High Court gives Proposed East-West Link the Green Light

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Environmental / Resource Management

In February 2017, the New Zealand Transport Agency (NZTA) formally notified its proposal to construct, operate and maintain a new four-lane arterial road to connect State Highway 20 in Onehunga with State Highway 1 in Penrose / Mt Wellington -  commonly referred to as the proposed East-West Link (EWL). The land subject to the EWL is ecologically significant, particularly as a habitat for sea birds, and the activity, as a whole, was considered to be non-complying.

A Board appointed by the Ministers for the Environment approved the resource consent applications and Notices of Requirement, but the  decision was appealed by the Royal Forest and Bird Protection Society of New Zealand (RFB) and Ngāti Whātua Ōrakei Whai Maia Limited (Ngāti Whātua) with the support of Te Kawerau Iwi Tribal Authority, (collectively referred to as the Appellants).

The Section 104D Issue

The Appellants argued that the EWL was contrary to the objectives and policies of the Auckland Unitary Plan (AUP). RFB focused on policies in part D9 – Significant Ecological Areas Overlay that require the avoidance of the types of adverse effects that the EWL would produce.

Section 104D of the Resource Management Act 1991 (RMA) allows a consent authority to grant a resource consent only if the adverse effects of the activity will be minor, or the application will not be contrary to the objectives and policies of the relevant planning document, in this case the AUP.  As the High Court found in New Zealand Rail v Marlborough District Council [1994] NZRMA 70, to be “contrary” for the purposes of section 104D(1)(b) means an activity must be opposed in nature, different to or opposite, repugnant and antagonistic. To truly assess this within the context of the EWL, the High Court concluded that all relevant plan provisions must be considered comprehensively and, where possible, appropriately reconciled.

According to the relevant objective in part D9 of the AUP, areas of significant indigenous biodiversity are protected from the adverse effects of use and development. The principal policies for giving effect to this objective require the avoidance of such effects in the coastal environment where the proposed activities threaten at risk indigenous species and their habitats. The High Court emphasised, however, that the EWL must also be considered in the wider context provided by the Introduction chapter and Infrastructure parts of the AUP, which apply to all activities undertaken across the entire region.

The AUP is intended to provide for growth, development and protection, and it specifically envisages that it will sometimes be necessary to locate infrastructure within an overlay area, notwithstanding the protections contained in part D9. Of particular relevance in this case is objective E26.1.1 of the AUP which explains how infrastructure is critical to the social, economic and cultural well-being of people and communities and the quality of the environment. Part E26 provides a framework for the development, operation, use, maintenance, repair, upgrading, and removal of infrastructure, which involves a range of issues that must be balanced before a decision on the appropriateness of any proposal can be determined.  This includes consideration of policies which emphasise the importance of enabling the enhancement of quality of life, the standard of living for people and communities, and providing for development which feeds into functional and operational needs.

Given the specified importance of infrastructure within the AUP, the High Court found that the objectives and policies in part E26 envisage a careful and balanced look at the merits of any infrastructure proposal in order to determine whether it should proceed. Part E26 retains a discretion to approve such developments which reinforced the Board’s decision. Furthermore, when the relevant parts are appropriately construed the AUP was never intended to categorically block infrastructure projects such as the EWL. No error of law was found in this regard. 

The Merits Issue

The Appellants also argued that if the Court found that the Board was correct in its interpretation of the AUP objectives and policies, then the focus should turn to the Board’s assessment of the merits of the EWL in terms of the resource consents, the NORs, and whether the Board properly considered the New Zealand Coastal Policy Statement (NZCPS).

Ngāti Whātua contended that the Board limited its assessment of the relevant provisions of the NZCPS to confirming consistency with the AUP, resulting in a truncated and erroneous assessment. The Board’s approach was considered by Ngāti Whātua to be inconsistent with Environmental Defence Society Incorporated v New Zealand King Salmon Ltd [2014] NZSC 38, [2014] 1 NZLR 593 (King Salmon) because the Board failed to acknowledge or address the differences between the wording of particular policies in the NZCPS and the corresponding wording within the AUP.

Different considerations are required as between the content of plan changes, to which King Salmon related, and the consideration of settled documents for evaluating resource consent applications and / or Notices of Requirement. The High Court was satisfied that the Board considered the relevant parts of the NZCPS and the corresponding provisions of the AUP. To the extent that there were differences the Board preferred the formulation contained in the AUP, as it was entitled to do. Having found that there was no error in approach taken by the Board in its consideration of the NZCPS, the High Court determined there was no basis upon which the second limb of the appeal could succeed.

The appeals were dismissed in their entirety. 

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