Max Barber

Summary

A resource consent for an intensive social housing development was quashed by the court for failing to notify an affected person.  

Background

The Resource Management Act 1991 (“Act”) categorises activities that determine whether a resource consent is required, and the level of scrutiny that consent applications must be given.  Local authorities are empowered to create  plans and rules which control land use in its district using these statutory categories.

Where a land user applies for resource consent, local authorities must notify ‘affected persons’ of the consent application. An affected person is someone who stands to be affected by the activity in a way that is minor or more than minor. Failure to notify affected persons can render a resulting consent invalid.

The Auckland Unitary Plan is the prevailing district plan in Auckland. The plan sets out zoning rules for various areas of Auckland, as well as creating ‘overlays’. Overlays are areas within a district that change or add to zoning rules that apply to that area.

In May 2022, Kainga Ora applied to Auckland Council for a resource consent for an intensive social housing project in the Manukau CBD (“Development”). The zoning rules set out in the plan classified intensive housing as a permitted activity, but the medium aircraft noise area overlay (“Overlay”) that applied to the Development classified intensive residential development as a discretionary activity requiring a resource consent.

The Overlay existed to protect Auckland Airport from ‘reverse sensitivity’ effects. Reverse sensitivity here meant the risk of increased airport noise complaints from residents, which could potentially disrupt airport operations.

The Council considered that Auckland International Airport Limited (“AIAL”) was not an affected person. They concluded that any reverse sensitivity effects from the Development were likely to be less than minor, on the basis that the development complied with acoustic standards within the Overlay. Accordingly, they decided not to notify AIAL of the consent application (“Notification Decision”) and granted the consent soon after.  

When AIAL discovered that the consent had been granted, they challenged the Notification Decision and the consent via judicial review.

The case

The Court held that the Notification Decision was unlawful for three inter-related reasons.

Misinterpretation of the Overlay

The Council made the Notification Decision on the basis that if an application complied with acoustic standards in the Overlay, its reverse sensitivity effects would be less than minor and it would not require notification. The Council reasoned that as the underlying zoning rules were permissive of intensive housing, an acoustic assessment was all that was needed. Additionally, they emphasised the lack of explicit density controls in the Overlay.  

The Court rejected the Council’s interpretation. The clear intent of the Overlay was that it superseded the underlying zoning rules. The policy behind the Overlay was to protect airports from reverse sensitivity effects, regardless of the zone in which those effects occurred. The terms of the Overlay specifically contemplated that new residential activities be avoided unless their effects could be mitigated through acoustic design standards and controls on density. High density developments increased the pool of potential noise complainants, a factor highly relevant to reverse sensitivity effects.

By relying on compliance with acoustic standards as the sole criterion, the Council had effectively treated the Development as a permitted activity under the plan, despite the Overlay explicitly saying a resource consent was required.

Failure to undertake adequate analysis of reverse sensitivity effects

The Court held that the Council had also erred in failing to undertake an assessment of all relevant effects on AIAL before making the Notification Decision. This requirement to assess effects was implied from the legislation.

The Council argued that their assessment of acoustic effects, in reliance on an engineer’s report, was sufficient to satisfy the requirement. The Court disagreed, holding that a broad assessment of all relevant noise effects or how those might have led to reverse sensitivity effects was required. This would have required a consideration of the cumulative noise effect on residents, including that aircraft noise would recur multiple times per hour, and that people in the outdoors would have to pause conversations or shout regularly.

‍Reliance on inadequate information

Finally, the Court held that the Council had erred in making the Notification Decision on the basis of inadequate information.

Examples of inadequate information on which the Council based their decision included a reliance on unrepresentative flight data collected during Covid-19 restrictions, as well as information about forecasted flight frequency. Adequate information on these points was necessary to accurately determine the level of disruption caused by aircraft noise and thereby the risk of noise complaints.

‍Result

The errors identified by the Court rendered the Notification Decision unlawful. Because the Council had not complied with the notification requirements of the Act, the resource consent issued for the Development was invalid. Should Kainga Ora wish to progress the development, it will need to re-apply for the consent on a notified basis. As a notified party, AIAL will have rights under the Act in respect of any consent issued, including the right to appeal the consent to the Environment Court.

The case is a prime example of the stringent approach to notification that has traditionally been applied by the courts. The decision suggests that where there is any room for doubt, consenting authorities should notify. The result of failure to do so here has been a delay of two years and counting for a major social housing project.

For future information on this case or similar issues please contact Brigitte Morten, Director

Background

In late 2023, the coalition government between the National, ACT and New Zealand First  took office. The National/ACT coalition agreement stated that the Government would repeals 7AA of the Oranga Tamariki Act 1989. The repeal policy originated with ACT and ACT MP Karen Chhour became the Minister for Children.

Section 7AA imposes a duty on Oranga Tamariki to show practical commitment to the principles of the Treaty of Waitangi by directing its internal processes towards reducing disparate outcomes for Māori children in state care, and by entering strategic partnerships with iwi or Māori organisations in some cases.

Shortly after the Government took office, several Māori claimants submitted claims in the Waitangi Tribunal arguing that the repeal policy breached the principles of the Treaty of Waitangi.

During the resulting inquiry, the Tribunal directed several questions about the policy to the Minister.

In March 2024, Cabinet agreed to enact legislation to repeal s 7AA. The Crown then informed the Tribunal that the Minister’s evidence was no longer necessary because the policy was now a Cabinet decision.  The relevant Cabinet Paper was provided as evidence of the basis of the decision, and Oranga Tamariki officials would give supplementary evidence in person.  

The Tribunal disagreed that the evidence was no longer necessary. It directed further questions to the Minister, seeking the identities of “prominent individuals” and “anecdotal evidence” identified in the Cabinet Paper as supporting the case for the repeal Bill.  

The Crown maintained its position that the Minister would not give evidence. In response, the Tribunal issued a summons to the Minister, compelling her to provide evidence sought.

The Crown applied for judicial review of the summons decision to argue that Chhour should be exempt from a subpoena.

The case

The Crown alleged in both courts that the summons was unlawful because the evidence was not relevant to the inquiry, and because the ‘heightened requirements of comity’ in the case meant that it was inappropriate to issue the summons.

Relevance

Both the High Court and Court of Appeal rejected the relevance challenge. However, the two courts came to opposing conclusions regarding the value of the Minister’s evidence.

The High Court accepted the Minister’s evidence would not add much to that provided by the Cabinet Paper and by officials. However, the threshold for evidential relevance was low, and the Minister’s evidence would clearly meet it.  

The Court of Appeal disagreed that the Minister’s evidence had nothing to add. The Crown had acknowledged in the Tribunal that the repeal policy reflected “a philosophical or political viewpoint not reducible to empirical analysis”. The ACT Party was the genesis of the viewpoint, notwithstanding Cabinet’s subsequent adoption of the policy pursuant to the National/ACT coalition agreement. In this context, the Minister’s personal evidence was highly relevant and the High Court had erred in saying otherwise.  

Comity

Comity is a constitutional convention that mandates mutual respect and restraint between the different branches of government. Its purpose is to avoid clashes between the separate branches of government that could undermine the constitutional order. Like all constitutional conventions, it is not directly legally enforceable.

Historically, the convention has arisen most often between Parliament and the judiciary.  However, the convention is not necessarily confined to that relationship.

The High Court held that the requirements of comity in this case were heightened. This was because the Tribunal was exercising powers similar to that of a court, and  requiring the Minister to give evidence personally on a Cabinet decision could infringe collective ministerial responsibility and Cabinet confidentiality (themselves constitutional conventions).  

The heightened requirements of comity meant  the Minister’s evidence had to be ‘clearly necessary’ to the purpose of the inquiry, rather than the lower threshold of relevance. As the Tribunal already had the Cabinet Paper and evidence from officials as evidence, the Minister’s evidence was not clearly necessary. Accordingly, the summons decision was unlawful.

The Court of Appeal overturned the High Court decision on this point.

In their judgment, the Court of Appeal emphasised that the purpose of the convention was to avoid conflicts over the powers and privileges of the branches of government, citing the law of Parliamentary privilege as a notable example. There was no potential for similar conflict in this case.

The Tribunal was not acting judicially. Its summons power was being exercised pursuant to an investigation and not an adjudication of rights and duties between parties. The Tribunal could not make legally binding orders, with its function being instead to deliver non-binding recommendations to the Crown about compliance with Treaty principles. Additionally, it ceased to have investigatory jurisdiction as soon a policy was embodied in a Bill that had been introduced to Parliament.

The court also disagreed that summonsing the Minister would breach collective responsibility and Cabinet confidentiality. The repeal policy was the Minister’s in substance, and the Minister could speak to it without compromising any Cabinet proceedings.

Because of this, there was no potential in this case for the type of institutional conflict that the comity convention existed to protect. The High Court had been wrong to apply the ‘clearly necessary’ requirement, and the summons was lawful.

Result

The appeal was allowed, but the court made no order. This would have been redundant given when the case was heard, the Tribunal had already made its final report, and the repeal Bill was before the House of Representatives.

The decision nonetheless provides a rare example of judicial comment on the ambit of important constitutional conventions and the influence they can have on legal rights and duties.

At the time of writing, the Oranga Tamariki (Repeal of Section 7AA) Amendment Bill is before the Social Services and Community Select Committee, which is due to report back on 21 November 2024.

For further information on this case or similar issues please contact Director, Brigitte Morten

Background

The Covid-19 Recovery (Fast-track Consenting) Act 2020 (“FTCA”) was enacted to facilitate economic and social recovery from the impacts of Covid-19. It allowed referred and listed projects to be consented by an expert panel rather than requiring them to go through ordinary resource consenting procedures.

Hiringa Energy Ltd and Balance Agri-Nutrients Ltd (“Respondents”) sought to establish a renewable wind energy facility with infrastructure for the production of hydrogen as an alternative transport fuel. They sought consent for the project under the FTCA and the Minister referred the project to an expert panel for consent (“Panel”).  

The project required a number of wind turbines to be installed on site. Evidence showed the turbines obstructed the view of Taranaki Maunga (mountain) from the rohe (governance area) of various hapū in the area. The Panel accepted that obstruction of the view of the maunga could have adverse cultural impacts on the hapū.

The Respondents engaged with the hapū prior to the consent hearing. No consistent view was expressed. Some hapū tentatively supported the project while others were opposed. The existence of the turbines was the major sticking point.

As a result, the Respondents agreed to take various actions (including limiting the number of turbines to four and decommissioning them after a maximum of 35 years) to mitigate the damage to the taonga. The Panel granted the consents and included these agreements as consent conditions.

Several hapū and the designated post-Treaty settlement governance entity in the area (“Hapū Appellants”) and Greenpeace appealed the consent decision to the High Court. The High Court dismissed the appeal, and the Hapū Appellants and Greenpeace appealed to the Court of Appeal.

This case brief describes Hapū Appellants’ appeal.

The case

Under the FTCA, panel decisions were appealable on questions of law only. Accordingly, the court noted it was not concerned with whether the Panel decision was right or wrong - their enquiry was confined to whether the Panel had correctly understood and applied the relevant law.

The Hapū Appellants argued the Panel had made an error of law as their decision was inconsistent with the principles of the Treaty of Waitangi.

Treaty clauses

‘Treaty clauses’ are a term used colloquially to describe statutory provisions that require (usually) public decision-makers to engage in some way with the principles of the Treaty of Waitangi. These clauses are the primary means by which the Treaty has binding effect in New Zealand law; the Treaty itself not being directly enforceable in the courts. The courts have created the Treaty principles on a case by case basis, beginning with the landmark Lands decision in 1987.

The FTCA Treaty clause required decision-makers under the FTCA to “act consistently” with the Treaty principles. This was a bottom line requirement – a decision that was inconsistent with the Treaty principles would be unlawful regardless of the extent to which it promoted the purposes of the Act.

What Treaty principles applied

The Hapū Appellants argued that the “active protection” Treaty principle applied. As the parties agreed that the turbines could cause spiritual harm, the Hapū Appellants argued that active protection required the Panel to decline the consent or require an alternative site for the turbines where they did not obstruct the view.

The court rejected this argument. Relevant case law and Waitangi Tribunal decisions had established that the overarching Treaty principle was ’partnership’. The Crown and Māori were obliged to act in good faith and reasonably in their dealings, a requirement which implied an element of give and take.

The active protection principle was an element of partnership – the courts and Waitangi Tribunal had noted that in some cases, the Crown must take an active role in protecting Māori interests in order to satisfy the principle of partnership. An example was the decision of the Broadcasting Assets case in the Privy Council, which found that the partnership principle required the Crown to take an active role in preserving Te Reo.

As an element of partnership, the active protection principle was necessarily fluid. The court emphasised that the principle had never given Māori veto rights over Crown decisions that would harm their interests.

Was the Panel’s decision inconsistent with the Treaty principles?

The court held that the Panel’s decision was consistent with the partnership and active protection principles.

The Crown’s interest strongly favoured allowing the project to proceed, as there was no dispute from the Hapū Appellants that it was inconsistent with the purpose of the Act. This interest had to be balanced against the interest of the Hapū Appellants in preserving their relationship with the maunga.

The court held that the Hapū Appellants’ interest had been sufficiently protected. They noted the hapū most affected had been supportive of the project, there had been ample engagement with all effected hapū, and the engagement had resulted in a number of consent conditions that protected the taonga relationship with the maunga.

As a result, the consent decision was consistent with the Treaty principles and there was no error of law.  

Result

The appeal was dismissed on all grounds. The decision has not been appealed to the Supreme Court, meaning the Respondents’ project is free to proceed on the conditions agreed by the Panel.

The court declined to award costs against the Hapū Appellants on the ground that they had brought the appeal in the public interest.

This case is an important reminder that the Treaty of Waitangi is not directly enforceable in New Zealand law. Even where an Act gives strong status to the Treaty principles, the courts will balance the interests of the Māori parties against the public interest underlying development. The Treaty does not give Māori veto rights over public projects that affect their physical, economic, or spiritual interests.

For further information on this case or similar issues, please contact Director, Brigitte Morten