Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council

In Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, four applicants, namely Te Rūnanga o Ngāti Awa, Sustainable Otakiri Incorporated, Ngāti Pikiao Environmental Society Incorporated, and Te Rūnanga o Ngāi Te Rangi Iwi Trust, sought leave to appeal against the High Court's decision that upheld the Environment Court's dismissal of their appeals against the granting of resource consents to Creswell NZ Ltd by the Bay of Plenty Regional Council and the Whakatane District Council. The applicants sought leave to appeal on several questions of law, which primarily concerned the Environment Court's consideration of the effects of plastic bottles on the environment, the adequacy of the planning instruments, the classification of the activity status of Creswell NZ Ltd's proposal, and the cultural effects of the proposal.

The Court granted leave to appeal on five specific questions of law, reformulating some of the questions put by the applicants. The Court declined to grant leave on the challenges to the correctness of the preferred evidence as regards the tikanga effects of the proposal, observing that what constitutes Maori custom or tikanga in the particular case is a question of fact for expert evidence or for reference to the Maori Appellate Court in an appropriate case. The Court invited the applicants to confer and recognised that a pre-appeal conference may be useful to fix the shape of the appeal and the allocation of roles.

The Court granted leave to appeal on the following five questions of law: (1) whether the High Court erred in finding that the Environment Court was correct to conclude that the effects on the environment of using plastic bottles were beyond the scope of consideration in relation to Creswell NZ Ltd's application for consents to take water, and those relating to land use activities; (2) whether the High Court erred in finding that the Environment Court did not need to seek further evidence, or decline Creswell NZ Ltd's application for consent, in circumstances where the Court had evidence as to the scale of the bottling operation but no evidence as to the scale or adverse effects of plastic bottles being discarded; (3) whether the High Court erred in finding that the Environment Court did not need to have recourse to Part 2 of the Resource Management Act 1991 and, in particular, that the relevant planning instruments provided adequate coverage of the provisions of Part 2, and that an assessment of sustainability by itself was sufficient to address relevant cultural effects, so that no further reference to Part 2 was needed in that context; (4) whether the High Court erred in finding that the Environment Court correctly determined that the activity status of Creswell NZ Ltd's proposal was a discretionary "rural processing activity", rather than a non-complying "industrial activity" including "manufacturing", under the terms of the Whakatane District Plan; and (5) whether the High Court erred in finding that the Environment Court correctly classified Creswell NZ Ltd's proposal as an expansion of an existing use of land, and therefore a discretionary activity under section 127 of the Resource Management Act 1991, rather than as a new activity falling for consideration as a non-complying activity under section 88 of that Act.