpose of local government, (being to promote the social, economic, environmental and cultural well-being of communities).

[95]              The designation in relation to the airport provides for an airport noise management committee, or as I have called it, the subcommittee. The subcommittee has existed in various iterations, and its terms of reference have changed over time. The subcommittee was in abeyance when the first decision was made: the subcommittee had been discharged following the Council’s 2016 to 2019 term and not re-established.

32     Footnotes omitted.

[96]              As will be apparent, Sound contends the subcommittee should have been consulted because it was “consulted” when Nest proposed to relocate to the airport in 2014. This view of events is a little difficult to reconcile with history.

[97]              The identified meeting, which occurred 12 February 2013, was informal in nature. The meeting occurred because community representatives on the subcommittee raised concern about the proposal, not because the Council asked the subcommittee for its view. No decision was made by the subcommittee about Nest’s possible relocation, and its discussion of that issue was not referred to the Council. As I observed  earlier,  the  subcommittee  is   a   subcommittee   of   the   Council. Its involvement in Council decision making would, therefore, have required the Council’s authorisation (in some manner). No such authorisation was given. Furthermore, the subcommittee’s terms of reference did not and do not encompass the vetting of proposed airport activities, or the vetting of proposals to lease airport land.

[98]              In any event, it is clear that the Council did, “during its decision-making process …, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter”.33 By the time of the first decision, the Council had some appreciation of the likely views of members of the Onerahi community.  According  to   the   minutes   of   the   Council   workshop   held   on 21 October 2021:

(a)Mr Collins of the Council said Nest’s relocation was “very sensitive from a community point of view and would require a high degree of consultation and management of public expectations”. He referred to the possible establishment of a watchdog committee to provide “comfort” that Nest would operate according to the District Plan.

(b)Mr Ahlers of Nest said noise had been an issue in 2013—a reference to the informal meeting mentioned  above.  Mr  Ahlers  also  said,  “Most people have an affinity for the rescue helicopters, but they get calls to fly at all times of the day and night and people don’t want the noise over their back yards.”

33     Local Government Act, s 78(1).

[99]              The 2021 report recognised “the negative impact of transference of a noise issue away from one community to a similar impact on another should not be overlooked.” It and the first decision envisaged ongoing community engagement, including by possible establishment of a noise committee.

[100]           On 30 March 2022, the Council established the noise committee with this membership:

(a)Four community representatives, including on behalf of Onerahi.

(b)Three airport user representatives.

(c)Three elected members (on behalf of the district).

[101]           On 9 May 2022, the Council and Nest held a meeting at the airport to hear community concerns and provide information about Nest’s relocation. On 24 May, 31 May, 7 June, 14 June, and 21 June 2022, the Council held “Have Your Say” sessions at the airport to facilitate more direct engagement. The Council also invited public feedback on Nest’s relocation through the Council’s website.

[102]           On 4 August 2022, members of the noise committee attended a Council briefing in relation to Nest’s  possible  relocation.  On  7  September  2022,  the  noise committee made recommendations to the Council about just that. The Council considered those recommendations at its 22 September 2022 meeting, which was addressed by a Sound member. Moreover, the 2022 report records:

… those most affected by and interested in the recommendations in this report relating to the potential relocation of NEST’s flight operations to the Airport (NEST itself, the Airport and residents of Onerahi living close to the Airport) have representation on the [Noise] Committee. In particular, this has allowed the views of Onerahi residents to be heard and reflected in the Committee’s recommendations noted above …

[103]           In summary, the Council was not obliged to consult the Onerahi community before making the decisions. The Council was obliged to consider, in the course of its decision making process, the views of those likely to be interested in or affected by

the decisions. This obligation was met, particularly given the discretion available to the Council under s 79 of the Local Government Act.

Are the decisions unreasonable in the Wednesbury sense?

[104]This ground can be dealt with swiftly.

[105]           Judicial review is not typically concerned with the merit of a decision, as against the process by which it was made. However, a decision is reviewable if it is so unreasonable as to be irrational.34 Whether this is so turns upon the subject matter, and of course, the facts. Or, as Professor Joseph observes, “Judgment, not semantics, is the talisman”.35

[106]           Sound contends the decisions are “irrational, perverse and arbitrary” because the Council did not have the relevant information before it concerning noise; failed to consider ss 16 and 17 of the Resource Management Act; and residents will be exposed “to an unreasonable level of noise”.

[107]           This contention treats as final what are in principle decisions; repackages Sound’s “drivers” and mandatory consideration arguments, which I have already rejected; and is, as the Council observes, “a make-weight pleading”. A decision to support the relocation of an emergency helicopter service to the airport cannot be described as irrational or perverse in the sense understood by the law.

Conclusions

[108]           The  decisions  do  not   contain   errors   of   law   or   contravene   the   Local Government Act, and are not unreasonable. The Council did not fail to consider mandatory considerations or to consult the Onerahi community. As will be apparent from the judgment, several reasons underpin these conclusions: the nature of the decisions themselves (in principle; concerning a lease; and not significant decisions under the Local Government Act); that the Council was acting primarily as airport

34     Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).

35     Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 1078.

authority, rather than a planner; that Nest would be the occupier, and therefore responsible for meeting all rules concerning noise; that the Council was entitled to assume Nest could meet those rules; the absence of “something else” to make considerations mandatory; and in relation to the second decision especially, the Council’s efforts to consider, in the course of its decision making process, the views of those likely to be interested in or affected by the decisions. Sound’s judicial review of the decisions, therefore, fails.

Costs

[109]           The respondents are presumptively entitled to costs.   If costs are not agreed,  I will adjudicate following submissions from:

(a)Sound, on or before 8 December 2023.

(b)The Council and Nest, on or before 15 December 2023.

……………………………..

Downs J