Waipapa Bay Protection Society Incorporated v Ariki Tahi Sugarloaf Wharf Ltd
[2023] NZHC 3379
•29 November 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-306
[2023] NZHC 3379
UNDER COVID-19 Recovery (Fast-track Consenting) Act 2020 IN THE MATTER OF
an appeal under clause 44 of Schedule 6 of the Act against the final decision of an
Expert Consenting Panel appointed under the Act
BETWEEN
WAIPAPA BAY PROTECTION SOCIETY INCORPORATED
Appellant
AND
ARIKI TAHI SUGARLOAF WHARF LTD
Respondent
Hearing: 27 July 2023 Appearances:
B S Carruthers KC for Appellant
B J Matheson and J Inns for Respondent R H Ashton for Third Interested Party
Judgment:
29 November 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 29 November 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016.
……………………………… Registrar/Deputy Registrar
Solicitors:Oceanlaw New Zealand, Nelson McCaw Lewis, Hamilton Brookfields, Auckland
WAIPAPA BAY PROTECTION SOCIETY INCORPORATED v ARIKI TAHI SUGARLOAF WHARF LTD [2023] NZHC 3379 [29 November 2023]
AND COROMANDEL MARINE FARMERS ASSOCATION INCORPORATED
First Interested PartyNGATI WHANAUNGA INCORPORATED SOCIETY
Second Interested Party
THAMES COROMANDEL DISTRICT COUNCIL
Third Interested Party
TABLE OF CONTENTS
Paragraph No
Introduction [1]
Statutory context [6]
Grounds of Appeal [12]
Issues [16]
Ariki Tahi and the proposed upgrade [18]
The consent process and Panel decision [24]
The test on appeal [30]
Did the Panel fail to consider whether to apply “bundling” and
consequently apply the wrong test to the application? [33]
Did the Panel fail to correctly apply Policy 10? [53] Should I refer the matter back to the Panel for reconsideration? [78]
Was the Panel’s conclusion on “no more than minor” effects insupportable
on the evidence? [93]
Result [112]
Introduction
[1] Ariki Tahi is a shared commercial and recreational wharf facility constructed on reclaimed land at the western end of Waipapa Bay, a short drive from Coromandel town. It is the primary wharf for the thriving aquaculture industry in the Hauraki Gulf. Residents opposed consent to the wharf in the early 1990s.
[2] The present facility is not fit to continue to meet the needs of the growing industry or of recreational users. In addition to capacity, a key issue is that separation of commercial and recreational use currently relies on measures such as signage and temporary traffic management equipment.
[3] The Waipapa Bay Residents Society is opposed to a proposed upgrade to the facility by Ariki Tahi Sugarloaf Wharf Ltd,1 a joint venture company formed to carry out the upgrade.2 The upgrade would establish five commercial berths and a separate recreation facility with dual boat ramps. The size of the existing facility will be doubled.
[4] The Society acknowledges the economic importance of the aquaculture industry for the region, but says that it should be serviced, instead, from a planned marine servicing and business precinct at Kōpū. The Society is concerned at the amenity, noise and traffic effects associated with the proposed upgrade to Ariki Tahi.
[5] Under the COVID-19 Recovery (Fast-track Consenting) Act 20203 the Minister for the Environment referred ATSWL’s application for resource consents for the upgrade to a three-member Expert Consenting Panel convened under that Act. The Panel granted the application. In this appeal, the Society says that the Panel made errors of law in its decision.4 It asks the Court to refer the matter back to the Panel for reconsideration.
1 ATSWL.
2 ATSWL is a joint venture company owned by the Thames-Coromandel District Council, the Coromandel Marine Farmers Association, and Crown Regional Holdings Ltd in equal shares.
3 FTCA. The FCTA was repealed on 8 July 2023, by FTCA s 3(1) subject to savings provisions.
4 Under sch 6, cl 44(1)(d) of the FTCA, a party who provided comments in response to an invitation may appeal the decision of the panel to the High Court.
Statutory context
[6] The purpose of the FTCA is to provide a fast and simplified decision-making process for resource consents to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19, while continuing to promote the sustainable management of natural and physical resources.5 A resource consent granted under the FTCA is the same as if it were granted under the Resource Management Act 1991.6
[7] Under the FTCA, the public notifications and hearing process is replaced by a streamlined notice and comments process. 7 The provisions of the RMA otherwise apply to the extent they are relevant and with any necessary modifications. The Panel’s consideration of a referred project is almost identical to the usual considerations of a consent authority under the RMA.8 The only substantive difference is the requirement for the Panel’s consideration to be subject to the purpose of the FTCA as well as the purpose of the RMA. Nothing turns on that in this appeal.
[8] The upgrade to Ariki Tahi requires land use consent under the Proposed Thames-Coromandel District Plan9 for use of the land that is to be reclaimed for the upgrade. This is a “non-complying” activity under the RMA. As relevant to the appeal the rest of the activities for which consents are required are “discretionary” or “restricted discretionary” activities.
[9] Obviously, use of the land to be reclaimed will only occur because of that reclamation. Given this interrelationship, there is no dispute that the entire project should be “bundled” as a non-complying activity. In short, this means that even though the other activities have a less restrictive status, the application should be assessed as if the entire project is a non-complying activity, not just the use of the reclaimed land.
5 FTCA, s 4.
6 RMA.
7 Te Korowai O Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810, (2022) 24 ELRNZ 269 at [27]–[58] provides a full exposition of the process for referred projects under the FTCA that is summarised in this paragraph.
8 FTCA, s 12(10).
9 Proposed Plan.
[10] By s 104D of the RMA a consent authority can only grant a resource consent for a “non-complying activity” if it is satisfied either that the adverse effects of the activity on the environment will be minor; or the application is for an activity that will not be contrary to the objectives and policies of the relevant plan(s).10 Here that is the Proposed Plan. These are known as the “effects gateway” and the “policy gateway”.11
[11] If either the “effects gateway” or “policy gateway” in s 104D are passed or are not required, the consent authority makes the general substantive and evaluative assessment of the application under s 104 of the RMA.
Grounds of Appeal
[12] As its first two grounds of appeal, the Society says the Panel failed to consider whether bundling was required, and that it consequently applied the wrong legal test when considering the s 104D gateway tests. The consequence of the error goes to the Panel’s conclusion that the s 104D threshold was met. The Society says I should refer the application back to the Panel for reconsideration applying the correct approach.
[13] As a third ground, the Society says that the Panel reached a conclusion that the effects gateway was met for the non-complying activity (land use of the reclaimed land) when its conclusion that the effects were no more than minor was not supported by the evidence.
[14] Having passed through the gateway in s 104D to the s 104 assessment, the Panel was required to have regard to Policy 10 of the New Zealand Coastal Policy Statement 2010.12 This requires reclamation of land to be avoided in the coastal marine area unless certain factors are met. Where reclamation is considered suitable, the policy stipulates matters that are to be considered in considering the form and design of the reclamation. As a fourth ground of appeal the Society says the Panel failed to apply Policy 10 correctly.
10 FTCA, sch 6, cl 32 confirms that s 104D applies.
11 Also referred to as the “threshold” test.
12 Clause 31(1)(c) requires the Panel to have regard to any relevant provisions of the documents listed in cl 29(2). Listed in cl 29(2) is the New Zealand Coastal Policy Statement (NZCPS).
[15] ATSWL rejects that the Panel substantively erred in any of the ways contended. Alternatively, it says that any reconsideration by the Panel would inevitably lead to the same outcome, and the interests of justice would not be served by referring the matter back. The Thames-Coromandel District Council,13 as interested party, supports and adopts ATSWL’s submissions. No other interested parties sought to be heard on the appeal.
Issues
[16]In the order in which I propose to consider them, the issues are:
(a)Did the Panel fail to consider whether to apply “bundling” and consequently apply the wrong test to the application?
(b)Did the Panel fail to correctly apply Policy 10?
(c)If there is an error, should I refer the matter back to the Panel?
(d)Was the Panel’s conclusion on “no more than minor” effects unsupportable on the evidence?
[17]I first need to provide some further factual context.
Ariki Tahi and the proposed upgrade
[18] Ariki Tahi presently handles 25,000 tonnes of harvested aquaculture per annum. This comprises approximately 90 per cent of the mussels harvested in the North Island. Harvest volumes at Ariki Tahi are predicted to increase 68 per cent to approximately 42,000 tonnes per annum by 2040.
[19] Ariki Tahi is located on reclaimed land that was authorised by resource consents granted in 1993 and 1999. At the outset, the challenges associated with a lack of separation of commercial and recreational use at the facility were recognised. When approving reclamation in 1992, the decision-making committee contemplated
13 The District Council.
that an increase in the use of the facility by commercial users would require provision of an alternative site. This was premised on the need for there to be separation of the two types of use that the existing facility did not provide.
[20] Over time, the challenges of the lack of separation have been exacerbated by Ariki Tahi’s steadily increasing use. Notwithstanding mitigating measures such as signage and temporary traffic management equipment there remain health and safety issues associated with the joint use.
[21] Ariki Tahi currently consists of one recreational boat ramp, a shared recreational/commercial boat ramp, two commercial vessel berths, land-based facilities (vehicle parking, storage of aquaculture equipment and a kiosk/toilet block). It is a prominent feature in the bay. The activities at the wharf also create noise and traffic impacts. The natural character of the bay has been affected.
[22] In mid-2020 ATSWL was formed as the vehicle for an upgrade. As the Panel recorded, the purpose of the upgrade is:14
… to provide for the predicted increase in harvested aquaculture in the Coromandel/Hauraki Gulf over the coming decades and to address the lack of separation of the commercial and recreational users on [Ariki Tahi] which creates health and safety risks.
[23] The proposed upgrade establishes five commercial berths and a separate recreation facility with dual boat ramps. This would require the reclamation of an additional 6,900 square metres of seabed. Dredging of the seabed would provide an all-tide approach channel and need periodic maintenance dredging. The size of the existing facility will be doubled. What was a prominent feature of the bay will become more so.
14 Record of decision of the Expert Consenting Panel under clause 37, schedule 6 of the COVID-19 Recovery (Fast-track Consenting) Act 2020, concerning the Ariki Tahi Wharf, Waipapa Bay, Coromandel, 20 September 2022 [Panel Decision] at [45].
The consent process and Panel decision
[24] ATSWL applied for resource consent in June 2022. The application was accompanied by an Assessment of Environmental Effects and its appendices. I will refer to this as the AEE.
[25] On 13 July 2022, the application was referred to the Panel under the FTCA after the Minister for the Environment had determined that the purposes of the Act would be met by the upgrade. The Society and the District Council were two parties entitled or invited to comment.
[26] The Panel received comments which included some expert peer review and response to the AEE expert reports. ATSWL responded to this. The Panel visited the site and held meetings. The Panel also considered draft consent conditions and subsequent iterations following comments on these.
[27] The Panel issued its decision on 20 September 2022, shortly outside the truncated fast-track time frame of 25 working days after the date specified for receiving initial comments on the proposal.15
[28] I come back to findings of the Panel on matters specific to appeal points below. For now, it is enough to say that the Panel concluded that:
(a)Ariki Tahi is a suitable location to establish a service wharf to cater for the future growth of the aquaculture industry in the Hauraki Gulf/Tīkapa Moana;
(b)Noise and traffic effects can be avoided, remedied or appropriately mitigated through measures included in the Application and by the conditions of consent;
…
(d)Due to its location, the aquaculture industry would have continued to utilise the existing facilities at Ariki Tahi, regardless of whether or not consents were granted for its upgrade;
(e)Traffic mitigation measures from the Application should overall, result in safer traffic road conditions.
15 Subject to extension in limited circumstances.
[29]In its conclusion the Panel recorded that:
262. Having considered the Applicant’s assessment of this proposal in the AEE against the purpose of the FTA and the sustainable management principles in Part 2 of the RMA, the comments received from various parties, and taking into account the proposed conditions that will control activities on the wharf, the Panel is satisfied the upgrade of Ariki Tahi will meet the purpose of the FTA and will promote the sustainable management of natural and physical resources in accordance with the s 5 of the RMA.
The test on appeal
[30] An appeal under the FTCA is limited to questions of law.16 An error of law may exist where a decision maker:17
(a)applied the wrong legal test;
(b)reached a factual finding that was “so insupportable – so clearly untenable – as to amount to an error of law”;
(c)came to a conclusion that it could not reasonably have reached on the evidence before it; or
(d)took into account irrelevant matters; or failed to take into account matters that it should have considered.
[31] It is not the role of the Court in an appeal on a question of law to undertake a broad reappraisal of factual findings or the exercise of the decision-maker’s evaluative judgements.18 An assessment of whether there has been an error of law cannot be overly technical or semantic.19 When a decision has been made by an expert tribunal (or here the Panel), “[d]eference to expertise where appropriate must be accorded”.20
[32]I now turn to address the grounds of appeal.
16 FTCA sch 6, cl 44(2).
17 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd, above n 7, at [28] citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 (footnotes omitted).
18 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112].
19 At [112].
20 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd, above n 7, at [32].
Did the Panel fail to consider whether to apply “bundling” and consequently apply the wrong test to the application?
Consents required
[33] The consents required under the Waikato Regional Coastal Plan were for the following activities in Waipapa Bay: for reclamation, for dredging (capital and maintenance) and deposit of material; for the erection, placement, use and occupation of space by structures; for the discharge of water and contaminants during construction; and for the discharge of water and contaminants as part of the operation and maintenance of Ariki Tahi. All these were for discretionary activities apart from the consent for discharge of contaminants during construction (which was a non-complying activity).
[34] Under the Waikato Regional Plan, a land use consent was required to undertake soil disturbance activities within a high-risk erosion area, as was a discharge permit to discharge clean fill to land in that area. Both were discretionary activities.
[35] Ariki Tahi is zoned for marine services which provides for marine-related industrial and commercial activities and marine-related industrial services facilities. Under the Proposed Plan, land use consent was required to authorise the upgrade, operation and maintenance of Ariki Tahi for commercial and recreational purposes within and outside of the marine services zone. The activities within the current zone were restricted and discretionary. The activities outside the zone were non-complying.
[36] The two different activity statuses for land use consents reflects that the planned reclamation is on an area that is not yet part of the district and therefore not yet zoned. As such, the use of the (to be reclaimed) land is a non-complying activity.
[37] Where an application is made for a resource consent for an activity which an applicant intends to undertake within the district once the proposed location of the activity has been reclaimed, the application is treated as if it relates to an activity within the district (ie as if it has already been reclaimed).21 The Panel noted that the relevant provisions of the Proposed Plan apply on that basis.22
21 RMA, s 89.
22 Panel Decision, above n 14, at [56].
Bundling
[38] The Society says the Panel failed to consider whether the resource consents should be bundled and treated as having a non-complying activity status, and consequently applied the wrong legal test. “Bundling” is a rule of practice under the RMA and its predecessor legislation.23 It refers to considering the “bundle of uses” proposed in an application and determining whether the most restrictive activity status of any use should be applied to the project overall.
[39] Bundling is a practice that can have substantive effects. It may result in a proposal which largely complies with all relevant standards and rules being considered a non-complying activity overall because of one aspect that is central to the proposal.24 The question as to whether or not to bundle is discretionary and turns on the degree of overlap between the effects of the relevant activity.25 Commonly the issue of whether to bundle consents first arises at the point of considering whether notification is required, but here notification requirements were displaced under the FTCA.
[40] There is no dispute in the appeal that bundling was appropriate given the overlap between the reclaiming of land/upgrade overall and the non-complying activity of use of the land to be reclaimed.26 Bundling required the Panel to evaluate the project on a holistic basis, looking over the entire application and a range of effects. Specifically, bundling required the following approach to the threshold tests in s 104D:27
(a)Effects gateway: the adverse effects of the proposal are to be considered to assess whether they are no more than minor to determine whether the proposal as a whole passes through the effects gateway, not just those related to the non-complying activity of land use of the area to be reclaimed outside the marine services zone.
23 Project Aotea v Auckland Council [2021] NZEnvC 140 at [22].
24 At [20].
25 Day v Manawatu-Wanganui Regional Council [2012] NZEnvC 182 at [3-111] and [3-134].
26 The present facts have some similarity to those in Urban Auckland v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 involving extension of port facilities in Auckland.
27 Consent for a coastal permit to discharge water and contaminants during construction is the other non-complying activity under the Waikato Regional Coastal Plan. The Society does not contend that the Panel’s approach to this activity has consequence, so I do not consider it further.
(b)Policy gateway: the entire project must be assessed through the lens of the objectives and policies of the plan or policy against which part of the proposal is non-compliant. In this case, that involves assessing the project against the objectives and policies of the Proposed Plan, as it is under that plan that there is a non-complying activity.
[41] Mr Matheson for ATSWL submitted that the practice of bundling is more directed at assessing effects than whether a project meets objectives or policies. He pointed to older cases like Locke v Avon Motor Lodge Ltd as an example of this.28 I did not understand his argument to be that bundling does not or cannot apply to aspects other than effects. I consider bundling does have a broader application and applies to the policy gateway.
The approach in the AEE
[42] The AEE adopted a bundled approach. There was a specific section dedicated to and entitled “Section 104D Assessment.” This addressed each of the s 104D gateways and in doing so was focussed on considering effects across the entire project and also addressed the entire project against the policies and objectives of the Proposed Plan.
The approach taken by the Panel
[43] In Part G the Panel carried out an effects assessment. As Ms Carruthers KC for the Society submitted, there are a number of references to “acceptable” and “reasonable” in this section. 29 This suggests the Panel in this section was not addressing the question of whether such effects were “no more than minor” for the purpose of the effects gateway on a bundled basis in s 104D. It was carrying out the broader evaluation required under s 104.
28 Locke v Avon Motor Lodge Ltd (1973) 5 NZTPA 17 (SC).
29 Panel Decision, above n 14, at [122], the Panel concluded the impact on natural character, surrounding landscape and visual effects will be “acceptable”. In its conclusions on the proposed conditions, at [255] the Panel addressed the Waikato Regional Coastal Plan direction that the noise must not exceed a “reasonable level”, and concluded that the condition would address this. This section concluded, at [260], that the Panel was confident that the conditions “will appropriately manage any adverse effects that may arise”.
[44] In Part D the Panel set out the regional and district planning context and the consents required. In Part I the Panel returned to each of the regional and district planning documents including the Proposed Plan in a section entitled “Regional and District Planning Considerations”. Here, the Panel went through the relevant objectives and policies of each of the policies and plans in order of hierarchy. It made separate conclusions on each. This included conclusions on the Proposed Plan.
[45] On the Proposed Plan, the Panel referred to the zoning of the Ariki Tahi area as Marine Service Zone. It noted that the proposed upgrade was consistent with the purpose of the zone but that the activities and the effects for which land use consents were being sought needed to be considered against the other objectives and policies in the Proposed Plan. It went on to do that by considering all relevant policies: bio-diversity management, management of activities in the coastal environment, protection of historic heritage, recognition of tangata whenua interests, traffic management, and noise levels. It made conclusions on each.
[46]At the end of the section (Part I) the Panel said:
246. Finally, we note that under the [Proposed Plan] a number of the wharf related activities that are to take place on the newly reclaimed area of the wharf and therefore fall outside the Marine Service Zone. These activities are to be considered as non-complying activities. In our view, those activities are not inconsistent with the overall objectives and policies in the [Proposed Plan].
[47]The Panel then concluded:
Panel Findings:
248.Overall, having considered the hierarchy of national, regional and district and planning documents that are engaged by this Project, the Panel is satisfied the construction and operation of the upgraded wharf will not run counter to the relevant objectives and policies in those documents.
Non-complying Activities:
249.We are satisfied the effects from those activities that have the status of non-complying activities will be no more than minor and accordingly pass the gateway test in s 104D of the RMA.
Was the Panel’s approach in error?
[48] Mr Matheson submitted that the Panel must have taken the holistic approach required for bundling because that was the only approach taken in the AEE. There was no other material taking a different approach before the Panel. Because there was nothing analysing effects or policies in terms of non-complying activities alone, Mr Matheson says that when considering and relying upon the AEE, the Panel was in fact alive to the issue of bundling and did not fail to consider whether to do so.
[49] I agree that the AEE approached the application holistically as was required. However, Ms Carruthers is correct that only paragraphs [246] and [249] of the decision are directed at the policy and effects gateways in s 104D.
[50] Given how the Panel has worded these paragraphs by reference to non-complying activities alone, the Panel was not consciously taking a bundled approach to either of the gateways (thresholds) in s 104D. Rather at [246] the Panel was considering whether the activities that are non-complying are contrary to a relevant proposed plan (s 104D(1)(b)); and at [249] whether the effects of the non-complying activities were no more than minor (s 104D(1)(a)). [248] was a more general assessment under s 104. That is, the Panel addressed the effects gateway and policy gateway by reference to non-complying activities only.
[51] I find that the Panel was in error to the extent that it did not specifically apply a bundled approach to the s 104D gateway tests. However, in [248] set out above, the Panel’s overall conclusion on the project was that the upgraded wharf will not run counter to the relevant objectives and policies in any of the various documents that it had just traversed, which included those of the Proposed Plan. So, while not referenced to s 104D, this is a finding that the entire project is not contrary to the policies and objectives of the Proposed Plan.
[52] Mr Matheson argued that while the decision was poorly worded and its structure was not well set out, the Panel did consider all relevant elements in a substantively legally correct manner. He is correct that the Panel did form and express a substantive conclusion on a bundled basis, at least on the policy threshold. In my
view that submission goes to whether I should refer the matter back, rather than the existence of an error. I turn to that issue later.
Did the Panel fail to correctly apply Policy 10?
[53] The Panel concluded that the proposal was not contrary to Policy 10 of the NZCPS. As an alternate ground of appeal, the Society says the Panel did not correctly apply Policy 10.
What is Policy 10?
[54] Policy 10 directs to avoid reclamation of land in the coastal marine area unless prescribed thresholds are met. Policy 10(1) states:
(1)Avoid reclamation of land in the coastal marine area, unless:
(a)land outside the coastal marine area is not available for the proposed activity;
(b)the activity which requires reclamation can only occur in or adjacent to the coastal marine area;
(c)there are no practicable alternative methods of providing the activity; and
(d)the reclamation will provide significant regional or national benefit.
[55] Where reclamation is considered a suitable use of coastal marine area (that is, when those thresholds are met), Policy 10(2) requires regard to be had to certain matters in considering the form and design of the reclamation:
(a)the potential effects on the site of climate change, including sea level rise, over no less than 100 years;
(b)the shape of the reclamation, and, where appropriate, whether the materials used are visually and aesthetically compatible with the adjoining coast;
(c)the use of materials in the reclamation, including avoiding the use of contaminated materials that could significantly adversely affect water quality, aquatic ecosystems and indigenous biodiversity in the coastal marine area;
(d)providing public access, including providing access to and along the coastal marine area at high tide where practicable,
unless a restriction on public access is appropriate as provided for in policy 19;
(i)the ability to remedy or mitigate adverse effects on the coastal environment;
(f)whether the proposed activity will affect cultural landscapes and sites of significance to tangata whenua; and
(g)the ability to avoid consequential erosion and accretion, and other natural hazards.
What did the Panel do?
[56] The relevant part of the Panel’s decision needs to be reproduced to address the multi-pronged arguments for the Society:
216.The Applicant has undertaken in the AEE a detailed planning analysis of the Project against the relevant provisions of the NZCPS.
217.We generally agree with that assessment and its conclusion that the proposal can be undertaken in a manner that is consistent with the sustainable management outcomes sought for the coastal environment in the NZCPS.
218.We have had particular regard to Policy 10 which requires reclamations to be avoided unless prescribed thresholds are met including that there are no practical alternative methods of providing the activity.
219.In doing so, firstly, we consider the location of the reclamation to be appropriate being an extension of an existing reclamation that can be undertaken outside any identified outstanding natural character or landscape areas and without adverse effects on key species protected by Policy 11 of the NZCPS.
220.As to whether there are other ways to upgrade the wharf without reclaiming the seabed, we are satisfied pontoon or pile structures would not be practical options given the nature of the commercial operation.
…
222. Overall, the Panel considers the Project is not contrary to any of the relevant objectives and policies of the NZCPS.
Was the Panel in error in failing to satisfy itself that there are no “practicable alternative methods of providing the activity”?
[57] Policy 10 requires reclamation to be avoided unless there are “no practicable alternative methods of providing the activity”. The “activity” here is the enhanced
recreational and commercial use of the current landing facility (the wharf upgrade); or more generally, provision of a landing facility for aquaculture in the Hauraki Gulf.
[58] The Society’s primary challenge to the Panel’s decision on Policy 10 is that the Panel failed to satisfy itself that there are “no practicable alternative methods”. The Society says that the Kōpū Marine Precinct offered a potential “alternative method”. The Panel is said to be in error as it made no finding on its viability.
[59] The Society interprets “alternative methods” as encompassing “alternative sites or locations”. I do not accept that interpretation. The Policy statement would have included reference to location if that is what was intended, particularly given that the RMA and the Policy does this elsewhere.30 The sub-clause is addressing whether reclamation can be avoided, not where it takes place. That is, the issue is whether there are methods other than reclamation that can be used for the activity.
[60] I also accept Mr Ashton’s submission, for the District Council, that the Society’s interpretation would place an unworkable burden on a consenting authority to exclude other locations. That is a further reason it is unlikely to have been intended that “methods” encompasses “locations”.
[61] Ms Carruthers is correct that in [218] and [219] of its decision the Panel itself appears to have viewed the wording as encompassing location. However, the Panel went on to make a clear finding that pontoon or pile options would not be practicable alternative methods given the nature of the commercial operation.31 No one suggests alternative methods could be used. That is enough to dispose of this issue.
[62] ATSWL submitted that even if the wording encompassed location, the Panel was sufficiently explicit in its view that Kōpū Marine Precinct was not a viable alternative. It said that in substance, the Society is seeking to challenge the merits of that decision. For completeness, I outline below why I agree.
30 RMA, s 171(1)(b) “alternative sites, route, or methods” and sch 4, cl 6(1)(a) “alternative locations or methods”; Policy 23(2)(b)(i) requires there to be “adequate consideration of alternative methods, sites and routes for undertaking the discharge”.
31 Panel Decision, above n 14, at [220].
[63] The Society submitted to the Panel that an expanded facility at Ariki Tahi was not the appropriate manner in which to meet the recognised needs of the aquaculture industry. Its core position was that the “obvious alternative” was provision for a landing facility at Kōpū within the currently planned marine and business precinct there. The Society’s position was that issues previously identified with development at Kōpū were “not insurmountable”. In this appeal, Ms Carruthers characterised the Society’s position to the Panel as being that “[Ariki Tahi] is not a suitable site for further expansion. The Kōpū Marine Precinct is.”
[64] Reflecting the Society’s focus, in its executive summary of the decision the Panel listed suitability of Ariki Tahi as a key issue of contention and recorded its conclusion that it was a suitable location.
[65] The Panel dedicated a section to “Other Options Considered” in which it recorded that other wharf sites were considered by various prior reports. It recorded that: “A number of [other sites] were discounted for different reasons including the lack of all-tide access that would require extensive dredging, such as at Kōpū.32
[66] The Kōpū planned marine precinct is for marine servicing which does not require all-tide access for operational commercial barges that need to leave early irrespective of the tide. The Panel was advised that at Kōpū dredging out to a distance of six kilometres was recognised as required to create all-tide access for commercial vessels. The Panel stated that in consideration of options, Ariki Tahi was chosen as the preferred option, among other things, because it has all-tide access.33
[67] At [52], the Panel explicitly addressed the Society’s identification of Kōpū Marine Precinct as a suitable alternative. The Panel recorded that:
The [Society] comment refers to the Kōpū Marine Precinct as a suitable alternative location for an aquaculture landing facility but as we have noted that site has been considered and discounted due to its lack of all-tide access, its location is near a sensitive ecological area, and it would involve greater travelling time for vessels between the wharf at [Kōpū], and marine farms in the Hauraki Gulf.
32 At [48].
33 At [49].
[68]The Panel then concluded at [53] that:
Overall, we are satisfied the Applicant has adequately considered alternative locations. We find that Ariki Tahi is a suitable site for an upgraded aquaculture landing facility to accommodate the future growth in that industry. It is an existing facility with all-tide access and is located in reasonable proximity to marine farms in the Hauraki Gulf.
There is an evident symmetry in this paragraph [53] between the matters the Panel had just identified in [52] as causing Kōpū to be discounted and Ariki Tahi to be considered suitable.
[69] Later in its decision the Panel recorded that it had particular regard to Policy 10, and the requirement that reclamations be avoided unless prescribed thresholds are met, including that “there are no practical alternative methods of providing the activity”. In that context the Panel stated that it considered the location at Ariki Tahi to be “appropriate”.
[70] Ms Carruthers submits that references in the decision to Ariki Tahi as the “preferred option”, as a “suitable site”, and to the site being “appropriate” fall short of a finding that there were no viable alternative locations.
[71] In context I disagree. As outlined above, in the “Other Options Considered” section the Panel had twice stated that Kōpū had been “discounted”. On the second occasion, the Panel was plainly addressing the Society’s submission that issues with Kōpū were “not insurmountable”. The Panel’s Policy 10 conclusions are framed by this earlier discussion. The Panel was alive to the “practical alternative” requirement. Having regard to these matters, it is plain that the Panel did not accept the Society’s submission that Kōpū was a viable alternative.
Other challenges to the Panel’s findings on Policy 10
[72] Ms Carruthers submits that in accepting that the proposal was not contrary to Policy 10, the Panel was also in error in failing to:
(a)turn its mind to whether each of the conjunctive parts of Policy 10(1) are met;
(b)consider the form and design of the proposed reclamation as required by Policy 10(2); and
(c)consider whether it was appropriate in light of Policy 10 to grant consent.
[73] These points are based on lack of detail in the Panel’s decision in articulating all of these matters. I reject these criticisms. The Society is requiring of the Panel a greater level of detail and precision in the decision than is warranted, having regard to the short time frame in which it was required to be produced for the purpose of the FTCA and the reliance of the Panel on the core planning assessment before it in the AEE.
[74] Importantly, and unsurprisingly given the time frames in the FTCA process, the Panel relied heavily on the AEE in its conclusions, particularly where there was no contrary material. The Panel did this in its conclusions on Policy 10.
[75] The AEE undertook a detailed planning analysis of the project against the relevant provisions of the NZCPS. The Panel referred to this analysis and said:34
217.We generally agree with that assessment and its conclusion that the proposal can be undertaken in a manner that is consistent with the sustainable management outcomes sought for the coastal environment in the NZCPS.
218.We have had particular regard to Policy 10 which requires reclamations to be avoided unless prescribed thresholds are met including that there are no practical alternative methods of providing the activity.
[76] Reference to the “prescribed thresholds” is clearly to the matters in Policy 10(1). The Panel concluded the section by stating that: “Overall, the Panel considers the Project is not contrary to any of the relevant objectives and policies of the NZCPS.”35 By necessary implication, the Panel has considered the matters as teased out more fully in the AEE which it has accepted. That included the matters
34 At [216].
35 At [222].
identified in this ground of appeal as to both Policy 10(1) (threshold) and 10(2) (form and design).
[77] In short, the Panel’s economy of expression in having regard to Policy 10 does not undermine the robustness of its conclusions that the project was not, in its view, contrary to the objectives in that Policy. The Panel’s findings confirm that it did consider that it was appropriate in light of Policy 10 of the NZCPS to grant consent. I do not accept that an error of law has been demonstrated.
Should I refer the matter back to the Panel for reconsideration?
[78] I found that the Panel was in error in not specifically applying a bundled approach. That does not conclude the matter in favour of the Society. If the result would inevitably be the same if reconsidered by the consent authority then, as Greig J said in Donald v Wellington City Council, it “would be a vain exercise to remit the matter and would, I think, then be contrary to common sense and to justice.” 36
[79] To recap, an applicant who passes through the policy gateway moves through to the broader s 104 enquiry even if they do not pass through the effects gateway.
[80] Here, the Society’s primary challenge and the focus for most of the argument in the appeal and also in response to the original application was directed to the effects of the project (that is, the effects gateway). Assessing the activities against the policy objectives of the Proposed Plan was not such a focus. Indeed, Mr Matheson says with some justification that reflecting this, the policy aspect is not even raised in the appeal documents.
[81] For the reasons below, I have concluded that the panel would inevitably reach the same decision on the policy gateway if the matter was referred back to it. I do not need to consider the position on the effects gateway, as my conclusion on the policy gateway is sufficient to determine this ground of appeal.
36 Donald v Wellington City Council (1989) 14 NZTPA 33 at 40. See generally, Resource Management (online ed, Thomson Reuters) at [A299.12].
[82] The s 104D(1)(b) policy gateway asks whether the activities are “contrary” to the objectives and policies of the Proposed Plan. It has been held that the word “contrary” in s 104D(1)(b) contemplates being opposed to in nature; different; opposite to.37 The question is whether the activities are contrary to the objectives and policies of the document overall.38
[83] I described what the Panel actually did earlier:39 the Panel went through each of the relevant plans including the Proposed Plan; it found the project to be consistent with each; in [248] the Panel concluded that the construction and operation of the upgraded wharf (as a whole) “will not run counter” to the relevant objectives and policies in all of the planning documents engaged by the project.
[84] The Society has not challenged these substantive assessments of the Panel. I tested with Ms Carruthers why these conclusions were not also a conclusion on whether the project runs counter to the objectives and policies of the Proposed Plan, being one of the documents considered first individually, then encompassed in the
[248] conclusion. A project that does “not run counter to” a policy or objective is “not contrary” to it.
[85] Ms Carruthers’ answer was to reiterate that the Panel made no decision on the policy gateway applying a bundled approach. She says that to get through the policy gateway to the broader s 104 assessment, there must first be a decision that the application passes the gateway. The only finding on that is the [246] finding that using
37 New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC) at 80. In Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2021] NZHC 390, [2021] NZRMA 303 at [24], the High Court interpreted “not contrary” as being “repugnant and antagonistic” in reliance on New Zealand Rail Ltd, albeit with counsel not being in dispute on that.
38 Refer generally Resource Management, above n 36, at [A104D.05] referring to Akaroa Civic Trust v Christchurch City Council [2010] NZEnvC 110; Man O’War Station Ltd v Auckland City Council [2010] NZEnvC 248; Man O’War Station Ltd v Auckland Regional Council [2011] NZRMA 235 (HC); and Re P & I Pascoe Ltd [2014] NZEnvC 255. In Brial v Queenstown Lakes District Council [2021] NZHC 3609 in the context of s 104 the High Court rejected an argument that after Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 an overall approach should not be taken. See also RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 where the Court of Appeal implicitly accepted that s 104D requires an assessment of objectives and policies of a plan as a whole.
39 Refer [43]-[48] above.
the reclaimed area is not inconsistent with the Proposed Plan. That is not a finding that the entire proposal is not inconsistent with the Proposed Plan.
[86] She suggested it was conceivable that if the Panel just examined the project through the lens of the Proposed Plan there may be a conflict with policies and objectives, whereas looked at in terms of the broad range of planning documents as she said occurred at [248], that conflict has less weight. She submitted that is why the distinction is important between a decision about the policy gateway in s 104D and then the broader assessment under s 104.
[87] While I acknowledge the distinction Ms Carruthers is making in principle, I do not consider it carries this appeal given the substantive assessments that were made by the Panel, the way the Panel approached these, and the material before it.
[88] First, it is evident from the way the Panel addressed each of the policy and planning documents in a self-contained way, that in fact it was not applying some overall weighing or overall evaluative assessment of the various policies. That is also confirmed in the way [248] is expressed. This undercuts Ms Carruthers’ submission that conflicts with the Proposed Plan may potentially have had less weight in the analysis that was undertaken.
[89] Second, while the Panel’s conclusion in [246] on the policy gateway is confined to non-complying activities (activities on the newly reclaimed area), its substantive scope needs to be viewed in the context of the source of this conclusion. In its section on the gateway tests in s 104D, the AEE had outlined how the “upgrade of Ariki Tahi” would align with relevant policies and objectives of the Proposed Plan and concluded that: “Overall, it is also considered that the proposal is consistent with, and not contrary to, the objectives and policies of the Proposed Plan.” This conclusion was related to the entire project.
[90] More generally, the AEE and responses to it did not split out non-complying activities of the proposal and consider the Proposed Plan’s objectives and policies only relative to those. The fact that there is no differentiation in the AEE or responses in comments to the Panel between the non-complying use and the entire project supports
that if the Panel is asked to reconsider applying a bundled approach, inevitably there will be the same outcome.
[91] In these circumstances, I accept Mr Matheson’s submission that if I referred the matter back to the Panel, it would inevitably come to the same conclusion on whether the application passed the policy gateway.
[92] Conceivably, it would be open to the Panel to call for additional information or reports if the matter was referred back.40 I do not see that this impacts my conclusion in the present case. The AEE did apply the right test. It was comprehensive. The Society does not say there is information missing nor does it challenge the substantive assessments made by the Panel on policies and objectives. It would be wrong to refer the matter back on the basis of the Panel’s right to call for further information or reports, when the gist of the appeal is about the Panel’s approach, not deficiencies in the material before it or its assessments.
Was the Panel’s conclusion on “no more than minor” effects insupportable on the evidence?
[93] As a further ground of appeal, the Society submits that even on the Panel’s unbundled approach of considering only the non-complying activity (use of the reclamation) the Panel was wrong to conclude the adverse effects were no more than minor under the effects gateway in s 104D(1)(a) because that conclusion was not supported by the evidence.
[94] I have left this ground of appeal to last because my decision on it is academic given my conclusions on the alternative policy gateway. I have found that I would not refer the application back to the Panel for reconsideration notwithstanding its error of law regarding bundling because the conclusion on the policy gateway in s 104D would be the same. Any error impacting the alternative effects gateway is irrelevant. However, I consider this for completeness and in deference to a focus on the issue in argument.
40 The FTCA remains in force until determination of the appeal and, as the case requires, the remaking of the decision (sch 1, pt 1, cl 1(3)(c)). By sch 6, cl 25(1) the Panel has power before it issues its final decision to direct the Environmental Protection Authority to request information or prepare and commission a report on relevant issues.
[95] This ground of appeal relies on the proposition that “a conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law”.41 An appellant faces a very high hurdle to establish this.
[96] Ms Carruthers submitted that the high threshold for this appeal ground is met because, in summary, she says that on ATSWL’s own evidence referred to by the Panel, visual effects were assessed as more than minor; the Panel assessed noise effects were more than minor; and because the Panel did not carry out any analysis or consideration of the broader effects of the land use on amenity values in terms of landscape values and natural character.
The Panel’s approach and conclusions
[97] In Part G, “Assessment of Effects”, the Panel identified and then individually assessed all potential effects from the project. These were amenity, ecological, archaeological, management of hazardous substances, coastal processes, traffic, noise, cultural and positive benefits.42 The Panel identified the key issues in contention for residents and road users as traffic and noise.43 That reflected the focus in the Society’s comments on the proposal.44 The Panel emphasised that in considering effects, it was mindful that the proposal is an upgrade of an existing facility that has been in operation for 20 years.
[98] The Panel recorded that the Waikato Regional Council had reviewed the AEE through its own experts and that except for some minor issues it mainly agreed with the AEE conclusions. The Panel then went through each of the various effects, summarising the AEE, any invited comments, any response from ATSWL and then made findings.
[99] For amenity effects (embracing landscape, natural character, and visual effects) the Panel had expert evidence on behalf of ATSWL from Isthmus Group Ltd which applied an established rating system. In this system, effects rated at “moderate” or
41 Bryson v Three Foot Six Ltd, above n 17, at [26]. Applied in the context of the FTCA in Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd, above n 7.
42 Panel Decision, above n 14, at [109].
43 It also identified cultural effects as key, which is an issue no longer live but which was a significant focus in the Panel’s decision.
44 The Society addressed visual amenity and amenity effects in only a few paragraphs.
higher equate to more than minor effects. Isthmus rated all four assessed landscape and natural character effects as no more than minor.45 Isthmus rated adverse effects on visual amenity as “very low” to “moderate” from a range of six viewpoints and for night-time visibility. Those that reached “moderate” were from viewpoints for users of the Sugarloaf headland and for local private residences on Puriri Road which sits above and to the south-east of Ariki Tahi. The initial Isthmus report made no overall conclusion on visual amenity.
[100] Isthmus re-confirmed its rating for Puriri Road in a response to an expert peer review on behalf of the Waikato Regional Council. The Isthmus response also addressed comments from the Society. Isthmus concluded the response by recording that the proposal would result in no more than moderate effects on the visual amenity values in the area.
[101] The Panel set out the Isthmus Report ratings and conclusions, summarised comments received and Isthmus’ response. The Panel recorded that the site was not located within any specific natural character or visual amenity overlay area. It accepted the conclusions reached in the Isthmus report. The Panel went on to say that it found the impact of the project on amenity effects will be “acceptable.”46
[102] For traffic effects the Panel recorded that overall the traffic and control measures proposed would improve the safety of Te Kouma Road including for the additional traffic generated from the upgrade.
[103] For noise effects, the Panel’s analysis discussed competing night-time background noise assessments undertaken for ATSWL by Marshall Day Associates and for the Society by Styles Group. The Panel recorded that it preferred the noise assessment of Marshall Day. It concluded that ATSWL’s proposed noise levels together with observance of mitigation measures in a proposed Operational Management Plan would “likely achieve a balance of allowing for the continuation of
45 “Low” or “very low” other than “natural character of the site”, which was assessed as moderate- low). I note that the “natural character of the site assessment” was itself comprised of three individual assessments for biotic effects, abiotic effects and experiential effects, with the former two being rated “low” and the third being rated “moderate”.
46 At [122].
commercial aquaculture on the upgraded facility without causing unreasonable obtrusive noise to nearby residents.”47
[104] In its conclusions on the proposed conditions, the Panel addressed the Waikato Regional Coastal Plan direction that the noise emissions from operations in the coastal marine area must not exceed a “reasonable” level and concluded that the Operational Noise Management Plan conditions would address this.
[105] Later in its decision the Panel found: “We are satisfied the effects from those activities that have the status of non-complying activities will be no more than minor.”48
Was the Panel’s finding insupportable?
[106] The Society submits that the Panel’s conclusions that visual effects were “acceptable” and assessing noise as not “unreasonable” cannot be reconciled with the Panel’s summary conclusion later in its decision that effects will be no more than minor.
[107] In this earlier part of the decision addressing “Assessment of Effects” the Panel appears to have been considering effects against the more general assessment required in s 104 and against Waikato Regional Coastal Plan requirements not the “no more than minor” test in s 104D.
[108] Evaluation of whether there will be “no more than minor” adverse effects requires a holistic assessment looking over the entire application and the range of effects, not individual effects.49 This means that some effects may individually be more than minor, such as visual amenity from certain properties, but the overall conclusion across the range of effects may be that the effects are no more than minor.
47 At [203]. Refer also [255] when conditions are considered when the Panel noted that conditions in the proposed Operations Management Plan would ensure the Waikato Regional Coastal Plan direction that noise in the coastal marine area does not exceed a reasonable level.
48 At [249].
49 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76 at [265] citing SKP Inc v Auckland Council [2018] NZEnvC 81 at [49].
In assessing the degree of effect, regard must be had to the ameliorating effect of conditions. 50
[109] I do not consider the conclusions are incompatible with an overall conclusion later in the report that the Panel considered effects to be no more than minor. In the latter conclusion the Panel was addressing the different standard and was not considering individual effects but making an overall conclusion. I note that in assessing s 104D(1)(a), the AEE had summarised the assessments and drawn those together under a conclusion that the effects gateway can be satisfied. The AEE was a cornerstone document considered by the Panel.
[110]On the particular effects referred to by Ms Carruthers:
(a)Isthmus assessed the visual amenity affects as moderate (ie more than minor) from only two viewpoints, being from the houses on Puriri Road and the Sugarloaf headland. The conclusion in the Isthmus report that visible amenity effects were no more than moderate needs to be viewed in that context.
(b)Marshall Day predicted peak wharf operations to be similar in noise level to existing operations. The conclusion on noise effects was premised on noise effects remaining the same or of similar character, intensity and scale to those that exist already with noise mitigation measures in the coastal marine area managed by the Operational Management Plan.
(c)The Society submitted that the Panel gave no consideration or analysis of amenity effects other than visual effects. I do not accept this. The Panel explicitly accepted the Isthmus report, which included findings on amenity levels that on its scale were no more than minor.
[111] In the fast track under the FTCA, time frames required for the Panel to provide its decision are tight. A hyper-critical analysis or dissection of the decision is not
50 SKP Inc v Auckland Council, above n 49, at [48].
appropriate. The conclusion of “no more than minor effects” was an overall evaluative assessment by a Panel of experienced resource management experts. It is clear that the Panel considered all relevant material and in particular the AEE and its annexures. The finding was open to the Panel on that material, including the specific areas relied on by the Society discussed above. I reject that this is a rare case where an error of law is established on the basis that the finding is insupportable.
Result
[112]In summary:
(a)I find that the Panel made an error of law in failing to specifically apply a bundled approach to the test under s 104D.
(b)The other contended errors of law are not established.
(c)I decline to refer the matter back to the Panel for reconsideration because, if remitted, the Panel would inevitably come to the conclusion that the threshold in s 104D(1)(b) (policy gateway) is met.
[113] I ask the parties participating in the hearing to file any joint memorandum on costs within 14 days. If a joint memorandum is not possible, I will receive submissions on costs as follows:
(a)submissions for ATSWL within 14 days; and
(b)any submissions by the Society and the District Council within a further 14 days.
Anderson J
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