Te Iwi O Ngāti Tukorehe Trust v Horowhenua District Council
[2024] NZHC 2083
•30 July 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-557
[2024] NZHC 2083
BETWEEN TE IWI O NGĀTI TUKOREHE TRUST
Applicant
AND
HOROWHENUA DISTRICT COUNCIL
First Respondent
GRENADIER LIMITED
Second Respondent
Hearing: 17 and 18 June 2024 Appearances:
M M E Wikaira and M A Hori Te Pa for Applicant P T Beverley and F N E Dykes for First Respondent J W Maassen and P C Kelly for Second Respondent
Judgment:
30 July 2024
JUDGMENT OF CHURCHMAN J
TE IWI O NGĀTI TUKOREHE TRUST v HOROWHENUA DISTRICT COUNCIL [2024] NZHC 2083 [30
July 2024]
Table of Contents
Para Nos
Introduction [1]
The Judicial Review Proceedings [4]
The Site [6]
History of the site [8]
The basis for the judicial review claim [14]
Pleaded facts [20]
First ground of review [25]
Second ground of review [34]
Third ground of review [36]
First respondent’s submissions [39]
Second respondent’s submissions [44]
Legal principles [65]
Analysis of first ground of review [68]
Should HDC have notified Ngāti Tukorehe as an “affected person” [69]
Affected person [74]
Absence of acknowledgements of sites of cultural significance in the District
Plan [89]
Inappropriate reliance on AEE [95]
Conclusion on first ground of review [105]
Analysis of second ground of review [109]
Analysis of the third ground of review [113]
Relief [115]
Delay [116]
Futility [126]
Result [131]
Costs [132]
Introduction
[1] Grenadier Ltd (Grenadier) wishes to establish an 18-hole Links Golf Course and associated club house and accommodation facilities on 107 hectares of farmland located at 765 Muhunoa West Road, Ōhau, Horowhenua (the Site). The proposal also involves use of about five hectares of a coastal esplanade reserve administered by Horowhenua District Council (HDC).1
[2] Grenadier needed resource consents from both HDC and from the Manawatū- Whanganui Regional Council, commonly known as “Horizons”.
[3] This case is concerned with the land use consent application made to HDC in relation to earth works, land disturbance, vegetation clearance, ground water abstraction and discharge activities necessary to construct and operate the proposed golf course.
The Judicial Review Proceedings
[4] On 8 September 2023, Ngāti Tukorehe,2 filed a statement of claim seeking judicial review of the decision made by HDC on 5 October 2021 (the decision).
[5] The decision determined two matters in relation to the resource consent application that had been filed by Grenadier on 21 December 2020 (the Application). Firstly, HDC determined to process the Application without public or limited notification and secondly, it granted the resource consents required for the Application.
The Site
[6] The Site is located to the north of the Ōhau River and is bounded to the west by a coastal esplanade reserve held under the Reserves Act 1977 by HDC. The
1 Milcah Xkenjik Approval of Resource Consent to Establish a Links Golf Course, Visitor Accommodation and Associated Earthworks and to establish a right of way under section 348 of the LGA 1974 at 765 Muhunoa West Road, Ōhau (Horowhenua District Council, 5 October 2021) at 11–12.
2 The statement of claim at [18] pleads that Ngāti Tukorehe is an iwi that is affiliated to Ngāti Raukawa. Whether it is an iwi or hapū of Ngāti Raukawa is not a matter that is necessary or possible for this Court to resolve. The relevant point for these proceedings is its affiliation to Ngāti Raukawa.
esplanade strip was constituted as a reserve following a subdivision in 1973. Grenadier has HDC’s consent to use the esplanade reserve for the golf course development.
[7] Other than for the esplanade strip, the Site is privately owned freehold land. In terms of topography, the Site is a mixture of high sand dunes with broad flat expanses between the dunes. The District Plan zoning for the Site is a combination of Rural Zoning and Open Space Zoning. The esplanade reserve is zoned Open Space. Recreation activities (such as playing golf) are permitted in both the Open Space Zone and the Rural Zone.
History of the Site
[8] The land in this part of Horowhenua has been subject to human occupation for hundreds of years. For much of that time Muaūpoko held mana whenua. In the 1820s the iwi Ngāti Raukawa ki te Tonga (Ngāti Raukawa) and its hapū (which included Ngāti Kikopiri and Ngāti Tukorehe) migrated and settled in the area following the defeat of Muaūpoko. Despite having been defeated in battle, Muaūpoko have remained in the area. They now have whanaunga relationships with both Ngāti Kikopiri and Ngāti Tukorehe.
[9] In 1827, the area subsequently known as the Ōhau No 1 Block was given by Te Rauparaha to a hapū of Ngāti Raukawa called Te Mateawa. Nepia Taratoa was at that time a Rangatira of Te Mateawa.3 At the same time the area to the east of this block (which subsequently became known as the Muhunoa No. 3 Block) was given by Te Rauparaha to another Ngāti Raukawa hapū, Ngāti Kikopiri. It was vested in them by Crown Grant in 1880. It is on this Block that the bulk of the proposed golf course (including all of the structures proposed to be erected) are located.
[10] Te Mateawa were described by Lindsay Poutama, who filed an affidavit in support of the application, as now being one of the “familial groupings” that make up Ngāti Tukorehe.
3 See Rev Dr Rangi Nicholson WAI 113A Claim: Nepia Taratoa 1793-1863 (Wai 2200 #14, 6 October 2020) at 6.
[11] Te Mateawa occupied part of the Ōhau No 1 Block from about 1835 to 1855. Following Nepia Taratoa’s death in 1863, his descendants and rangatira of Te Mateawa were granted title to the Ōhau No 1 Block in 1879 by the Crown. The Ōhau No 1 Block was partitioned by the Native Land Court in 1890 with part of the block upon which it is proposed the golf course will be constructed being sold in 1891 to an English settler, John Kebbell and other parts retained by Te Mateawa descendants. John Kebbell also acquired the Muhunoa No. 3 Block from Ngāti Kikopiri.
[12] The land has remained in Pākehā ownership since, being farmed for much of that time and, in more recent years, subject to production forestry. It appears the land is currently unused with the lower areas covered in invasive weeds and low scrub and higher areas being covered in wilding pines and thick vegetation including lupins and blackberry.
[13] Over the last 200 years, this part of the Horowhenua coast has been extensively modified by natural forces, the two most significant being the migration northwards of the mouth of the Ōhau River and the accretion westwards of the beach and sand dune system at an average rate of about one metre per year. The Site was also significantly affected by the 1855 Wellington earthquake which led to Te Mateawa abandoning its occupation of areas that were then to the north of the Ōhau River mouth and relocating to the areas to the south of the then mouth of that river. Surveys in 1879 and 1980 showed that, over that time period, the mouth of the Ōhau River had moved some 450 metres to the north.
The basis for the judicial review claim
[14]The applicant advances three distinct grounds in support of its claim:
(a)That HDC’s decision was unlawful due to a failure to consider any effects on Ngāti Tukorehe, to identify Ngāti Tukorehe as a person affected, to consider whether they were an adversely affected person pursuant to s 95E of the Resource Management Act 1991 (RMA) and to notify Ngāti Tukorehe pursuant to s 95B of the RMA.
(b)HDC failed to consider whether any cultural effects were at least minor in determining limited notification, including cultural effects of the Application on Ngāti Tukorehe, Tirotirowhetū and the earthworks and development within the culturally and ecologically significant dune system.
(c)HDC considered an irrelevant matter of what was said to be refined boundaries for the Coastal Outstanding Natural Features and Landscape (ONFL) and Natural Character Area in the District Plan when it could only consider the Operative District Plan in assessing the adverse effects on the Coastal ONFL and Natural Character Areas.
[15] The applicant asks that HDC’s decision to process the Application without public or limited notification under ss 95A or 95B of the RMA (the Notification Decision) be declared invalid and seeks an order setting aside the Notification Decision and the decision to grant the resource consents required for the Application (the Consent Decision).
[16] In support of its grounds of review, the applicant says that it was an adversely affected party and was “wrongly shut out” of the resource consenting process. It alleges that at the time the Application was processed, HDC was, or should have been, aware of the applicant’s relationship with the area of the Site. It says that in processing the Application, HDC failed to consider this relationship and identify the applicant as an affected party and, as a result, the Council failed to notify the applicant of the Application under ss 95B and 95E of the RMA before granting the consents.
[17] The applicant claims that it is affected by the proposed golf course in a way that is at least minor. The examples that it gives in support of this contention are that a part of the Site is a wāhi tapu and wāhi tupuna (a place where ancestors lived) known to the applicant as Tirotirowhetū. It is alleged that the physical effects of earthworks will have significant and irreversible effects on Tirotirowhetū as well as Ngāti Tukorehe’s ability to be kaitiaki in relation to this site.
[18] It is alleged that the effects of the proposed golf course on the applicant should have formed part of the Council’s decision-making process but did not. It is said that HDC’s decision not to notify Ngāti Tukorehe was an error of law and unreasonable.
[19]The argument of unlawfulness is subdivided into three constituent parts:
(a)HDC’s Notification Decision was unlawful.
(b)HDC failed to consider relevant matters (cultural effects).
(c)HDC took into account an irrelevant matter (said to be a revised boundary of the Coastal ONFL).
Pleaded facts
[20] The applicant asserts that the proposed golf course site is located on and adjacent to Tirotirowhetū which it locates as being “close to the beach at the last bend of the Ōhau River”. It is said that Tirotirowhetū was an original settlement and Pā site and was used for the observation of stars. It is said to have included urupā and areas designated for karakia. It also says that “[t]he use of the site for occupation and as a food source is evidenced by the large shell middens located at its side where fish and shellfish were processed and preserved”. The applicant acknowledges that Te Mateawa was required to leave Tirotirowhetū due to various events including the major earthquake in 1855 that raised the coastline and separated the river mouths of the Ōhau and Waikawa Rivers.
[21] It is said that the applicant has “maintained an undisturbed kaitiaki relationship with Tirotirowhetū” through matters such as historical accounts and narratives, educational programmes, site visits and activities such as seasonal collection of kai. It asserts “Tirotirowhetū remains a taonga, wāhi tapu and wāhi tūpuna of great spiritual and physical significance to Ngāti Tukorehe today.”
[22] The applicant acknowledges that it has enjoyed what it describes as “a valued and mutually beneficial relationship” with HDC for a number of years. It refers to a Memorandum of Partnership (MoP) signed between it and HDC on
19 November 2008 and a relationship agreement signed on 1 November 2018 (Resourcing Agreement).
[23] The applicant states that in signing the MoP, HDC acknowledged its mana whenua status over its rohe, and refers to the description of the rohe in the MoP which identifies Tirotirowhetū and the Ōhau river mouth as key landmarks.
[24] The applicant pleads that in or around early 2021 it first became aware of the possibility of a golf course being constructed on the site. It is said that throughout 2021 and early 2022, in meetings with the Council that included the then Chief Executive of the HDC, their representative regularly “raised the golf course consent issue” and made it clear “they did not know the proposed site for the golf course.”
First ground of review
[25] The applicant does not challenge the Council’s decision under s 95A of the RMA not to publicly notify the Application, but challenges the decision in relation to s 95E on the basis that it should have received limited notification because it was an “affected person” because the activities’ adverse effects on it were “minor or more than minor (but not less than minor).” The applicant submits that HDC had inadequate information before it as to the effect of the proposal on it.
[26] The applicant is critical of the way HDC interpreted the relevance of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA). Following the receipt of the consent application, the Council officer processing the Application (Ms Xkenjik) had written to the second respondent inquiring whether applicants who had claims to the takutai moana under MACA should be consulted. She accepted the second respondent’s response that, because no part of the works would be within the marine and coastal area, MACA was not relevant.
[27] The applicant’s argument was not that the site of the proposed golf course was within the takutai moana, but that the fact it had asserted rights under MACA in relation to the takutai moana was one of the factors that should have required HDC to treat it as an affected person.
[28] The applicant also points to the fact that the Archaeological Assessment by Ms O’Keefe included in the second respondent’s Assessment of Environmental Effects (AEE) cited a historical report by Leslie Adkins which had identified Tirotirowhetū Pā as being on the north side of the then Ōhau river mouth. It was implied that the river mouth was presently in the same place as it had been when Adkins had prepared his report in the early 20th century and that this should have alerted HDC to consider whether the applicant was an affected person.
[29] The applicant acknowledges that the AEE and Draft Cultural Values Assessment (CVA) filed with the Application were comprehensive and was in depth in respect of Ngāti Kikopiri. But it contends that it lacked breadth by failing to adequately identify Ngāti Tukorehe’s interests in the vicinity of the Site. The applicant accepted that Ngāti Kikopiri had mana whenua on the Site but said that it also had interests.
[30] The applicant argued that HDC’s “… conclusion that MACA was not relevant should not have precluded a decision that other iwi parties might require notification”. The applicant alleges that Ms Xkenjik had unreasonably accepted the information provided by the second respondent at face value and had closed her mind to the reasonable possibility that other iwi might have interests in and around the Site. The applicant says this aspect of HDC’s decision-making process was therefore unreasonable.
[31] The applicant disputes HDC’s contention that, at the time of processing the Application, HDC would not have been aware of information that would have given them any basis to determine that the applicant should have been considered in respect of the Site rather than or as well as Ngāti Kikopiri. The applicant says that the MoP and Resourcing Agreement should have put HDC on notice. It is said that HDC should have been aware that iwi in the Horowhenua District have overlapping interests.
[32] Another alleged aspect of unreasonableness was what was said to have been a failure by the then Chief Executive of HDC (Mr Clapperton) to make inquiries with Council staff after he had been requested by representatives of the applicant for information about the proposed golf course.
[33] It was asserted that even if the lead Council planner did not have personal knowledge about Tirotirowhetū and Ngāti Tukorehe’s connection to it, she did not work in a silo and she had a responsibility to be aware of information relevant to her assessment as to the identity of affected parties and failed to discharge that responsibility.
Second ground of review
[34] In support of its argument that HDC failed to consider a relevant matter, namely the cultural effects of the proposal, the applicant says that the conclusion in the Notification Decision that there were no adversely affected persons with reference to cultural effects (including Ngāti Kikopiri and Muaūpoko), and in particular that Ngāti Tukorehe was not an affected person, was unlawful in its failure to consider at least minor adverse cultural effects.
[35] The applicant says that the construction of the golf course will result in “... desecration of this wāhi tapu and wāhi tupuna … if the consent is upheld. The earthworks alone will have significant and irreversible effects on Tirotirowhetū itself, as well as Ngāti Tūkorehe’s ability to be kaitiaki in relation to this sacred place”. It is alleged that the Notification Decision was unreasonable and that this amounts to a reviewable error of law.
Third ground of review
[36] The applicant alleges that Mr Boffa, a landscape specialist who had prepared a report in support of the Application, had refined or redefined the ONFL and Natural Character Area. Figure 1 in Mr Boffa’s report showed a revised boundary of ONFL which was based on more up-to-date data (including topographic aerial photography) than had been identified in 2012 when the original boundary had been drawn. Effectively this placed the inland boundary of ONFL a little closer to the coast, generally following the inland toe of the secondary stable sand dune adjacent to the cultivated pasture.
[37] The applicant argued that although the Notification Decision was unclear as to what effect Mr Boffa’s analysis had had on the decision, if it had influenced the
decision, it amounted to an irrelevant consideration that should not have been taken into account and was therefore a reviewable error of law.
[38] Counsel acknowledged that the Notification Decision was unclear on this point and that this ground was not as important to the applicant as the first and second grounds. However, this ground was not abandoned. The only relief sought in respect of this ground was a declaration of error.
First respondent’s submissions
[39] HDC denies that any grounds for judicial review exist. Counsel reminded the Court of the observations of the Court of Appeal that:4
… It is well established that in judicial review the Court does not substitute its own factual conclusions for that of the consent authority. It merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no irrelevant, considerations were taken into account, and whether the decision was one which, upon the basis of the material available to it, a reasonable decision-maker could have made. Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority, not the Court, to determine, but, of course, there must have been some material capable of supporting the decision …
[40] HDC’s position is that it had adequate information, that post-facto evidence was not relevant, that the second respondent appropriately responded to requests for further information, that the slight delay in processing the Application between August and September 2021 was a result of the Covid-19 lockdown and, in the circumstances, was reasonable, and that there was no error in the process followed by HDC in considering the Application and that the decision was lawful and reasonable in the circumstances.
[41]The five principal submissions made were that:
(a)HDC had a long-held understanding that it was appropriate to engage with and to seek information from Ngāti Kikopiri as mana whenua of the project site;
4 Pring v Wanganui District Council (1999) 5 ELRNZ 464 (CA) at [7].
(b)there was detailed engagement undertaken and information provided in relation to the cultural effects on Ngāti Kikopiri, who were supportive of the application for resource consent;
(c)there was no other readily apparent basis to alert the Council officers to consider that any other groups, including Ngāti Tukorehe, needed to be engaged with in relation to the project site;
(d)the more recent information from the Horizons Regional Council litigation in relation to the potential interests of Ngāti Tukorehe in the area post-dated the Council’s Notification Decision; and
(e)as a consequence, it was reasonable and appropriate for the Council to accept the information provided by and on behalf of Ngāti Kikopiri as a basis of an assessment of cultural effects (together with the consultation with Te Rūnanga o Raukawa and others).
[42] In relation to the argument that HDC’s Chief Executive should have conveyed to Council officers processing the resource consent the queries he had received from the applicant, HDC says that a chief executive is required under the Local Government Act 2002 to ensure that the management structure of a local authority reflects and reinforces the separation of regulatory responsibilities and decision-making processes from other responsibilities and decision-making processes.
[43] With regard to the applicant’s third ground of review, HDC says that the Consent Decision made it clear that Mr Boffa was not challenging the District Plan boundary but was providing updated information based on more detailed and updated data (noting that the landscape had been modified since the Coastal ONFL was identified in 2011). HDC says that this is an orthodox and appropriate initiative on the part of a landscape expert in an RMA process.
Second respondent’s submissions
[44] Grenadier submits that the applicant’s objective of having that part of the Site within the Ōhau No. 1 Block fenced off and returned to a natural state with the golf
course being restricted to a nine-hole course located entirely on the Muhunoa No. 3 Block, is not a legitimate objective and notes that this has already been pointed out to the applicant in the Horizons Regional Council decision when it said:5
Our task is not to revisit the HDC consent. We are unable to grant the relief that Ngāti Tukorehe seek, which is that ‘the whole Tirotiro-Whetū area should be left alone’. It is beyond our jurisdiction to consider the effects of, or merits of, the golf course development other than in respect of the specific vegetation clearance, land disturbance and earthworks proposed in the limited parts of the site to which the Horizons application relates. It is beyond our jurisdiction to direct the Applicant to convert its golf course proposal into a restoration plan for the Tirotiro-Whetū ‘region’. It is also beyond our jurisdiction to direct the Applicant to abandon its proposal or to engage in any consultation or ‘co- design’ engagement process.
[45] Grenadier submits that the applicant’s aspirations for the Site are not supported in the planning instruments that HDC must observe when assessing who should be notified of the Application. It notes that the operative District Plan requires sites of cultural significance to be identified in the plan. The plan does not identify any such relevant sites.
[46] Grenadier submits that the AEE lodged describes the activities and their effects and provides an assessment of the significance of the effects when judged against the relevant plan and subject to the requirements of the relevant plan.
[47] Grenadier notes that the statement of claim does not allege that HDC had insufficient information from the AEE but only that the applicant should have been notified as part of a limited notification obligation.
[48] A trading entity of the applicant, Tahamata Inc, is an adjoining landowner conducting dairy farming operations on land to the east and south of the Site and Grenadier notes that the statement of claim does not plead that Tahamata Inc was an affected party, only that the applicant is.
[49] Grenadier argues that s 95E of the RMA provides that only “affected persons” are entitled to be notified if a Council determines that public notification is not
5 Independent Hearing Panel Decision of Independent Hearing Panel appointed by Manawatu- Whanganui Regional Council (Horizons Regional Council, 25 July 2022) at [8.40].
required. Such a person must be assessed as experiencing adverse effects. Grenadier says that the applicant’s concern (at least as conveyed by their witness Mr Poutama in a related hearing before the Environment Court) was that the people who might sustain adverse effects were the users of the proposed golf course who broke what was said to be the tapu of the Site.
[50] Grenadier says that the “overarching assessment” required in judicial review proceedings is whether something material has gone wrong in the decision-maker’s process or reasoning and, if so, whether it is appropriate for the decision-maker to revisit the decision. It asserts that nothing of that nature occurred in the present case. Grenadier submits that the determination function in s 95 of the RMA onwards must be made within the tight statutory period of 20 working days and without the need for consultation with any person but the applicant for resource consent under s 36A of the RMA. It states the decision as to who is affected by adverse effects of a proposal is judged by the aims of planning instruments applied to an assessment of effects on a person under s 95E of the RMA.
[51] It was submitted that if an effect was to be judged against the customary natural and physical values expressed within the planning instruments concerning the main physical effects of the proposal (effects on landscape, natural character, public access and indigenous vegetation) then three tangata whenua groups— Muaūpoko, Ngāti Kikopiri and Ngāti Tukorehe—were potentially affected. Grenadier states however that there were no cultural sites recognised in the District Plan within the Site that related to any of these tangata whenua groups.
[52] Counsel emphasised that the Horowhenua District Plan’s scheme for assessing effects on sites of cultural significance required the sites to be identified in the Plan and referred, in particular, to r 19.6.14(a) of the Plan for Rural Zoned Land and r 20.6.21(a) for Open Space Zoned Land which both said:
No activity or development shall modify, demolish or remove any site of significance to Māori where such site has been identified to Council and recorded by the Council in a register of sites prior to the time that any activity or development is proposed.
[53] Grenadier also challenged some of the factual assertions of the applicant. The most important of these was as to the location of the Tirotirowhetū Pā site relative to the then mouth of the Ōhau River prior to 1855. Grenadier referred to the evidence of archaeologist Ms O’Keefe who identified the Pā site as now being located on the southern side of the current mouth of the Ōhau River.
[54] Grenadier submitted that if any archaeological sites are discovered, the applicant will require a consent to disturb them under the Heritage New Zealand Pouhere Taonga Act 2014 and therefore, the granting of consents by HDC did not authorise the disturbance of such sites.
[55] In response to the applicant’s claim that the whole of the Ōhau No. 1 Block was wāhi tapu, Grenadier referred to the evidence of its independent cultural expert, Mr Mikaere that the presence of middens from shellfish gathering and eating is inconsistent with the site being wāhi tapu in a conventional sense.
[56] Grenadier refers to the evidence given by Mr Poutama for the applicant before the Environment Court. That evidence was, of course, given after the events that are the subject of this judicial review application but, counsel for Grenadier submits that it is relevant because it identifies the nature of the tapu said to exist.
[57] Counsel referred to extracts from the transcript of the Environment Court hearing relating to the cross-examination of Mr Poutama. It appears from that cross-examination that the reason that the applicant says that the whole of the Ōhau No. 1 Block is tapu is because of the actions of a Te Mateawa tohunga and rangatira, Te Hiwi Arapata in about the year 1900, as a result of the drowning of two of John Kebbell’s daughters in the Ōhau River.
[58] Counsel’s argument was that this purpose has nothing to do with the outcomes sought by the relevant planning instruments and was therefore irrelevant to them and effectively amounted to using spiritual explanations to prevent reasonable use of land judged objectively in following the aims of the relevant planning instruments. Counsel submitted that any effect on golfers or Grenadier workers from breaching the identified tapu did not affect Ngāti Tukorehe. He referred to the decision in Northcote
Mainstreet Inc v North Shore City Council6 where Lang J noted that an affected person is one who is adversely affected in an environmental sense.7 I am not convinced that the reference to the evidence on tapu that was considered in the Regional Council and Environment Court proceedings is particularly helpful in this case. That is because the case in this Court was focused on the adverse effect of the application on the applicant being that part of the site was either wāhi tapu or wāhi tupuna. Whereas the evidence in the Environment Court appears to have focused on a tapu imposed by a tohunga following the drowning of two pakeha children in the Ōhau river.
[59] Grenadier’s response to the applicant’s claim that the HDC’s officers should have been aware of the applicant’s cultural and spiritual interests in the Site because of the MoP was to say that the MoP aimed to establish a relationship, not to delineate sites of cultural significance for planning purposes.
[60] Counsel noted that both the Regional Policy Statement and the Horowhenua District Plan require sites to be identified on planning maps as public legal instruments and nothing in the MoP altered that.
[61] It was also noted that the MoP does not identify Tirotirowhetū‘s values or spatial location. Counsel referred to the fact that there was no challenge by the applicant to the conclusion of Ms O’Keefe that the Tirotirowhetū Pā site was on what is now the south side of the Ōhau River. Counsel submitted that the actual Tirotirowhetū Pā site is now in an area that is farmed by Tahamata Inc, as a result of the steady movement north of the mouth of the Ōhau River over the last 170 years. It was submitted that when the activity of dairy farming on former kainga and pā sites on the southern side of the Ōhau river mouth within the applicant’s rohe was not seen as culturally inappropriate by the applicant, it was unreasonable to expect HDC to consider that the proposed golf course would have adverse cultural/spiritual effects.
[62] In relation to the applicant’s third ground of review, Grenadier says that the applicant has mischaracterised Mr Boffa’s report. He said that all that Mr Boffa had done in his report was to note that the actual location of the tree line, which was the
6 Northcote Mainstreet Inc v North Shore City Council [2006] NZHC 1, [2006] NZRMA 137.
7 At [188].
boundary of the ONFL overlay, had shifted following changes in vegetation. Mr Boffa did not dispute what was in the District Plan but his report merely updated where the boundaries should be following a change in vegetation.
[63] Counsel noted that the Council officer who considered Mr Boffa’s evidence did not do what was alleged in the statement of claim and that the relevant part of the decision read:
Following several site visits and a review of more recent and more detailed topographic aerial photography, Mr Boffa has prepared a refined ONFL boundary. As stated in the report, ‘the purpose of reviewing the ONFL boundary was not to dispute the District Plan, it was simply reviewed in order to update the line based on more detailed and recent data, and an acknowledgment that landscape change within the site has occurred subsequent of what was identified in 2012.’
[64] It was submitted that irrespective of where the ONFL boundary line was drawn, the proposal’s effects on the actual character of the area remained less than minor since a re-vegetated golf course was no less natural and arguably more natural with the re-vegetation elements than pasture was.
Legal principles
[65]The applicable principles are:
(a)The statutory framework for determining whether an application for resource consent should be notified is set out in ss 95–95G of the RMA.
(b)If public notification under s 95A is not required, a consent authority must decide whether to give limited notification to any affected person following the step-by-step process in s 95B. Steps 3 and 4 are relevant to this proceeding. The consent authority is required to consider and decide whether:
(i)the proposed activity’s adverse effects on the relevant person are “minor or more than minor (but are not less than minor)”,
in which case the relevant person is an “affected person” and must be notified;8 and/or
(ii)Special circumstances exist in relation to the application that warrant notification of the application to any other persons not already determined to be eligible for limited notification.9
(c)Orthodox principles of judicial review apply. This Court does not undertake a merits review of the notification decision, nor form its own view on the substance of whether the application should have been notified.10
(d)In terms of “intensity of a review” of RMA notification decisions, the RMA does not require a more intensive standard of review of a non-notification decision than would otherwise be appropriate for a court when exercising its powers. The judicial enquiry is to determine whether the decision maker has complied with its statutory powers or duties.11
(e)A relevant decision must be made on the basis of adequate and reliable information.12
(f)Notwithstanding subsequent legislative changes, the views expressed by the Supreme Court in Discount Brands Ltd v Westfield (NZ) Ltd13 remain broadly relevant. The consent authority is not dependent only on the initial application as a source of the adequate and reliable information but has the power under s 92 to require the applicant to
8 Resource Management Act 1991 [RMA], ss 95B(8) and 95E.
9 Section 95B(10).
10 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 at [40].
11 Far North District Council v Te Rūnanga-Ā-Iwi o Ngāti Kahu [2013] NZCA 221 at [56].
12 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [142].
13 Discount Brands Ltd v Westfield (NZ) Ltd [2005] NZSC 17, [2005] 2 NZLR 597. After this decision was decided, the RMA was amended to: (a) remove the express requirement for a consent authority to have adequate information, (b) remove the presumption in favour of notification and
(c) replace the requirement to be “satisfied” that adverse effects on the environment “will be minor” with the task of “deciding” whether an activity “will have or is likely to have adverse effects on the environment that are more than minor” (emphasis added).
provide further information and that members or officers of the consent authority are able to draw on their extensive relevant knowledge.14
(g)The information before the consent authority must be adequate. It is not required to be all-embracing, but it must be sufficiently comprehensive to enable the consent authority to consider the relevant matters on an informed basis.15
[66] Legal principles which were not the subject of agreement between counsel include the extent to which the changes to the RMA referred to above have affected the non-notification process and given effect to the apparent intention of parliament to give consent authorities greater scope to decide not to notify resource consent applications, and to reduce the intensity of review to be applied to non-notification decisions from that mandated in Discount Brands.16
[67] There was also no express agreement on the point that post-facto evidence is not relevant and that it is the information that was before the decision maker at the time that the decision was made that is solely relevant to the proceeding.
Analysis of first ground of review
[68] As identified above, the focus of the Court in judicial review proceedings in respect of a notification and/or consent decision is on whether proper procedures have been followed, whether all relevant and no irrelevant considerations were taken into account and whether the decision was one which, upon the basis of the material available to it, a reasonable decision maker could have made.17
14 Discount Brands Ltd, above n 13, at [50].
15 At [114].
16 See Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, (2013) 17 ELRNZ 472 at [34] and [41] and Auckland City Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [47]: “It is arguable that subsequent changes to the RMA mean that an approach to non-notification decision which is less exacting than that required by Discount Brands should now be adopted”.
17 Pring, above n 4, at [7].
Should HDC have notified Ngāti Tukorehe as an “affected person”
[69] The CVA that was attached to the AEE submitted with the Application had been prepared by Mr Tataurangi in association with Ngāti Kikopiri Māori Marae Committee Incorporated Society. It acknowledged Ngāti Kikopiri as mana whenua and kaitiaki of the area between Ōhau River to the south and the Waiwiri Stream to the north.
[70] The evidence of Mr Holmes for Grenadier was that it did not consult with Ngāti Kikopiri because it had any obligation to, with s 36A of the RMA making it quite clear that neither an applicant for a resource consent nor the local authority concerned, had a duty to consult any person about their application. They consulted with them in good faith following suggestions made by HDC who had identified Ngāti Kikopiri as mana whenua, as had the Regional Council. Mr Holmes deposed that the purpose of consultation was not to establish wāhi tapu or other cultural interests in the Site but to verify that the ecological and landscape enhancements in the proposal had adequately captured the enhancements aimed for by the relevant planning instruments from a matauranga Māori viewpoint.
[71] Along with the CVA, the AEE was accompanied by a draft memorandum of understanding between Grenadier and Ngāti Kikopiri. A supporting letter from Ngāti Kikopiri was also lodged with the Application.
[72] The AEE at [10.1]–[10.2] details meetings, both by Zoom and in person, between representatives of the applicant and the board of Ngāti Kikopiri in September and November of 2020, and an onsite meeting with a representative of Ngāti Raukawa.
[73] It appears that, at some stage after the Application was lodged, Grenadier had consultations with Muaūpoko and entered into a memorandum of understanding with them that resulted in Muaūpoko supporting the golf course proposal.
Affected person
[74] Turning now to address the particular grounds upon which the applicant says that HDC should have known that the applicant had interests in the Site so as to justify them being treated as an “affected person,” the applicant says “[t]he application site
was within Ōhau an area acknowledged by the MoP and resourcing agreement between the applicant and HDC as being within the rohe of Ngāti Tukorehe”.
[75] As the applicant concedes, multiple iwi have interests in Horowhenua, which, at times, overlap. Neither the MoP nor the Resourcing Agreement identify the applicant as having mana whenua over the Site.
[76] The introduction in te reo Māori at the start of the MoP does contain the word ‘Tirotirowhetū’ but, importantly, it does not identify where the Tirotirowhetū being referred to was located. Neither does it identify Tirotirowhetū as the site of the Te Mateawa Pā that existed between 1835–1855.
[77] The evidence was that there were at least three different locations with the Tirotirowhetū name. To the extent that the Tirotirowhetū being referred to in the MoP was said by the applicant to be a reference to the site of the 1835–1855 Te Mateawa Pā, the evidence for the second respondent was that the Tirotirowhetū Pā site was not on the proposed golf course site, but some 450 metres to the south.18
[78] Neither the MoP nor the Resourcing Agreement are planning documents. This is significant. The Horowhenua District Plan required that cultural landscape or heritage values, including wāhi tapu, be identified through the sch 1 process in the District Plan which is a process that involves the relevant landowners being notified.19 In the absence of such identification, there was no reason for Council officers to have made inquiries of the applicant. The current Chief Executive of HDC, Monique Davidson, explained that the MoP describes the working relationship between the applicant and HDC and is one of several such MoP’s that HDC has entered into with local tangata whenua.20
18 Affidavits of Buddy Mikaere dated 2 May 2024 at [10]–[23]; Andrew Finch dated 3 May 2024 at
[10] and [35]–[37]; and James Dahm dated 3 May 2024 at [5].
19 Horizons Regional Council One Plan: The Consolidated Regional Policy Statement, Regional Plan and Regional Coastal Plan for the Manawatū-Whanganui Region (March 2024) at [HCV- P1]–[HCV-P2].
20 Affidavit of Monique Renee Davidson dated 8 May 2024 at [26]. The other groups with MoPs are: Muaūpoko Tribal Authority, Rangitāne o Manawatū, Te Tūmatakahuki (a collective of 12 Ngāti Raukawa hapū including Ngāti Kikopiri) and Te Kotahitanga o Te Iwi o Ngāti Wehi.
[79] I conclude that, the reference in the MoP to ‘Tirotirowhetū’ is not something that should have alerted HDC to the possibility that the applicant might have a cultural interest in the proposed golf course site.
[80] The applicant has claimed that the standard practice between HDC and Ngāti Tukorehe of “ongoing, direct and regular engagement on issues of mutual interest, including the review of, and input into, Council planning processes, and in respect of issues specific to the Ōhau and Kuku area” should have obligated HDC to have notified the applicant of the Application. However, the fact that regular engagement on matters of mutual interest and Council planning processes took place does not mean that HDC should have known of the applicant’s claim to an interest in part of the area of the Site. There was no mention in the District Plan of the Site being a site of cultural interest to any iwi group, including the applicant.
[81] The applicant submits that the Archaeological Assessment that was included as part of the AEE identifies Tirotirowhetū Pā as being north of the Ōhau River mouth in an historical map prepared by Leslie Adkin, set out in Figures 27 and 28 of the Archaeological Assessment. It is submitted that this map should have identified to Council staff that Ngāti Tukorehe was an affected party. However, Ms O’Keefe has geo-referenced Adkin’s map to the Site in Figure 29 of her Archaeological Assessment and it places it to the south of and outside of the Site. Ms O’Keefe’s evidence does not provide a basis for suggesting that the applicant was an affected party. It is consistent with the evidence of Grenadier’s other witnesses—Buddy Mikaere, Andrew Finch and James Dahm—that the Tirotirowhetū Pā site is some 450 metres to the south of where the mouth of the Ōhau River now is.
[82] In relation to the further ground that the applicant should have been identified by Council officers as being an affected party because Ms Xkenjik had received legal advice that she would need to be very confident that no cultural issues were raised by the development, the evidence is that Ms Xkenjik took appropriate steps to ensure that no relevant cultural issues had not been addressed. She had received a cultural values assessment, she was aware that Ngāti Kikopiri (whom the Council had identified as mana whenua of the Site) and Muaūpoko had been consulted and supported the proposal and that Ngāti Raukawa had been consulted and had no objection.
[83] As the applicant is an affiliate of Ngāti Raukawa, it would have been reasonable for Ms Xkenjik to have assumed that, if there had been a potential relevant cultural interest, Ngāti Raukawa would have identified that.
[84] When the issue of a potential MACA claim came to Ms Xkenjik’s attention, she took appropriate steps to refer that back to Grenadier and seek further information under s 92. Grenadier’s response, that MACA was not relevant, was correct and Ms Xkenjik cannot be criticized for accepting it.
[85] Claims under MACA specifically relate to the takutai moana. That stops at mean high water springs. No applicant for a recognition order under MACA can obtain any rights to adjacent land. It is not necessary for an applicant for orders under MACA to have any interest in the land adjoining the claim area.21
[86] There are two pathways for pursuing MACA claims. One is by litigation in the High Court and the other is by direct engagement with Crown. The High Court hearing relating to the Kapiti Coast has just concluded. There were a number of overlapping claimants. Ngāti Tukorehe was not one of them. Te Mateawa (the hapū through which Ngāti Tukorehe asserts an interest in the Site) did lodge a hapū claim for Customary Marine Title and Protected Customary Right through its rangatira, Patrick Seymour, but the northern boundary of that claim stopped at the Ōhau River. That would indicate that Te Mateawa do not assert any interest in the takutai moana adjacent to the Site.22
[87] Counsel advised that the applicant has a direct engagement application number MAC 01.11.016. No progress appears to have been made toward resolving that claim.
[88] Having clarified that no part of the Site was in the takutai moana, there was nothing in the fact that Ngāti Tukorehe had asserted rights under MACA that made them an “affected party” under the RMA or which obliged HDC to consult with them
21 See Re Edwards (Whakatōhea) (No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [172]. The fact that the Whakatōhea iwi had all their land adjacent to the coast confiscated did not affect their claim under the Act.
22 See CIV-2017-485-273 Re an application by Patrick Seymour on behalf of Te Whānau Tima (Seymour) and Te Ahi Kā o Te Mateawa.
or which should have put the Council on notice that the applicant might be an “affected party”.
Absence of acknowledgements of sites of cultural significance in the District Plan
[89] In his evidence, Mr McCorkindale—the Group Manager, Community Vision and Delivery, at HDC—noted that two of the many iwi in the Horowhenua District (Rangitāne o Manawatū and Ngāti Apa) had completed their treaty settlement process and had statutory acknowledgements in the Horowhenua District Plan of their sites of cultural significance. Ngāti Tukorehe, who had not yet had their settlement did not have any such acknowledgements. This meant that there was no current defined place for HDC processing planners to check if a proposal contained a site of cultural significance or a wāhi tapu.
[90] Ngāti Tukorehe says that this fact meant that HDC made a reviewable error in not having undertaken further specific investigations to see if Ngāti Tukorehe might have had cultural interests in the subject site.
[91] Mr McCorkindale filed a brief of evidence in these proceedings and his view, based on his experience of previous resource management processes in the Horowhenua District, was that it was appropriate for the Council officers to rely on the draft CVA prepared in collaboration with Ngāti Kikopiri in relation to the Site and that it was Ngāti Kikopiri who was the appropriate entity to provide the cultural values assessment. His view was that, at the time of processing the Application, the Council officers would not have been aware of the information that would have given them any basis to determine that Ngāti Tukorehe should have been considered in respect of the Site rather than or as well as Ngāti Kikopiri.
[92] Grenadier’s position was that as mana whenua in respect of the Site, Ngāti Kikopiri were the appropriate entity to be consulted and that Ngāti Kikopiri had identified all of the relevant cultural values in respect of the whole site and not just part of it.
[93]As Philip Tataurangi in his affidavit of 3 May 2024 notes:
As kaitiaki or authority of the Whenua on Muhunoa Rd West, Ngāti Kikopiri is responsible for representing their whenua and protecting all taonga in this area. They are also responsible for ensuring that any adverse effects of any development in the area are avoided not only for Ngāti Kikopiri whanau but for all hapū and whanau that whakapapa to their Muhunoa area.23
[94] In circumstances where there was nothing in the District Plan identifying any site of cultural significance, the Council was presented with a CVA prepared by Mr Tataurangi in collaboration with Ngāti Kikopiri and where the AEE referred to Ngāti Raukawa also having been consulted, it was reasonable for the Council officers not to have sought out any other entities to check whether they might have had sites of cultural significance or wāhi tapu in the Site.
Inappropriate reliance on AEE
[95] The applicant claims that it was unreasonable for the Council officer processing the non-notification and consent applications to have relied “too heavily on the materials supporting the Application”. The specific submission was that it was “not enough to take information at face value”.
[96] It is submitted that the CVA misrepresented the position as being that iwi other than Ngāti Kikopiri (specifically Muaūpoko and Ngāti Raukawa) supported the proposal when they did not and that the Council officer had misunderstood the content of the memorandum of understanding between Grenadier and Ngāti Kikopiri.
[97] HDC did not simply take the AEE and attached documents at face value. They exercised their power under s 92 to call for further information. The Council officers were entitled to use their own knowledge that Ngāti Kikopiri were mana whenua of the subject site and that the District Plan did not record any relevant sites of cultural significance. They were entitled to rely on the traditional boundary between Ngāti Kikopiri and Ngāti Tukorehe as being the Ōhau river. There is no basis for a finding that the CVA misrepresented support for the proposal.
23 Affidavit of Philip Tataurangi 3 May 2024 at [10].
[98] The claim that Ms Xkenjik “closed her mind to the reasonable possibility that other iwi might have interests in and around the application site” is unsustainable. She acted on detailed information before her and appropriately sought further information about the significance of MACA when that issue was raised.
[99] The applicant argues that it did not initially know about the proposed golf course and that throughout 2021 and early 2022 it did not know where the golf course was going to be sited. This argument conflicts with a number of items of evidence. Grenadier’s evidence was that James Mackie of Tahamata Inc (the commercial arm of the applicant) called representatives of Grenadier in late June 2020. Tahamata owned a farm bordering the eastern end of the proposed golf course on the northern side of the Ōhau River. They sought a face-to-face meeting with Hamish Edwards, of Grenadier, to discuss the possibility of Grenadier buying the frontage of the Tahamata farm. The purpose was to enable Tahamata to obtain capital to start the further development of a project to build a lifestyle village and sections on the remaining Tahamata land.
[100] As a result of that phone call, Grenadier representatives met with Mr Mackie and Troy Hodson together with a real estate agent Paul Peckett in the Levin library on 9 August 2020 and were joined at that meeting by Ngāti Tukorehe and Te Mateawa elder Pat Seymour. Following the meeting, Grenadier declined the offer to purchase the Tahamata Inc land.
[101] In May 2021, there was another call from Mr Mackie of Tahamata asking to meet to discuss funding of an internet cable from SH 1 to the gate of their property (a distance of some five km). The argument put forward by Mr Mackie was that the proposed golf course would need a cable and Tahamata wanted to be able to “piggy back” on that for the project they had in mind for their land. Again, this was declined by Grenadier.
[102] The applicant did not deny that these meetings occurred but said that the individuals concerned were not mandated to speak on behalf of the applicant.
[103] To the extent that I am able to come to a factual conclusion on affidavit evidence that was not cross-examined on, it is clear that very senior members of Ngāti Tukorehe including those holding positions of control in Tahamata Inc, together with Mr Seymour who was a sufficiently senior member of Ngāti Tukorehe’s hapū Te Mateawa to be the hapū’s nominated claimant under MACA, were aware as early as July 2020 of exactly where it was proposed that the golf course would be established.
[104] The issue is not whether these people were entitled to speak on behalf of Ngāti Tukorehe but whether they knew as early as July 2020 where the site of the proposed golf course was to be. There has been no challenge to the fact that they were entitled respectively to speak on behalf of Tahamata Inc and the hapū Te Mateawa. It is therefore difficult to accept at face value the applicant’s assertion that it did not become aware of the site of the proposed golf course until well into 2022. On that basis, the applicant’s claims that HDC’s then Chief Executive, Mr Clapperton, was in breach of an obligation to tell the applicants of the site of the proposed golf course, fall away.
Conclusion on first ground of review
[105] HDC determined that there were no “affected persons” who were required to be notified under s 95B(8) of the RMA. The process that it followed in reaching that conclusion was reasonable. The information that was before it was adequate for it:
(a)to understand the nature and scope of the proposed activity as it related to the District Plan;
(b)to assess the magnitude of any adverse effect on the environment; and
(c)to identify the persons who may be more directly affected.
[106] The information was sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[107] While it is not necessary in these proceedings to determine the extent to which the amendments to the RMA altered the statutory test, I agree with the observation of
the Court of Appeal in Coro Mainstreet (Inc) v Thames-Coromandel District Council24
where it said:
However, we consider that the possibility that the substantial amendments to the relevant provisions of the RMA since the decision in Discount Brands, which were directed at providing greater facility for non-notification, have altered the law as articulated in Discount Brands needs further evaluation. The changes to the statute have been significant.
[108] It could not have been known at the time that the Application was considered that Ngāti Tukorehe would advance a claim that the Te Mateawa Pā Tirotirowhetū had in fact been located on the Site. The first ground of review therefore fails.
Analysis of second ground of review
[109] A number of the matters discussed under the first ground of review were also submitted as justifying the second ground that the HDC failed to consider relevant matters. Essentially, the applicant argues that the cultural effects of the proposed golf course on the Site were at least minor. This argument is premised on the proposition that the Tirotirowhetū Pā site was in fact within the bounds of the golf course.
[110] As discussed above, that is contrary to the evidence of the witnesses for the respondent referred to at [81]. It is alleged that the proposed earthworks will cause a “desecration of this wāhi tapu and wāhi tupuna”. It is further alleged that “[t]he earthworks alone will have significant and irreversible effects on Tirotirowhetū itself, as well as Ngāti Tūkorehe’s ability to be kaitiaki in relation to this sacred space.”
[111] It is not for this Court to substitute its view for HDC’s view on what the physical effects of matters such as earthworks will be. If HDC followed a reasonable process, considered relevant matters and did not consider irrelevant matters then on a judicial review the Court cannot interfere.
[112] The applicant’s submissions refer to earthworks in the context of what is said to be an “ecologically significant coastal dune system”. The implication is that the ecological effects of granting the consent will be more than minor. However, it seemed
24 Coro Mainstreet (Inc), above n 16, at [34].
to be accepted that the overall ecological benefits of the proposal (the removal of the extensive exotic weed and tree infestation and replacement with the significant native plantings) would be beneficial. It is therefore difficult to see what an assertion that the coastal dune system is ecologically significant adds to the applicant’s argument. The second ground of review therefore fails.
Analysis of the third ground of review
[113] The applicant’s claims as to the effect of Mr Boffa’s evidence are misconceived. He did not ignore or misdescribe the Coastal ONFL area. He merely pointed out that as a result of vegetation change in the period of time since this area was first described, the boundary had moved slightly closer to the coast. The decision maker was fully aware of what Mr Boffa was saying and there is no basis for speculating that Mr Boffa’s evidence on this point had any significance one way or the other on the Consent Decision. No irrelevant consideration was taken into account and there was no error of law.
[114] Although the applicant has challenged both the Notification and the substantive Consent Decision, the challenge to the Consent Decision was essentially the same as the challenge to the Notification Decision, namely that the applicant was an affected person and had at least minor cultural interests which the Council was required to have regard to and did not. Therefore, the findings in respect of the Notification Decision also dispose of the challenge to the Consent Decision.
Relief
[115] Both parties addressed submissions on the Court’s discretion in relation to relief. Because I have found that all three grounds for judicial review fail, I do not need to consider relief but in case I am wrong in that conclusion, I will set out my views.
Delay
[116] There was a delay of approximately 23 months between the resource consent being granted on 5 October 2021 and the applicant filing proceedings on 8 September
2023. Delay has long been recognised as a factor counting against the discretionary grant of relief.25
[117] There is an obligation on an applicant for judicial review to act with due diligence and speed. That is particularly important in the context of the issuing of a resource consent so that applicants who have been granted consent can be confident in the validity of their consent.
[118] Where there has been extensive delay there is an onus on an applicant for judicial review to adequately explain that.26
[119] In Speargrass Holdings Ltd v Queenstown Lakes District Council27 a delay of two and a half years was held to be a reason to decline relief. In Turner v Allison28 the Court of Appeal held a one-year delay before filing proceedings barred relief and in Barrett v Te Runanga o Ngāti Pu Inc29 the High Court held that one and a half years was a “quite unreasonable delay in the circumstances”. As Graham Taylor in Judicial Review: A New Zealand Perspective comments:30
The yardstick of reasonableness is not susceptible of a rule-based approach but depends on a number of factors including the length of the delay, the reasons for it, the effect of the delay on third parties or on public administration, and any legislative indication of a special need for promptness. Both the seriousness and effects of the illegality are relevant ... Every case will depend on the individual mix of relevant factors. Of them, the effect of delay on third parties is likely to be critical.
(citations omitted)
[120] Here, Grenadier points to the significant expenditure it incurred as a result of the decisions under challenge.
25 See New Era Energy Inc v Electricity Commission [2010] NZRMA 63 (HC) at [64].
26 See Philip A Joseph and Jason McHerron Laws of New Zealand Administrative Law: Discretion (online ed) at [145].
27 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009, (2018) 20 ELRNZ 645 at [208].
28 Turner v Allison [1971] NZLR 833 (CA) at 850–851.
29 Barrett v Te Runanga o Ngati Pu Inc [2002] NZAR 296 (HC) at [32]–[34].
30 Graham D S Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 190.
[121] The applicant’s position is that Grenadier completed work at its own risk in the face of “clear opposition of Ngāti Tukorehe and with full knowledge that it cannot exercise all of the district consents without regional consents”. Grenadier’s response to that assertion is found in the affidavit evidence of Brendan Allen.31 His evidence was that Grenadier’s total expenditure on the project thus far was $5.3 million, approximately 76 per cent (or $4.5 million) of which had been incurred since HDC granted the consent and that 60 per cent (or $3.14 million) was incurred after HDC granted consent and prior to Ngāti Tukorehe announcing it had filed papers concerning the HDC decision.32 Its reason for continuing expenditure following the grant of consent was:
(a)the lease of the site continued to run;
(b)much of the capital, personnel and machinery costs were already established and needed to be used efficiently;
(c)the only aspect of the subsequent Regional Council’s decision that was adverse related to earthworks in the coastal foredune; and
(d)Grenadier has an agreement to purchase the land at 765 Muhunoa West Road and an agreement to lease it in the interim. The lease permits Grenadier to maintain the land and to make the property more suitable for golf and undertake large scale exotic vegetation removal which has been done.
[122] The applicant relies on the evidence of Tina Wilson33 and Kelly Bevan34 to explain their delay. Ms Bevan says that she did not learn of the 5 October 2021 decision until February 2022, and says at that stage the applicant was focused on engaging with Grenadier on the regional consents that Grenadier required. Ms Wilson says that the applicant did not engage legal counsel until late 2022 after Grenadier
31 Affidavit of Brendan Karl Allen dated 1 May 2024 at [16]–[27] and [38].
32 The $4.5 million sum expended since the consent was granted actually amounts to 85 per cent of the total expenditure of $5.3 million.
33 Affidavit of Tina Marie Wehipeihani Wilson dated 16 May 2024.
34 Affidavit of Kelly Marie Bevan dated 3 April 2024.
appealed the Regional Council consents. She says the applicant remained focused on addressing the Regional Council consents. She points out that the applicant is “an under-resourced, pre-settlement iwi with a range of competing priorities”. She says the applicant was actively opposing Grenadier’s appeal to the Environment Court. She says it was the applicant’s expectation that Grenadier would not continue to progress any work until the outcome of the Environment Court appeal in relation to the Regional Council consent was known.
[123] Grenadier were entitled to proceed to implement the District Council consents. They were under no obligation to not undertake any work until the Regional Council had also granted consent for these matters that were in the Regional Council’s jurisdiction. The fact that Ngāti Tukorehe opposed the application to the Regional Council for consent meant that there was some element of risk in Grenadier continuing to implement the District Council consent although, as Ms Wilson acknowledges in her evidence, both Ngāti Kikopiri and Muaūpoko were supportive of the Application, and they had not identified any adverse cultural effects. That would have given Grenadier some confidence.
[124] The various factors referred to by Grenadier in explaining why they continued with expenditure on the project following the grant of HDC consent go some way to justifying their actions.
[125] Weighing all the factors in the balance, Grenadier cannot be criticized for proceeding with its expenditure. It is clear that on their own admission, since they become aware of the decision in early 2022, the applicant chose to focus its energies and resources on challenging the Regional Council consents decision. That was a strategic decision it was entitled to make. It’s failure to promptly engage legal counsel to advise them once they knew of the HDC decision is also a decision that they alone are responsible for. They cannot avoid the fact that they delayed challenging the HDC decision until September 2023. In circumstances where Grenadier had reasonably spent substantial sums implementing the HDC decisions, that delay is simply too long. Of itself, that delay justifies the exercise of the Court’s discretion to refuse the relief sought.
Futility
[126] Grenadier have also raised the issue of futility. Grenadier has submitted that the 2023 Environment Court proceedings concerning the appeal against the Regional Council consents will ultimately determine whether any activity will be likely to alter the physical environment either by way of earthworks or indigenous vegetation clearance in a way that is unacceptable. It is therefore argued that granting the relief sought will have no “practical value”.
[127] Grenadier also complains that the motives behind the applicant’s litigation are unreasonable and unachievable. They refer to the evidence discussed above given in the Environment Court to the effect that Ngāti Tukorehe want the entire site returned to what is described as a “hau ora state”. Although that objective is not mentioned in the statement of claim in these proceedings, counsel for Grenadier says that it indicates the applicant’s true objectives which amount to an improper use of judicial review.
[128] Grenadier also submits that adequate alternative procedures are available in relation to what it describes as Ngāti Tukorehe legitimate interests, namely the preservation of such middens as may exist or be discovered in the future. Grenadier undertakes to follow the advice of Ms O’Keefe and apply for a general authority under the Heritage New Zealand Pouhere Taonga Act. It is submitted that, in combination with the provisions of the enactment protecting archaeological sites, this would adequately control the possibility of any earthworks disturbing sites meeting the definition of archaeological sites.
[129] While the delay is enough in itself to justify declining the relief sought, there is substance to the respondent’s arguments that the relief sought is not necessary to achieve the objectives stated by the applicant in this Court, namely the protection of ancestral sites. The statutory provisions protecting archaeological sites will achieve that result.
[130] The stated objectives articulated by the applicant before the Regional Council and in the Environment Court are concerning. As noted above at [44]–[45] the objectives of allowing the Site to revert to some sort natural state, for the golf course to be reduced in size to nine holes or for there to be some form of “co-design” between
Grenadier and the applicant are not matters that are legitimate public objectives. These factors also militate against the granting of the relief sought.
Result
[131] None of the three grounds of review have been made out by the applicant. The application for judicial review is therefore declined.
Costs
[132] Justice Palmer has previously determined that the costs in this matter will be calculated on a 2B basis.35 Since the applicant has been unsuccessful, the respondents are entitled to costs. I encourage the parties to agree costs amongst themselves. They are to have 14 days to attempt to do that. If that is not possible the first and second respondents are to file and serve memoranda no later than 20 August 2024. The applicant is to file and serve a memorandum in reply no later than 3 September 2024. The issue of costs will then be dealt with on the papers.
Churchman J
Solicitors:
Whaia Legal, Wellington for Appellant
Buddle Findlay, Wellington for First Respondent Hardy-Jones Clark, Blenheim for Second Respondent
35 Te Iwi o Ngāti Tukorehe Trust v Horowhenua District Council HC Wellington CIV-2023-485-557, 16 October 2023 (Minute of Palmer J).
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