RMLA National Roadshow Case Law Update 2017 August

RMLA National Roadshow: Case Law Update 2017 August 2017

Cases covered: • Man O'War Station Ltd v Auckland Council [2017] NZCA 24 • R J Davidson Family Trust v Marlborough City Council [2017] NZHC 52 • Turners & Growers Horticulture Ltd v Far North District Council [2017] NZHC 764 • Clearspan Property Assets Ltd v Spark New Zealand Trading Ltd [2017] NZHC 277 • Federated Farmers of New Zealand Inc v Northland Regional Council [2016] NZHC 2036 • Attorney-General v Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 • Hawke's Bay Regional Investment Company Ltd v Royal Forest and Bird Protection Society of New Zealand Inc [2017] NZSC 164 • Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 • Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113 August 2017 RMLA National Roadshow – Case Law Update 2017 2

The world post-NZKS • • New Zealand Transport Agency v Architectural Centre Inc (HC) Man O’War Station Limited v Auckland Council (CA) R J Davidson Family Trust v Marlborough District Council (HC) Turners & Growers v Far North District Council (HC) August 2017 RMLA National Roadshow – Case Law Update 2017 3

Basin Bridge – a quick recap • Designation • Section 171: “subject to Part 2” • Question: • Effect of NZKS? • Answer: • NZKS was not concerned with the meaning of “subject to Part 2” • Subject to Part 2 continues to mean: • Has to be considered • Prevails or overrides in event of conflict August 2017 RMLA National Roadshow – Case Law Update 2017 4

Man O’War Station • Facts: • • Change to the Auckland RPS Introducing ONL Including in coastal environment NZKS released during process: • In ONL, must avoid adverse effects • Issue: • Does this raise bar for identification as ONL? August 2017 RMLA National Roadshow – Case Law Update 2017 5

Man O’War Station • No change to the threshold for deciding whether or not ONL • NZKS: • Not raise the bar for identification • Only the consequences of identification (“avoid”). • Importantly: • Not to avoid all adverse effects • But to avoid adverse effects from “inappropriate activities”. August 2017 RMLA National Roadshow – Case Law Update 2017 6

R J Davidson • Facts: • Consent application for a 7 ha mussel farm. • Section 104: subject to Part 2 • Declined by Commissioner: • landscape and navigation effects. • On appeal: • Environment Court hears evidence of effects on King Shag habitat. • Policy 11 of the NZCPS: • “avoid adverse effects…on habitats of indigenous species…” • Declined by Environment Court August 2017 RMLA National Roadshow – Case Law Update 2017 7

R J Davidson – Environment Court • In doing so: • Part 2 expressed through the relevant planning documents: • so no need to go back and assess overall. • Approach in NZKS applies to resource consents: • Apply “subject to Part 2” only where invalidity, incompleteness, or uncertainty • Earlier approach in KPF on the effect of NZKS was erroneous. August 2017 RMLA National Roadshow – Case Law Update 2017 8

R J Davidson – High Court • Supreme Court reasoning: • NZCPS intended to give substance to Part 2 • No need to refer back • Because: • Given process for creating NZCPS: • Implausible for Part 2 to be ultimate determinant • Would undermine Ministerial control • Cascade with increasing particularity • Translating into more specific or focussed • s 5 not primary operative decision-making provision August 2017 RMLA National Roadshow – Case Law Update 2017 9

R J Davidson – High Court • Reasoning applies to s 104: • Planning documents give substance to Part 2 • General recourse to Part 2 for consents: • Render ineffective plans: • Inconsistent with scheme of Act and NZKS • Be more restrained when making plans than deciding consents • Resort to Part 2 only where invalidity, incomplete coverage or uncertainty of meaning • Leave to appeal granted August 2017 RMLA National Roadshow – Case Law Update 2017 10

Turners & Growers • Facts: • Plan change in Far North • To address incompatible land uses in the rural zones • Objectives and policies • Rules • Scale of activity • Not location • T&G sought to introduce a setback rule • Environment Court: • Only rules at issue • Role of Part 2? August 2017 RMLA National Roadshow – Case Law Update 2017 11

Turners & Growers • Are you constrained or do you have a choice? • In NZKS, constrained by NZCPS: • Obliged to avoid certain adverse effects • Mandatory requirement • Could not discard by resorting to Part 2 • NZKS not suggest: • Disregard mandatory provisions in s 31 and s 74 • Part 2 irrelevant where have choice • Part 2 remains relevant when room for choice August 2017 RMLA National Roadshow – Case Law Update 2017 12

Turners & Growers These objectives and policies leave considerable room for choice as to the methods or rules most appropriate to achieve them. It is an extraordinary proposition to suggest that Council, and the Environment Court on appeal, should disregard the purpose and principles of the Act when considering that choice. I reject this proposition. August 2017 RMLA National Roadshow – Case Law Update 2017 13

NZKS – So where are we? • Subject to Part 2: • Designations – no change • Consents – NZKS applies (Davidson, subject to appeal) • Plan changes: • Where constrained by directive, no recourse to Part 2 • Where choice remains, have regard to Part 2 August 2017 RMLA National Roadshow – Case Law Update 2017 14

Subdivision: Clearspan • Facts: • Telcos lease sites for cell towers • Less than 100 m 2 • Clearspan aggregated sites: • responsible for, and collects all rental • stronger negotiating position with Telcos than individual owners • Section 218 defines subdivision • Arrangement carefully crafted to fall outside definition • Question: is it a subdivision? August 2017 RMLA National Roadshow – Case Law Update 2017 15

Subdivision: Clearspan • Environment Court says yes: • had look, feel and permanence of subdivision; and • clearly designed to avoid impact of s 218. • Clearspan appeals to High Court: • Can arrangements with the same substance and effect as those listed in s 218 amount to subdivision? • Or is subdivision confined to words and concepts explicitly listed? August 2017 RMLA National Roadshow – Case Law Update 2017 16

Subdivision: Clearspan • Arrangement artificial contrivance designed to avoid s 218 • But • s 218 limits subdivision to specified and relatively certain legal matters listed; • Definition could have been made non-exhaustive; • Indicative of parliamentary intent that arrangements of similar substance and effect excluded • Not subdivision for purposes of s 218 • Telco’s cannot rely on RMA to counter Clearspan commercial challenge August 2017 RMLA National Roadshow – Case Law Update 2017 17

GMO: Federated Farmers v NRC • Facts: • Northland RPS: • No GMO provisions • Added in response to submissions • directed precautionary approach to the use of GMOs • Federated Farmers appealed to EC, and then to HC • Issue: whether the regulation of GMOs is: • sole provenance of the EPA under HSNO • not a matter for which a regional council may make provision in a RPS or regional plan August 2017 RMLA National Roadshow – Case Law Update 2017 18

Federated Farmers • Environment Court: • No express provision in HSNO or RMA exempted “new organism” from control under the RMA • Doctrine of implied repeal a “last resort”: • If two statutes impossible to reconcile • Not just overlap between subject matter of statutes • RMA and HSNO offer different functional approaches to regulation of GMOs: • Import and release into NZ • Use and protection once here • Power to control GMOs through RPS and regional plans August 2017 RMLA National Roadshow – Case Law Update 2017 19

Federated Farmers – High Court • Q 1: Correct legal test? • FF: EC adopted “express exemption test” from Meridian: • “in general terms, all resource use is amenable to its framework unless expressly exempted from consideration”. • HC did not accept “express exemption test” argument: • Only a “starting point” and “one factor” • Statement in Meridian: • an observation only • EC may have overstated significance of passage, but error not material August 2017 RMLA National Roadshow – Case Law Update 2017 20

Federated Farmers – High Court • EC analysed in accordance with Interpretation Act: Although the first express reference to s 5(1) Interpretation Act is towards the end of the judgment, the Court made it clear that the principle applied to the analysis throughout. August 2017 RMLA National Roadshow – Case Law Update 2017 21

Motiti • Background: • BOP RPS: • Motiti Natural Environment Management Area: • Motiti Island surrounding waters • Motiti Rohe Moana Trust sought to control fishing in MNEMA in RCEP • To: • Maintain indigenous bioversity • Provide for relationship of Maori with their taonga • With objectives, polices, methods and rules August 2017 RMLA National Roadshow – Case Law Update 2017 22

Motiti • Issue: • interface between the RMA and Fisheries Act 1996: • particularly scope of s 30(2) RMA: • prevents regional councils from controlling the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources August 2017 RMLA National Roadshow – Case Law Update 2017 23

Motiti – Environment Court • It is lawful for BOPRC to include objectives, policies and methods in its proposed RCEP in spatially defined parts of the CMA that avoid, limit or discourage fishing techniques or methods with a sole or dominant purpose to: • achieve indigenous biological diversity; • protect indigenous vegetation and significant habitats; • preserve natural character of coastal environment; • recognise and provide for relationship of Māori; • have regard to exercise of kaitiakitanga; • have regard to intrinsic values of ecosystems; • take into account the duty of active protection of taonga. August 2017 RMLA National Roadshow – Case Law Update 2017 24

Motiti – High Court • AG appealed, on behalf of MPI • Tension between: • s 30(2) of the RMA Not to control the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources • Regional council's indigenous biodiversity function (s 30(1)(ga)) August 2017 RMLA National Roadshow – Case Law Update 2017 25

Motiti – High Court • Two questions: • True scope of s 30(2)? • Can controls be imposed on fishing to maintain indigenous biodiversity? August 2017 RMLA National Roadshow – Case Law Update 2017 26

Motiti – High Court • Fisheries Act: • “Fisheries are to be utilised, but sustainability is to be ensured” • “Clearly occupies the field” on sustainable utilisation • But no duty to maintain indigenous biodiversity • RMA: • Read down (if necessary) to avoid conflict: Unfettered regional plan regulation of fisheries resources would jar heavily against the carefully calibrated control of fishing under a regime purpose built to achieve sustainable utilisation. August 2017 RMLA National Roadshow – Case Law Update 2017 27

Motiti – High Court • Parallel, complementary and overlapping • Reconcile by: • Affording primacy to the FA on: • Utilisation of fisheries resources • Effects of fishing on the biological sustainability of aquatic environment as a resource for fishing needs • RC tasked with management of other effects or externalities of fishing: • • Waahi tapu Navigation Natural landscape Intrinsic values • And maintenance of indigenous biodiversity August 2017 RMLA National Roadshow – Case Law Update 2017 28

Motiti – High Court • Effects of fishing on the biological sustainability of the aquatic environment as a resource for fishing needs: • Not control under RMA • Effects of fishing that are not directly related to the biological sustainability of the aquatic environment as a resource for fishing needs: • May control under RMA • Notwithstanding, may perform s 30(1)(ga) function to maintain indigenous biodiversity within the coastal marine area, but only to the extent strictly necessary August 2017 RMLA National Roadshow – Case Law Update 2017 29

Motiti – High Court • Declaration made by EC did not correctly capture scope of s 30(2): • Did not place clear limits on the extent to which a regional council could control fishing in pursuance of its functions • Could lead to unqualified incursion into the sustainable utilisation of fisheries resources under the Fisheries Act • Appeal allowed in part • Declaration set aside • Leave reserved with suggested form • Final decision – declined to make declaration August 2017 RMLA National Roadshow – Case Law Update 2017 30

Ruataniwha • Background • Ruataniwha dam flooding 22 ha of conservation land • Requires land swap: • 22 ha of protected forest park land (Ruahine Forest Park) • 146 ha of private land (Smedley Land) • Process: • Revocation of protected status of 22 ha under section 18(7) Conservation Act: • from “conservation land” to “stewardship area” • Exchange under section 16 A • 146 ha declared held as conservation land August 2017 RMLA National Roadshow – Case Law Update 2017 31

Ruataniwha • Two separate decisions, one overall objective: • Enable exchange • “net benefit” for the wider conservation estate • Challenged by JR August 2017 RMLA National Roadshow – Case Law Update 2017 32

Ruataniwha • Issue – correct approach to s 18(7) Conservation Act 1987? • Narrow: • Minister must consider whether conservation values of particular piece of conservation land warrant protection • Broad: • Minister may consider benefits to conservation more generally • No requirement to consider conservation values of particular land August 2017 RMLA National Roadshow – Case Law Update 2017 33

Ruataniwha • High Court • Court noted revocation and exchange decisions “legally distinct” • Accepted broad approach to revocation decision under s 18(7) • Decision lawful • Court of Appeal • Forest and Bird appealed • Majority rejected broad approach to s 18(7) • Decision contrary to clear legislative scheme • Appeal allowed August 2017 RMLA National Roadshow – Case Law Update 2017 34

Ruataniwha – Supreme Court • Questions: • Whether power to revoke turns on intrinsic conservation values: • Rather than overall enhancement? • Whether revocation wrongly driven by exchange? August 2017 RMLA National Roadshow – Case Law Update 2017 35

Ruataniwha – Supreme Court • Majority: Revocation under s 18(7) must be assessed by reference to the particular resources affected and does not lend itself to a calculation of whether an exchange of land will lead to net gain to either the forest park as a whole or the wider conservation estate. Nor is it sufficient to undertake a comparative assessment as to whether land proposed to be obtained in exchange has higher intrinsic conservation values. Revocation of protected status is open only if the conservation values of the resources on the subject land no longer justify that protection. August 2017 RMLA National Roadshow – Case Law Update 2017 36

Ruataniwha – Supreme Court • Majority analysis • No suggestion land not warrant protection • No assessment of intrinsic values / whether protection warranted • Never decided that, absence exchange, protection inappropriate • Decision driven by “net benefit” to conservation • Conflation of revocation and exchange decisions contrary to legislative scheme • Unlawful August 2017 RMLA National Roadshow – Case Law Update 2017 37

Ruataniwha – Supreme Court • Minority: • Majority’s approach construes s 18(7) as: Subject to subsection (8), the Minister, if satisfied that the intrinsic conservation merits of the land no longer warrant being held as a conservation park, ecological area, or for any other purpose specified under s 18(1) may, by notice in the Gazette, vary or revoke the purpose, or all or any of the purposes, for which any land or interest held under subsection (1) is held; and it shall thereafter be held accordingly. • No hint of limitation found in language of s 18(7) • No other specific provision explicitly suggests limitation August 2017 RMLA National Roadshow – Case Law Update 2017 38

Transpower v Auckland Council • Auckland Unitary Plan – National Grid Corridor Overlay • Gives effect to NPSET • Protects the National Grid • Independent Hearings Panel recommended amendments • Appeals: • Where accepted recommendations: • High Court appeal (one policy and three rules) • Where declined recommendations: • Environment Court appeal on merits August 2017 RMLA National Roadshow – Case Law Update 2017 39

Transpower • Two main questions of law considered : • Wrong legal test? • Conclusion without evidence or one to which, on the evidence, it could not reasonably have been reached? It does not matter that this Court would almost certainly not have reached the same conclusion as the court or tribunal below. What matters is whether the decision under appeal was a permissible option. The appellant court will almost always have to be able to identify a finding of fact which was unsupported by evidence or a clear misdirection in law by the inferior court or tribunal. August 2017 RMLA National Roadshow – Case Law Update 2017 40

Transpower • Wrong legal test: [The IHP] expressly told the Council …that it considered that its recommendations on the …overlay provisions would give effect to the NPSET and to the RPS. If the IHP was correct in its advice to the Council, it will not have applied the wrong legal test. If it was wrong, then it will have erred in law. This is not a merits based assessment. Rather I must consider what the NPSET and RPS require, and then ask myself whether the impugned provisions give effect to them in light of the evidence found by the IHP. August 2017 RMLA National Roadshow – Case Law Update 2017 41

Transpower • Evidence Given the IHP’s findings of fact, and its stated reasons, the question again becomes – do the impugned provisions give effect to the NPSET and the RPS? If they do not do so, Transpower will have surmounted the very high hurdle of establishing that the Council/IHP have come to a conclusion to which, on the evidence as found, they could not reasonable have come. August 2017 RMLA National Roadshow – Case Law Update 2017 42

Transpower • Reads as merits challenge • Until look at evidence: • Transpower evidence on underbuild issue • No evidence from any other entity contradicting it • Nothing in findings or reasoning to suggest any other evidence preferred • While some Council drafting preferred to Transpower drafting: • Nothing to suggest Transpower evidence not accepted • Or that others’ preferred • Clear that thought drafting gave effect to NPSET and RPS August 2017 RMLA National Roadshow – Case Law Update 2017 43

Transpower • Stressing it was not a “merits assessment”, the Court considered: • The objective and relevant policies of the NPSET (including the strong direction to ensure that the National Grid is not compromised) • The objectives and policies of the RPS • The provisions of the Overlay • Found the impugned provisions did not give effect to the NPSET, RPS or objectives of the Overlay • So: • The advice from IHP to Council was wrong • Could not reasonably have been made on the evidence • Errors of law August 2017 RMLA National Roadshow – Case Law Update 2017 44

Wendco • Background • Wendy’s established 1999; Mobil closed 2013; consent for Carl’s Jr sought • Wendy’s claimed to be “affected” and entitled to be limited notified • Issues • Matters of discretion and on-site effects • Adequacy of Council’s information and consideration of effects August 2017 RMLA National Roadshow – Case Law Update 2017 45

Wendco • 2014: High Court decision • Matters of discretion encompassed on-site effects • Sufficient information before Council • Considered adverse effects on Wendy’s • Effects less than minor; non-notified • 2015: Court of Appeal decision • Matters of discretion limited to effects on roading network • But effects on Wendy’s “relate to” the matters of discretion • Insufficient information; adverse effects not considered • Wendy’s appeal allowed August 2017 RMLA National Roadshow – Case Law Update 2017 46

Wendco – Supreme Court • 2017 Supreme Court: • Did the adverse effects on Wendy’s of the alteration to the access points and associated circulation and parking “relate to” matters in respect of which discretion had been reserved? • Did the Council ask itself the right question and have sufficient evidence to justify its conclusion? August 2017 RMLA National Roadshow – Case Law Update 2017 47

Wendco – Supreme Court • 3 -2 majority: • Matters of discretion • Plan “far from easy to construe in a coherent way” • CA wrong to conclude that particular criteria irrelevant • Those criteria apply, and are broader than road network alone • On-site effects could be considered as well as roading network August 2017 RMLA National Roadshow – Case Law Update 2017 48

Wendco – Supreme Court • Supreme Court (continued) • Information before Council • Sufficient information before Council to determine on-site effects on Wendy’s • Enough that effects addressed in “general” rather than “stand-alone” basis August 2017 RMLA National Roadshow – Case Law Update 2017 49

Wendco – Supreme Court • What is “adequate information”? • Discount Brands: • Be satisfied without notification that effects minor • Notification not elicit information could cause view to change • Coro Mainstreet: • Post-2009: may be “less exacting” • Had proceeded on stricter test • Issue “best left for another day” August 2017 RMLA National Roadshow – Case Law Update 2017 50

Wendco – Supreme Court • Minority judgment • Agreed on-site effects relevant • Disagreed as to adequacy of consideration of those effects • Stricter approach to adequacy of information – “careful scrutiny” August 2017 RMLA National Roadshow – Case Law Update 2017 51

Presenter Bronwyn Carruthers Partner +64 9 367 8869 August 2017 RMLA National Roadshow – Case Law Update 2017 52