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Back to the starting line for Auckland’s east-west highway link

3 May 2024

| Author: Vivian Mitchell

Supreme Court – East West Link project – major infrastructure in vulnerable coastal environments – appeal allowed – ss 104, 104D and 171, Resource Management Act 1991– Auckland Unitary Plan – Policy 11, New Zealand Coastal Policy Statement 2010

Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Transport Agency [2024] NZSC 26 per Winkelmann CJ, William Young, Glazebrook, Ellen France and Williams JJ.

 

The East West Link (EWL) is a proposal by New Zealand Transport Agency | Waka Kotahi (NZTA) for the construction, operation and maintenance of a new four-lane arterial road connecting State Highway 20 at Onehunga with State Highway 1 at Penrose/Mt Wellington. The proposal is a response to the pressures of population growth and congestion in Auckland.

Auckland is dominated by coastline, most of which is ecologically vulnerable. This means roading developments are physically constrained.

The proposed works were planned in “significant ecological areas” (SEA) as defined in the Auckland Unitary Plan (AUP). The Mangere inlet is a habitat and food source for shore birds and rare or threatened migratory seabirds. Another SEA for the proposed works contains rare survivor lava shrubland and raupō (bulrush).

There is a risk of permanent loss or compromise to habitats in the inlet shoreline and permanent loss of lava shrubland and raupō.

NZTA proposed a package of compensatory, offset and improvement measures that it would avoid, remedy and/or mitigate the adverse effects of the roading. It also explained how the impacts would be counterbalanced by ecological benefits.

 

Procedural history

EWL was first proposed to, and accepted by, an expert board of inquiry which replaced Auckland Council as the consenting authority. The board found that despite the more-than-minor adverse effects on the environment, the project was not contrary to the objectives and policies of the AUP for the purposes of a gateway in the Resource Management Act 1991 (RMA).

The board’s decision was appealed to the High Court by Royal Forest and Bird Protections Society of New Zealand Inc (RFB) and Ngāti Whātua Ōrākei Whai Maia Ltd.

The appeal turned on whether the EWL was contrary to the objectives and policies of the AUP and whether the board failed to properly consider the New Zealand Coastal Policy Statement (NZCPS). The High Court upheld the board’s decision and leave was granted to RFB and Ngāti Whātua to appeal to the Supreme Court (SC).

 

Legal context

Sections 104 and 104D of the RMA require the board to have regard to the proposal’s environmental effects and the relevant provisions of any applicable plans. Section 104D adds a second, more focused filter, stating consent for a non-complying activity may be granted only if its adverse effects will be no more than minor or the activity itself is not contrary to the objective and policies of the relevant plan.

Section 171 of the RMA states that when considering a submission, a territorial authority must consider the effects on the environment, having particular regard to national policy statements, the NZCPS and regional policy statements and plans (including proposed).

Policy 11 of the NZCPS states that “to protect indigenous biodiversity in the coastal environment” adverse effects on particular species, habitats and areas are to be avoided.

 

Legal reasoning

The Supreme Court majority comprised Chief Justice Helen Winkelmann, Susan Glazebrook, Ellen France and Joe Williams JJ, although Glazebrook J adopted different legal reasoning. William Young J dissented.

Winkelmann CJ, Ellen France and Williams JJ

The majority, made up of Winkelmann CJ, Ellen France and Williams JJ, found that locating major infrastructure in SEA was not necessarily contrary to the objectives and policies of the Auckland Unitary Plan (AUP) or NZCPS, nor inconsistent with them for the purposes of ss104, 104D and 171 of the RMA.

The court did however find the board and High Court failed to identify and apply the correct assessment standards.

This majority found that when planning to locate significant infrastructure in a SEA, it needs to be shown that:

  • the infrastructure is necessary, rather than merely desirable and there are no practicable alternative locations or solutions;
  • the adverse effects that cannot be avoided are remedied or mitigated to a standard that corresponds with the significance of the environment; and
  • the benefits must plainly justify the environmental cost.

The majority found the board’s “overall judgment” approach was not permitted. It also found the High Court erred in the “application of the duties to have regard/particular regard to relevant objectives and policies”.

The majority determined that the offsets of adverse effects may not achieve the desired outcome, depending on the environmental effects in question and the terms of the relevant “avoid” policy (policies in the AUP and NZCPS that require avoidance of adverse environmental effects). The holistic “bucket approach” proposed for addressing the unavoidable adverse effects of EWL was rejected by the Supreme Court.

The majority asked whether compensatory measures could render the proposal consistent overall with relevant objectives and policies. It found that in exceptional circumstances where avoid policies cannot be satisfied, compensatory measures may be relevant.

Glazebrook J

While agreeing with the majority, Glazebrook J disagreed with its reasons. She would have found that the avoid policies did not leave room for significant infrastructure where the relevant proposal has adverse effects in breach of avoid policies. The avoid policies in the NZCPS and AUP would apply as bottom lines, meaning the EWL would be unable to pass through ss 104 and 171 of the RMA.

 

William Young J

William Young J dissented, saying that the relevant provisions allow for flexibility in evaluating avoid policies in relation to resource consents and notices of requirement. He would have concluded that the EWL complied with the applicable RMA regulations and that there was no error in the board’s approach. As such, William Young J would have dismissed the appeal.

 

Applicable principles: statutory interpretation – cost/benefit analysis of adverse environmental effects – relevance of planning provisions and policy statements – relevance of mitigation and remediating of environmental harm – essentiality of significant infrastructure – offset and compensatory measures

Held: The Supreme Court allowed the appeal. The EWL project was referred back to the board for reconsideration.

 

Forest and bird 2024-NZSC-26

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