WHĀTua v Auckland Council
[2024] NZHC 3794
•19 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-000271 CIV-2024-404-000367
[2024] NZHC 3794
IN THE MATTER OF an Appeal under Section 299 of the Resource Management Act 1991 BETWEEN
TE RŪNANGA O NGĀTI WHĀTUA
First Appellant
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND SOCIETY OF NEW ZEALAND INCORPORATED
Second Appellant
AND
AUCKLAND COUNCIL
First Respondent
WASTE MANAGEMENT NZ LTD
Second RespondentContinued...
Hearing: 29 July to 2 August 2024 Appearances:
R B Enright, I Paniora, M R Enright for First Appellant P D Anderson, M Downing for Second Appellant
A F Buchanan, W M C Randall for First Respondent
B J Matheson, W M Irving, S H Pilkington, A E Gilbert for Second Respondent
R H Haazen for Ngāti Whātua Orākei Whai Maia Ltd A W Braggins, A Parkinson for Fight the Tip Inc
J M Pou, T M Urlich for Ngāti Manuhiri Kaitiaki Charitable Trust
Judgment:
19 December 2024
JUDGMENT OF WHATA J
This judgment was delivered by me on 19 December,
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
TE RŪNANGA O NGĀTI WHĀTUA v AUCKLAND COUNCIL [2024] NZHC 3794 [19 December 2024]
Continued...
NGĀTI MANUHIRI KAITIAKI CHARITABLE TRUST
First Interested Party
FIGHT THE TIP INCORPORATED
Second Interested Party
AUCKLAND COUNCIL
First Respondent
NGĀTI WHĀTUA ŌRĀKEI WHAI MAIA LIMITED and ENVIRON HOLDINGS LIMITED
Third Interested Party
TABLE OF CONTENTS
TABLE OF CONTENTS 3 INTRODUCTION [1] Appeal threshold [5] Overview [6] Mana whenua [7] Avoid policies [11] Material harm [15] Another issue of interest [16] PART A - BACKGROUND [17] Description of the Landfill [18] Context [19] Description of the site [20] Landfill site characteristics [20] Water catchments [25] Planning maps [27] Ecological values [28] Proposed works [29] Site layout [29] Potential adverse effects and proposed response [31] Reclamation effects [32] Effects on wetlands [34] Effects on freshwater fauna [36] Sediment Effects [39] Leachate and groundwater effects [41] Effects on vegetation [43] Effects on pepeketua [45] Effects on pekapeka (long-tailed bats) [49] Mitigation, offset and compensation proposal [51] Council hearing [53] Environment Court [57] Site selection [61] Policy Framework [62] NPS-FM [63] AUP [66] Section 104D(1)(b) of the RMA [69] The Waste Minimisation Act 2008 [70] Tangata whenua [78]
PART B – THE INTERIM DECISION [79]
Tangata whenua issues [80]
Other Environmental impacts [95]
Objectives and Policies [97]
Inland wetlands, rivers and freshwater [101]
Landfills [112]
Infrastructure [115]
Mana whenua, Toitū te whenua, Toitū te taiao [116]
Overall [117]
Effects management [120]
Waste minimisation [124]
Conclusion [127]
PART C – MANA WHENUA [129]
“Common understanding” [129]
Assessment [133]
“Strength of relationship” [141]
Assessment [146]
“Cultural bottom lines” [164]
Some definition [174]
Assessment [176]
PART D – SITE SELECTION [216]
Assessment [219]
PART E — FRESHWATER [221]
The Objective error [223]
Error one — pragmatic and proportionate [228]
Assessment [232]
NPS-FM 2020 policies [237]
Policies E13 (1) and (4) [240]
Policy E3.3(17), “holistically” [241]
Frogs [242]
Error two – failure to apply directive policies [243]
Lack of recognition of E3.3(17) and E3.3(18) [244]
Assessment [248]
A holistic approach [265]
Assessment [270]
Error four - Material harm [289]
Assessment [292]
Error three – scope of E13.3 [302]
Assessment [305]
Errors five and six – flawed s 104D evaluation and evident logical fallacy [309]
PART F - WASTE MINIMISATION [312]
Assessment [317]
Outcome [322]
Strike out [324]
Costs [327]
Appendix One: Map A 131
Appendix Two: Map B 132
Appendix Three: Map C 133
Appendix Four: Map D 134
Appendix Five: Map E 135
Appendix Six: Map F 136
Appendix Seven: Map G 137
Appendix Eight: Map H 138
INTRODUCTION
[1] Waste Management NZ Limited (WM) has applied for resource consents to construct and operate a new exceptionally large regional landfill at Wayby Valley, Wellsford (the Landfill). Consents were granted by Auckland Council. Several parties appealed this grant to the Environment Court. That Court has released an interim decision indicating that it is minded to grant consent, subject to resolution of specific issues.1
[2] Two appeals have been filed on the Environment Court's interim decision by Te Rūnanga o Ngāti Whātua (Te Rūnanga) and by Royal Forest and Bird Protection Society of New Zealand (Forest and Bird). Manuhiri Kaitiaki Charitable Trust (Ngāti Manuhiri) also filed an application seeking a strike out of the appeals. For efficiency reasons, both the strike out application and substantive appeals were heard together.
[3]Five key areas of the Environment Court decision are under challenge:
(a)mana whenua status and cultural effects (1st to 3rd errors of law of the Te Rūnanga appeal);
(b)site selection (4th error of law of the Te Rūnanga appeal);
(c)freshwater matters and the National Policy Statement for Freshwater Management 2020 (NPS-FM) (5th error of law of the Te Rūnanga appeal and 2nd, 4th, 5th and 6th error of law of the Forest and Bird appeal);
(d)the Auckland Unitary Plan (AUP) and Chapter E13 of the AUP (3rd error of law of the Forest and Bird appeal); and
1 Te Rūnanga o Ngāti Whātua v Auckland Council [2023] NZEnvC 277 [Environment Court interim decision]. (Judge J A Smith, Judge M J Dickey, Commissioner R Bartlett, Commissioner G Paine and Commissioner K Prime.)
(e)the waste minimisation framework (6th error of law of the Te Rūnanga appeal).
[4] As the substantive matters were fully argued, this judgment addresses the major issues before turning to consider whether the appeals should have been struck out.
Appeal threshold
[5] Appeals from the Environment Court are limited to questions of law only.2 This Court will only interfere with decisions of the Environment Court on the basis of an error of law, irrelevant considerations or a failure to have regard to relevant considerations, procedural impropriety, and/or unreasonableness, which includes a conclusion without evidence or one that cannot have been reasonably reached on the evidence.3 The error must also materially affect the result.4
Overview
[6] A summary of the outcomes on each of the grounds of appeal is noted at [322]. This overview addresses the key issues, namely:
(a)Did the Court correctly address competing mana whenua positions?
(b)Did the Court correctly apply the “avoid” policies of the NPS-FM and the AUP?
(c)Is “no material harm” a proper measure of “avoid”?
2 Resource Management Act 1991, s 299.
3 Ayrburn Farm Estates Ltd v Queenstown Lakes District Council [2012] NZHC 735, [2013] NZRMA 126 at [34], citing Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC).
4 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 2, at 153; Stark v Auckland RC [1994] 3 NZLR 614 at 616; and Art Deco Society (Auckland) Inc v Auckland City Council [2006] RMA 49 at [13].
Mana whenua
[7] Ngāti Whātua, Te Uri o Hau and Ngāti Whātua Ōrākei say the landfill will significantly adversely affect the mauri of Papatūānuku, the Hōteo Awa and the Kaipara Moana in breach of their tikanga. On their account this should be enough to warrant decline, having regard to AUP policies that require that significant adverse effects on mauri and mana whenua values must be avoided. In addition they say the Court was required but failed to apply the guidance afforded by Ngāti Maru,5 when assessing the strength of their relationship to the affected rohe. They also say that their tikanga should have been treated as cultural bottom lines, not to be breached. The Court did not do this.
[8] Ngāti Manuhiri agree that there has been a breach of tikanga, but say that the proposed landfill will provide a much needed opportunity to restore and enhance the presently degraded freshwater environment in their rohe. Ultimately this will help restore and enhance the mana and the mauri of the Hōteo Awa and the Kaipara Moana as a whole. The project will also provide them with the opportunity to reconnect directly with their whenua, with the return of more than one thousand hectares of land to them on the closure of the landfill. For them, the proposal is therefore tika.
[9] I find that the key factual findings of the Court about mana whenua were available to the Environment Court, including that Ngāti Manuhiri have a more intimate relationship with the site of the Landfill. It would have been better for the Court to overtly apply the Ngāti Maru three pronged approach to strength of relationship issues for transparency and cogency reasons. Nevertheless I am satisfied the Environment Court adequately addressed the relevant matters. Importantly the Court gave close attention to the mana whenua values of Ngāti Whātua, Te Uri o Hau and Ngāti Whātua Ōrākei.
[10] I find that there may be cases where tikanga may operate as a cultural “bottom line”. But caution is needed. It is not the role of the Environment Court to declare and affirm tikanga as law. Rather, unless there is a clear statutory or policy directive
5 Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352.
otherwise, the Environment Court is tasked with balancing competing values. In the present case there is also a major obstacle to finding that the tikanga of a particular iwi is a cultural bottom line because, among other things, all affected iwi and hapū might legitimately claim that their tikanga position is a bottom line. What was required was a process of reconciliation and balancing, having regard to several factors including the strength of relationship while also recognising, as far as possible, the relational interests and responsibilities of all mana whenua. A process, borrowing from the Port Otago structured balancing approach,6 is suggested below from [212].
Avoid policies
[11] A key feature of both the Te Rūnanga and Forest and Bird cases is that the Court failed to apply the directive NPS-FM “avoid” policies as bottom lines by adopting a “pragmatic and proportional”, as well as a “holistic” approach to the assessment of effects and the interpretation of the “avoid” policies.
[12] I find that the “pragmatic and proportional” approach was not an “overall judgment” or “blender” approach. Rather the Court appears to be using these ideas to ensure fairness and appropriate balance having regard to the policy matrix as a whole, and that applicable policies are given practical effect in a way that is commensurate with their underlying purpose. However, I find that the Court was wrong to find that only the policies relating to mauri were bottom lines. An exceptions pathway experience (as per East West Link)7 was appropriate in respect of the NPS-FM policies. In identifying the criteria for the exceptions pathway, a structured balancing approach was mandated, making it necessary to take into account the policies of the AUP that recognise infrastructure and mana whenua values.8
[13] I find no error in the “holistic” approach both to the avoid policies and to the assessment of effects. A whole of AUP approach to interpretation of policies including “avoid” policies was endorsed by the Supreme Court in East West Link. There is also
6 Port Otago Ltd v Environmental Defence Society Inc [2023] NZSC 112, [2023] 1 NZLR 205.
7 Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency
[2024] NZSC 26, [2024] 1 NZLR 241 [East West Link].
8 By analogy to Port Otago, above n 6, at [78]-[79].
nothing wrong with a holistic approach to the effects assessment, provided there is some nexus between any remediation or offset and the adverse effect.
[14] Moreover, I find that because the Court effectively identified the key NPS-FM “avoid” policies as directive and adopted a “no material harm” approach to key adverse effects, the bottom line error was not material to the outcome. I also find that it was premature to make findings about this until the Court had completed its analysis of the scale of the effects.
Material harm
[15] Forest and Bird rally against the Court’s “no material harm” approach to the “avoid” requirement, especially as it relates to policies that require that loss of the extent of river must be avoided. I reject this claim. The Supreme Court in Trans- Tasman and Port Otago endorsed no material harm as a valid measure of “avoid”.9 Whether no material harm arises, including by reason of offset, is a matter for the Court as the expert trier of fact. Whether they are right or wrong about that cannot sensibly be assessed in this Court (if at all) until the final findings are made about the scale of such effects.
Another issue of interest
[16] One further finding of some general interest is that the principle against retrospective effect does not apply to the NPS-FM policies introduced after the application commenced because, in short, WM has no existing rights or interests affected by the new NPS-FM policies.
PART A - BACKGROUND
[17] The parties helpfully provided a detailed summary of agreed facts setting out the background to these appeals. For the most part, I repeat it here. The summary of the sections dealing with tangata whenua is borrowed from the Environment Court interim decision.
9 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801.
Description of the Landfill
[18] The Landfill is intended to provide 23.4 Mm3 of landfill capacity. The Landfill is expected to be capable of accepting approximately 50 per cent of Auckland’s annual residual waste, which could be up to 800,000 tonnes of waste per year. Residual waste is the waste that is not recycled or reused and so must be safely disposed of.
Context
[19] The Landfill site in the Wayby Valley is located between Warkworth and Wellsford. It is approximately 4 km southeast of Wellsford. Wayby Valley is within the catchment of the Hōteo Awa. There are 4,100 km of permanent and intermittent streams within the Hōteo Catchment. The Hōteo is one of several catchments contributing to the Kaipara Moana, which itself has a catchment of approximately 600,000 ha. See Map A attached as Appendix One for an overview of the Hōteo Catchment. The Hōteo Awa drains nearly 8 per cent of Auckland’s total land area. At its confluence with the Kaipara Moana, the Hōteo has a catchment area of 405 km2.
Description of the site
Landfill site characteristics
[20] The Landfill site is approximately 1,001 ha. It comprises 344.5 ha of land that was known as Springhill Farm, and 656.9 ha of adjacent land owned by Matariki Forests and which is currently in commercial pine forests.
[21] The proposed landfill is within a valley (approximately 100 ha) in the centre of the site and will occupy approximately 54 ha of an existing pine forest (the Landfill Footprint). The topography of the landholdings is a mix of predominantly pastoral farmland and plantation forestry.
[22] WM owns the Springhill Farmland and has an agreement to purchase the Matariki Forests land conditional upon the successful granting of all necessary resource consents to the satisfaction of WM.
[23]The Landfill site is comprised of four key areas as shown in Map B attached as Appendix Two:
(a)Western Block: the western part of the landholdings including Springhill Farm and the Hōteo Awa is located along a portion of its western boundary.
(b)Eastern Block: an area of approximately 350 ha of plantation pine forestry (which also includes the Waiwhiu Tributary Block). This area is predominantly steep ridges and valleys and includes the proposed landfill valley (the Landfill Valley). The adjacent valley, to the north of Landfill Valley, is another valley r(the Northern Valley). No landfilling is proposed in the Northern Valley, with the stream in the base of that valley to be planted and protected and pest control designed to reduce predators of pepeketua (also known as Hochstetter’s Frog).
(c)Southern Block: a strip of land between Springhill Farm to the north and the Sunnybrook Reserve, owned by the Crown and managed by the Department of Conservation (DoC), to the southeast.
(d)Waiteraire Tributary Block: an area of plantation forestry and native vegetation at the southeastern extent of the site.
[24] There are several dwellings on rural properties located around the site. The size of WM's landholdings provides a 1 km buffer between the Landfill Footprint to the nearest dwelling as shown in Map C attached as Appendix Three.
Water catchments
[25] The site is in the mid-to-upper Hōteo Catchment, approximately 35 km as the stream flows from the Kaipara Moana. Te Awa o Hōteo, the Waiteraire Stream and the Waiwhiu Stream, run around the edges of the site.
[26] There is around 134 km of permanent, intermittent and ephemeral stream within the site. This comprises about 40 km of permanent and 24 km of intermittent stream length, of which 12.2 km of permanent and intermittent stream is within the Landfill Footprint. The remaining 70 km is expected to be primarily ephemeral or otherwise intermittent stream. See Map A and Map D attached as Appendix Four.
Planning maps
[27] The site is zoned Rural Production under the AUP. Overlays under the AUP are summarised below and shown on Map B:
(a)There are several Significant Ecological Area (SEA) overlays on the wider site. No project works are proposed within these overlays.
(b)There is a Natural Stream Management Area (NSMA) overlay within the Southern Block and another along the Hōteo Awa channel. No project works are proposed within the Hōteo Awa channel.
(c)There is an Outstanding Natural Landscapes overlay to the south of the Landfill Footprint. No project works will occur in this overlay.
Ecological values
[28] There is approximately 1,020 ha of habitat on the site (comprising the 1,001 ha site plus 19 ha of paper roads). This is made up of approximately 664 ha of exotic pine forest, 188 ha of pasture, 106 ha of native forest, 50 ha of exotic wattle forest, 16 ha of native wetlands and 14 ha of exotic wetlands. See Map E attached as Appendix Five. These areas provide habitat for native fauna, including bats (pekapeka), birds, lizards, frogs (pepeketua) and invertebrates.
Proposed works
Site layout
[29] The general site layout is shown in Map F attached as Appendix Six. The Landfill includes infrastructure that supports landfilling activities including:
(a)a new intersection at the existing State Highway 1 (agreed with New Zealand Transport Agency Waka Kotahi) and a new access road going directly to the main site from the State Highway 1 (see Map G attached as Appendix Seven);
(b)a bin exchange area near the entrance where truck and trailer vehicles will be able to deposit enclosed bins for site vehicles to transport them to the landfill tipping face (there is no public access to either the bin exchange area or landfill tipping face) (See Map G);
(c)operational infrastructure such as a weighbridge located on the access road near the entrance to the Landfill Valley to weigh incoming and outgoing vehicles and a wheel wash facility for cleaning the wheels of all vehicles leaving the site, which have access to unpaved areas;
(d)various ancillary buildings and services such as a site office for staff operating the landfill and a workshop for plant and general maintenance;
(e)during and post-construction, stormwater ponds that cascade down will capture and treat (for sediment purposes) stormwater within Landfill Valley catchment and downstream of other works areas (stockpile, top soil and clay borrow area);
(f)stockpile areas including topsoil and clay borrow pit which will be used to construct the landfill and/or store material excavated during works; and
(g)a renewable energy facility which will collect landfill gas (LFG), including methane, from the landfill and be used to generate electricity for export into the grid.
[30]The construction of the Landfill will take place over approximately five years.
Potential adverse effects and proposed response
[31] Where effects in this section refer to proposed consent conditions, these are not all agreed to by all of the parties and have not been confirmed by the Environment Court.
Reclamation effects
[32] The project works for the Landfill will result in the permanent and irreversible loss of 12.2 km of permanent and intermittent stream habitat (approximately 5.1 km and 7.1 km respectively). Should this project proceed, this effect cannot be mitigated. The vast majority of this stream loss will be within the Landfill Valley, which is inevitable beneath the Landfill. This loss represents approximately nine per cent of the permanent and intermittent streams on the site and 100 per cent of the permanent and intermittent streams within the Landfill Footprint.
[33] Loss of approximately 5.5 km of ephemeral streams are not accounted for. It is noted that the AUP does not require resource consent for works within ephemeral streams, and the objectives and policies do not refer to ephemeral streams. A plan change to give effect to the NPS-FM has not yet been promulgated.
Effects on wetlands
[34] The site includes 16 ha of native wetlands and 14 ha of exotic wetlands. The Landfill will result in the loss of approximately 0.4 ha of native wetlands and
1.35 ha of exotic wetlands (approximately six per cent of wetlands on the site).
[35] Residual effects on wetlands are addressed through the effects management package for the Landfill which seeks to achieve no net loss.
Effects on freshwater fauna
[36]Native freshwater fauna are present across the Landfill Footprint and include:
(a)"At Risk Declining" species such as longfin eels, torrentfish, and kākahi (E. menziesii);
(b)“At Risk Naturally Uncommon” species such as freshwater crab; and
(c)possibly "Threatened Nationally Vulnerable" species such as kākahi (E. aucklandica).
[37] The Environment Court found that the loss of the streams beneath the Landfill Footprint will remove all in-stream biota, including fish, invertebrates and amphibians, including pepeketua. Salvage efforts will be made to recover in-stream biota. The Court concluded that this would be a permanent loss.
[38] To respond to the effects on aquatic ecology, mitigation is proposed including fish salvage and relocation in summer months when intermittent streams have dried, and fish have moved downstream into areas of more permanent habitat. No specific aquatic fauna relocation sites were identified to the Environment Court and parties during the hearing. Once salvaged, freshwater fauna will be relocated. These measures and others will be implemented through a Native Freshwater Fish and Fauna Management Plan. There are unaddressed residual adverse effects from the injury and mortality of macroinvertebrates. The application of the Stream Ecological Value (SEV) through the Ecological Compensation Ratio (ECR) equation does not explicitly account for macroinvertebrate mortality. Publicly available monitoring data for the success or failure of freshwater fauna salvage for mitigation relocation is sparse.
Sediment Effects
[39] There are both short-term and long-term sediment effects. Short-term effects are associated with the potential discharge of sediment during earthworks. Long-term effects include the ongoing discharges from the stormwater treatment devices including sediment-laden water and stormwater.
[40] Controls are proposed to address sediment effects including proposed erosion and sediment control measures to ensure the discharge of sediment is minimised as far as is practicable. Mitigation measures including stream planting and revegetation will reduce overall sediment loads during operation of the Landfill but given uncertainty from some experts during the consenting process an overall "sediment balance"
approach has been proposed. This will require WM to ensure the overall sediment loads from the Landfill are either nil, or less than the current baseline sediment loads.
Leachate and groundwater effects
[41] The Landfill lining system is designed with a series of barrier layers to prevent leachate entering groundwater. The lining system is designed not to leak; however it is best practice to assume some leakage to assess potential effects. In this leakage assessment the contaminant concentrations are estimated to be below adopted acceptance criteria at potential exposure points.
[42] A subsoil drainage and groundwater collection system has been designed to avoid damage to the lining system from groundwater pressure underneath the liner, and to capture and provide early warning of any unintended leachate escape through the lining system, enabling contingency steps to be taken. Conditions relating to groundwater flow and monitoring and contingency are aligned with industry best practice.
Effects on vegetation
[43] All areas identified by the AUP as being within overlays (i.e. the SEA or NSMA overlays) have been avoided, either through site selection or through further detailed design and optioneering within the site.
[44] The Project is expected to result in the permanent loss of approximately 15 per cent of terrestrial habitat on the site, including the loss of approximately 115 ha of pine forest, 22 ha of pasture, 13 ha of wattle forest, and 6.5 ha of non-SEA native forest.
Effects on pepeketua
[45] Pepeketua have been identified within the Landfill Valley, the wider site, Sunnybrook Reserve and the wider landscape (including within the area for the new State Highway under Designation 6779). Experts have agreed they are “at risk” and in a state of decline both nationally and regionally.
[46] The amount of habitat occupied by pepeketua that will be permanently lost is estimated to be 20 per cent of the 9.5 km of pine forest stream in the Landfill Footprint. Ecological assessments undertaken for the Landfill estimate that 500 to 2,000 pepeketua could be within that area. The Environment Court estimated that 1,000 frogs would be lost.
[47] Not every stream within the impact and compensation sites has been searched. Hotspots are likely to have been missed in these locations. The effects assessment for pepeketua assumed that all frogs will perish and the effects assessment has also assumed that salvage and relocation will not reduce the level of effects on frogs.
[48] Mitigation has been proposed to address effects on pepeketua, including the creation of a pest-free sanctuary, salvage, and relocation of frogs to suitable habitat prior to each section of vegetation clearance (including 100 person-hours of salvaging for every 1 km of suitable stream habitat). These will be managed through a Hochstetter’s Frog Management Plan. Experts agreed at a high level that indigenous revegetation and pest animal control are beneficial to pepeketua (and no pest control currently occurs on the site or neighbouring DoC land). The expert for DoC noted some of these benefits may take decades.
Effects on pekapeka (long-tailed bats)
[49] Habitat for pekapeka exists on the site. Foraging habitat appears to be most important within the pine forest plantation, regenerating indigenous forest and wattle forest areas. Roosting is most likely within the indigenous forest remnants, as well as the wattle forest and the indigenous regenerating forest areas, and less likely in planation forestry.
[50] The Landfill has potential adverse effects on bats including direct mortality or injury, habitat loss, habitat fragmentation and degradation, and disturbance effects of noise, lighting and vibration. Direct and residual mitigation measures are proposed to address these effects and to provide an overall net gain in the improvement of bat habitat over time, compared to its currently modified state. These will be managed through a Bat Management Plan including assessment of potential roost trees before any vegetation removal.
Mitigation, offset and compensation proposal
[51] A mitigation, offset and compensation package is proposed. The final package is subject to confirmation in the Environment Court process. This includes planting up to 60 km of streams offsite (or payment of $10 million to the Kaipara Moana Remediation Programme), planting most streams onsite, a pest management programme for the site, including the adjacent Sunnybrook Reserve.
[52] This package includes a pest fence around one of Auckland’s largest remaining natural wetlands, and the creation of a 126 ha pest-free sanctuary that will be replanted and kept pest free into the future. Mammalian predators and habitat destruction and degradation are the major drivers for population decline of pepeketua, lizards, wetland birds, and forest birds. Mammalian browsers and predators are a key driver of indigenous wetland and forest vegetation decline. Experts agreed that construction of a pest fence is the most efficacious method for managing pests to zero density (see Map D and Map H attached as Appendix Eight).
Council hearing
[53] The resource consent application for the Landfill was lodged in May 2019. There are no Landfill Special Purpose zones in the AUP. "Municipal Landfills" fall within the definition of Infrastructure. Landfills are listed as a non-complying activity in all rural zones and discharges from new landfills are also a non-complying activity in the AUP.
[54] The Council-level hearing for the Landfill was held over 20 days between November 2020 and January 2021.
[55] A decision dated 11 June 2021 (served on 14 June 2021) granted consent for the Landfill by majority of four to one (the Council Decision). The dissenting decision was issued by Commissioner Tepania (now an Environment Court judge).
[56] A private plan change (lodged in July 2019) was also sought at the site and heard at the same time as the resource consent application. This private plan change was seeking to put in place a new precinct within the AUP to provide for the Landfill.
This was declined in a decision dated 10 September 2021. WM did not appeal this decision.
Environment Court
[57] Eight appeals were lodged with the Environment Court against the Council Decision by:
(a)the Director-General of Conservation;
(b)Fight the Tip: Tiaki Te Whenua Inc (Fight the Tip);
(c)Ngāti Manuhiri (this appeal has since been resolved);
(d)New Zealand Refining Company Ltd, now Channel Infrastructure NZ Ltd (this appeal has since been resolved, with consent documents lying in Court pending the outcome of the substantive appeals);
(e)Ngā Maunga Whakahii o Kaipara Development Trust;
(f)Ngāti Whātua Ōrākei and Environs Holding Ltd (Te Uri o Hau);
(g)Forest and Bird;
(h)Te Rūnanga; and
(i)William and Te Arahi Kapea (this appeal has been withdrawn).
[58] Those appeals were heard over 13 weeks. Over 160 briefs of evidence were filed. The hearing was adjourned twice, in August 2022 and in September 2022. These adjournments were to allow for hui and discussion between WM and tangata whenua.
[59] Following these discussions, WM entered into an agreement with Ngāti Manuhiri, allowing Ngāti Manuhiri to support the grant of consent for the Landfill. Among other things, this agreement will see over 1,000 ha of land transferred
to Ngāti Manuhiri at the completion of the landfilling and aftercare period and expiry of the forestry rights (which Matariki Forests would retain on transfer of the land to WM).
[60] The Environment Court issued its interim decision on the Landfill on 21 December 2023. This did not grant consent for the Landfill but rather concluded that a modified application, conditions and management plans could meet the purposes of the Resource Management Act 1991 (RMA) and in particular the relevant matters under s 104. I return to provide a more detailed overview of this decision below.
Site selection
[61] The site selection process began in August 2007. Various reports were produced from then, including in 2009, 2014, 2015, 2016, 2017 and 2018. The site was first mentioned in the 2007 report. It was part of further investigations in reports dated 2009, 2014 and 2017 (amongst other options). WM obtained Overseas Investment Office approval to purchase the site in September 2018.
Policy Framework
[62] It is customary to provide a review of the applicable objectives and policies in a judgment like this, but the list is so long that an acontextual discussion of them would add more to length than to comprehension. Instead the policies are addressed first in detail in the context of the summary of the interim decision, and then where relevant issue by issue. The following is simply an introduction to some key elements.
NPS-FM
[63] There have been various changes to NPS-FM over the last decade, with a first iteration in 2011, a second in 2014 (with amendments in 2017) and a third in 2020 (with amendments in 2023).
[64]Clause 2.1 sets out the objective of the NPS-FM 2020:
(1)The objective of this National Policy Statement is to ensure that natural and physical resources are managed in a way that prioritises:
(a) first, the health and well-being of water bodies and freshwater ecosystems
(b) second, the health needs of people (such as drinking water)
(c) third, the ability of people and communities to provide for their social, economic, and cultural well-being, now and in the future.
[65] Auckland Council has included Policies 3.22 and 3.24 from the NPS-FM in the AUP without using process set out under sch 1 of the RMA as required by s 55(2A) of the RMA. These are known as AUP Policies E3.3.(17) and E3.3.(18) respectively. They seek to avoid the loss of extent of wetland and the loss of river extent and values except in specified circumstances.
AUP
[66] The AUP combines the regional policy statement, regional coastal plan, regional plan and district plan for the Auckland region into one combined plan, with the exception of the Auckland Council District Plan – Hauraki Gulf Islands Section. The AUP has a hierarchical policy framework with the regional policy statement at the top, then with regional and district plan provisions giving effect to the regional policy statement. The proposed AUP was notified on 30 September 2013 and became operative in part on 15 November 2016.
[67] Chapters of the AUP include Chapter B6 Mana Whenua, B7 Toitū te whenua, Toitū te taiao – Natural resources and Chapter E3 Lakes, rivers, streams and wetlands. As noted above, Chapter E3 has Policies E3.3.(17) and E3.3.(18) as inserted into the AUP from the NPS-FM.
[68] As noted, I return to the key applicable provisions below when summarising the Environment Court’s interim decision.
Section 104D(1)(b) of the RMA
[69] The proposed activity is a non-complying activity overall, for which a resource consent may only be granted in limited circumstances. Most relevantly, s 104D(1)(b) provides that in such cases, a resource consent may be granted if the consenting
authority is satisfied that the application is for an activity that will not be contrary to the objectives and policies of a relevant plan or a district plan.
The Waste Minimisation Act 2008
[70]The purpose of the Waste Minimisation Act 2008 (WMA) is outlined in s 3:
3 Purpose of this Act
(1)The purpose of this Act is to encourage waste minimisation and a decrease in waste disposal in order to—
(a) protect the environment from harm; and
(b) provide environmental, social, economic, and cultural benefits.
[71] Part 4 of the WMA imposes specific responsibilities on territorial authorities for waste collection and disposal.
[72] Section 42 of the WMA provides that a territorial authority must promote effective and efficient waste management and minimisation within its district.
[73] Section 43(1) of the WMA provides that for the purposes of s 42, a territorial authority must adopt a waste management and minimisation plan.
[74]Section 52(1) of the WMA provides:
(1) A territorial authority may undertake, or contract for, any waste management and minimisation service, facility, or activity (whether the service, facility, or activity is undertaken in its own district or otherwise).
[75] The WMA enables a levy to be imposed on waste disposal. A levy is currently imposed on waste disposed of at a disposal facility. The levy must be paid to the levy collector in accordance with requirements under the Waste Minimisation (Calculation and Payment of Waste Disposal Levy) Regulations 2009.
[76] Auckland Council published a Waste Management and Minimisation Plan in 2018. It records inter alia that:
(a)Auckland aspires to be zero-waste by 2040;
(b)in 2016, more than 1.6 million tonnes of waste was sent to landfill in Auckland;
(c)it is not yet technically or economically feasible to divert all materials from landfill; and
(d)the mana whenua priorities include no new landfills.
[77] There are three goals and nine objectives in this Plan. The overarching goals are to minimise waste generation, maximise opportunities for resource recovery and reduce harm from residual waste.
Tangata whenua
[78] An area not addressed in the parties’ agreed statement of facts is a description of the tangata whenua engaged in these appeals. As mentioned above, I adopt the description of those tangata whenua parties provided by the Environment Court:10
Te Rūnanga o Ngāti Whātua
[399] Ngāti Whātua is a confederation of three main tribes occupying the lands between the Hokianga Harbour and Tāmaki Makaurau, these are Te Roroa, Te Uri o Hau and Te Taou. Each of these tribes is affiliated to the Mahuhu-ki-te-rangi waka. The Rūnanga Board of Trustees comprises hapū representatives from five takiwa - Ōrākei, South Kaipara, Whāngarei, Northern Wairoa and Otamatea. The Board represents approximately 12,000 registered Ngāti Whātua.
[400] The confederated hapū and tribes are listed in the 2008 Deed of Mandate. They include: Ngā Oho, Ngāi Tāhuhu, Ngāti Hinga, Ngāti Mauku, Ngāti Rango (sometimes referred to as Ngāti Rongo), Ngāti Ruinga, Ngāti Torehina, Ngāti Weka, Ngāti Whiti, Patuharakeke, Te Parawhau, Te Popoto, Te Roroa, Te Urioroi, Te Taou, Te Uri Ngutu, Te Kuihi and Te Uri o Hau. We acknowledge that Te Rūnanga has authority to speak on issues of rangatiratanga, kaitiakitanga, tikanga and kawa for Ngāti Whātua.
Marae
Te Rūnanga o Ngāti Whātua are also affiliated with 35 marae of the Kaipara: namely Haranui; Kāpehu; Ahikiwi; Naumai; Ngā Tai Whakarongorua; Ōmaha; Ōrākei; Ōtamatea; Korokota; Ōtuhianga; Ōturei; Pahinui; Parirau; Pōuto; Puatahi; Rewiti; Ōruāwharo; Te Kia Ora; Rīpia; Taita; Takahiwai; Tama Te Uaua; Te Aroha Pā; Te Kōwhai; Rawhitiroa; Toetoe; Te Pounga;
10 Environment Court interim decision, above n 1.
Te Whētu Mārama; Tirarau; Waihaua; Waikarā; Waikaraka; Waiohau; Waiotea.
[402] Ngāti Whātua is the primary iwi occupying the area north of the Tāmaki River. Their northern boundary is shown on a map of the Ngāti Whātua rohe. Evidence was also presented for Ngāti Whātua saying the site lies within the wider traditional rohe of Ngāti Whātua.
…
Ngāti Manuhiri
[405] Ngāti Manuhiri are the descendants of the eponymous ancestor Manuhiri, the eldest son of the Rangātira and warrior chieftain Maki, himself a descendant from the Tainui waka. From this whakapapa Ngāti Manuhiri, in their own right through Maki and his sons, have unbroken ties to their ancestral rohe. Maki, Manuhiri and their people, over time, settled in the southern Kaipara, Waitākere, Whenua roa ō Kahu (North Shore), Albany up to Mahurangi districts including Pakiri, Matakana, Puhinui (Warkworth), and finally the eastern offshore islands such as Hauturu ō Toi/Little Barrier and Āotea/Great Barrier.
[406] Ngāti Manuhiri made strategic marriages with other tribal groupings such as Ngāi Tāhuhu and Ngāti Wai among others, who occupied the eastern coastline and many of the offshore islands. Through these marriages Ngāti Manuhiri strengthened their links with the land, sea, and islands on the eastern coastline from Paepae ō Tū (Bream Tail) to Te Raki Paewhenua (Takapuna area) and inland Kaipara areas.
[407] Ngāti Manuhiri maintain an unbroken connection with their rohe exercising their mana through manuhiritanga in the form of tribal traditions, songs, place names, tupuna (ancestral rights), urupā (burial grounds) and kaitiakitanga.
[408] Omaha Marae is the only Ngāti Manuhiri marae within their rohe. The Ngāti Manuhiri rohe, or area of interest, has been formally recognised in the Ngāti Manuhiri Deed of Settlement. The Ngāti Manuhiri Claims Settlement Act 2012 among other things, highlighted the iwi designated area for Right of First Refusal which includes land around Tohitohi o Reipae and the headwaters of the Hōteo. This area includes the Site of this application, but the site is privately owned. Therefore, the Right of First Refusal does not apply.
…
Ngāti Whātua Ōrākei and Te Uri o Hau
[416] We heard evidence regarding the whakapapa of Ngāti Whātua Ōrākei and Te Uri o Hau and their close association with Ngāti Whātua. Mr Joe Pihema tells us that the broader tribal area for the hapū; Ngaoho, Te Taou, Ngāti Whātua Tūturu and Te Uri o Hau stretches along the west coast from the Manukau Harbour to Maunganui Bluff just north of Dargaville. On the east coast their border stretches from Mangawhai in the north to Tāmaki and moves inland at various places.
[417] The tribal name Ngāti Whātua is derived from the subtribe hapū Ngāti Whātua Tūturu who are based on the south Kaipara head at Haranui Marae. Ngāti Whātua Tūturu and neighbouring hapū Te Mangamata lands occupy the peninsula opposite the mouth of the Hōteo.
[418] Mr Pihema described that at the heart of this region is the Kaipara Harbour, a vast expanse of water with numerous rivers and creeks reaching out to a myriad of Ngāti Whātua villages and kāinga. He said:
The Kaipara Harbour and Wairoa River have supported over 14 generations of my people and helped create and shape the identity of the modern day Ngāti Whātua tribe. The waters of the Kaipara Harbour (which includes the Wairoa River) continue to influence and shape our lives and will do so for many generations to come.
(footnotes omitted)
PART B – THE INTERIM DECISION
[79] The Environment Court’s interim decision spans more than 900 paragraphs. Many key findings are interspersed through the decision. In order to assist with comprehension, this part of the judgment serves as an overview of those key findings assembled by reference to the key themes of the appeals: tangata whenua, other environmental impacts, objectives and policies, effects management and waste minimisation.
Tangata whenua issues
[80]The Court found that:11
[54] In relation to the concept of mana whenua, this is agreed to be a relatively new concept – it may even be described as a legal construct. It is clear that the overlaying of various forms of authority, tapu, kawa and tikanga lie at the heart of the concepts of mauri and mana.
[55] As the parties were quick to tell us in this case, questions of whanaungatanga become important and bear upon how these relationships are expressed. The Hōteo River is a prime example, with all parties expressing their particular connections to it and the other parties to this hearing in relation to it and the wider area.
[56] Nevertheless, there appears to have been a common understanding of which areas were Ngāti Manuhiri, Ngāti Whātua, Ngāti Whātua Ōrākei and Te Uri o Hau. These included the area of the landfill site itself and the area to the east of it. The landfill site appears to have been recognised as being within the Ngāti Manuhiri rohe. Ngāti Whātua have clearly been established around
11 Environment Court interim decision, above n 1.
portions of the Kaipara and for some distance up the various tributaries, including the Hōteo River.
[57] Nevertheless, the Hōteo River seems to demonstrate areas of overlapping interest both for the harvesting potential of the river itself and for the karaka trees that grew along its margins. The extent of this is in dispute and is the subject of an application to the Māori Land Court. However, Ngāti Whātua Ōrākei and Te Uri o Hau are established more broadly around the Hōteo and on the Kaipara Harbour.
[58] We do not intend to comment upon who may have exclusive authority in respect of any part of the Hōteo. What we can say is that the evidence was clear before us that, at least up to the Wayby Valley area, there was common usage by a number of parties that may have been based upon whanaungatanga and other informal – or formal – understandings between the various hapū and iwi.
[81] The Court records that all tangata whenua groups were concerned about breach of tikanga by WM, lack of consultation, potential effects on mauri of Papatūānuku, the awa and the moana, natural ecosystem, and flora and fauna, including taonga species.12 While Ngāti Manuhiri subsequently supported the proposal, they maintained their original evidence relating to breach of tikanga, but that this breach has been addressed to their satisfaction.13
[82] On the issue of pre-application consultation, the Court found that WM did not appropriately engage with tangata whenua as part of its process of identification of sites but after August 2018 consultation was undertaken appropriately.14 The failure to properly engage was nevertheless a breach of tikanga that has been repaired for Ngāti Manuhiri, but not so for Ngāti Whātua, Ngāti Whātua Ōrākei and Te Uri o Hau.15
[83] The Court found the location of the proposed landfill holds immense cultural, historical, and environmental significance for the iwi and hapū participating in this process.16 The Court acknowledged the difference of view as to where the line is drawn for the rohe of Ngāti Whātua and Ngāti Manuhiri.17 No finding is made on this
12 At [436].
13 At [437].
14 At [116]–[117].
15 At [450].
16 At [396].
17 At [435].
issue because the downstream effects of the landfill on Ngāti Whātua relationships, beliefs and values are uncontested, as is the significance of these values.18
[84] The movement of paru or waste from one rohe to another was identified by the Court as a common theme regarding adverse cultural effects.19 The Court observed that a landfill upstream of iwi and hapū taonga is culturally offensive,20 and this issue is interlinked with the breach of tikanga in terms of site selection.21
[85] The potential effects of the Landfill on the mauri of Papatūānuku, the Hōteo River and the Kaipara Harbour and the relationship of the tangata whenua with them were also identified as an effects of primary concern.22 However as a result of the heads of agreement reached with Ngāti Manuhiri, the Court recorded that they now support the proposal.23 The agreement is recorded as including:
[470] In a further statement, Mr Hohneck elaborated on the nature of the agreement with Waste Management:
(a)a $10 million mechanism [bond] was agreed to be called on if the river was ever exposed to risk;
(b)ultimately, Ngāti Manuhiri will receive the entire 1060 ha of Waste Management’s land holdings – once each part of the site is no longer required for landfill or Waste Management’s aftercare responsibilities are fulfilled and once all of the Matariki forestry rights expire. Further a final date has been agreed whereby no further applications for consent will be made without Ngāti Manuhiri consent;
(c)the existing houses at Springhill and Izard Price Properties will be made available to Ngāti Manuhiri whanau to live in at $1 per year until they transfer;
(d)Waste Management will make a $2 million payment to Ngāti Manuhiri to construct up to six homes on Springhill for Ngāti Manuhiri whanau to live in and rent for $1 per year until the Springhill property transfers;
(e)ensure Ngāti Manuhiri will be closely involved in the development, construction, maintenance and running of the ecological and landfilling activities on site, including the predator-fenced sanctuary;
18 At [435].
19 At [451].
20 At [456].
21 At [461].
22 At [464], [469], and [479]–[484].
23 At [469].
(f)Waste Management have agreed to prioritise Ngāti Manuhiri people for employment;
(g)there will be further work with Waste Management on conditions and outcomes – including the Digital Dashboard.
[86] The Court acknowledged the potential impact of the proposal on taonga species, the Hōteo and the Kaipara harbour, including both physical impacts and impacts on the exercise of kaitiakitanga and whanaungatanga.24 The Court also found that the relationships between the tangata whenua are based on shared whakapapa and a common commitment to provide ecological and cultural values as they related to taonga, awa, moana and te taiao.25
[87] In assessing the cultural values and effects the Court observed that, “we must be able to identify, involve and provide for iwi and their mana whenua in accordance with mātauranga Māori and tikanga Māori.”26
[88]And:
[499] Further, we agree that:
… that duty also requires us to engage meaningfully with the impact of the application on the whanaungatanga and kaitiakitanga relationship between iwi and the natural environment, with their lands, waters, taonga and other significant features of the environment such as Te Awa Hōteo and Kaipara moana: seen not just as physical resources but as entities in their own right – as ancestors, gods, whānau – that iwi have an obligation to care for and protect.
(footnote omitted)
[89]The Court observed:
[500] But for the change of position by MKCT [Ngāti Manuhiri] and the further proposed conditions, we would have endorsed Commissioner Tepania’s decision (and conclusion).
[501] We accept that the area generally is within the rohe of Ngāti Whātua. We also accept that the general landfill Site is within Ngāti Manuhiri rohe – that they maintain an unbroken connection with their rohe exercising their mana through manuhiritanga. While the rohe of Ngāti Whātua and Ngāti
24 At [485]–[487].
25 At [495].
26 At [497].
Manuhiri overlap to an extent, we find that Ngāti Manuhiri has a more intimate relationship with the landfill Site than does Ngāti Whātua.
[502] This conclusion does not relate to the Hōteo River itself. In that regard, there is clear evidence of overlapping interest, usage and occupation of the river and its margins. We accept that the Hōteo is within the rohe of Ngāti Whātua and Ngāti Manuhiri and Te Uri o Hau – where on the river the exact boundary is between iwi is not agreed.
[90]The Court then made the following findings:
(a)The Kaipara Harbour generally is within the rohe of Ngāti Whātua o Kaipara, Ngāti Whātua Ōrākei and Te Uri o Hau.27
(b)They accept the strength of relationship that all iwi have with the Hōteo and Kaipara Harbour and that they have to be safeguarded.28
(c)The movement of paru is offensive, impacts the relationship of the tangata whenua with Papatūānuku and is a breach of tikanga.29
(d)The location of the Landfill creates an unacceptable a risk to the Hōteo and the Kaipara Harbour in terms of potential contamination and this risk negatively impacts on the relationship of tangata whenua to those waters and is a spiritual effect on them.30
(e)Iwi believe that a landfill in the area will diminish the mauri (life force) of Papatūānuku and all those whose rely on her health and wellbeing,31 and the already vulnerable and degraded state of the Hōteo is acknowledged.32
(f)There are overarching concerns that the Landfill’s presence may significantly diminish iwi relationships with their taonga.33
27 At [503].
28 At [504].
29 At [506].
30 At [507].
31 At [508].
32 At [508].
33 At [509].
(g)Not all iwi and hapū now consider the effects on their relationship will be significant with appropriate conditions and modifications to the proposal.34
(h)Ngāti Manuhiri say there will be adverse effects arising from the Landfill, but now are prepared to accept those adverse effects and offence to tikanga the Landfill causes, in light of the benefits it and the wider environment will receive from their agreement with WM.35
[91] The Court then queries whether the agreement reached reduces the significance of the effects for the site in terms of the effects that will occur given Ngāti Manuhiri’s greater intimacy with that area.36 The Court responds:37
[514] We place some weight on MKCT’s [Ngāti Manuhiri’s] changed position. The benefits it sees are not insignificant. We also conclude that MKCT [Ngāti Manuhiri’s] position is based on its conclusion that with proper conditions and direct oversight it can ensure there is no material harm to the Hōteo or the Kaipara.
[92] From this position the Court examines the effects on mana whenua values of the proposed Landfill and the likelihood of the benefits Ngāti Manuhiri foresee. Key findings are:
(a)Ngāti Manuhiri’s ongoing involvement in the project will be a benefit in terms of managing potential contaminants, particularly if mauri and mātauranga principles are taken into account.38 But other tangata whenua consider there will always be risk, and that more needs to be done to satisfy tangata whenua that there is no prospect of an adverse effect reaching the offsite streams or Hōteo.39
(b)Ngāti Manuhiri’s involvement might see a positive outcome in terms of taonga species and loss of stream length and future management of the
34 At [510].
35 At [511].
36 At [513].
37 See also at [44].
38 At [620].
39 At [620].
proposal if they have a substantial role, but the question is the adequacy of the steps taken and whether these meet the provisions of the AUP and otherwise satisfy the Court that the consent can safely be granted.40 This encourages the Court towards considering installing further retention and detection processes below the ponds to avoid contamination.41
(c)In terms of risks to the Hōteo and Kaipara of landfill failure, a key issue for mana whenua, multiple levels of redundancy are justified.42
(d)In terms of risk of effects in terms of tangata whenua relationship values with freshwater and other taonga:
(i)It is common ground that granting consents results in significant adverse effects to Ngāti Whātua o Kaipara, Ngāti Whātua Ōrā kei and Te Uri o Hau.43
(ii)The risk of leachate escape while assessed as low probability, if it occurs the impact will be high on tangata whenua.44
(iii)From an iwi perspective any effects of sediments are unacceptable.45
(iv)The presence of the Landfill sitting above Ngāti Whātua impacts on whanaungatanga between Ngāti Manuhiri and Ngāti Whātua.46
(v)A key question is whether a particular risk can be reduced further or is otherwise acceptable through conditions and management plans. Ngāti Manuhiri has determined that the risk
40 At [621].
41 At [625].
42 At [651].
43 At [485] and [832].
44 At [836].
45 At [837].
46 At [838].
is now acceptable to them; while other iwi groups who sit “downstream” of the landfill have not.47
[93]The Court then observes:
[841] We cannot discount the effects on Ngāti Whātua, Ngāti Whātua Ōrākei and Te Uri o Hau who remain concerned about the proposal, however MKCT [Ngāti Manuhiri’s] agreement for the works to take place in their rohe signifies that they see benefits for both the environment and themselves.
[842] Everyone accepts that the current status of the Hōteo and its mouth on the Kaipara Harbour is degraded, as is the landfill site, and that the latter is by no means a high quality environment for native terrestrial and freshwater fauna, even though populations have managed to persist over forestry cycles.
[843] The question remains as to the effects on the mauri of freshwater, and tangata whenua’s relationship with that and other taonga. We will return to that when we come to our overall assessment.
[94]I summarise this overall assessment below at [117]-[119].
Other Environmental impacts
[95] Turning to environmental impacts (other than effects on mana whenua values), the Court found that there would be clear adverse effects on both the ecology of the area in relation to the Hochstetter’s frogs, native bats and aquatic biota, and their habitat from the loss of stream length and to other native species (for example lizards and invertebrates) from habitat loss.48 The Court also found that there is a clear potential impact of sediment as well as leachate and other contaminants on mauri of both the wider landfill area as a whole and in particular the Hōteo River.49
[96]Specific observations included:
(a)Adverse effects on stream temperature could be addressed either by amendment to management plans or review of the consent.50
47 At [840].
48 At [64].
49 At [65].
50 At [771].
(b)Residual effects on the loss of native forest vegetation will be offset primarily adjacent to wetlands or streams within the Wayby Valley Sanctuary.51
(c)The residual effects on wetland and forest birds will be low with the residual effects package.52
(d)Further consideration should be given to conditions or research relating to long tailed bats, lizards, terrestrial invertebrates, and pine forest removal.53
(e)Given the scale of surveys and cryptic nature of species, estimates in the Landfill Valley must be broad,54 with an estimated loss of about 1000 Hochstetter’s frogs. Proposed revegetation may be expected to provide habitat for frogs and while the long term benefits of predator control are unknowable, frog population within predator proof fenced areas or subject to predator control, will improve.55
(f)The outcome to be achieved must be a net population increase of frogs and other taonga species. The Effects Management Package “approached that level of confidence”,56 but the Court was yet to be satisfied that the conditions apply the proposals that WM relies upon.57
(g)A comprehensive management and monitoring regime, along with conditions requiring a positive balance of sediment discharge, satisfied the Court that the effects of sediment on the Hōteo and Kaipara Harbour would not adversely affect the river or harbour ecology.58
51 At [772].
52 At [774].
53 At [776], [779], [781], and [782].
54 At [793].
55 At [802], [805], and [817].
56 At [824].
57 At [824].
58 At [830].
Objectives and Policies
[97] The Court was required to review and assess the proposal against the applicable planning instruments, namely national policy statements, national environmental standard, the regional policy statement (RPS – AUP) and the AUP regional and district plans.59 I will focus here on the Court’s treatment of these documents most relevant to the appeals.
[98] The Court rejected the overall broad judgment taken by the majority of the Commissions at first instance, noting the observations of the Supreme Court in King Salmon,60 that particular attention to the different wording and context of provisions in a plan and that some words are to be given their particular meaning and “avoid’ may mean “not allow”, and that this meaning is dependent on the wording and context.
[99] The Court identified as relevant to its determination national policy statements, national environmental standards, regional policy statement (RPS-AUP) and AUP regional and district plans. The Court records the agreement of the planners that the rules of the National Environment Standards for Freshwater do not apply given the Standards post-date the notification of the application.61
[100] The Court then made a series of observations in relation to each of the key planning instruments. The key overarching conclusions are noted below. Important observations and findings relevant to the appeals are canvased here.
Inland wetlands, rivers and freshwater
[101] NPS-FM 2020 imported two inland wetland and river policies (E3.3(17) and E3.3(18)). Policy (17) wetlands - is directed to avoiding the loss of extent of natural inland wetlands, protecting their values and promoting their restoration subject to certain exceptions, which include that there are no practicable alternative sites for the
59 At [141].
60 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.
61 At [145].
activity. Policy (18) – rivers, states that loss of river extent and values is to be avoided unless there is a functional need for the activity in the location.62
[102] Prior to the NPS-FM 2020, previous iterations of these policies did not direct wholesale avoidance of wetlands and rivers or address reclamation and that Te Mana o Te Wai was not as prominent in previous versions of the NPS-FM. The AUP excepted functional or “operational” need to be in a certain locations, from certain of its requirements.63 There is also no provision for transitional savings for applications in train. The Court expressed sympathy for WM in terms of the change to the policies after its application was made, but concluded it must still consider those policies. It also said:
[165] We conclude some pragmatism and proportionality need to be applied to such changes in circumstances. Changes to legislation, and as a result policy frameworks, are occurring with some frequency. It is indeed unfair and unrealistic to determine a proposal solely against policies that did not exist when the proposal was first notified. We accept that Waste Management has endeavoured to respond to that changed framework with various design changes to its proposal.
[103] In another part of the decision the Court notes that one of the exceptions to the operation of policies 3.3(17) incorporated by NPS-FM 2023 are specified infrastructure and new landfills. The criteria for such exceptions include national benefit or regional benefit and there is either no practical alternative location in the region or every other alternative would have equal or greater adverse effects.64 It then records:
[239] It was generally agreed among the parties that, in light of that amendment, there is no need to consider whether the proposal constitutes specified infrastructure as defined in the NPS-FM 2020. Leaving that agreement to one side, we note some difficulties with the amendment insofar as its requirement for alternatives to be satisfied is so expansive as to be impossible to meet (f)(iii). We note the Director-General’s concession on this point, noting that as there are no fundamental matters of disagreement between experts, it will not argue that there are any issues on this point. Therefore, while there is a clear exception for landfills in this amendment, we will not consider whether the proposal is specified infrastructure under the NPS-FM 2020.
62 At [156].
63 At [161].
64 At [238] and [256].
[104]And further:
[241] The term effects management hierarchy is defined in the NPS-FM 2020 in relation to natural inland wetlands and rivers to mean an approach to managing the adverse effects of an activity on the extent or values of the wetland or river (including cumulative adverse effects and loss of potential value). It sets out a cascade of management tools that must be applied, starting with the requirement that adverse effects are avoided where practicable, through to minimisation, remedying, aquatic offsetting, and finally determining that if aquatic compensation is not appropriate, the activity itself is avoided. The terms aquatic compensation and aquatic offset are defined and we address those matters when we come to our assessment of the ecological effects of the proposal.
[105] Then, when addressing submissions by Forest and Bird that alternatives for the purpose of 3.3(17) have not been properly considered, the Court concludes:
[259] While the application might not advance particular policies, it is difficult to draw the conclusion that it is contrary to the objectives and policies of the AUP as a whole. If adverse effects from the discharges were not avoided, or we were not satisfied that there would be a net gain to biodiversity on the site in relation to rivers and wetlands, then it appears to us that the policies and objectives and other provisions guide us to a refusal of consent. The matter is finely balanced.
[260] We accept the application does not meet or advance this policy. The Policy seeks to avoid the loss of natural wetland. Here the loss is addressed, in part, by the improvement of other wetlands of significant value. We must view these outcomes holistically.
[106] It also says in relation to a similar submission that the landfill does not fall within any of the exceptions specified at policy E3.3(18), that the assessment cannot require the application to meet every policy, and “it is not the individual policies or objectives against which the application and its effects are judged, but the AUP as whole.”65
[107]The Court also observes:
[265] Chapter E3 recognises the tension between development and the objectives to preserve quality environments and improve those that are degraded. There is still an emphasis on avoidance, remediation or mitigation, although the NPS-FM 2020 (see Policies (17) and (18)) recognises the application of an effects management hierarchy.
65 At [264].
[266] We conclude that the introduction of Policies 3.3(17) and 3.3(18) introduce avoidance in the context of the other provisions. The overall effects under s 104D and s 104 are matters we will discuss in due course.
[108] In terms of freshwater issues more generally, the Court identifies that the proposal engages numerous Regional and District Plan provisions relating to freshwater, with a focus on avoiding adverse effects as far as practicable and otherwise minimising them.66 Key provisions relevant to these appeals include:
(a)Maintain and improve over time mauri of freshwater.67
(b)NPS-FM 2014 incorporated various policies into the AUP, including Policy E13(6) making it clear that previous policies apply to new discharges or a change or an increase of any discharge of contaminant.68
(c)Chapter E3 (Lakes, rivers, streams and wetlands) – the objectives identify protection from degradation (3.2(1)) and from permanent loss and to restore, maintain or enhance (3.2(2)). Specific reference is made to Policy E3.3(5), which requires:
(5)Avoid significant adverse effects, and avoid, remedy or mitigate other adverse effects of activities in, on, under or over the beds of lakes, rivers, streams or wetlands on:
(a)the mauri of the freshwater environment; and
(b)mana whenua values in relation to the freshwater environment.
Significantly, the Court concludes on this policy:
[229] … the project may not be fully consistent with this policy, but mauri could be enhanced if the overall outcomes in relation to the freshwater resources of significance are beneficial.
[230] Given that the effects of the proposal as a whole are said by tangata whenua to impact the mauri of the environment we return to this policy later. The effect on mauri
66 At [212].
67 Auckland Unitary Plan Chapter E1.2 Objective (2).
68 At [215].
and consistency with the policy turns on our conclusions as to the outcome of the grant of consent (excluding offset or compensation).
(d)A raft of polices addressed to management of effects on mana whenua cultural heritage (Policy E3.3.(7)), disturbance and depositing of any substance in, on or under a bed of water (Policy E3.3(9)) (including the requirement to avoid any significant adverse effect on mana whenua values associated with freshwater resources) and policies E3.3(10)–
(12) relating to the encouragement of native plants and the incorporation of mana whenua mātauranga, values and tikanga in any planting within a waterway.69
(e)Policy E3.3(13):
[234]There is a directive policy, 3.3(13) relating to reclamation and drainage that requires:
(13)Avoid the reclamation and drainage of the bed of lakes, rivers, streams and wetlands, … unless all of the following apply:
(a)there is no practicable alternative method for undertaking the activity outside the lake, river, stream or wetland;
(b)for lakes, permanent rivers and streams, and wetlands, the activity is required for any of the following:
(i)as part of an activity designed to restore or enhance…
(ii)for the operation, use, maintenance, repair, development or upgrade of infrastructure; or
… and
(c)the activity avoids significant adverse effects and avoids, remedies or mitigates other adverse effects on Mana Whenua values associated with freshwater resources, including wāhi tapu, wāhi taonga and mahinga kai.
69 At [231]–[233].
(f)Policies E3.3(15) and (16) relating to the protection of riparian margins.70
[109] The Court identifies as a key issue whether or not bottom lines are required in E3.2 Objectives. The Court finds:
[243] While the appellants argued that certain provisions set clear environmental bottom lines, they accepted that some were qualified by listed exceptions. Save for the policy addressing mauri, we conclude these provisions do not set environmental bottom lines precisely because they are qualified, and seek to enable activities while controlling effects.
[244] However, the objectives and policies of Chapter E3 are prescriptive and set out in some detail the ambit of exceptions to their requirements or conditions applying to authorised activities.
[110] The Court specifically acknowledges that, “Significant adverse effects on the mauri of the freshwater environment and mana whenua values are to be avoided.”71
[111] The Court’s overall conclusion in relation to Chapter E3 is noted below at [117].
Landfills
[112] The Court addresses Chapter E13 relating to landfills. Most relevantly E13.3 states:
(1)Avoid significant adverse effects and remedy or mitigate other adverse effects of cleanfills, managed fills and landfills on lakes, rivers, streams, wetlands, groundwater and the coastal marine area.
(2)Require cleanfills, managed fills and landfills to be sited, and where appropriate, designed and constructed, to avoid the risk of land instability.
(3)Require cleanfills, managed fills and landfills to be designed and operated in accordance with relevant industry best practice.
(4)Avoid adverse effects from new landfills.
(5)Manage closed managed fills and landfills (including the closure of) to:
70 At [235].
71 At [250].
(a) protect the integrity of the site including the containment of contaminants; and
(b) require aftercare that is appropriate to the nature and requirements of the site including the type of material that was deposited during its operative period.
[113] At issue is whether this policy addresses all landfill activities or only discharges from landfills. In resolving this issue the Court observed that while it is appropriate to seek the plain meaning from a provision, it is not appropriate to undertake that exercise in a vacuum. Regard must be had to the immediate context, and where any obscurity or ambiguity arises it may be necessary to refer to other sections of the AUP.72 The Court then finds:
[279] E13 is in the Natural Resources section of the Auckland-wide chapter of the AUP. It sits among provisions that control all manner of effects on natural resources. We conclude it is not appropriate to treat it as an island in a sea of other controls. It is not self-contained, and does not control all effects generated by cleanfills, managed fills and landfills. Other sections in Chapter E and elsewhere also must be taken into account and they need to be read as a whole.
[114] When viewed in this wider context, and with specific reference to other policies that control offsite effects of landfills, the E13.3 policies do not extend to effects such as noise and ecological effects.73 Rather it is focused on discharges from the activity of the landfill.74 In addition the Court applying the approach taken in Port Otago, interprets the word “avoid” to mean avoid material harm.75
Infrastructure
[115] Chapters B2 and B3 of the Regional Policy Statement (RPS) emphasise the better use of existing infrastructure and efficient provision of new infrastructure. The RPS requires that the benefits, functional and operational needs of infrastructure are to be recognised and that the adverse effects of that infrastructure are avoided, remedied or mitigated.76
72 At [278].
73 At [282].
74 At [285].
75 At [283]–[284].
76 At [190].
Mana whenua, Toitū te whenua, Toitū te taiao
[116] The Court reviews in some detail the objectives and policies most relevant to mana whenua and to the Māori world view. Key observations include:
(a)Chapter B4 requires that the ancestral relationships of mana whenua and their culture and traditions with the landscapes and natural features of Auckland are recognised and provided for.
(b)The reference in Chapter B6 to the paramount importance of recognition mana whenua participation in resource decision making and the integration of mātauranga and tikanga into resource management is noted, as is the fact that the RPS recognises mana whenua as specialists in tikanga of their hapū and iwi as being best to convey their relationship with their ancestral lands and other taonga; and that mana whenua values, mātauranga and tikanga is to be properly reflected and accorded sufficient weight in resource management decision making.77
(c)Policy B.6.3.2(6) is identified as having particular relevance as decision makers are required to have particular regard to among other things the exercise of kaitiakitanga and mauri, particularly in relation to freshwater and coastal resources.78
(d)Policy B7.3.2.(4) is directed to avoiding the permanent loss and significant modification or diversion of rivers and streams and wetlands at their margins: unless it is necessary to provide for infrastructure, no practical alternative exists, mitigation measures are implemented to address the adverse effects and where adverse effects cannot be adequately mitigated, environmental benefits including offsite and onsite are provided.79 Development within waterbeds is to be limited to structures that have a functional or operational need to locate there
77 At [195]–[198].
78 At [200].
79 At [204].
and maintain and or where appropriate enhance: freshwater systems not protected as Management Areas, navigation, existing riparian vegetation along margins and areas of significant indigenous biodiversity.80 There are also policies managing discharges, and a policy to enhance freshwater systems where practicable.81
Overall
[117] The Court then identified and assessed the environmental impacts, including on tangata whenua, in light of applicable planning instruments. There are issues as to whether the Court applied the correct approach to this exercise to which I return below. The key outputs of that exercise are recorded at [863] of the judgment. I cannot improve on that summary so I repeat it here:
[863] We list our findings generally from earlier in the decision on objectives and policies:
A.The NPS-FM 2020 and as amended in 2023 seeks to restore and preserve the balance between the water, the wider environment and the community. Te Mana o te Wai is all about restoring and preserving that balance. It seeks first to protect and then restore the mauri of the waters.
B.The weight to be attached to Policy 3.22(i) – extent of inland wetlands, 3.24 – extent of rivers and 3.26 – fish passage, is in dispute and needs to be resolved.
C.The changed legislative environment is part of the context in which we must assess the AUP’s objectives and policies. However, it informs rather than dictates the outcome of the assessment under s 104D(1)(b) looking at objectives and policies of the AUP. These changes are also relevant to any substantive assessment.
D.The various issues raised in the NZCPS are subsumed within the AUP.
E.The need for new infrastructure is recognised where:
(i)there is a functional and operational need for it to be located in areas with particular natural and physical resources which have been identified in the AUP that otherwise preclude development;
80 At [205].
81 At [206].
(ii)its operation should be enabled while managing adverse effects.
F.There is a centrality of Māori worldview contained within the RPS. This seeks to maintain, and where appropriate enhance, freshwater systems, mauri of areas and the relationship of tangata whenua with important features. It does not preclude development but anticipates that adverse effects will be addressed and freshwater systems restored and enhanced where that is possible.
G.The objectives and policies reinforce the importance of freshwater and sediment quality being either maintained at an excellent level or improved over time. The AUP also identifies issues from the RPS relating to the mauri of freshwater being maintained or progressively improved over time. This is further reinforced by the NPS-FM 2020 and NPS-FM 2023.
H.E3 recognises the tension between development and the objectives to preserve quality environments and improve those that are degraded. There is still an emphasis on avoidance, remediation or mitigation, although the NPS-FM 2020 (see Policies (17) and (18)) recognises the application of an effects management hierarchy.
I.E13 is directed to avoiding contaminants from the landfill activity reaching land or water, including groundwater, beyond the Site. This includes those which can either be borne in water, leachates, sediments etc, or are caused by the activities themselves which then leads to the discharge such as the construction of roads or dams. The requirement to avoid adverse effects in itself identifies that this is not a prohibition against new landfills, but a requirement as to the total internalisation of adverse effects.
J.The policies require protection of indigenous vegetation in sensitive environments and the management of activities to avoid significant adverse effects on biodiversity where practicable. There is clear encouragement to use the effects management hierarchy to manage effects that cannot be avoided, remedied or mitigated, including encouragement of the use of offsetting.
[299] Moreover, as the majority in East West Link stated, whether the threshold for avoiding adverse effects is met is a question of fact and degree measured against the terms of the relevant avoid policy.190 This may include offsets in net terms.191 This directly addresses the criticism of the holistic approach insofar as the Court when using that term was speaking of improvement to wetlands. These are matters of expert evidence, to be carefully assessed by the fact finder:192
The relevant question is not how to define an offset or what kind of offsets can satisfy the avoid policies; it is whether the relevant adverse effect can be avoided in fact. If the contention in the evidence is that the adverse effects at a level identified in the relevant policy (locality, population, ecosystem and so forth) can be avoided through offsets applied elsewhere, that will be a matter to be assessed by the fact finder.
190 Above n 7, at [176].
191 Above n 7, at [176] and [180](c).
192 Above n 7, at [176].
[300] Having said that, this is not to endorse a bucket approach involving a netting off by unrelated environmental compensation. Here the offset must relate to the adverse effect to be avoided. This may be the area of greatest contention — is there a demonstrable connection between the loss of wetland or river extent and values and any offset or other remediation? Relevant to that assessment will be the definition provided in the NPS-FM as to “no net loss”. I am not in a position to test that in any meaningful sense on this appeal of the Environment Court interim decision. It is certainly not for this Court on an appeal on a point of law to presuppose that the no material harm standard cannot be met in this case. I simply observe in this regard that, intuitively, it is the function served by river extent that must surely be the focus of the inquiry. An extensive network of open pipes and culverts might replace the extent of river loss but could be worthless ecologically or significantly worse for the environment than an extensive programme of river and stream enhancement. In any event, it is a matter for the Environment Court, as an expert tribunal of fact, to identify and explain in its reasons as to what is properly needed to “offset” the loss of river extent. If in the end it reaches a no net loss view, this Court will then be in a proper position to assess whether that finding was available to it as a matter of law.
[301] Accordingly, I see no error on account of the Court adopting a no material harm threshold of effects. This point of appeal is also dismissed.
Error three – scope of E13.3
[302] Mr Anderson contends that the Court was wrong to treat E13.3 as relating to discharges only. Clauses (1) and (4) are said to apply to all effects. They state:
E13.3. Policies [rp]
(1)Avoid significant adverse effects and remedy or mitigate other adverse effects of cleanfills, managed fills and landfills on lakes, rivers, streams, wetlands, groundwater and the coastal marine area
…
(4) Avoid adverse effects from new landfills.
[303]The specific impugned finding is:193
[282] Having regard to that context we conclude that Policies (1) and (4) are limited in their application to activities which discharge contaminants, that is to be read to include land stability and soil slips, etc. This might include contaminants generally as there is no clear limitation. So, while it includes leachates and other emerging contaminants, it cannot go as far as all effects, for example noise and ecological effects. Again, a pragmatic and proportionate interpretation is required.
[304] Mr Anderson says there is nothing in the scheme of the E13 policies that expressly or by necessary implication limits its scope to discharges only. On that basis the Court plainly erred by limiting the regulatory effect of the E13.3(1) and (4) in this way.
Assessment
[305] I see no error in the Court’s reasoning as it relates to the establishment of new landfills. The “non-discharge” effects associated with the establishment of landfills are subject to purpose built policies that would be largely rendered redundant if all effects of new landfills had to be avoided as required by subclause (4). Most notably, the exceptions pathways throughout Chapter E3 would have no real function, including those set out in E3.3(17) and (18). Moreover, if all adverse effects of new landfills (including the construction and establishment effects) must be avoided without exception, it is difficult to envisage even a moderately sized new landfill obtaining consent given the almost inevitable requirement for new landfills to modify small streams. True, if the landfill can show no material harm, they could then qualify, but the normative basis for such a high threshold for all new landfills has no obvious basis in the plan and is contrary to the parts of the plan that recognise the public good associated with infrastructure. Conversely applying the E13 policies in a unqualified way is an utterly disproportionate response to the corresponding objective E13.2 which states:
E13.2. Objectives [rp]
(1)Cleanfills, managed fills and landfills are sited, designed and operated so that adverse effects on the environment, are avoided, remedied or mitigated.
193 Environment Court interim decision, above n 1.
(2)Human health is protected from the adverse effects of operational or closed cleanfills, managed fills and landfills
[306] There is no mention of the “establishment” or “construction” of new landfills, or the extensive works preliminary to the operation of a landfill for example reclamation of wetlands or rivers or emplacement of structures in waterways in either of these provisions. The reference to “sited” cannot sensibly be expanded to include these works. The reference at (2) is clearly directed at operational effects or closure – all of which occur after any reclamation or diversion or other establishment effects have occurred. The Court was therefore plainly correct to view these policies in this wider context. I also note the submission of the Auckland Council that it promoted these policies at the PAUP hearings stage on the specific basis that they related only to discharges. That is a further reason for rejecting the literal interpretation sought by Forest and Bird.
[307] It may be that “noise” effects arising from the operation might be caught by cls (1) and (4). I do not wish to provide any comment on this as I have not heard argument specifically directed to this type of effect (though ordinarily such effects are dealt with at the District Plan level).
[308] But, in any event, dealing with the effects most in issue in this appeal, I see no error in the Court’s approach. Furthermore, even if I am wrong about this, the Court has adopted an avoid material harm approach to key effects. This clearly gives vent to the evident purpose of Objective E13.2 and policy E13.3. This ground of appeal is therefore dismissed.
Errors five and six – flawed s 104D evaluation and evident logical fallacy
[309] I have already addressed the proper approach to s 104D(1)(b) in depth so I can deal with the fifth and sixth errors together and briefly. In essence Ms Downing submits that the Court wrongly failed to specifically address whether the proposal complied with avoid policies E13.3(1) and (4) and the river policy when addressing the gateway threshold at s 104D(1)(b). The following passage is illustrative of this error:
[878] We conclude that the objectives and policies are not in conflict. They enable certain types of use and development where certain environmental outcomes can be achieved. This follows from the concept of sustainable management in Part 2 and the AUP. Put bluntly the AUP sees infrastructure such as landfills justifiable where they can avoid adverse effects (material harm). Whether this proposal can do that is not an issue under s 104D(1)(b) but rather requiring careful evaluation under s 104(1).
[310] I reject these claims. The Court proceeded on the basis that the key NPS-FM avoid policies demand a no material harm approach and if that can be shown through the substantive s 104 evaluation, then the s 104D threshold will be satisfied. The Court then finds that matter is finely balanced and calls for further conditions to secure this outcome.194
[311] There is nothing illogical about this. On the contrary the Court has clearly paid heed to the directive avoid policies. These grounds of appeal are therefore dismissed.
PART F - WASTE MINIMISATION
[312] Issue six of the Te Rūnanga appeal concerns whether the Court failed to correctly apply the waste minimisation legislative and policy framework and annual limits on waste disposal. The following findings are in focus:
[343] While we accept that the Plan is the sum of its parts, and there is only one reference to no new landfills, we observe that it is unhelpful to have such references in the Plan without making clear the place of that statement in the objectives, policies and methods for waste management and minimisation in Auckland.
…
[346] It is clearly the intention of the Waste Minimisation Plan that there be significant reductions both by 2030 and by 2040, and we anticipate government intervention if these objectives are not being pursued. Having said that, we acknowledge that there is nothing within any of the documents that requires, or even aspirationally states, that there will be no need for any solid waste disposal to landfill in the near to medium future.
…
[348] As we discuss later, that addresses the rate of utilisation of landfill airspace, or the life of a landfill, rather than the construction of a new landfill. This does not present an insurmountable hurdle to Waste Management. While indicating general intentions to reduce waste and use of landfills this does not bear upon the merits of an application. The inverse is also correct that
194 Above n 1, at [926]-[930].
arguments as to national, regional or local necessity for landfills do not fit with relevant legislation and plan.
…
[371] We observe that increases in waste levies may change behaviour, but that has not occurred yet. If there were to be more recycling of construction/demolition waste, that would certainly reduce the amount of waste going to landfill – but again – at this time present initiatives can only achieve so much. At the moment there is still a need for landfilling in Auckland. In order to drive further waste minimisation efforts, it might be appropriate to place annual limits on the amount of waste to be disposed of to the proposed landfill. This was not raised in the hearing and thus we do not consider it further.
…
[389] There was also evidence that addressed in detail allegations that Waste Management’s commercial incentive is to maximise its return by filling the landfill as quickly as possible – conflicting with local and national policy to reduce waste to landfill. Further, there was evidence about the influence of waste levies on the nature of materials disposed of to landfills. We do not propose to address these matters as we have found that there is a need for landfill capacity in Auckland. The rate at which a landfill is filled or the way in which levies are made and imposed are not matters relevant to this proposal.
[313] Mr Enright submits that the Environment Court, in effect, treated the WMP as having symbolic significance only and need not be enforced by the Council. He says there was clear evidence of limits on amount of waste matter needed, and the Court was wrong to interpret the WMP as “not” saying there was no need for solid waste disposal to landfill in the medium future. He is also critical of the Court’s finding that the rate at which the landfill is filled did not bear on the merits. It plainly did, including in respect of traffic, odour, litter, noise, dust, vibration, and light effects and that rate of filling is relevant to these issues.
[314] He also contends that the Court was wrong to hold that there is nothing within any of the documents that requires, or even aspirationally states that there will be no need for any solid waste disposal to the landfill in the near to medium future. The entire point of the WMP is that there will be no need for any solid waste to landfill within the medium 16 year future. Connected to this goal is a guiding principle “Protection of Papatūānuku; no new landfills…”.
[315] Finally, he submits that the Court’s statement that the WMA does not make anyone responsible for waste disposal is wrong. Section 42 puts a statutory obligation
on the Auckland Council to “promote effective and efficient waste management and minimisation”, including waste disposal. Section 43 states that a plan must provide for matters listed in ss 42 and 44 sets out the things the Council must do when preparing, amending or revoking a WMP. There are also provisions dealing with charge fees, making grants, making bylaws, and ministerial performance standards.
[316] Mr Braggins for Fight the Tip supports the position adopted by Te Rūnanga. He adds that all planners agreed that the WMA, WM regulations, the New Zealand Waste Strategy 2010, the Auckland Waste Management and Minimisation Plan as well as climate change legislation and associated schemes were relevant to the s 104 assessment. He also says there was a wide array of evidence seeking to constrain waste going to landfill, to reduce reliance on landfills and that waste can be recycled or repurposed so that it does not enter the landfill. He joins with Mr Enright in submitting that there were multiple references in the evidence to placing limits on the amount of waste disposed to the landfill. All of this should have been weighed in the evaluation as to the alleged benefits of the proposed landfill.
Assessment
[317] Of the issues raised by the appellants, this issue was the least appropriate for consideration by way of appeal on an interim decision where the Environment Court has not yet made any final findings as to the suitability of the proposal in terms of the gateway thresholds, particularly in terms of s 104D(1)(b). The operation of the WMA is a secondary consideration against the first order issues the Environment Court must resolve, including most importantly the need to avoid material harm in order to satisfy the key E3.3 avoid policies. Given time pressures on judicial resource and the needs of other litigants, exploration of a secondary issue of this kind by way of interim appeal was not justified, when an appeal against the final decision, if consent is granted, will be open to the appellants.
[318] In any event, I consider the issues raised to have limited purchase. The Court plainly has regard to the WMA and the WMP and acknowledges the goals of both, namely waste minimisation. It then makes a combination of factual and evaluative findings, including those made at [343], [346], and [348], that appear available to it as
a very experienced expert body comprising two Judges and three Commissioners. They might be wrong, but this Court on an appeal of law is hardly better placed to second guess their evaluation.
[319] The observations at [371] are also factual evaluations beyond the ordinary reach of this Court. The comment that the issue of annual limits was not raised appears to have been available to it. Nothing presented to me in written submissions suggested otherwise. Reliance by counsel on the “entirety of cross examination” while producing a handful of “extracts” is not a strong way to advance a claim challenging a finding of the Court. I will simply assume that the extracts provided are the best evidence to be found on this point. The word “annual limits” is not mentioned.
[320] The strongest point made relates to the comment at [389] that the “rate at which a landfill is filled or the way in which levies are made and imposed are not matters relevant to this proposal.” Rate of use and development of a resource is plainly a relevant consideration alongside the effect of such use per s 5 of the RMA. But I agree with Mr Randal for the Council, this comment was specifically related to the operation of the WMA and WMP rather than a general statement about the relevance of rate of use or development. And as I have said, I am satisfied the Court had proper regard to the WMA and WMP, and that its findings about them were matters of expert evaluation beyond the reach of this Court on an appeal of law.
[321]Accordingly this ground of appeal is dismissed.
Outcome
[322]I find:
Common Understanding – was the Court wrong to find that there was a common understanding about where mana whenua interests were held?
(a)The Environment Court’s finding that the Landfill site “appears to have been recognised” as within the Ngāti Manuhiri rohe was available to it on the evidence.
(b)The finding that Ngāti Manuhiri had the “more intimate” relationship to the site was also available to the Court on the evidence and more importantly, this finding was not a recognition of Ngāti Manuhiri mana to the exclusion of all other iwi and hapū. It did not distract the Court from its task of assessing the effects of the proposed activity on Ngāti Whātua and the affected hapū, including Ngāti Whātua Ōrākei and Te Uri o Hau.
Strength of relationship – did the Court adopt the correct approach for assessing strength of relationship?
(c)While the Court did not literally apply the Ngāti Maru three pronged evaluation in terms of assessing relative strength of relationship, it did so in substance. The Court closely examined the pūkenga evidence of the relationship of the affected hapū and iwi to the site and the wider region. Its analysis was also anchored by Part 2 considerations (including the policy framework) and directed to resolving key issues, including for example the likely effects on mana whenua values. This satisfied the last two steps of the Ngāti Maru guidance.
(d)A finding of strength of relationship in respect of the Kaipara Harbour and the Hōteo was not necessarily required given that the Court clearly placed significant weight on the effects of the proposed activity on Ngāti Whātua, though for reasons set out in the discussion dealing with cultural bottom lines, findings of relative strength may assist in determining which of the tikanga ā-iwi positions should prevail in the final analysis.
(e)It would have been preferable that the Court expressly applied the Ngāti Maru three pronged evaluation of strength of relationship as the parties tailored their evidence to that evaluation. This would have assisted with the transparency and cogency of the Environment Court interim decision.
Cultural bottom lines – are there inviolable tikanga bottom lines that must not be crossed?
(f)While this Court does not exclude the possibility of “cultural” or tikanga bottom lines, considerable caution is needed before making such a finding in order to maintain both the integrity of the law and tikanga. Consent decision makers must always operate within their legislative mandate. They are not engaged via the RMA in a process of declaring or affirming tikanga as binding law. Just as importantly, consent decision makers must not overstep into the tikanga domain.
(g)In any event, in the present case the proposition that this matter can be resolved by way of tikanga bottom line — that is an inviolable tikanga standard — is misconceived because both Ngāti Manuhiri and Ngāti Whātua might legitimately claim that their respective tikanga ā- iwi positions is a “bottom line”. In any event, the task of the decision maker is to recognise and provide for all mana whenua values and this requires a process of reconciliation and balancing. Relative strength of relationship may be a relevant factor, but there must still be some recognition, as far as is possible, of other mana whenua interests. A suggested process, borrowing from the Port Otago structured balancing approach is set out at [212].
(h)Given also that the Court has not made any final findings as to whether the effects on Ngāti Whātua could be adequately mitigated, and if so the reasons for that finding, this appeal ground was premature.
Site selection – should consent have been declined because of flawed site selection?
(i)The inadequacies of WM’s site assessment is not by itself a reason to decline consent. Rather the key issue is whether policy requirements in terms of alternative sites (or absence thereof) have been satisfied. In this case that issue is presently moot because the Court has effectively adopted a no material harm approach to assessment of relevant key effects. If in the event the Court cannot be satisfied that
this demanding threshold is met, it will then need to address the policy requirements in terms of alternative sites (and methods).
NPS-FM Objective 2.1 – did the Court fail to correctly apply this objective in light of Te Mana o te Wai?
(j)No. Recognition by the Court of this objective, having regard to the concept of Te Mana o te Wai is evident from the face of the record. In addition, any finding of material breach on this issue would be premature in advance of the final findings as to the effects of the proposed activity on freshwater.
Pragmatic and proportionate – did the Court wrongly apply a proportionate approach (aka a broad overall judgment / broadbrush blender approach)?
(k)No. The Court expressly rejected the broad overall judgment approach and moreover, adopts a fine grained assessment by reference to the policy framework. References to pragmatic and proportionate appear in different parts of the judgment but overall, the Court appears to be using these ideas to ensure fairness and appropriate balance having regard to the policy matrix as a whole, and that applicable policies are given practical effect in a way that is commensurate with their underlying purpose.
Failure to apply directive “avoid” river, wetland and landfill policies
(l)The Court correctly treated the NPS-FM 2020 river and wetland policies as if they were fully incorporated into the AUP.
(m)The principle that legislation will not operate retrospectively did not apply in this case as WM had no existing rights or interests against which that principle might logically engage.
(n)The Court erred insofar as it found that only the avoid policies relating to mauri were truly “bottom line” policies. But this did not have a material impact on the decision because the Court still treated the
relevant NPS-FM avoid policies as “prescriptive” and “ directive” and ultimately adopted a no material harm approach to the threshold gateway criteria at s 104D(1)(b) for grant of consent. This satisfied the basic requirement of the rivers and wetland policies insofar as they required avoidance of effects.
(o)Following the guidance laid down in Port Otago and East West Link a structured balancing approach is mandated in terms of defining an exceptions pathway for the NPS-FM avoid policies. Having regard to a range of other policies, including policies that recognise infrastructure as a public good and mana whenua values, the exceptions pathway must have some common sense flexibility to be able to accommodate infrastructure projects such as landfills that are already anticipated by the NPS-FM avoid policies. Assessment of need and alternative sites must be approached realistically.
Material harm – is “material harm” the correct threshold for the “avoid” extent of river loss policies?
(p)A no “material harm” approach is sufficient to satisfy the avoid policies of the AUP. This may include a net offsets approach, provided those offsets respond to the loss of extent of river. Whether that requires replacement with new, or replacement of river extent is a matter for the Environment Court to assess. It is premature, in the absence of final findings for this Court to undertake a meaningful assessment of whether the Court approached its task incorrectly as a matter of law.
E13.3 – landfill policy – do the landfill specific avoid policies relate only to discharges?
(q)There is nothing in the context of E13.3 to support an inference that this landfill policy related to all effects of new landfills. On the contrary the wider objective and policy matrix, including policies relating to the provision of infrastructure and the NPS-FM policies, would be rendered largely nugatory if E13.3 was interpreted with this effect, given that E13.3 requires all effects of new landfills must be avoided.
Waste minimisation – did the Court fail to have proper regard to the objectives of the Waste Minimisation Act (WMA) and the Waste Minimisation Plan (WMP)?
(r)The Court gave careful consideration to the goals of WMA and WMP. It was also available to the Court to find that rates of fill were not raised in the evidence.
[323] Given the foregoing, the appeals against the interim decision are dismissed. The final judgment will nevertheless need to more clearly address how the competing tikanga ā-iwi positions are resolved and the basis upon which a no material harm result is achieved, especially in relation to extent of river loss.
Strike out
[324] As it is now somewhat redundant to address the strike out application, I propose to address it only briefly. Ngāti Manuhiri sought orders striking out the Te Rūnanga appeals on the following grounds (in summary):
(a)The common misunderstanding alleged error relates to commentary in the “overview of issues and findings” and the misunderstanding is not contained in the express finding portions. Moreover, the Court did not find that the landfill was “solely” within Ngāti Manuhiri rohe. The appeal therefore had no proper basis.
(b)The strength of relationship alleged error turns on evidence, raises no issue of law, misrepresents the interim decision and selectively distils portions of it.
(c)The claim that tikanga is law and cultural bottom line itself is misconceived — tikanga is a question of fact in the Environment Court jurisdiction.
(d)The site selection alleged error raises issues of fact not law.
(e)The NPS-FM objective error is unwinnable on its face — the allegedly impugned passage is in fact a cut and paste of the relevant key passage in the NPS-FM and in any event freshwater issues are undecided.
(f)The waste minimisation claims had no foundation and misrepresented the decision.
[325] The threshold for strike out is a high one — the Court must be certain the appeal grounds will not succeed. While in the result I have dismissed the appeals, I do not consider that they were so lacking in merit as to warrant strike out. One factor however, affecting nearly all appeal grounds, is that the Environment Court has not yet made final findings as to whether the key NPS-FM prescribed effects in issue can be avoided to a no material harm standard and whether mauri and ecological values might be enhanced. Claims therefore about errors relating to effects on mana whenua values or freshwater are premature because in the end any claimed error may have theoretical interest only. Illustrative of this, the claimed errors relating to mana whenua values and to compliance with freshwater policies may not be material at all to the result if the Court is not satisfied ultimately that the no material harm threshold can be met. In addition, if the Court does reach that conclusion, then this Court on appeal will have the benefit of the final findings on these matters when considering the alleged errors of law. At present this Court is effectively invited to make findings of error of law against a hypothetical scenario.
[326] In reality however, it is only with the benefit of the deep interrogation of the decision, evidence and law, have I been able to reach that conclusion that each of the appeal grounds should be dismissed. On that basis, and by a slim margin, had it been necessary to resolve the strike out application, I would have dismissed it.
Costs
[327] This has been a complex and difficult appeal. While the appeal grounds have been dismissed, and in some key respects the appeals were premature, there were also public interest aspects to these appeals, with several important areas engaged that bear on the operation of the AUP and the RMA. In addition the appellants were successful in terms of the strike out application.
[328] With that background in mind, if costs cannot be agreed, I invite submissions no more than five pages in length.
Whata J
R B Enright, M R Enright, Auckland
Royal Forest and Bird Protection Society of New Zealand – Christchurch DLA Piper, Auckland
Richmond Chambers, Auckland Thomson Wilson, Auckland Russell McVeagh, Auckland
Tu Pono Legal, Rotorua T M Urlich, Hamilton
Ngāti Whātua Orakei Trust, Auckland R G Haazen, Auckland
Appendix One: Map A
Appendix Two: Map B
Appendix Three: Map C
Appendix Four: Map D
Appendix Five: Map E
Appendix Six: Map F
Appendix Seven: Map G
Appendix Eight: Map H
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