Environmental / Resource Management
In Ngāti Kuku Hapū Trust v Environmental Protection Agency [2025] NZHC 2046, the High Court declined to grant the interim relief sought by the Ngāti Kuku Hapū Trust and the Ngā Hapū o Ngā Moutere Trust (Applicants). This decision which involves the first judicial review (JR) of a decision under the Fast-track Approvals Act 2024 (FTAA), highlights the FTAA’s emphasis on a timely and efficient process. That emphasis militates against the granting of interim orders that would pause the process, unless the Court is presented with markedly different and compelling circumstances.
Background
Schedule 2 of the FTAA describes Stella Passage Development, a listed project, as “In stages, extend the Sulphur Point wharf, including associated reclamation and dredging of the seabed” with approximate geographical location as “8.5 hectares of the coastal marine area within Tauranga Harbour at Sulphur Point and Mount Maunganui” (Project).
On 14 April 2025, Port of Tauranga Limited (POTL) lodged a substantive application for the Project (Application) with the Environmental Protection Agency (EPA). On 1 May 2025, the Applicants raised concerns over what they said were “failures in the consultation requirements” under s 29 of the FTAA. On 8 May 2025, having reviewed these concerns, the EPA issued a decision determining that the Project application was “complete and within scope” under section 47 of the FTAA.
On 4 June 2025, the Applicants, by way of JR, challenged the EPA’s decision alleging that POTL failed to adequately consult tangata whenua, particularly in relation to the Mount Maunganui wharf extension, which was not clearly listed in Schedule 2 of the FTAA. They also raised concerns about the exclusion of Cultural Values Assessments from the Application.
Interim Relief Sought
On 7 July 2025, the Applicants filed an interlocutory application seeking interim orders to halt further processing of the Application pending the outcome of the substantive JR arguing that the EPA’s decision was unlawful due to, among other grounds, there being inadequate consultation.
They also sought a waiver of the usual undertaking as to damages and an expediated one-day hearing on the substantive issues.
Key Legal Issues
Following the two-stage test for interim orders as set out in s 15 of the Judicial Review Procedure Act 2016, the issue before the Court was:
1. Whether interim orders were necessary to preserve the Applicants’ position; and
2. If so, whether it should exercise its discretion to grant them.
High Court’s Findings: No Interim Orders, But an Expediated Hearing
Justice Gendall declined the interim orders, finding that:
- POTL had committed to not commencing physical works before the JR was resolved.
- Any decision by the expert panel could be invalidated if the JR succeeded.
- The Applicants were likely to be invited to comment on the Application, mitigating potential prejudice.
- The JR application was premature, targeting a preliminary gateway decision rather than a final approval.
The Court also declined POTL’s cross-application to stay the JR proceedings, noting no abuse of process or defects in the pleadings. The Court, following Alt New Zealand Ltd v Attorney General [2023] NZHC 2300, noted that in appropriate cases, an applicant’s position can be preserved by allocating an expediated substantive fixture date without any interim relief. Accordingly, the Court granted a priority fixture for the substantive JR hearing.
The two-stage test for interim orders
The Court found that the JR application failed at the first hurdle. That is, the interim orders were not necessary to preserve the Applicants’ position pending the determination of the substantive JR proceedings.
Even if interim relief had been necessary, the Court would still have refused it on discretionary grounds (at the second stage of the test). Several factors influenced this including:
- Strength of the Applicants Case
The Court found some grounds “possibly arguable”, particularly around consultation and scope, but overall, the claims lacked strong prospects. For example, the EPA’s failure to give reasons has since been rectified. Further, s 46(3)(a) of the FTAA only requires the EPA to give written notice of the decision if it considers that the application complies with section 46(2). The Court did note that the inadequacy of consultation ground appears to at least be possibly arguable, and the Court observed that the principles concerning consultation with Māori are helpfully summarised in Land Air Water Association v Waikato Regional Council [2001] ELHNZ 428.
- Balance of Prejudice
The Court noted that there may well be greater potential prejudice to POTL in granting the interim orders than the prejudice to the Applicants in refusing them.
- Prematurity of Challenge
The challenge related to a preliminary gateway decision – the Application being “complete and within scope” – not a final approval.
- Purpose of the FTAA
The FTAA emphasises streamlined processes and strict timeframes. Granting a stay would undermine this legislative intent.
- Balance of convenience and overall justice
On the overall balance, the Court said that it would have determined that the Application failed the second stage as well.
Implications
With the interim orders having been declined, the JR remains active with a priority fixture for the substantive hearing. This decision affirms the right under section 27(2) of the New Zealand Bill of Rights Act 1990 to apply for JR. While s 101 of the FTAA places some limits on this right in respect of decisions on referral applications or approvals of substantive applications, it does not constrain JR of completeness decisions.
This decision also signals the judiciary’s reluctance to disrupt the fast-track process unless absolutely necessary. And it underscores the broader issue involving the tension between accelerated infrastructure and development and the Crown’s obligations under Te Tiriti o Waitangi.
