Transpower New Zealand Limited v Tauranga Environmental Protection Society Incorporated

[2022] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA382/2021
 [2022] NZCA 9

BETWEEN	TRANSPOWER NEW ZEALAND LIMITED Applicant
AND	TAURANGA ENVIRONMENTAL PROTECTION SOCIETY INCORPORATED First Respondent TAURANGA CITY COUNCIL Second Respondent BAY OF PLENTY REGIONAL COUNCIL Third Respondent

Court:	Kós P and Cooper J
Counsel:	A R Galbraith QC and A J L Beatson for Applicant J D K Gardner-Hopkins for First Respondent M H Hill for Second and Third Respondents
Judgment: (On the papers)	4 February 2022 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

BThe applicant must pay the respondents costs for a standard application on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. Transpower applies for leave to bring a second appeal in this Court following a decision of the High Court overturning planning consents granted at council level in 2018.

Background

1. Ngāti He is a hapū with land in Maungatapu.  The Maungatapu Marae lies on its land.  In the 1950s, a power line was built near that land, contrary to the wishes of that hapū.  Transpower has proposed replacement of that line.  But that would involve a monopole pylon being constructed near the Marae.  Ngāti He opposes the new line also. 

2. Tauranga Environmental Protection Society Inc (TEPS) is a residents’ group which contends its members’ views of Tauranga would be affected by the new power line.  TEPS also opposes the new power line.

3. In 2018, the Tauranga City Council and the Bay of Plenty Regional Council granted Transpower the consents for the new power line.  TEPS challenged the consents in the Environment Court.  The Environment Court upheld the consents.[1]  TEPS then appealed the Environment Court decision to the High Court.  The High Court allowed the appeal.[2]  It remitted the consent application back to the Environment Court.

   [1]Tauranga Environmental Protection Society Inc v Tauranga City Council [2020] NZEnvC 43.

   [2]Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, [2021] NZRMA 492.

4. Transpower now applies for leave to bring a further appeal against the High Court decision.

Jurisdiction

1. Under s 308 of the Resource Management Act 1991, appeals to this Court are governed by subpt 8 of pt 6 of the Criminal Procedure Act 2011.  Transpower may bring an appeal on a question of law under s 303 of that Act with leave of this Court.  This Court must only grant leave if the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3]  The threshold of general or public importance is met where a proposed appeal raises an important question of law that has broad application beyond the circumstances of the particular case.[4]

   [3]Criminal Procedure Act 2011, s 303(2).

   [4]Canterbury Regional Council v Dewhirst Land Co Ltd [2019] NZCA 486, [2020] 2 NZLR 10 at [12], citing R v Kuru [2015] NZCA 414, (2015) 27 CRNZ 777 at [7].

2. On 12 November 2021 this Court required Transpower to focus its proposed appeal by stating the specific questions of law it proposed this Court consider.  On 24 November 2021 Transpower provided a list of 12 specific questions for consideration.  That list is attached to this judgment.  Further submissions were received from Transpower and TEPS.

Discussion  

1. Questions 1 and 2 are essentially the same question framed in different terms.  They ask whether the High Court could lawfully overturn the Environment Court’s factual findings as an error of law.   That question turns on a fact-specific assessment of the sufficiency of the evidence on which the Environment Court made its conclusions.  Sufficiency of evidence does not raise a question of general importance, or otherwise meet the criteria in s 303.  It does not justify consideration by this Court.

2. The remaining questions are dependent on answers given to Questions 1 and 2.  Although some raise questions of more general import, their dependency on Questions 1 and 2 is fatal to leave being granted here. 

3. We note two final points.  First, a number of the issues now raised are addressed by the decisions of this Court in Port Otago Ltd v Environmental Defence Society Inc and RJ Davidson Family Trust v Marlborough District Council.[5] In considering the issues remitted by the High Court, the Environment Court will have to bear those authorities carefully in mind.  Secondly, it is entirely conceivable that further appeals will flow from that reconsideration.

Result

[5]Port Otago Ltd v Environmental Defence Society Inc [2021] NZCA 638; and RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283.

1. The application for leave to appeal is declined.

2. The applicant must pay the respondents costs for a standard application on a band A basis with usual disbursements.

Solicitors:
Bell Gully, Wellington for Applicant
Sharp Tudhope, Tauranga for First Respondent
Cooney Lees Morgan, Tauranga for Second and Third Respondents

Attachment 1: List of questions of law

1. Question 1.[6]  Did the High Court err as a matter of law in finding that it had jurisdiction to overrule the following findings of fact made by the Environment  Court on the basis that they were so insupportable in terms of Bryson v Three Foot Six as to amount to errors of law:

   (a)Cultural effects: That the benefits of the proposal to both Ngāti Hē and Ngāi Tukairangi would outweigh the adverse effects of Pole 33’s placement near the marae and kōhanga reo, and that the proposal would not have cumulative adverse cultural effects on Ngāti Hē.

   (b)Landscape and visual effects: That the short and long-term effects of the proposal on the ONFL would be positive or de minimis.

   [6]All footnotes have been omitted.

2. Question 1.a.  When determining the nature and scale of effects of a proposal on an Outstanding Natural Landscape Feature (ONFL), is a consent authority constrained to solely consider evidence given by tangata whenua in relation to their cultural values and relationships with an area which has been classified as an ONFL, or may it accept and place weight on technical evidence from a landscape expert on the effects on the ONFL, within which Māori values are one component?

3. Question 2.  If the answer to Question 1 is no (and the High Court was entitled to overturn the Environment Court’s factual findings), was the High Court’s own, substituted, finding of fact that the proposal would have a significant and adverse impact on an area of cultural significance to Ngāti Hē and on Māori values of the ONFL itself so insupportable in terms of Bryson v Three Foot Six as to amount to an error of law?

4. Question 2.a.  Is evidence of “opposition” to a proposal sufficient to satisfy the evidentiary burden referred to by the High Court in relation to the cultural effects of a proposal?

5. Question 3.  If the answer to Question 2 is no (and the High Court’s own findings of fact are supportable in terms of Bryson), did the High Court err as a matter of law in applying its substituted factual findings to the planning framework, rather than referring the matter back to the Environment Court for assessment against the planning framework in light of the High Court’s substituted factual findings?

If the answer to Question 3 is no:

1. Question 4.  Did the High Court err as a matter of law in finding that all or any of Policies IW2, NH4, NH5(a)(ia) and NH11 (1) of the Bay of Plenty Regional Coastal Environment Plan (RCEP) (the Iwi Resource Management Policies) create “cultural bottom lines”?

2. Question 5.  Did the High Court err as a matter of law in finding that Objective 3 and Policy 2 of the New Zealand Coastal Policy Statement 2010 (NZCPS) reinforces the Iwi Resource Management Policies of the RCEP as “cultural bottom lines”?

3. Question 6.  Did the High Court err as a matter of law in finding that “not possible” in Policy NH11(1)(b) of the RCEP means only where there is no technically feasible alternative, such that costs and/or necessity for third party action and/or technical preferences are irrelevant considerations?

4. Question 7.  Did the High Court err as a matter of law in finding that the Environment Court was required to undertake its own assessment of whether the alternatives where practicable, practical and possible in terms of the Iwi Resource Management Policies?

5. Question 8.  Did the High Court err as a matter of law in finding that the Environment Court impermissibly applied an “overall judgement” approach when undertaking its s 104 evaluation “in the context of the purpose of the RMA”?

6. Question 9.  Did the High Court err as a matter of law in substituting its own view that recourse to pt 2 of the RMA was required under RJ Davidson for the Environment Court’s view that recourse to pt 2 was not required under that case?

7. Question 9.a. Are planners entitled to form expert opinions on the interpretation of plan policies and the application of pt 2 of the RMA when considering consent applications under s 104 of the RMA?