A summary of Royal Forest and Bird Protection Society of NZ Inc v New Zealand Transport Agency [2021] NZHC 390.
The High Court was recently required to consider an appeal against the decision of a Board of Inquiry to grant resource consents and notices of requirement (‘NoR’) for Waka Kotahi NZ Transport Agency’s (‘Waka Kotahi’) proposal for the East West Link (the ‘EWL Proposal’).
The EWL Proposal is for a new four lane arterial road to connect Onehunga (near Māngere Bridge) to State Highway 1 and the existing Auckland motorway network at Penrose. The Board approved the resource consent applications and NoR sought by Waka Kotahi. The Royal Forest and Bird Protection Society of New Zealand Inc (‘Forest and Bird’) and Ngāti Whātua Ōrākei Whai Maia Ltd (‘Ngāti Whātua’) appealed the Board’s decision. The appeals were heard together, and focused on two questions of law:
Forest and Bird argued that the Board had no jurisdiction to consider the merits of the EWL Proposal because the particular policies it could not comply with meant it was contrary to the objectives and policies of the Auckland Unitary Plan (‘AUP’), and therefore did not meet the threshold test in s104D of the Resource Management Act 1991 (‘RMA’); and
In the alternative, both Forest and Bird and Ngāti Whātua argued that the Board failed to have regard/particular regard to the New Zealand Coastal Policy Statement (‘NZCPS’) in terms of its substantive assessment of the EWL Proposal.
We focus on the first point of appeal as this is more meaningful from a precedent perspective.
Board of Inquiry decision
The EWL Proposal was a non-complying activity. Further, it was accepted by all parties that the effects associated with the EWL Proposal would be more than minor. Accordingly, under s104D of the RMA, before a substantive determination could be made, it was necessary for the Board to be satisfied that the EWL Proposal was not contrary to the objectives and policies of the AUP. [1]
With the exception of one policy, the Board concluded that the policies were either consistent with the EWL Proposal, achieved or were otherwise not relevant. With regard the outstanding policy (F2.2.3(2) in relation to reclamation or drainage), because that policy required consideration of overlay policies relevant to an area of the Coastal Marine Area (‘CMA’) to be reclaimed (the ‘Overlay Zone’), further analysis of the specific overlay objectives and policies, including those relevant to significant ecological areas (‘SEA’), was required. In particular, the Board turned its attention to a policy (D9.3(1)(a)) which directs avoidance of adverse effects on indigenous biodiversity in the coastal environment.
After undertaking a more detailed analysis the Board concluded, in terms of the SEA policies, that there is no practicable alternative to the alignment of the EWL Proposal and that the EWL Proposal “will not result in significant adverse effects on populations or ecosystems”. Overall, in relation to s104D the Board found the EWL Proposal not to be contrary to the objectives and policies of the AUP when considered as a whole, but that
While the Proposal is concluded to be contrary to a small number of policies or subclauses of policies, the Board does not consider those individually or cumulatively as a reason to conclude that the [EWL] is repugnant to the policy direction of the [AUP] with respect to the resource consents sought.
Forest and Bird position
Forest and Bird’s argument on the proper application of s104D relied on the mandatory nature of the policies requiring avoidance of adverse effects within the Overlay Zone. Relying on the Supreme Court’s rationale King Salmon,[2] Forest and Bird submitted that certain indigenous biodiversity policies created environmental bottom lines, and that any non-complying activity that was unable to avoid adverse effects was, by definition, contrary to the objectives and policies for the purposes of s104D. In simple terms, Forest and Bird argued that, because of the Board’s findings as to the level of effects in the Overlay Zone, the Board had no choice but to conclude the EWL Proposal did not meet the threshold for non-complying activities under s104D.
High Court’s approach
The High Court began by briefly traversing well-established principles relating to an assessment under s104D. The High Court noted that “contrary” means “opposed in nature, different to or opposite…repugnant and antagonistic”.[3] It is accepted that what is required is a fair appraisal of relevant objectives and policies when read as a whole.[4] The High Court distinguished the Supreme Court approach in King Salmon warning against the danger of the “overall judgement approach”, given that the Supreme Court’s observations were made in the context of a plan change, and clarifying that there is no suggestion the Supreme Court was intending to change the overall approach set in Dye (the same conclusion reached by the Court of Appeal in RJ Davidson Family Trust v Marlborough District Council[5]). The High Court summarised the position on s104D as requiring that the relevant plan provisions must all be considered comprehensively and, where possible, appropriately reconciled.
Against this context the High Court examined the indigenous biodiversity ‘avoid’ policies of the AUP highlighted by Forest and Bird, noting that the adverse effects to be avoided are “extraordinarily broad” and that “a requirement to avoid is intended to stop something from happening”. The High Court accepted that the Board had erred in its conclusion as to the level of effect on indigenous biodiversity, including threatened and at-risk species. The High Court determined that the Board should have concluded that EWL Proposal could not avoid non-transitory or more than minor adverse effects on threatened or at-risk species.
While the High Court accepted the EWL Proposal was inconsistent with the indigenous biodiversity policies, the ultimate issue was whether the proposal was contrary to the objectives and policies of the AUP. The High Court acknowledged that an inability to comply with specific policies could be argued to provide a sufficient basis to conclude that the proposal is contrary to the objectives and policies of the AUP, but this can only be so in the event that it accepted those policies are, in effect, paramount to the other relevant parts of the AUP. Simply because a proposal is inconsistent with discrete parts of the AUP does not necessarily mean it is “contrary” for the purposes of s104D.
The High Court then considered the relationship between the indigenous biodiversity provisions and other chapters of the AUP, focusing on the infrastructure chapter (E26). The High Court noted that chapter E26 specifically envisages that it will sometimes be necessary to locate infrastructure within an Overlay Zone, notwithstanding the apparently mandatory nature of the protections contained in the indigenous biodiversity provisions. The infrastructure provisions require a wide range of issues to be balanced before a decision on the appropriateness of infrastructure can be determined. A detailed analysis is envisaged to determine whether particular infrastructure will be appropriate at any given location.
Following detailed examination of the infrastructure provisions of the AUP, the High Court recorded that when the relevant objectives and policies of the AUP are properly reconciled there is a “specific, albeit narrow, framework for the consideration of infrastructure proposals, rather than automatically excluding them at the s104D stage”, and that the AUP:
specifically contemplates the approval of significant infrastructure when other non-complying activities giving rise to more than minor adverse effects would be precluded as contrary to the objectives and policies to the AUP.
The High Court concluded that:
[W]hen the relevant chapters are properly construed the AUP was never intended to categorically block infrastructure projects such as the [EWL Proposal] at the s104D stage as to do so would preclude the very analysis envisaged in chapter E26.
The High Court concluded that the effect of chapter E26 is that infrastructure, like the EWL Proposal where the adverse effects will be more than minor, cannot automatically be contrary to the objectives and policies of the AUP.
The High Court dismissed this limb of the appeal. The High Court also went on to dismiss the second limb of the appeal (the substantive challenge against the s104 analysis, focusing on the relevant assessment of the NZCPS), such that both the Forest and Bird and Ngāti Whātua appeals were dismissed.
Comment
Particularly in light of recent policy direction and some high-profile decisions the High Court’s decision will provide some, albeit limited, comfort to infrastructure operators with assets in the CMA. The interpretation of the strict “avoid” requirement, including on indigenous biodiversity and sensitive habitats, has presented a very challenging consenting pathway. While the High Court’s decision relates specifically to the application of the AUP and its particular provisions, the principle of ‘balancing’ directive avoidance policies against those enabling provisions for infrastructure (particularly where they expressly envisage development within sensitive habitats) establishes a pathway for a robust substantive assessment to be undertaken.
[1] S 104D sets out what is known as the “threshold” or “gateway” test which a non-complying application is required to pass through before the merits of the application can be considered. An application must pass one of the two limbs of the gateway test: that the effects will be minor; or that the application is not contrary to the objectives and policies of the relevant plan(s).
[2] Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38.
[3] NZ Rail v Marlborough District Council [1994] NZRMA 70 (HC), at [11].
[4] Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA).
[5] [2018] NZCA 316.