Whangamata Marina Society Inc v Attorney-General HC Wellington CIV 2006-485-000709
[2006] NZHC 1066
•18 September 2006
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2006-485-000709
BETWEEN WHANGAMATA MARINA SOCIETY INC
Plaintiff
AND THE ATTORNEY-GENERAL OF NEW ZEALAND
Defendant
Hearing: 15, 16 and 17 August 2006
Appearances: M Chen, C Mark and A Smithyman for Plaintiff
B H Arthur and J S McHerron for Defendant
Judgment: 18 September 2006
JUDGMENT OF FOGARTY J
A. The Minister of Conservation’s decision is set aside.
B. The Minister is directed to reconsider the whole matter to which the two restricted coastal activity applications relate.
C.The Minister is directed to reconsider the application of s 119(3) and (4) to any information or representations he has acquired or heard outside of the Environment Court report.
D. There are other directions as to time limits.
E. The cause of action based on the New Zealand Bill of Rights Act 1990 is adjourned.
WHANGAMATA MARINA SOCIETY INC V THE ATTORNEY-GENERAL OF NEW ZEALAND HC WN CIV 2006-485-000709 18 SEPTEMBER 200 18 SEPTEMBER 200 18 September 2006
F. The plaintiff is entitled to costs.
Table of Contents
Para No Introduction [1] The plaintiff’s contentions [14] The response of counsel for the Minister [22]
First issue – To what extent does the Minister have the power to reconsider the findings of the Environment Court?
Introduction [28]
The constraints of a s 104 consideration [37]
The evaluative character of RMA matters for consideration;
to what extent is it factual? [55]
The Iwi concern for one of the two pipi beds illustrates the
evaluative process [59]
The ability to supplant the report, consideration of subs (3) and (4)
of s 119 [69]
Parliament’s intention that the Minister rely on the reports
is reinforced by the time limits [73]
The need to go behind a recommendation or report
if the content is obscure [76]
Consideration of hearing committee or Environment Court
Reports [81]
Section 119 is a compromise, preventing the Minister from
relying upon rejected evidence [83]
The scope of “a matter” [87]
The Minister’s power to differ [92]
Conclusion on scope of s 119(2) [94]
Second issue – If the Minister can reconsider the evidence, did he
do so fairly in this case? [95]
Third issue – Did the Minister act properly and fairly when noting that he had disregarded the “comments made to me” on 30 January
at Whangamata? [109]
Fourth issue – Was the Minister biased by way of predetermination? [132]
Fifth issue – Did the Minister err in refusing to grant the two RCA permits by giving “veto” weight to salt marsh and Tangata Whenua values without balancing all relevant matters under Part 2 and s 104
of the RMA? [143]
Sixth issue – Did the plaintiff have a legitimate expectation of approval of the report by reason of having entered into a settlement with the then Minister of Conservation in 1998 and a subsequent memorandum consent
order with the Environment Court in 1999? [153]
Seventh issue – Was the Minister’s decision so irrational that it
Should be set aside upon that ground? [158]
Other grounds for review [163]
Consideration of this Court’s discretion whether or not to intervene
and set aside the decision of the Minister [165]
Relief and directions [167]
Introduction
[1] The plaintiff seeks judicial review of a decision of the Minister of Conservation. On 7 March of this year he refused to grant the two coastal permits required for the restricted coastal activities for the plaintiff’s proposed marina at Whangamata.
[2] The two restricted coastal activities for which the plaintiff sought coastal permits were:
1. To contain four hectares of the coastal marine zone, and to construct a
300 metre breakwater and control structures, and dredge a marina basin and channel; and
2.To reclaim 1.4 hectares of the Coastal marine zone by placement of fill onto a salt marsh for development of a hard stand and parking area for the purposes of a 205 berth marina.
All on the seabed of the Moanaanuanu Estuary of the Whangamata Harbour.
[3] The decision of the Minister was made under the Resource Management Act
1991 (RMA). Where anyone applies for a coastal permit to carry out an activity which a regional coastal plan describes as a restricted coastal activity (RCA) then a special process is required by the RMA.
[4] The normal processes of applications follow but the application is heard in the first instance by a committee of the regional council that also includes a person appointed by the Minister of Conservation. This committee then makes a recommendation. There is a right of appeal from the recommendation of the committee to the Environment Court. This was taken advantage of here. There is a right of appeal on the law to the High Court from the Environment Court report. Ultimately the Environment Court makes a recommendation to the Minister of Conservation.
[5] What is unusual about this process is that the final decision is made by the Minister of Conservation, not by the regional council or, after an appeal, by the Environment Court. It is unusual because the Environment Court’s principal function is plainly to ensure that resource management issues will be resolved in difficult cases by a specialist Court. There are no qualifications required for members of hearing committees of territorial and regional councils. Nor are qualifications required to be commissioners appointed by councils. However, the Environment Court sits in panels consisting of a professional environment Judge, and a number of environment commissioners. The latter do not have to have formal qualifications but in practice have an extensive background in resource management.
[6] Obviously, the reason for the special power reserved to the Minister, in the case of RCA, is because of the importance attached by Parliament to coastal development.
[7] The plaintiff contends that the Minister’s decision was not according to law and so should be set aside. Before discussing these contentions I make some general observations on the supervisory jurisdiction of the Court in judicial review proceedings. All cases of judicial review proceed by comparing what happened with what the law requires. Parliament defines tasks for decision-makers according to the goals it seeks to pursue. There is no standard template of decision making by exercise of statutory power; e.g., there is a similar but different duty on the Minister to recommend or not the making of a water conservation order, ss 214, 215. Accordingly, to judge whether or not a person exercising a statutory power has fallen into any error of law it is necessary to examine carefully the task that Parliament has set.
[8] In this case the Minister of Conservation, the Honourable Christopher Joseph
Carter, has been the Minister for some years. As Minister he considers approximately
25 RCAs each year. His practice is to undertake site visits, considering that maps or photographs are never as satisfactory as first hand experience of the environment. This is a practice commonly, if not invariably, followed also by the Environment Court, hearing committees, and the professionals employed in RMA processes, be they specialist witnesses or counsel.
[9] As Minister he receives briefings from the Department of Conservation (DOC). This again is normal practice. Whenever a Minister of the Crown is exercising a statutory power, the Courts understand that his or her staff will be composed of skilled advisors who by preparing briefing papers will make practicable the discharge of all the duties that the Minister has.
[10] It is also part of this Minister’s usual practice “with major issues” to speak to interested members of the community before making his decision. This he did on 30
January at the Thames Coromandel District Council Service Centre in Whangamata. This became a controversial step. The plaintiff objected to it having taken place, although it participated.
[11] The Minister had a further meeting with the plaintiff’s representatives nearly a month later on 24 February, having written to them on 22 February highlighting concerns and suggesting that the plaintiff focus on two issues: replacement fill on to the salt marsh (the salt marsh issue); and, the Tangata Whenua issues including access to kaimoana, which is the issue of access to the second pipi bed (the Iwi concerns).
[12] After the meeting on 24 February the Minister agreed to provide the plaintiff’s solicitors with a copy of a draft briefing paper that would be prepared for him. This was provided to the plaintiff on 2 March as well as to the Minister. The plaintiff was given one day to comment on the paper and it was agreed that the Minister’s decision would be made by Tuesday, 7 March. One of the reasons for the very short timeframe was that the Minister was at the end of the maximum statutory timetable for decision.
[13] The Minister received his draft briefing paper on the evening of Thursday,
2 March, and considered the materials, amidst his other duties, over the next few days. He made his decision on Tuesday, 7 March.
The plaintiff’s contentions
[14] The plaintiff argues that the Minister exceeded the scope of his powers, as his decision was based on a re-evaluation and re-determination of the evidence that had
been considered by the Environment Court. Rather, his duty was to consider the applications deferring to the Environment Court on evidential matters.
[15] Further, he exceeded the scope of his power by instigating a hearing process on 30 January when he had a series of meetings, hearing the views of persons for and against the marina.
[16] Even if the Minister was able to revisit the evidence his decision was unlawful because he had inadequate time to consider the Environment Court decisions and report and the staff briefing papers and witness briefs. In addition, he was ill equipped to do this task as he did not have all the evidence nor the skill set to properly consider evidence that was available.
[17] The plaintiff also argues that the Minister’s evaluation was premised on his own findings on the evidence on the salt marsh and Iwi issues and that he afforded Tangata Whenua and ecological issues veto weight without balancing environmental and developmental objectives as required by s 5.
[18] Further, he took into account information not considered by the Environment Court including information received at the 30 January meeting and other communications when he was required by the RMA to refer those matters back to the Environment Court.
[19] As a second theme of submissions the plaintiff argues that the Minister’s processes were in breach of natural justice. The plaintiff argues that the Minister had predetermined the matter based on impermissible information received before he received his formal briefing in March. The plaintiff argued that the meetings on 30
January were illegal and unfair. In any event, the plaintiff argued that they had a legitimate expectation that he would approve the permits because of an earlier settlement agreement back in 1999 whereby a DOC appeal against the hearing committee’s support of the marina was settled.
[20] In addition the plaintiff argues that the Minister failed to affirm or protect the plaintiff’s right to natural justice under s 27(1) of New Zealand Bill of Rights Act
1990 (BORA).
[21] The plaintiff also claims that the Minister’s decision is irrational, unreasonable and disproportionate.
The response of counsel for the Minister
[22] Ms Bronwyn Arthur, for the Minister, defended the Minister’s decision by relying first on the comprehensive briefing he received from DOC in March. Using this material she argued that the Minister did do as he was required by s 119 of the RMA: take into account the Environment Court’s report; and, have regard to the matters set out in s 104. She argued the Minister was not obligated to refer any matters back to the Environment Court, as the Minister refused to grant the permits for reasons based on the two matters that were particularly considered by the Court – the salt marsh issue and the Iwi concerns. She argued the Minister was entitled to consider not only the Court’s report but also the conflicting evidence before the Court.
[23] Ms Arthur also argued that the Minister did not conduct a consultation or rehearing process prior to making his decision. He held a public meeting so that many groups, in particular, the plaintiff, Iwi and surfers, could express their views; that there was nothing in the RMA prohibiting the Minister from listening to what interested groups might want to say to him. He was performing his role as the Minister and not the consent authority. However, ultimately his decision was based on the material contained in the briefing, not on what he heard at these meetings. He excluded from consideration the comments made to him on 30 January and in the emails and other correspondence.
[24] Ms Arthur disputed that the Minister gave “veto” weight to the salt marsh issue and to the Iwi concerns without balancing all relevant matters under Part 2 and under s 104. In the latter respect she submitted he did have regard to the relevant statutory instruments: the New Zealand Coastal Policy Statement (NZCPS), the
relevant Regional Coastal Plan (RCP), the Proposed Regional Coastal Plan (PRCP), as well as the Regional Policy Statement (RPS). She relied upon his written decision.
[25] Referring back to the Minister being careful not to take into account any extraneous material, Ms Arthur also submitted in the alternative that there was nothing in s 119 that would prevent the Minister from doing so, as that is recognised positively in s 119(3). If a Minister wished to refuse or grant a permit for a reason based on a matter that was considered by the Environment Court, there was no provision requiring the Minister to refer the matter back.
[26] She argued that the Minister had kept an open mind to the end relying particularly on his affidavit, where he said that. She disputed strongly the proposition that there was any legitimate expectation that the Minister would confirm the Environment Court’s final report because of the DOC appeal settlement in 1999.
[27] Finally, she resisted the application of s 27(1) of the BORA, and the contentions of irrationality.
First issue – To what extent does the Minister have the power to reconsider the findings of the Environment Court?
Introduction
[28] In this exercise the Minister of Conservation is a consent authority, and is defined as such in s 2 of the RMA.
[29] Section 119 of the RMA provides:
119 Decision on application for restricted coastal activity
(1) Within 20 working days of receiving—
(a) A recommendation on an application for a coastal permit for a restricted coastal activity; or
(b) Where an inquiry by the Environment Court into that recommendation has been made, the report of the Environment Court,—
the Minister of Conservation shall make a decision on the application and give reasons for that decision.
(2) When considering his or her decision on the application, the Minister of
Conservation shall—
(a) Take into account the recommendation of the hearing committee or report of the Environment Court, as the case may be; and
(b) Have regard to the matters set out in section 104—
and, subject to subsections (3) and (6), may grant or refuse to grant the coastal permit and, in granting the permit, may include any conditions in it in accordance with section 108.
(3) The Minister of Conservation shall not grant or refuse to grant a coastal permit for a restricted coastal activity, or include any conditions in a permit, if the reason for granting or refusing the permit or including the condition is based on a matter that was not considered by the hearing committee under section 117 or, where there was an appeal, by the Environment Court in its inquiry, without the written agreement of the parties to the hearing or appeal, as the case may require.
(4) Where the Minister of Conservation considers that subsection (3) may apply, the Minister of Conservation may, if the Minister of Conservation considers it is appropriate in the circumstances, refer the application back to the hearing committee or Environment Court (whichever dealt with it last), and seek a recommendation or report on the matter in relation to the application.
(5) Where an application is referred back under subsection (4), the provisions of sections 117 and 118 shall apply accordingly and the period of
20 working days specified in subsection (1) shall not begin until the Minister
of Conservation has received the recommendation or report requested under subsection (4).
(6) The Minister of Conservation must not grant a coastal permit for a restricted coastal activity if the activity is contrary to—
(a) section 107 or section 107A or section 217:
(b) an Order in Council in force under section 152: (c) any regulations:
(d) a Gazette notice referred to in section 26(1), (2), and (5) of the
Foreshore and Seabed Act 2004
(7) Where the Minister of Conservation decides to grant a coastal permit for a restricted coastal activity, the permit shall commence on the date of the decision or such later date as the Minister of Conservation states in his or her decision.
[30] The Minister’s decision and his reasons are contained in his letter of 7 March
2006. Having refused to grant the two RCA permits in his second paragraph, the third paragraph of the letter reads:
3.In making this decision I have taken into account the report of the Environment Court, and have had regard to the matters set out in section 104 of the RMA. I have also considered the evidence presented to the Court, the Court transcripts that were available and the comments that the applicant has provided to me on 24 February
2006 and 3 March 2006. (Emphasis added)
[31] There is no issue with the first sentence. It is a summary of the content of subs (2) of s 119. The issue is with the underlined sentence, could the Minister take this additional step? Although it is not apparent immediately, the consideration that the underlined sentence refers to was a reconsideration of the evidence. The Minister did not read the evidence in order to better understand the report of the Environment Court. He read it to reconsider the findings of the Environment Court.
[32] The last paragraph of his reasons is as follows:
23.In making this decision I am very conscious of the time and resources that have been committed to the proposal. I also acknowledge that the Court has heard extensive evidence and questioning of witnesses. However, as the final decision-maker on restricted coastal activities under section 119 I am able to depart from the views of the Court as long as I do this in a proper and lawful manner. I would not adopt this course lightly, but I consider that it is appropriate in this case.
[33] The question examined in this first issue is whether or not subs (2) states comprehensively the task of the Minister. The issue may be framed more particularly as whether and to what extent the Minister can differ as to findings on disputed evidence in the Environment Court report. To resolve this issue it is necessary to examine the nature of the task set by Parliament for the Minister. For when considering judicial review the Courts have long recognised that it is impossible to judge the limits of authority of a decision maker without first understanding thoroughly the task that has been set by Parliament. One could cite numerous authorities to this effect. But I wish to discuss just one, the decision of the Court of Appeal in CREEDNZ v Governor General [1981] 1 NZLR 172.
[34] In that case the Court was examining the power of the Governor General in Council to grant consents under the National Development Act 1979, following on a report by a planning tribunal. The issue was quite different from here. It was whether or not the property owners affected were entitled to a second hearing before the Executive Council after the report. Here the issue is not whether the Minister ought to conduct a hearing but to what extent he can revisit findings against contested evidence in the report.
[35] However, it is appropriate to note that the legal method followed by the Court of Appeal in CREEDNZ was one of examining carefully, and realistically, the statutory scheme of the National Development Act. The Court held in that case that where decisions are left to Ministers of the Crown it is unlikely that the Minister is under a duty at all to follow a procedure analogous to a judicial procedure (see p 178). The Court followed a decision of the Supreme Court of Canada in Attorney General of Canada v Inuit Tapirisat of Canada (1980) 115 DLR (3d) 1. In that respect Cooke J said in his judgment:
In a judgment delivered by Estey J the Supreme Court stressed that "the very nature of the body must be taken into account in assessing the technique of review which has been adopted by the Governor in Council". The Court said that it is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle to apply. (at 178)
[36] Adapting this dictum, I follow the method of construing the statutory scheme as a whole in order to see to what degree, if any, Parliament intended the Minister to assume the role given to the hearing committee and on appeal to the Environment Court of testing the evidence of submitters to the Court (see ss 117 and 118 of the RMA).
The constraints of a s 104 consideration
[37] To do this, it is necessary to appreciate the statutory constraints within which resource consents are granted. For it is plain on the face of subs (2) that Parliament intended the Minister of Conservation to make the decision in compliance with the
requirements of s 104. Accordingly, this analysis begins by examining the character of a s 104 consideration.
[38] The RMA is premised upon consent authorities identifying first whether there are any significant actual or potential effects on the environment of allowing a proposed activity. Second, the consideration moves on to an evaluation of those effects; to examine whether or not they warrant rejecting resource consent or allowing the consent, including allowing it subject to conditions. Those conditions may restrain some of the potential adverse effects or impose steps to mitigate those effects.
[39] It is for this reason that s 104 begins:
104 Consideration of applications
…
(a) any actual and potential effects on the environment of allowing the activity; and
[40] These are the present terms of s 104 as amended on 1 August 2003. Previously, and when the RCA applications were lodged in this case, the section began thus:
104 Matters to be considered
(1) Subject to Part 2, when considering an application for a resource consent and any submissions received, the consent authority shall have regard to—
(a) Any actual and potential effects on the environment of allowing the activity;
[41] Whether there will be any actual or potential effects on the environment of allowing the activity is a forward-looking enquiry. Therefore it calls for a judgment. Sometimes the judgment will be easy and sometimes it will call for expertise. Essentially, that judgment can be described as factual.
[42] “Effect” is defined in s 3 as follows:
3 Meaning of “effect”
In this Act, unless the context otherwise requires, the term effect includes—
(a) Any positive or adverse effect; and
(b) Any temporary or permanent effect; and
(c) Any past, present, or future effect; and
(d) Any cumulative effect which arises over time or in combination with other effects—
regardless of the scale, intensity, duration, or frequency of the effect, and also includes—
(e) Any potential effect of high probability; and
(f) Any potential effect of low probability which has a high potential impact.
[43] It is important to note paragraph (a), that an effect can be positive or adverse. Accordingly, this first task of identifying actual and potential effects is neutral in the sense that the consent authority is seeking at the start merely to identify effects. The second step is as to character. This step is evaluative inasmuch as one has to decide whether it is positive or adverse. But that is not a particularly significant judgment in most cases. The remaining paragraphs are all factual aspects of effects: e.g. “temporary”, “permanent”, “scale”.
[44] Having identified any actual or potential effects, and their relevant factual aspects, the next task of the consent authority is to examine those effects against a large number of statutory criteria. Those criteria are set out principally in Part 2 of the RMA comprising ss 5-8. They are also set out in a hierarchy of derivative statutory instruments usefully captured, at present, in s 104(1)(b):
104 Consideration of applications
(1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to—
…
(b) any relevant provisions of— (i) a national policy statement:
(ii) a New Zealand coastal policy statement:
(iii) a regional policy statement or proposed regional policy statement:
(iv) a plan or proposed plan; and
[45] The concept of a hierarchy of instruments was approved by the Court of
Appeal in Canterbury Regional Council v Banks Peninsula District Council [1995] 3
NZLR 189, 193-194. The scheme of the Act is that instruments which are subordinate within a hierarchy must not be inconsistent with superior instruments. This requirement limits the discretion of the subordinate authority. Delivering the judgment of the Court McKay J said:
We agree that the Act provides what may be described as a hierarchy of instruments, to the extent that regional policy statements must not be inconsistent with national policy statements and certain other instruments (s 62(2)), and district plans must not be inconsistent with national policy statement or regional plan (s 75(2)). It does not follow, however, that there can be no overlap between the functions of regional authorities and territorial authorities. The functions of the latter are set out in s 31, and there is no need to read that section in any restricted way. To the extent that matters have been dealt with by an instrument of higher authority, the territorial authority's plan must not be inconsistent with the instrument. Beyond that, the territorial authority has full authority in respect of the matters set out in s 31. Its decisions can, of course, be contested by appeal to the Planning Tribunal under the provisions of the First Schedule. (at 194)
[46] Consideration of these instruments is “subject to Part 2”. This does not mean that these statutory instruments can be ignored, allowing the decision-maker to do a “green fields” analysis, simply from the statutory provisions of Part 2. For the statutory instruments that the decision-maker “must, subject to Part 2, have regard to” are themselves the product of Part 2 analysis. Each one of these statements and plans or proposed plans are themselves produced from a rigorous process designed to give effect to the criteria contained in Part 2. For more detail see Wilson v Selwyn District Council [2005] NZRMA 76, at paragraphs [75]-[80].
[47] The character of the constraint of those derivative instruments which are operative can be illustrated by an example drawn from the context of this case. By reason of s 104(1)(b)(iii) the Minister is obliged to have regard to the New Zealand coastal policy statement (NZCPS). This is a document produced from a rigorous statutory procedure, including examination and report by a Board of enquiry and final approval by a Minister of Conservation.
[48] It is likely that this Minister of Conservation does not personally agree with the content of the current NZCPS. He commissioned a review of it in 2003. This was announced publicly on 6 August 2004. The day after the Minister delivered his decision, on 8 March 2006, the Minister issued a press release announcing that a board of enquiry is to be appointed to review issues around coastal development and the NZCPS. In that press release the Minister of Conservation is quoted as saying:
“There has been considerable anxiety expressed by communities around the country about the amount of development on the New Zealand coastal line, the impact this is having on the character of the coast and on the traditional Kiwi lifestyle”, Mr Carter said. “Because of these concerns, I initiated a review of the New Zealand coastal policy statement shortly after becoming Minister. An independent review has been completed and policy development is underway. I expect to be able to release a new draft policy statement for public consultation later this year through a board of enquiry … .”
[49] The initiation of the review was a political decision, in the sense that it was an Executive Government initiative, not the discharge of a statutory duty to review the existing NZCPS. However, the establishment of a board of enquiry is the only way the Minister can obtain any amendment to the current NZCPS. For an NZCPS can only be prepared by following the statutory process set out in ss 46-52. Section 47 provides that the Minister must appoint a board of enquiry to enquire into and report on a national policy statement. The Minister is given power to set the terms of reference. But the board of enquiry then proceeds by way of public notification and hears submissions, including giving submitters a right to be heard, before producing their report.
[50] Ms Arthur agreed that when exercising the power under s 119 the Minister was obliged to follow the policy contained in the current NZCPS and could not bring to bear his own views of the need for a review. For to do so would circumvent the statutory protections built into the RMA in ss 46-52. Parliament never intended that a Minister of Conservation applying s 119 can unilaterally impose a different policy as to coastal development by-passing the statutory processes of the RMA.
[51] Furthermore, as Ms Arthur also properly acknowledged, once there is a NZCPS (as here) there is then an obligation on the relevant regional councils to give effect to that through their regional policy statements (s 62(3)). Regional policy
statements are a mandatory requirement and they in turn are given effect to through regional plans (s 67(1)). The only mandatory regional plan is a regional coastal plan (s 64(1)). Its purpose is:
To assist the regional council, in conjunction with the Minister of Conservation, to achieve the purpose of the Act in relation to the coastal marine area of the region. (s 63(2))
[52] The Environment Court correctly integrated consideration of these instruments with the consideration of relevant criteria from Part 2 of the RMA. All were considered under one heading of “Overall Evaluation” in its final decision, see paragraphs [56]-[77].
[53] On top of that, the Minister must, subject to Part 2, have regard to:
(c) Any other matter the consent authority considers relevant and reasonably necessary to determine the application.
However, the Minister cannot have regard to any other matter unless it is already a matter which has been considered by the Environment Court in its enquiry, unless there is written agreement of the parties to the appeal. See subs (3) of s 119. If the Environment Court has had regard to such other matters in addition to the other statutory instruments then the Minister must have regard to those matters.
[54] Using only the above selection of material it is abundantly plain that the discretion conferred by Parliament on the Minister under s 119 is relatively confined. Because it is a s 104 decision, the decision of the Minister does not in fact have a political character, as in CREEDNZ. It is thereby amenable to judicial review.
The evaluative character of RMA matters for consideration; to what extent is it factual?
[55] I turn now to consider further how a s 104 assessment is undertaken, and in particular its evaluative nature. This is relevant to identifying the nature of the Environment Court report and the extent to which the Minister can depart from its analysis and recommendations.
[56] As has been explained, there is a workable distinction under the RMA
between:
1.Findings as to any actual and potential effects (positive or adverse) on the one hand; and
2.Evaluation of the significance of those effects against the criteria in Part 2 and any relevant provisions of other statutory instruments, themselves derived from Part 2, and against any other matter the consent authority considers relevant and reasonably necessary in order to determine the application.
[57] Usually it is possible to read an RMA decision by the Environment Court or by a hearing committee of a territorial or regional consent authority and be able to distinguish the findings as to actual and potential effects, from the evaluation of their significance against the objects of the RMA.
[58] However, the factual evidence presented to hearing committees and the Environment Court goes to evaluating their significance as well as to proving or disproving any actual or potential effects. So the evaluation task also involves making findings of fact.
The Iwi concern for one of the two pipi beds illustrates the evaluative process
[59] One of the two issues that the Minister focussed on in this case can be used to illustrate the factual aspects of evaluation. Part of the proposed activity was to dredge one of the channels of the Whangamata River to allow vessels to pass through to the marina. The dredging would have the adverse effect of preventing walking across the estuarine bed at low tide to one of two local pipi beds.
[60] The extent of that effect would depend upon the number of persons who would otherwise want to go to the pipi bed by that route, now and potentially in the future. However, one also needs to consider whether there was a suitable alternative route. To the extent that that number of harvesters was diminished, there would also be a
different effect on the amount of pipi taken from that bed. That in turn would have an effect for the future on the quantity of pipi in the bed. These issues are largely of a factual character.
[61] The second stage of the analysis is to evaluate the significance of these effects for the purpose of the RMA. Pipi beds are kai moana (food of the sea). They are part of the taonga (treasure) of Maori. Accordingly, it becomes relevant by s 6(e) and s 8 of the RMA to consider how these effects impact on the relationship of the local Maori with the pipi bed. As discussed above, these issues are addressed in the NZCPS and in the regional plans. The evaluation of these issues has a factual character. This can be illustrated by examining the core criteria in s 6, (which are worked out to a degree in the NZCPS, RCP and other instruments, but also directly applicable in s 104 analysis).
6 Matters of national importance
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
(a) The pres er vation of the natural character of the coastal environment (including the coastal marine area), wetlands, and la kes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:
…
(d) The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers:
…
(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
…
(g) the protection of recognised customary activities.
(I have underlined the words above to emphasise that they all have a factual aspect.) [62] In its final report the Environment Court analysed this issue as follows:
Tangata whenua values and concerns
[46] In the course of the 2001 decision we observed at paragraphs [40] and
[41]:
Against the background of the PRCP’s general concern to maintain the natural character and attributes of the upper harbour, the appellants have raised strenuous argument concerning perceived potential adverse effects upon kaimoana through modification of the channel by dredging, and consequential restriction of access to shellfish across the deepened channel. We note, however, that access to the shellfish resource would remain available from Moana Point some 400m away, and that TCDC is prepared to consider providing additional carparking there should circumstances so warrant.
Other evidence for the appellants bearing on alleged waahi tapu and other ancestral issues in relation to the coastal area involved in the proposal proved relatively unpersuasive. Answers given under cross- examination were either lacking in consistency or unconvincing when weighed against the analysis advanced for the society by Mr B Mikaere, a former director of the Waitangi Tribunal, and a person qualified in Maori Studies and well-versed in Maori issues generally. These matters, however, (including those in the previous paragraph), would have to be assessed, along with other issues such as the ecology of the area and presence of wildlife, should it be proposed to change the PRCP to afford recognition to the sitting of a marina within this portion of the estuary.
[47] On the issue of shellfish gathering in the vicinity of Moana Point, evidence was called by the society from several witnesses familiar with the coastal area who attested to not having observed any such activity. Be that as it may, we accept the assertions made for the iwi appellants that the historical nature and continuing availability of the resource are factors that are cherished and important. We are not persuaded, however, that construction of the channel will affect the resource significantly, given the intended presence of rock retaining to maintain the channel’s position and integrity within the marine environment. We consider also that reasonable access will still be available from Moana Point – a location that is readily accessible within the general confines of Whangamata in the vicinity of the Moanaanuanu Estuary. It was stated for TCDC at the hearing in 1999 that TCDC would be prepared to review carparking provision at Moana Point should a need for additional parking be evident following the marina’s establishment. We do not consider it necessary to stipulate that such upgrading be undertaken as a precondition to the marina proceeding, but expect TCDC as a responsible body to abide by its stated intent, so as to ensure that ready and convenient access remains available.
[48] The greater concern for the continuing existence of the general area for possible shellfish gathering is the notable onset of mangrove growth in the vicinity of the proposed marina basin. The change in that respect between our previous inspection of the area prior to the 2001 decision and our inspection this year was very noticeable – bearing out evidence by Mr Don at the 2004 hearing concerning the changed conditions, and the firm view on his part that the area proposed for the marina basin is without special conservation value and suitable for the purpose intended. Assisted by our having inspected the
area, we accept his evidence in preference to views expressed by Mr Shaw as to the area’s degree of ecological significance.
[49] As to the views expressed at paragraph [41] of the 2001 decision (refer above), we confirm our remarks having again reviewed the evidence of witnesses called on behalf of the iwi appellants and from Mr Mikaere for the society. We accept, however, that the iwi appellants and those they represent have strong ancestral ties to Whangamata Harbour inclusive of the Moanaanuanu Estuary – that being reflected by the concerted and sustained opposition on the iwi appellants’ part to the marina proposal.
[50] Ms P Clarkin, an administrator for the iwi organisation Te Kupenga O Ngati Hako In., was called as an additional witness at the 2004 hearing. She concluded her evidence by stating:
We wish to reiterate that we are not opposed to marina developments, only when the location affects areas of cultural, spiritual and historical significance to tangata whenua and limits our ability to exercise our customary practices and kaitiakitanga as we have always done. The current marina proposal affects these things and that is why we are opposed.
In conclusion I defer to the statements made by the late Mrs Laura
Hiku:
Customary gathering practices have been developed over thousands of years. The pipi beds are where God placed them. We do not believe they should be moved.
And the late Mr Ropata Rare:
…this harbour was frequented by our ancestors for many generations and bequeathed to us in healthy condition, with its mauri intact. We wish to hand that taonga onto our own mokopuna.
[51] We acknowledge the concerns expressed by Ms Clarkin and other iwi appellant witnesses, stemming from their view that the marina proposal runs counter to tangata whenua values based on cultural, spiritual and historical considerations. Yet as observed in other cases, such considerations, while requiring due appraisal under relevant provisions of Part II of the RMA, do not have the effect of trumping all else, where other considerations, pertinent to achieving the Act’s single purpose under s.5, fall as well to be considered. In the ultimate an overall judgement is required which –
…allows for a comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome: North Shore City v Auckland Regional Council [1997] NZRMA 59, 94.
[52] Applying such a judgment against the background of various considerations pointed to in the 2001 decision, and to considerations mentioned, and to be mentioned, in this decision, we conclude that appropriate recognition and provision and particular regard to matters under ss.6(e) and 7(a) of the RMA, and account of relevant treaty principles
(including openness and active protection), will be reasonably achieved on the basis of the conditions relating to tangata whenua as proposed for inclusion in the various consents under draft conditions submitted for the society and endorsed by the two councils (a copy of such draft conditions being appended to this decision) – hereafter referred to for convenience as “the draft consent conditions”.
[53] In so concluding, we have had regard to the Hauraki Iwi Management Plan dated March 2004. No other iwi plan was referred to us in evidence or submissions. That plan is concerned with protection and management of coastal areas and refers to various matters which, in many respects, are consistent with those raised in the regional planning instruments – for instance in relation to the importance of wetlands and water pollution control. Amongst a wide range of recorded environmental concerns, mention is made of coastal habitat loss and shellfish depletion, along with a perceived need to improve water and seabed quality. In relation to kaimoana, “assured access to a customary take for Hauraki tangata whenua” is expressed as a desired outcome. Amongst other outcomes, “greater understanding of coastal values by communities” is cited. Matters such as the importance attaching to the role of tangata whenua as kaitiaki, including active protection of ancestral taonga from the impacts of growth, are also pointed to.
[54] On the question of water pollution within the harbour, we confirm our remarks at paragraph [42] of the 2001 decision where we noted that, against the background of a more satisfactory boat mooring system, and the comprehensive security and control that would be expected in operating the marina –
…concerns raised by the (iwi) appellants as to adverse effects on shellfish through oil leakages and sewage disposal from boats would be better met via the comparatively high standards of the marina. The present proposal also involves removal (by agreement) of a slipway operated by Ocean Sports Club in Beach Road – a move anticipated to be environmentally beneficial on account of current risks of harbour contamination from anti-fouling agents and the like employed at the slipway.
[55] While we have noted various aspects of the iwi management plan as above, we have had regard to the whole document, along with all we heard in evidence from Ms Clarkin, Mr Mikaere and others. We later refer to conditions of consent stemming from our assessment of this branch of the case, together with other conditions relating to the reinstatement and enhancement works to be undertaken by the society.
[63] It can be seen that much of that reasoning is factual. Paragraphs 46 and 47 have a distinct factual character to them, including to what extent there was wahi tapu. Wahi tapu is an expression found in s 6(e) of the RMA but not defined in the Act. It is defined in s 2 of the Historic Places Act 1993 as:
wahi tapu means a place sacred to Maori in the traditional, spiritual, religious, ritual, or mythological sense
[64] The extent of value actually given to a natural area or resource such as pipi is significant in judging to what extent it was truly tribal taonga (treasure).
[65] In paragraph [48] the report addressed changing conditions of mangrove growth and a clash between two witnesses as to its degree of ecological significance.
[66] In paragraph [54] the Court concluded that water pollution would be better met via the comparatively high standards of the marina.
[67] For the most part this reasoning resolves the evaluative issues by fact finding. However, for reasons not fully explained in paragraph [41] of the 2001 decision some evidence on alleged wahi tapu and other ancestral issues was not persuasive.
[68] Essentially, the Environment Court resolved these issues by preferring the evidence of Mr Mikaere from that of several witnesses for Ngati Po. With the exception of Ms P Clarkin, whose evidence was taken in 2005, these witnesses were examined prior to the 2001 decision. Obviously, they were cross-examined strenuously. As a result, the Environment Court did not find their answers taken as a group convincing. No transcript of their cross-examination was available.
The ability to supplant the report, consideration of subs (3) and (4) of s 119
[69] As a starting point, I note that there is no express provision in s 119 stopping the Minister from re-examining the evidence that was led before the Environment Court. The opening phrase of subs (2)(a) is to “take into account the… report”. Plainly those words do not bind the Minister to follow the Environment Court’s report. Equally plainly the word “shall” mandates that the Minister take account of the report in the course of considering his or her decision on the application.
[70] It is pertinent to read subs (2) in the context of subs (3). As already noted subs (3) prohibits the Minister from either granting or refusing to grant a RCA permit or including conditions in it on a matter that was not considered in the report. There is an exception if there is a written agreement from the parties for a decision to be made with reference to a matter not considered in the report. By subs (3) Parliament has
therefore made it plain that all matters giving rise to reasons for granting or refusing a RCA permit have to be tested in an adversarial process, be that before the hearing committee or the Environment Court. It is not possible for the Minister to grant or refuse a permit for reasons based on untested matters.
[71] It may also be noted that s 119 contains no provisions which contemplate that the Minister of Conservation will himself listen to the persons who have themselves, or their associates appeared before the hearing committee or the Environment Court.
[72] The absence of any procedure to retest a matter already considered is striking. This is because the RMA envisages hearings replete with procedural safeguards to ensure a fair and rigorous process by which evidence and submissions are tested.
Parliament’s intention that the Minister rely on the reports is reinforced by the time limits
[73] Parliament could have provided for the Minister of Conservation to hear the matter de novo and conduct his own hearing to that extent. It did not. Nor was that Parliament’s intent. Parliament has given only 20 working days to the Minister to make a decision. (In this case the parties took the view that the Minister had the power, as consent authority, under s 37 to double that time limit unilaterally and beyond that if the applicant agreed. Using these powers the period was extended from
20 days to 40 days together with an additional one day by agreement from the applicant.) However, on any view of it, be it 20 or 40 days, that is not enough time for the Minister of Conservation to reconsider the evidence in the case.
[74] By way of comparison the Environment Court sat at Whangamata on 4, 5, 6, 7 and 8 October 1999; 16, 17, 18, 19 and 20 October and 13 November 2000; 19, 22,
23, 24, 25 and 26 November 2004; and at Thames on 7, 8, and 9 September 2005. Even allowing for the fact that a lot of the time was spent on applications for resource consent over which the Court had the full power of decision, the fact of the matter is that these were the hearings considering the proposed marina. These days do not collect the time spent by the Court considering the issues and writing their reasons.
[75] Counsel were agreed that if the Minister has the power to reconsider the evidence it would have to be by way of a fair procedure. So within the 20 days one has to allow for appropriate notice being given to the parties, opportunities to prepare submissions and an opportunity to participate in the hearing prior to consideration of the matters heard. Then time has to be allowed to write and deliver reasons for it, because the power under s 119 can only be exercised with reasons. Twenty or 40 days is not enough for those processes.
The need to go behind a recommendation or report if the content is obscure
[76] Ms Arthur, for the Crown, argued that there is a practice of the Ministers to go behind these reports, particularly in the case of hearing committees. She said sometimes the reasons given, particularly by hearing committees, explain inadequately the matters heard and considered. The Court can readily understand this predicament of the Minister. There are indeed passages of the final report in this case which are difficult to interpret. The excerpt from para [41] of the 2001 decision quoted above is an example. However, it needs to be kept in mind that these are reports by either the hearing committee or the Environment Court. They are not decisions. When persons holding a judicial function make decisions, in the absence of a statutory provision to the contrary, their task ends when the decision is made.
[77] But, where a delegate has prepared a report for a decision-maker there is no reason why further assistance cannot be obtained from that delegate. This common sense proposition is reflected in s 119(3) and (4).
[78] Where the Minister has difficulty, either understanding part of the report or perceives the need to have some part of a report amplified, it is quite appropriate for the Minister to request such explanation and/or amplification. This would not involve the hearing committee or the Environment Court rehearing the matter under the processes of ss 117 and 118, but simply giving a fuller explanation for their reasoning in a particular part of the report. Plainly this could and would be provided promptly.
[79] For example, to return to paragraph [41] of the 2001 interim decision, reported in paragraph [46] of the final report, the Environment Court said:
Other evidence for the appellants bearing on alleged waahi tapu and other ancestral issues in relation to the coastal area involved in the proposal proved relatively unpersuasive. Answers given under cross-examination were either lacking in consistency or unconvincing when weighed against the analysis advanced for the society by Mr B Mikaere [setting out his qualifications] … . (Emphasis added)
[80] What was the “other evidence”? What were the “unconvincing” answers? There is nothing to stop the Minister asking these questions. The Environment Court that wrote the final report was comprised of the same members as comprised it when it made its interim decision. They are therefore able to confer and prepare a supplement to their report amplifying these two sentences.
Consideration of hearing committee or Environment Court reports
[81] The Environment Court report replaces completely the hearing committee report. If the application has gone to the Environment Court, the Minister does not consider the report of the hearing committee. Subsection (2)(a) makes that clear:
(2) When considering his or her decision on the application, the
Minister of Conservation shall—
(a) Take into account the recommendation of the hearing committee or report of the Environment Court, as the case may be; and (Emphasis added)
[82] The fact that subs 2(a) rules out consideration of the hearing committee report, if it is supplanted, tends to reinforce the proposition that the Minister cannot go behind the factual findings of the Environment Court report. That report is the result of an appeal from the hearing committee.
Section 119 is a compromise, preventing the Minister from relying upon rejected evidence
[83] The Minister is not confined to the reasoning of the report. Nor is he or she confined to the matters considered. By subss (3) and (4) Parliament implicitly recognises that the Minister may identify reasons and matters independently of the report: personally, or via a staff analysis, or perhaps as a response to a representation being made. However, in subs (3), Parliament has prohibited the Minister from
relying on a reason based on a matter not considered without first referring the application back and seeking a recommendation or report on that matter in relation to the application. If the Minister is minded to rely on that reason, then it will be “appropriate in the circumstances”, to seek a report on the matter. Subsection (4) is cast as a power, not a duty. But if a Minister considers a possible reason may arise out of a matter not considered, he or she cannot rely on that reason, unless the matter is referred back under subs (3) for a further report.
[84] Subsections (3) and (4) are very unusual. They have no counterpart in the RMA. They constrain the exercise of discretion of the Minister. Plainly, Parliament has decided that all matters of relevance to the reasons for granting or refusing a permit are to be tested in an adversary hearing, by a hearing committee, and/or on appeal by the Environment Court. In that respect there is a compromise between other policy alternatives of giving full power of decision to either the Court on appeal, or to the Minister.
[85] The Minister is required to take account of the report and any supplementary report and have regard to the matters set out in s 104. On that exercise it would be irrational for the Minister to rely upon evidence that has been rejected as unreliable. For were the Minister to do so the Minister would be circumventing the safeguard which Parliament has inserted in subs (3) and (4) of s s 119. That safeguard is there to ensure that the Minister relies only on matters which have been tested and evaluated. If Parliament considered that the Minister could rely on untested evidence, there would have been no need for subss (3) and (4) .
[86] If evidence is rejected it will be because its factual elements are unreliable. For one does not reject the evaluative elements. They are weighed. Take the Iwi concerns. There is no doubt that the two pipi beds are there. The Environment Court has accepted that the “historical nature and continuing availability of the resource are factors that are cherished and important” (see para [47] of its report). Evidence that was rejected included the factual proposition that “We are not persuaded, however, that construction of the channel will affect the resource significantly” (ibid.).
The scope of “a matter”
[87] It is clear, then, that Parliament intended that the Minister would take into account the Environment Court report and, by analysis, that the Minister would not rely upon evidence that the report has rejected. What, however, of situations where the report does not address a matter that the Minister thinks is relevant to the grant of a RCA permit? It is to this issue which I now turn.
[88] In his affidavit the Minister says that he did not consider any matters other than those that were considered by the Environment Court. This is a critical proposition. For Ms Arthur submitted that if a matter has been considered the Minister cannot refer it back. Note also that subs (4) of s 119 is drafted as a discretion; “may”. The language can accommodate a situation where the Minister has a doubt as to whether a matter has been considered, and for that reason refer it back. It is quite plain on the face of it that both he and the Environment Court focussed on the salt marsh issue and the Iwi concerns, these being the two matters standing potentially in the way of granting the application. In that sense it is obviously true that these two matters that the Minister considered were the same two matters that the Environment Court had considered. However, put that way, one is interpreting the word “matter” as meaning the subject matter. The question becomes whether that is the meaning intended by Parliament. The plaintiff’s counsel submitted that any new information was intended by Parliament to be a new matter. Thus, the Minister could not rely on any information or contentions which had not been considered by the Environment Court.
[89] There is doubt as to what Parliament means by “a matter”. The term is not defined. But it is the same term used in s 104(1)(c) – “any other matter the consent authority considers relevant and reasonably necessary to determine the application”.
[90] It is also a concept used elsewhere in the RMA, for example in s 107A. Section 107A is particularly relevant for it is a constraint referred to expressly in s
119(6). Section 107A provides:
107A Restrictions on grant of resource consents
(1) A consent authority must not grant an application for a resource consent to do something that will, or is likely to, have a significant adverse effect on a recognised customary activity carried out in accordance with section 17A(2), unless written approval is given for the proposed activity by the holder of the relevant customary rights order.
(2) In determining whether a proposed activity will, or is likely to, have a significant adverse effect on a recognised customary activity, a consent authority must consider the following matters:
(a) the effects of the proposed activity on the recognised customary activity; and
(b) the area that the proposed activity would have in common with the recognised customary activity; and
(c) the degree to which the proposed activity must be carried out to the exclusion of other activities; and
(d) the degree to which the recognised customary activity must be carried out to the exclusion of other activities; and
(e) whether the recognised customary activity can be exercised only in a particular area; and
(f) whether an alternative location or method would avoid, remedy, or mitigate any significant adverse effects of the proposed activity on the recognised customary activity; and
(g) whether any conditions could be included in a resource consent for the proposed activity that would avoid, remedy, or mitigate any significant adverse effects of the proposed activity on the recognised customary activity.
(3) Despite sections 77B(2)(a) and 104A, subsection (1) may prevent the grant of an application for a resource consent for a controlled activity.
(Emphasis added)
[91] The underlined words are all aspects of the subject matter of whether a proposed activity “will or is likely to, have a significant adverse effect on a recognised customary activity carried out in accordance with s 17A(2)”. The “matters” listed in subs (2) are aspects of the subject matter of subs (1). Plainly, in s 107A “a matter” can be any aspect of a relevant consideration. It does not mean a topic. There is no need to read “matter” any differently where it appears in subs (3). Recall this statute is all about considering effects. As we have already seen, the meaning of “effect”, in s
3, separates out all kinds of aspects of effect. It follows that any new aspect of a matter, not yet considered, is “a matter that was not considered”, in subs (3) of s 119.
Staying with the pipi bed example, if the Minister is moved to consider allowing or rejecting the application by an aspect of the pipi bed issues, he needs to be sure it is an aspect which has been tested by the Environment Court. Otherwise, unless the parties agree, subs (3) and (4) of s 119 require him to refer it to the Environment Court for a further report before he can rely upon that aspect to provide a reason for granting or rejecting the permit.
The Minister’s power to differ
[92] It is important to emphasise at this point that the Minister is not bound by the recommendations of the Environment Court. The Minister can differ from the Environment Court in the weight to be given to the matters set out in s 104, provided he or she gives reasons: s 119(1)(b). Given that the Environment Court will have given detailed reasons, and coupled with the short time frame for consideration, decision and reasons, the Minister’s reasons should explain why he or she accepts or rejects the report. Normally they should be referenced to the pertinent reasoning of the report.
[93] It is not the case that the Minister brings a different ‘national perspective’, from the Environment Court. For that Court takes a national perspective in any event, and when having regard to the NZCPS. Wild J’s emphasis on the Minister’s national perspective in Hastings District Council v Minister of Conservation [2002] NZRMA
529, should not be misunderstood, in paragraph [50]. In that case the Environment Court’s report was merely an endorsement of a mediated settlement of parties who essentially had a local, or at best, regional perspective.
Conclusion on scope of s 119(2)
[94] By s 119(2) Parliament has reserved to the Minister a discretion to differ, provided he gives reasons, from the recommendation of the hearing committee or report of the Environment Court, as the case may be, as to the weighting to be given to relevant criteria. But it is not the function of the Minister to hear witnesses and test the quality of the evidence and submissions marshalled in support of the relevant
criteria. That is what the hearing committee and the Environment Court do. From an appeal the Environment Court resolves and finds the factual aspects of the matters to be considered. Accordingly, the last sentence in paragraph 3 of his 7 March decision demonstrates that the Minister made a procedure error. He set about the task of reconsidering evidence, a power Parliament did not entrust to him. That was an error of law.
Second issue: If the Minister can reconsider the evidence, did he do so fairly in this case?
[95] This Court has found that the Minister went beyond his powers when reconsidering evidence presented to the Court. In case I am wrong, it is desirable, however, to go on to consider whether, if indeed the Minister did have that power, he did so in accordance with the law.
[96] It is appropriate to begin by restating the last sentence of paragraph 3 for it contains within it a qualification not readily discernible:
I have also considered the evidence presented to the Court, the Court transcripts that were available and the comments that the applicant has provided to me on 24 February 2006 and 3 March 2006. (Emphasis added)
[97] The underlined words suggest the Minister considered all the evidence (on the salt marsh issue and the Iwi concerns). This was not the case. There is no transcript for the hearings before 2004, in particular for the hearings leading up to the 2001 decision. This is because no stenographer was used and there was no request for a transcript to be transcribed from the audio tapes. What the phrase is therefore recording is that the Minister considered such of the Court’s transcripts as were available. As I have already noted, this did not include the transcripts of the answers given under cross-examination by Iwi witnesses which were described as being either lacking in consistency or unconvincing. (Paragraph [41] of the 2001 decision and [46] of the 2005 decision.) So what the Minister was doing was considering the evidence-in-chief, supplied by written brief, of some of the relevant witnesses . He was therefore making a second call from that of the Environment Court without knowing the evidence which the Environment Court heard orally, as those witnesses
were questioned. Accordingly, the Minister did not consider all the evidence presented to the Court on these two issues. In the case of the “salt marsh” issue, I note that some of the transcripts were also not available, particularly the evidence of Mr Don (pre 2004) or Dr Grace.
[98] Second, the Minister did not receive those briefs of evidence and other transcripts of evidence that were available until the evening of Thursday, 2 March, at the end of his extended 41 day period. He received three Eastlight folders of materials containing all in about 1500 pages. The relevant evidence and transcripts on the issues which his staff recommended he focus on had been marked along the margin in yellow pen, so he could find them. These marked pages totalled, on the Crown’s estimate, 165 pages of material to be selected out of 590 odd pages of material. The rest was less relevant. Counsel for the applicant considered the Minister had realistically to look at more pages. What is significant is that one only finds the pages by turning over each page to look for passages marked with a yellow highlighter. Those highlighters were predominantly down the margin.
[99] To assist him in the analysis the Minister had a briefing from his staff. These staff briefings are routine and well recognised by the case law. For example, Richardson J (as he then was) commented in CREEDNZ v Governor-General at pp
200-201:
Lord Diplock reminds us in Bushell v Secretary of State for the Environment [1980] 2 All ER 608, 613; [1980] 3 WLR 22, 28 of the need to consider the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached at the national government level. As he said, at p 613; 28, and I have no doubt that his remarks apply equally in New Zealand, the Minister has available to him "the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise are to be treated as the minister's own knowledge, his own expertise". And where, as here, it is the decision of the Governor-General in Council which is impugned, the realities of decision- making at that level must be recognised. It was in that context that Estey J speaking for the Supreme Court of Canada in Attorney-General of Canada v Inuit Tapirisat of Canada (1980) 115 DLR (3d) 1 said, at p 15:
"The executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with the subject-matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of the
petition whether those policies be economic, political, commercial or of some other nature."
[100] Of course, as already noted, care must be taken not to misinterpret this passage as indicating that in this particular case the Minister can take into account matters of policy which are not already reflected in the instruments which he must have regard to under s 104(1)(b), let alone matters that have not been considered by the Environment Court. Such a restriction was not present in CREEDNZ. As I emphasised earlier, the scope of discretion of a Minister of the Crown in these sort of cases is a matter to be judged only after a thorough examination of the statutory scheme within which the Minister’s discretion is located.
[101] Returning to the evidence before the Minister, the relevant points of the witnesses’ testimony were summarised from their evidence-in-chief only. These included evidence-in-chief by way of rebuttal. Where transcripts were available the Minister was advised by his staff that the relevant sections were highlighted and that he should read those transcripts in addition to the evidence so as to inform himself as to the nature of the questioning of the witness and the responses to those questions.
[102] The Minister was warned that no transcripts were available for the 1999 hearings: that this meant he had to be careful as he could not review the questioning of Dr Grace and Mr Don (at that time), and all the Maori witnesses except Ms Clarkin.
[103] It was left to the Minister, without the aid of counsel who had been in the hearing, to absorb, analyse and evaluate the competing evidence of the witnesses, to the extent that it was still available.
[104] Counsel were in agreement that once the Minister decided to consider the evidence he had assumed a duty (imposed by the common law) to do so fairly to all the participants in the hearings.
[105] Ms Arthur, for the Crown, argued that the Minister had discharged this duty because his staff had provided to the applicant solicitors on 1 March a draft briefing paper. As a result they knew the materials that were going to be provided to the
Minister. The plaintiff, as applicant, was given an opportunity to make comments by way of suggested amendments to the briefing paper and they did.
[106] Ms Arthur could not elevate this step to a proposition that the plaintiff agreed with this process. Litigants in this kind of position, where an unorthodox process is being embarked upon by a decision-maker, usually have little option but to go along with it. The fact that the plaintiff did make comments does not mean that the Minister’s process was fair. That is tested objectively.
[107] Ms Chen’s most severe criticism of the process was directed to the timing of delivery of this voluminous material to the Minister and the absence of the transcripts. Whenever appellate Courts embark on reconsidering the evidence they do so only with considerable reservation and with a great deal of care. It is difficult to do so fairly. Unless a transcript of evidence is read slowly and with a degree of imagination it is almost impossible to recapture the hearing. Second, and even more importantly, Judges have a set of skills which enables them to be extremely wary of relying solely upon witnesses’ words. The reliability and credibility of witnesses’ evidence is usually considered by placing one person’s evidence against another and against as many hard facts as are possible to be assembled. It is self evident that the Environment Court did this in its deliberations. For example, in paragraph [47] of its analysis it refers to testing the unconvincing answers of the Iwi witnesses against the “analysis” of the appellant’s expert witness, Mr Mikaere. One cannot do this task of comparison simply by reading the material sequentially. It requires consequential comparison and contrast analysis. It is best done with the assistance of counsel who were there when the evidence was given.
[108] If he had the power to conduct such a reconsideration then it would have been most desirable for the Minister to have conducted the review in the presence of counsel for the parties who were present at the hearing. He should have used most of the available statutory period of 20 days to do the task. To have this critical task left essentially to the weekend prior to delivery of the decision on the last available day, the following Tuesday, is unfair. It is accordingly in breach of the common law standards of natural justice and another error of law on the part of the Minister. The reason why it was left so late is dealt with under the next part of this decision.
Third issue – Did the Minister act properly and fairly when noting that he had disregarded the “comments made to me” on 30 January at Whangamata?
[109] On 30 January, early on in the statutory period, the Minister visited Whangamata. He held a series of meetings during that day with interested parties, who expressed their views on the recommendation of the Environment Court. The purpose of the meetings seems to have been “to hear the views of the various parties”.
[110] Prior to the meeting the Minister was given legal advice. The Minister was advised:
•You should not use this site visit as a justification to reach a decision different to that recommended by the hearing committee or the Environment Court.
•If you intend to hold a meeting then it is important that all people with a vested interest in the outcome be at that meeting. This is to avoid accusations that you are treating people unfairly by not inviting them to the meeting.
• You are able to hear the views of the various parties.
• It is not appropriate for you to express your views at this stage.
[111] At the 30 January meetings the Minister was accompanied by advisors who took notes, as well as Mrs Williams. Mrs Williams was the nominee of the Minister of Conservation on the hearing committee which initially considered this RCA permit. She dissented. As discussed, by s 119(2)(a) the Minister considers only the Environment Court report, not the hearing committee report, let alone a dissenting report. This point was obscured in Hastings, for the Court’s report followed a mediation only. Both the Court’s report and that of the hearing committee were forwarded to the Minister. (See para [12] of that decision.)
[112] In addition to the advice he received as to how to conduct the 30 January meeting the Minister also received from his staff a two page note before the meeting. This note was headed: “Notes on Issues associated with Whangamata Marina RCA application”. There was no comment in this note by the staff expressing any concern about the Court findings. The note set out six bullet points of issues raised by Iwi and six bullet points of Court findings adverse to Iwi interests.
[113] The report went on under the heading: “Other Matters” (that is distinct from
Court findings) as follows:
•Recent large number of submissions by Iwi requesting decline, possibly originating from a form submission promoted by Hauraki Iwi. Same issues raised.
•Whangamata appears to be of great concern to Hauraki Iwi. Reasons may not have been fully disclosed. Wider foreshore, seabed ownership issues possibly involved.
[114] The report went on to deal with the salt marsh issues in seven bullet points and six bullet points on surfing issues. In the latter respect it noted that the Environment Court in 2001 treated similar claims by surfers as overstated.
[115] The best evidence of the programme and who the Minister heard appears to be the programme obtained by the plaintiffs under the Official Information Act 1982. It was a series of private meetings with persons with various conflicting vested interests for and against the marina. It took the following form:
PROGRAMME FOR WHANGAMATA COMMUNITY DISCUSSIONS WITH HON CHRIS CARTER, MINISTER OF CONSERVATION
MONDAY 30 JANUARY – 1.00 PM TO 4.30 PM
THAMES COROMANDEL DISTRICT COUNCIL SERVICE CENTRE
620 PORT ROAD WHANGAMATA
Programmed Actual Community Group
1.00 pm 1-1.15 pm Environment Waikato / Waikato Conservation Board David Pearks (staff), Arthur Hinds (EW Councillor/Cons Board Member)
1.20 pm 1.30-1.50 pm Whangamata Ratepayers Association
Ross Wightman (Chairperson and three representatives)
1.40 pm 1.55-2.15 pm Whangamata Maori Committee and Whangamata Salt Marsh
Grant McIntosh and David Steele
2.00 pm 2.20-2.4 pm Te Tunanga O Ngati Puu Inc
Edward (Ted) Shaw, Graham King and Joe [local Kaumatua]
(Don Shaw, David Te Rare and others) [Staff were not sure who would come]
2.20 pm 2.45-3.00 pm ECO NZ Clive Monds
2.40 pm 3.05-3.30 pm Whangamata Surfers
Paul Shanks and others
3.00 pm 3.35-4.00 pm Whangamata Marina Society
Joan Forret, Mick Kelly, Simon Menzies
15 mins Break
3.30 pm 4.15-5.30 pm Hauraki Maori Trust Board (3)
Ngati Whanaunga Inc
Te Kupengo O Ngati Hako
Te Runanga A Iwi o Ngati Tamatera
Te Runanga O Ngati Puu Inc (approx 10) Whangamata Maori Committee (2)
[116] It was appropriate for the Minister to visit the site, inasmuch as a site visit enabled the Minister to understand better the issues which were being discussed by the report. However, the legal advice to the Minister that he should not use the site visit as a justification to reach a decision different to that recommended, was wise. For if as a consequence of his site visit he took account of aspects of the site which had not been taken into account by the Environment Court, again that matter should have been referred by the Minister back to the Environment Court as required by subs (3) and (4).
[117] The Minister will naturally be aware, either directly or from reports from staff, of media coverage of an issue. It cannot have ever been Parliament’s intention that the Minister of Conservation cease being a politician during the statutory period of consideration of whether or not to adopt the recommendation in the report. It would therefore be quite natural for the Minister to take a political register of the character of the decision that he has to make by holding such meetings.
[118] However, that does not mean he can depart from s 119. In this regard, it is not easy to draw a line between the inevitable notice that the Minister will have of the controversial character and views of affected parties such as he received in the staff memorandum under "“Other Matters”. While the meetings he held on 30 January occupied an afternoon, it is not easy to distinguish those meetings from emails that might be sent to his office, telephone calls placed to him or simply being bailed up in the Koru Lounge at Auckland airport. From all such sources different views can be put to any Minister on the application of s 119. However, I have chosen to concentrate on the meeting of 30 January. I do so because that meeting is expressly referred to in the Minister’s formal decision.
[119] The prohibition placed by Parliament on the Minister by s 119(3) is not to grant or refuse a permit for a reason based on an aspect of a matter that was not considered. The more that the Minister reads or listens to views as to what he or she should do the more likely that the Minister will have to refer those views back to the Environment Court for consideration. If the Minister is in doubt about whether a view he has heard may give rise to a reason for or against a RCA permit based upon an aspect of a matter that was not considered by the Environment Court, he must refer it back, for all powers have to be exercised in good faith and for their proper purpose (see s 119(4)).
[120] Immediately following the meeting staff of the Minister started to insert into a draft briefing paper for the Minister some of the notes taken by the Minister’s advisors during these meetings on 30 January. They were obviously inserted as matters that he should take into account. That briefing paper was never sent to the Minister. Indeed, there was no briefing paper sent to the Minister until 2 March, over a month later.
[121] The plaintiff’s solicitors complained about the meetings having taken place. Ms Arthur said a decision was taken not to rely on those meetings because of that complaint. Plainly, the Minister’s staff worked out that it was quite dangerous for the Minister to rely on the discussions that took place at those meetings. The solution has a legal neatness about it. The Minister was to disregard what he learned during the meetings.
[122] The Departmental briefing to the Minister delivered to him on the evening of Thursday, 2 March, and headed “Departmental Submission”, had a 35 step series of recommended actions or matters to be noted pending the final two steps which were to either grant subject to no conditions or to conditions prepared by the Department or to refuse to grant both of the coastal permits.
[123] Note (h) immediately followed the notation of the Environment Court’s recommendations as part of the discharge of the obligation of taking those into account. Note (h) then read:
You should disregard the comments made to you in your 30 January meetings and any other comments or correspondence you have received which were not considered by the Court.
[124] The Minister’s decision on 7 March reads:
4.In making my decision I have not considered any matter that would require me to refer the matter back to the Court in terms of section
119(3) of the Act, and I have disregarded the comments made to me
on 30 January 2006 in Whangamata. …
[125] The Minister’s decision of 7 March went on:
5.I should also respond to your assertion that I had formed a tentative view on this proposal before being briefed by my Department. That is not the case. I had developed concerns about the proposal on the basis of the Environment Court decisions, advise from officials and my site visit. I then met with you and your client to provide an opportunity for a response to those concerns. I can assure you that I had not formed a tentative view on this decision, and that I maintained an open mind on this matter until I had considered the formal briefing from my Department and had made my decision. As identified in paragraph 4 above, the information which formed the basis of my decision was only that information that I could properly take into account, and this is set out clearly in the briefing from my Department.
[126] There is no principle of public law which says that a decision-maker can listen to the views of interested parties and then eliminate that event by declaring that he or she is not taking their views into account. Whether the information can be disregarded is a question of mixed fact and law. It is not resolved by a simple declaration. Nor is it resolved by subjective belief. Ultimately it is a judgment to be made by this Court on review, for it is an aspect of procedural fairness. It is axiomatic at common law that the guiding principle of procedural fairness is apparent procedural fairness, which maintains the confidence of the public in the process. A decision maker must not only endeavour to be fair, and be satisfied personally in that regard, his or her processes must also appear to be fair to reasonable observers.
[127] The point was considered by Brennan J in Kioa v West [1985] 159 CLR 550. The High Court of Australia was considering whether two illegal Tongan overstayers should be allowed to stay in Australia. The decision was made by the Minister for Immigration and Ethnic Affairs. A Departmental report to the Minister’s delegate included the following paragraph:
22.Mr Kioa’s alleged concern for other Tongan illegal immigrants in New Zealand and Australia and his active involvement with other persons who are seeking to circumvent Australia’s immigration laws must be a source of concern.
[128] That information was never put to Mr and Mrs Kioa for their comments. The delegate in his reasons for decision did not refer to it.
[129] One of the Judges of the High Court, Brennan J, thought that Mr and Mrs Kioa should have had an opportunity to respond to that information. At p 629 Brennan J said:
… It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
[130] I am quite satisfied that this is one of those cases. The date of 30 January was an important day. It was the day on which the Minister visited the site. He heard interested parties directly in a series of meetings, for half a day. His staff took notes and were disposed originally to use some of these in a brief to him, as matters to be taken into account. The Minister had a statutory prohibition on considering new aspects of these two contentious matters as a reason for granting or permitting the RCA permit. This prohibition cannot be avoided in this case by a simple declaration that he was not taking the comments into account.
[131] It is a reasonable possibility that the Minister did hear on 30 January comments which raised additional aspects. It is also important to keep in mind that the next paragraph of his decision, paragraph 5, indicates that his tentative views on the proposal were developed as early as the site visit. That was the same day as these meetings. There can be no confidence that the Minister has complied with subss (3) and (4) of s 119 on these facts. Declaring he had disregarded these comments was an inadequate resolution of the consequences of having the meetings. That declaration was a procedural error.
Fourth issue - Was the Minister biased by way of predetermination?
[132] The plaintiff submitted that the Minister had breached public law obligations of natural justice by predetermining the matter before considering all the relevant material. They argue particularly that there was clear evidence that he had made up his mind by 1 March.
[133] On 1 March there had been a telephone call from the Minister’s office to Mayor Robert Harvey. On that same day Mr Harvey sent an email to a Mr Smythe asking him:
… to assemble for the Minister a range of spokesmen to support him in his decision on Whangamata Bar.
Mr Smythe was the surfing group lobbyist.
[134] The plaintiff argued that that email was evidence that the Minister had in fact decided to disallow the application by 1 March. The Minister denied that in his affidavit, and so did Mr Harvey. Mr Harvey said he was not told what the decision was or what it was likely to be.
[135] There is no doubt that by 1 March the Minister had formed tentative views. That is plain from his correspondence with the plaintiff.
[136] On 22 February, writing to the lawyer for the plaintiff, the Minister said:
As you are aware I have some concerns about the Marina proposal, and I
thought it would be useful to highlight those concerns prior to the meeting.
He then sets out concerns relating to the salt marsh and to the Iwi issues. These are the same concerns reflected in his final decision.
[137] As already noted in this judgment, his formal decision of 7 March refers to forming tentative views in paragraph 5. That paragraph places those tentative views being formed going back to the site visit, on 30 January.
[138] When any person embarks upon a decision making process which ultimately requires the exercise of discretion, there is an obligation to keep one’s mind open until the process is completed. But that obligation does not and never has been understood as preventing tentative views being formed along the way. That is indeed inevitable. Our minds react to material as we consider it.
[139] To succeed on this ground the plaintiff has to establish that the Minister irrevocably closed his mind, at least by 1 March, before he received the briefing papers and further submissions from the applicant.
[140] The two leading decisions in this regard are CREEDNZ and New Zealand
Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988]
1 NZLR 544. In both cases the Court of Appeal applied the irrevocably committed or irretrievably committed test.
[141] In CREEDNZ Richardson J put it at p 194:
… Before the decision can be set aside on the grounds of disqualifying bias it must be established on the balance of probabilities that in fact the minds of those concerned were not open to persuasion and so, if they did address themselves to the particular criteria under the section, they simply went through the motions.
[142] To that dictum must be brought to account the significance of such a finding of a closed mind. It is not lightly made. I accept the Minister’s affidavit that he did not make his decision until 7 March when he went through the steps recommended by his staff in the briefing paper. This ground fails.
Fifth issue - Did the Minister err in refusing to grant the two RCA permits by giving “veto” weight to salt marsh and Tangata Whenua values without balancing all relevant matters under Part 2 and s 104 of the RMA?
[143] There is no doubt that the Minister focussed exclusively on these two issues throughout his considerations.
[144] Much of the work of consent authorities under the RMA is one of balancing different criteria in respect of particular proposals. The RMA is not a conservation
statute. It is a management statute. The preservation criteria of the RMA do not operate as veto criteria. The RMA does not operate to preserve absolutely the natural character of the physical environment, let alone the natural character of the coastal environment.
[145] In its report at paragraph [51], set out above, the Environment Court emphasised that s 6 matters, while nationally important, are not intended to be interpreted as “veto provisions”. This is established law. The decision of the Court of Appeal in Watercare Services v Minhinnick [1998] 1 NZLR 294 is relevant in this regard.
[146] In that case, the Court of Appeal, consistent with the Environment Court and the High Court decisions, found that such questions have to be approached in an objective fashion. Writing the judgment of the Court, Tipping J said at p 305:
The Court must weigh all the relevant competing considerations and ultimately make a value judgment on behalf of the community as a whole. Such Maori dimension as arises will be important but not decisive even if the subject-matter is seen as involving Maori issues. Those issues will usually, as here, intersect with other issues such as health and safety: compare s 5(2) and its definition of sustainable management. Cultural well-being, while one of the aspects of s 5, is accompanied by social and economic well-being. While the Maori dimension, whether arising under s 6(e) or otherwise, calls for close and careful consideration, other matters may in the end be found to be more cogent when the Court, as the representative of New Zealand society as a whole, decides whether the subject-matter is offensive or objectionable under s 314. In the end a balanced judgment has to be made.
[147] That case involved the application of s 314, which does not apply here. Even so, it is a good guide as to the weighing and balancing of s 5 and s 6 considerations. That formulation of approach inherently rejects the concept of any right of veto or any consideration under s 7 being a veto consideration. The Court of Appeal went on formally to hold that s 8 of the Act did not provide the appellant with a right of veto.
[148] In this case the plaintiff argued that the Minister responded to concerns from Maori as to the salt marsh and the second of the pipi beds in a fashion which gave a veto quality to their submissions. In particular, the Plaintiff contended that the fact that Maori had made these submissions meant the application could not be granted.
[149] That is not the way that the formal decision of 7 March reads. Having addressed the two matters of the ecological value of the salt marsh and the Iwi concerns (both s 6 matters of national importance) the Minister did go on to make an overall evaluation in terms of s 104 and Part 2 of the Act. At the very least, as a matter of form, the Minister subsumed these two considerations into his overall evaluation.
[150] The relevant parts of his decision are paragraphs 19 to 22.
19.I have considered the relevant matters of national importance as identified in section 6, the relevant other matters as set out in section 7 and the principles of the Treaty of Waitangi under section 8. I have then considered whether, in light of these matters, the purpose of the RMA would be achieved through the granting of these coastal permits.
20.In particular, I have considered the matters set out in section 6(c) (the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna) and 6(e) (the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga). In relation to section 6(c), the Court concluded that appropriate recognition and protection would be afforded through the proposed enhancement programme. In relation to sections 6(e), 7(a) and 8, the Court concluded that appropriate recognition and protection will be reasonably achieved through the proposed conditions of consent.
21.I have conducted an overall evaluation of whether the proposal will meet the purpose of sustainable management as identified in section 5 of the Act. I do not agree with the conclusions of the Court described in paragraph 20 above in terms of the section 6, 7 and 8 matters. Further, I do not agree with the view of the Court, that weighing all aspects and affording Part II of the Act due primacy, an appropriate development outcome will be achieved within this part of the coastal environment, consistent with the purpose of the RMA. On this basis I have decided to refuse to grant the two coastal permits. Further, I do not consider that including additional conditions of consent would alter my view that the permits should not be granted.
22.In reaching this conclusion I have paid particular attention to both positive and negative effects of the proposal in terms of sustainable management as defined in section 5. While I acknowledge the positive benefits of the proposal, in my view these are outweighed by the adverse effects on the ecological values of the salt marsh and on Iwi matters. In making my decision I have considered the various components of the definition of sustainable management in section 5 as they apply in this context. These include people and communities providing for their social, economic and cultural wellbeing, the reasonably foreseeable needs of future generations, the life supporting capacity of air, water, soil and ecosystems, and the need to avoid remedy or mitigate the adverse effects of activities. In the end I am of
the view that sustainable management would not be promoted by allowing this proposal.
[151] It is regrettable that one of the early staff memoranda to the Minister for the 30
January meetings simply referred to the plaintiff’s concern that these not be treated as veto matters as simply a “contention” without briefing the Minister at that stage on the settled law. This was rectified, at the least partially, in the staff briefing in March (see paragraph 129).
[152] I do not think that the plaintiff can prove that the Minister did in fact give a veto effect to these considerations. In short there is no such error of law apparent on the face of the decision. Accordingly, this ground fails.
Sixth issue - Did the plaintiff have a legitimate expectation of approval of the report by reason of having entered into a settlement with the then Minister of Conservation in 1998 and a subsequent memorandum consent order with the Environment Court in 1999?
[153] The Minister of Conservation was a submitter to the plaintiff’s application for resource consents for the marina. On the face of it, this appears to be rather odd given that the Minister has to make the final decision. But for practical purposes this was a DOC submission.
[154] An agreement was entered into between DOC and the plaintiff on 27 July
1998. The context was that the Waikato Regional Council had recommended to the Minister of Conservation that the RCA applications be granted. Various parties, including DOC, had lodged appeals against those recommendations and other decisions granting certain coastal permits to the plaintiff. This agreement settled the DOC appeal.
[155] The Minister of Conservation agreed to withdraw the DOC appeal. In turn the plaintiff agreed to contribute towards the labour and costs of a Dotterel project with cash and labour. Part of the context is that the loss of some of the salt marsh to the new mariner was going to disturb the habitat of wading birds including the Dotterel.
[156] The agreement between the plaintiff and the then Minister of Conservation contained the following clause:
The terms of this agreement (except for clause 2 – withdrawing the appeal)
are entirely conditional upon:
(a) [The Society ] obtaining all the necessary and other consents required to undertake the construction and development of the Marina; and
(b) The Marina being constructed and becoming operational.
[157] The plaintiff argued that as a result of this agreement and the subsequent withdrawal of the Minister’s appeal they had a reasonable expectation that the Minister would approve any subsequent recommendation. That argument cannot be right. Principally this is because it is not open to any Minister to contract out of s 119. Second, the agreement did not contain any promise to contract out of s 119. In this regard, the plaintiff was unable to bring any of the large number of cases on legitimate expectation to bear on these facts. Normally legitimate expectation cases go to procedural expectations rather than to a substantive outcome. Two cases that the plaintiff ultimately relied upon were R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and R (Bibi) v Newham London Borough Council [2002] 1 WLR 237. They are cases involving the housing of welfare beneficiaries. Explicit promises were made and the Court held the U.K. Government to keeping those promises. They are far removed on the facts. In particular, there was no statutory context of the sort we have here in s 119. There is simply no merit in this argument. To this end, I note that a similar argument failed in Hastings (see paragraphs [65]-[69] of that decision). This ground fails.
Seventh issue - Was the Minister’s decision so irrational that it should be set aside upon that ground?
[158] This was a cumulative argument of the plaintiff. It was submitted that the Minister’s decision was so unreasonable and/or disproportionate that that in itself was a ground for setting it aside.
[159] The basic principles of public law are that any statutory power has to be exercised in good faith for its proper purpose taking into account relevant considerations and excluding irrelevant considerations. The underlying assumption is that if that process is followed the decision will be rational. The leading decision setting that standard is that of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.
[160] Sometimes the Court might be faced with a decision so outrageous in its defiance of logic that the Court will judge that no person applying the above general principles to the question decided could have simply arrived at that same outcome. See CSSU v Minister of Civil Service [1985] AC 374, 410.
[161] The plaintiff also sought to wrap into this argument the European law concept of proportionality.
[162] It is exceedingly hard for any plaintiff to make out a case of Wednesbury
irrationality. It is not made out here. On the face of the written decision delivered on
7 March the Minister records taking into account the criteria made relevant by s 104. It is not manifestly irrational. This ground fails.
Other grounds for review
[163] I have considered the main grounds that were argued by the plaintiff. There were others. I briefly refer to them. Some of the arguments were built on a presumption that the Court might find that the Minister was entitled to reconsider the evidence and hear parties. I have held that that was not a role given to the Minister under s 119. Accordingly, the subsidiary arguments as to whether or not the Minister erred in fact by basing his decision on inadequate probative evidence or mistake of fact, or the failure to provide the plaintiff with meaningful consultation, do not have to be considered separately.
[164] There was another argument that there had been a breach of s 27(1) of the BORA, which affirms the plaintiff’s right to natural justice. This is another argument which presumes that the Minister under s 119 was obliged to grant a hearing to the
plaintiff. He was not. However, inasmuch as he did, then as previously explained, the principles of natural justice come into play. In that context the Minister may have assumed responsibilities under s 27 of BORA. Riding on this premise the plaintiff then sought damages. Plainly, consideration of this argument is premature. Ms Chen was persuaded that this cause of action should be adjourned. Formally it is adjourned.
Consideration of this Court’s discretion whether or not to intervene and set aside the decision of the Minister
[165] The Court does not grant judicial review simply because a decision demonstrates an error of law or a breach of procedural fairness. The Courts have always reserved a discretion not to grant relief. Interference by the High Court of administrative decisions is always a sensitive matter. This is particularly so where it is a decision of a Minister of the Crown, where the decision has been deliberately reserved to be made by a Minister of the Crown by Parliament.
[166] I am satisfied this is a case where the High Court should intervene. By reason of their serious character it is not possible to judge the errors to be inconsequential. I record that I have considered whether the outcome was inevitable anyway such that any grant of relief would be futile. It was not. The early staff memoranda pointed to a decision the other way.
Relief and directions
[167] The Minister’s decision is set aside pursuant to s 4(1) of the Judicature Amendment Act 1972 (JAA). In accordance with s 4(5) of the JAA I further direct that the Minister reconsider the whole matter to which the two RCA applications relate, by reason of the same errors. The next question is whether there should be any further directions under s 4(5B) of the JAA.
[168] Ms Chen submitted that the power should not be re-exercised by Mr Carter, the current Minister. She submitted that any Minister of the Crown could make the decision notwithstanding that that Minister not be the Minister of Conservation. She relied on s 7 of the Constitution Act 1986:
7 Power of member of Executive Council to exercise Minister's powers
Any function, duty, or power exercisable by or conferred on any Minister of the Crown (by whatever designation that Minister is known) may, unless the context otherwise requires, be exercised or performed by any member of the Executive Council.
[169] Ms Arthur submitted that the Court should not make a direction in this regard.
[170] Plainly, the intention of Parliament when enacting s 119 was that the Minister of Conservation makes the decision. In this respect the Minister of Conservation has an institutional continuity within the RMA. The Minister is also directly responsible for the NZCPS, and the content of regional schemes affecting coastal matters. Section
7 of the Constitution Act is an unusual power and is qualified by the phrase “unless the context otherwise requires”. This is a relevant qualification here. However, and somewhat unusually, it would appear on the face of it that the power of the Minister under s 119 can be delegated by the Minister (see s 29 of the RMA).
[171] There are no findings in this judgment which would warrant an extraordinary direction by this Court that the present Minister of Conservation should not continue to be seized of this case. The errors identified can be corrected, and the directions below are designed to achieve this, clearing the way for a reconsideration by this Minister.
[172] In this regard, this judgment should not be understood as making any decision either on the applicability of s 7 or upon the scope of the delegation power.
[173] Section 4(5B) of the JAA provides special powers to the Court to give the Minister directions, applicable to his re-exercise of the discretion given to him by s 119. It provides:
(5B) Where any matter is referred back to any person under subsection (5) of this section, that person shall have jurisdiction to reconsider and determine the matter in accordance with the Court's direction notwithstanding anything in any other enactment. (Emphasis added)
[174] Pursuant to s 4(5) and s 4(5B) of the JAA I make the following directions:
1.Assuming the two RCA applications are reconsidered by the present Minister, he is to recommence the exercise as far as is possible afresh, governed by s 119 and other provisions of the RMA, applying s 119 subject to the following qualifications.
2.Within 15 working days, to be calculated from the time of expiry of the right to appeal this decision, and if there is no appeal, the Minister is to reconsider the application of subs (3) and (4) to any information or representations that he has acquired or heard, outside of the Environment Court report, interpreting “matter” as interpreted in this judgment, to include any aspect of a matter.
3.To that end, the Minister may ask the Environment Court to amplify its report. If so, time stops running on the 15 day period until an answer is received.
4.The 20 working day time limit in s 119(1) is to be treated as beginning either on the date the Minister decides not to refer any matter to the Court , or, if he does, from the date the Court reports (see s 119(5)).
[175] The cause of action seeking damages under the BORA is adjourned to be brought on for hearing upon application of the plaintiff.
[176] The plaintiff is entitled to costs. If the parties cannot agree costs the plaintiff is to file written submissions. The defendant is to file submissions in reply within seven working days. The plaintiff has a limited right of reply to those submissions to be filed within three working days.
[177] Leave is reserved to either party to seek further directions on the conduct of the reconsideration of the whole matter.
Fogarty J
Solicitors:
Chen Palmer, Wellington, for Plaintiff
Crown Law, Wellington, for Defendant
Key Legal Topics
Areas of Law
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Environmental Law
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice & Procedural Fairness
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Limitation Periods
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Standing
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Environmental Impact Assessment
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Public Participation
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