Aly joined Franks Ogilvie in 2024 as a Senior Solicitor. After graduating from Victoria University and completing her professional studies, she worked in general private practice gaining experience across a wide range of matters.
In her first two years of practice Aly appeared in the Employment Relations Authority, District Court, High Court, Court of Appeal and the Court Martial of New Zealand. She was involved in numerous mediations and negotiations, and in multiple successful judicial review challenges to Government decisions.
Aly is particularly interested in Government decision making processes and the evolution of New Zealand’s uncodified constitution. She takes satisfaction in problem solving and in providing both legal and practical advice that is comprehensive, concise and easy to understand.
In her personal time she enjoys being out in nature, going tothe driving range or tennis court, and being creative.
Summary
Te Runanga o Ngati Awa (NgatiAwa) and Sustainable Otakiri await a Supreme Court decision on their unsuccessful challenges to consents granted to a Chinese-owned water bottling company for water extraction near Otakiri.
Background
Creswell is a subsidiary company of Nong fu Springs, a Chinese water bottling giant. It was established in 2016 and entered into an agreement to purchase an existing water bottling plant in Otakiri.
In 2018, approval was given to purchase approximately 6 hectares of land at Otakiri Springs, conditional on obtaining all necessary consent. Water permits from the Bay of Plenty Regional Council and land use consents from Whakatane District Council were granted which would enable Creswell to export over one billion litres of drinking water annually.
Initial Challenges
Ngati Awa and a group called Sustainable Otakiri which consisted of residents living near the bottling plant (“Applicants”), sought to challenge the granting of these consents in the Environment Court.
The Environment Court upheld the consents, and the Applicants appealed to the High Court. The key questions on appeal included:
1. whether the “end use” of the bottles could be considered (i.e. export and use of plastic bottles);
2. whether recourse to Part 2 of the Resource Management Act 1991(“RMA”) was required;
3. whether negative effects on te mauri o te wai and the ability of Ngāti Awa to exercise kaitiakitanga (the negative tikanga effects) could be considered; and
4. whether there was an error in determining that the activity was the expansion of an existing activity rather than a new activity.
The High Court dismissed the appeal, echoing the Environment Court's view that broader public concerns about Creswell's operations are a matter for legislative, rather than judicial, resolution.
The Court of Appeal
The Applicants were then granted leave to appeal to the Court of Appeal. Five of the fifteen grounds of appeal sought, were granted. The Court dismissed the appeal, finding in favour of Creswell.
Of significance, the Court of Appeal found that “end use” is a permissible consideration, but the potential effects of plastic bottle disposal were too remote to be relevant in this case. In particular, the disposal would be occurring overseas by third parties and it would be very difficult to quantify the environmental impact.
Part 2 of the RMA outlines the purpose and principles of the RMA, which refer to Māori relationships with water and consideration of the principles of the Treaty of Waitangi. The Court found that these provisions were considered in forming the relevant planning instruments, including the regional policy statements and plans, and therefore the local authorities were not required to directly consider the Part 2 provisions in deciding to grant the consents.
The Court of Appeal disagreed with the lower courts, and did find an error in the classification of the activity (the expansion of the bottling plant) under section 127 of the RMA. In particular, it was not a change to an existing consent, but a new activity requiring a new consent. However, this error did not affect the outcome and therefore the decisions of the local authorities were upheld.
The Supreme Court
The Supreme Court granted leave to the Applicants to appeal the Court of Appeal's decision. Leave was also granted on a question the Court of Appeal had declined leave to consider. This was regarding the High Court's findings on the negative tikanga effects of the proposal.
The Supreme Court reserved its judgment in November 2023 and there have been no further updates.
The decision will be significant in understanding how tikanga Maori is integrated into resource consent processes in New Zealand but this is likely to change in the current government’s RMA reforms.
Production under the granted consents cannot begin until and unless the Supreme Court issues its decision upholding them.
To understand more about this case or similar decisions, please contact Director Brigitte Morten.
Summary
The High Court confirmed local authorities do not carry the Crown’s Treaty duties, other than where specifically statutorily prescribed. The judicial review application by trustees of Te Rūnangaa Rangitāne o Wairau Trust, the legal representative of the Rangitāne o Wairauiwi (“Rangitāne”), as against the Marlborough District Council (“MDC”), was dismissed.
Background
The MDC enacted the East Coast Beach Vehicle Bylaw 2023, restricting vehicle access to parts of the north eastern coast of the South Island. This affected areas significant to Rangitāne’s cultural and customary practices.
Rangitāne challenged the lawfulness of the Bylaw and the Council’s decision-making process claiming it breached their customary rights and statutory obligations, including those under the Treaty of Waitangi.
The Case
The Court considered the following questions of significance:
1. What the nature of the local authority obligations under the Treaty of Waitangi were;
2. Whether MDC breached the obligations under Part 6 of the Local Government Act (“LGA”); and
3. Whether MDC’s decision was procedurally unjustified.
Council’s Obligations under the Treaty
Rangitāne argued that local authorities are a “delegate of the Crown” and therefore assume the Crown’s obligations under the Treaty of Waitangi. They argued that MDC’s decision adversely affected the ability of Rangitāne to exercise their customary rights as guaranteed by article 2 of the Treaty.
The Court confirmed local authority obligations under the Treaty of Waitangi are limited to those explicitly provided in the LGA. The Court concluded that local authorities are not directly subject to Treaty obligations at common law beyond what is stated in the relevant legislation.
The Court of Appeal’s decision in Smith v Fonterra was discussed, reiterating that there cannot be a breach of the Treaty where a decision has been made lawfully under legislation that gives effect to Treaty principles. Local authorities are only required to consider the Treaty in the context of section 4 of the LGA which is a “Treaty Principles” provision.
Part 6 of the LGA
Sections 76-83AA of the LGA were addressed by the Court in the context of the decision to enact the Bylaw.
The Court acknowledged that MDC engaged with Ngati Kuri more than Rangitāne in the development of the “cultural values section” of the Technical Report (which was the foundation for assessing the impacts and implications of the proposed Bylaw), but it had some engagement with Rangitāne, and there was evidence of consideration of Rangitāne’s submissions and interests. The Court confirmed that to what extent these submissions influenced MDC’s decision, is a matter for MDC. Further, the LGA does not require a local authority to determine competing claims of cultural status between iwi.
In regard to section 79 of the LGA which sets out procedures for decision making, the Court confirmed there is no requirement that local authorities keep a record of compliance. The Court of Appeal’s decision in Thorndon Quay Collective v Wellington City Council, was referred to, citing the importance of a “flexible approach” to this provision. The Council stated it had considered relevant options as well as the significance of all relevant matters. MDC also produced a report that noted a Panel was attempting to apply a consistent Bylaws framework in order to address competing values of national importance, as identified in the technical report. This was sufficient evidence of compliance with section 79.
Section 80 was analysed, which requires local authorities to identify significantly inconsistent decisions to any policy or plans adopted by the local authority. The High Court agreed with MDC that the significance threshold was not met for a number of reasons, and noted that even if the threshold had been met, this does not invalidate the decision.
Sections 81 and 82 provide for contributions to decision-making processes by Maori and principles of consultation. The Court found the opportunities for Rangitāne to participate in the decision-making went far beyond that afforded to the rest of the community and these provisions had been adhered to. Justice McQueen made it clear that consultation does not require the MDC to agree with the position taken by Rangitāne.
Procedural Fairness
A breach of a legitimate expectation was established arising from the MDC’s commitments when extending invitations to both Rangitāne and Ngati Kuri to nominate a representative to sit on the Hearing Panel. MDC committed to not allowing Rangitāne or Ngāti Kuri to make a submission if they appointed a commissioner. Rangitāne reasonably relied on this and declined the invitation to maintain the opportunity to advance a submission on the Bylaw. MDC then allowed a letter sent by Ngati Kuri in response to Rangitāne’s submission, to be considered by the Hearing Panel, in breach of that legitimate expectation.
Rangitāne also advanced an argument of bias, which concerns impartiality in decision-making. However, the Court considered this unworkable in the context of Council decisions involving content that reasonable minds disagree on. Pre-determination was instead considered, though the fact Ngati Kuri had a commissioner on the Panel, was not enough to demonstrate the panel had a closed mind.
Result
Whilst Rangitāne established one claim of legitimate expectation, the Court declined to grant any remedy as the letter did not have any material effect on the decision and the decision would not have been different had MDC complied with the legitimate expectation.
All other grounds of review failed and the application for judicial review was dismissed, with costs to follow.
This case serves as a crucial reference point for local authorities in New Zealand, shaping their understanding of their responsibilities towards Māori, and providing guidance on the obligations conferred by the decision making provisions in Part 6 of the LGA.
For further information on this case or similar issues, please contact Director Brigitte Morten.
Summary
Thorndon Quay Collective Incorporated("TQC") successfully secured a declaration that Wellington City Council ("WCC") failed to properly consider all reasonable options when making a decision to reconfigure angle parking to parallel parking on Thorndon Quay, as required by the Local Government Act 2002 ("LGA").
Background
In June 2021 the WCC proposed to reconfigure parking on Thorndon Quay from angled parking to parallel parking to improve cyclist safety. Consultation was conducted as part of the “Let’s Get Wellington Moving” (“LGWM”) initiative.
TQC, as a representative body for local businesses, raised concerns about the adverse impacts of the parking changes on businesses. Alternatives were suggested, such as; reducing the speed to 30kmph in line with other speed reductions around the city, or repainting the angled parks on a relaxed angle so cars would have a clearer line of site of oncoming cyclists.
The WCC delegated its decision-making power to the Planning and Environment Committee. A Council employee was then tasked with identifying all available options to reduce the safety risk, but failed to present all options to the Committee.
On 24 June 2021 the Planning Committee passed a traffic resolution deciding to reconfigure the parking (“Decision”). A report distributed in support of the Decision noted that it was intended to make it safer “in the short term…, whilst long term decisions are made”.
TQC lodged an application for judicial review of the Decision, alleging that the Council failed to adhere to its decision-making responsibilities under the LGA.
The High Court dismissed TQC's application. TQC appealed that decision to the CA.
The Case
The focus of the appeal was on the interpretation and application of:
Section 76(3)
The Court of Appeal (“CA”) found the High Court erred in its interpretation of section76(3) of the LGA. This misinterpretation did not result in a different outcome, but the CA clarified its interpretation:
Section 77
The LGA requires local authorities to identify all reasonably practical options for achieving the objectives of a decision, and to assess the advantages and disadvantages of each option.
The CA found that because a WCC employee was tasked with considering all options, and not all of those options were provided to the Committee for consideration, the Committee (as the WCC’s delegate) had insufficient information to reach a properly informed view.
The appeal was successful on this basis.
Section 82A
If a local authority is required to consult in accordance with section 82, they must make certain information publicly available. Given its finding that the Council had not complied with section 77 (to identify options), it was not necessary for the CA to decide this point. However, the Court clarified that s 82A only applies to consultations specifically required by the LGA, not all consultations. The Decision was not subject to the consultation principles in section 82.
Section 79
Section 79 states it is the responsibility of a local authority to make judgments (in its discretion), about how to achieve compliance with sections 77 and 78. Section 77 is detailed above. Section 78 requires the consideration of the views and preferences of persons affected by or interested in the relevant matter.
The CA found that section 79 confers a broad discretion on local authorities, and undue formality would slow down local government decision-making significantly. While the Council did not formally make judgments, it could be inferred that they had informally made judgments about the process being appropriate. The CA commented that“ decision-making is a process, not a specific point in time”, and requiring exhaustive compliance with procedural details for every decision would be impractical and burdensome.
Result
The Court of Appeal granted TQC a declaration that the Council's decision-making processes did not comply with its obligations under section 77. However, it declined to formally quash the decision or order the reinstatement of angled parking due to:
The case provides valuable guidance for local authorities in navigating the delicate balance between strict compliance with the LGA and the practical realities of their operations. The CA acknowledged that while local authorities are obligated to comply with the LGA's decision-making procedures, local authorities should not be burdened with excessively formal procedures and meticulous record-keeping for every decision, particularly those of low significance. However, there should still be a clear record of the decision-making process, even if it's informal.
For further information on this case orsimilar issues, please contact Director Brigitte Morten.
