Whangamata Marina Society Inc v Attorney-General HC Wellington CIV 2006-485-000709

The plaintiff, Whangamata Marina Society Inc, sought judicial review of a decision of the Minister of Conservation to refuse to grant two coastal permits required for the proposed marina at Whangamata. The Minister’s decision was made under the Resource Management Act 1991 (RMA). The plaintiff argued that the Minister exceeded the scope of his powers, based his decision on improper evidence, and failed to balance all relevant matters. The Minister defended his decision, arguing that he was required to take into account the Environment Court’s report and have regard to the matters set out in section 104 of the RMA.

The court examined whether the Minister had the power to reconsider the findings of the Environment Court. It found that the Minister could differ from the Environment Court in the weight to be given to relevant criteria, but not to hear witnesses and test the quality of the evidence. The court held that the Minister made a procedure error by reconsidering evidence presented to the Court.

The court also considered whether the Minister acted properly and fairly when noting that he had disregarded the “comments made to me” on 30 January at Whangamata. The court found that the Minister’s decision to disregard the comments was an inadequate resolution of the consequences of having the meetings and was a procedural error.

The court concluded that the Minister’s decision was set aside and the Minister was directed to reconsider the whole matter to which the two RCA applications relate. The court also directed the Minister to reconsider the application of subsection (3) and (4) to any information or representations that he has acquired or heard outside of the Environment Court report. The cause of action seeking damages under the New Zealand Bill of Rights Act 1990 was adjourned to be brought on for hearing upon application of the plaintiff. The plaintiff is entitled to costs.