Summary
Two hapū successfully challenged the decision to refer Port of Tauranga’s wharf extension application to a fast-track consenting panel.
Background
The Port of Tauranga is New Zealand’s largest shipping port. There are two main wharves and facilities - Sulphur Point on the west of the Stella Passage and Mt Maunganui to the east. The Whareroa Marae is just south of the Mount Maunganui facilities.
The demand for the port meant that the existing facilities of the port needed to be extended. In October 2021, the Port sought resource consent to reclaim land around the port (including undertaking dredging in the passage for that purpose) and to extend the wharves on both sides.
The Port’s application for resource consent was referred directly to the Environment Court. The development was strongly opposed by hapū associated with Whareroa Marae.
Between December 2023 and December 2024, the Environment Court issued two judgments. The overall result was that consent was granted for approximately two thirds of the wharf extension at Sulphur Point. The court reserved its position on the remaining one third of the Sulphur Point extension, and the entirety of the Mount Maunganui extension.
While the matter continued through the courts, the Fast Track Approvals Act 2024 (“FTA”) was announced. The FTA was intended to streamline and accelerate environmental consents for major infrastructure projects. There were two mechanisms for projects to become eligible for determination by expert panel – by listing projects in Schedule 2 of the FTA or referred to a panel by the Minister of Infrastructure.
In an early press-release, the Government announced that the Stella Passage Development was to be a listed project. The project announced included extension of the Sulphur Point and Mount Maunganui wharves, as well as associated reclamation and dredging.
Listed projects were added to the Bill that became the FTA at the Committee of the Whole House stage. In Schedule 2 as it was enacted, the Stella Passage Development referred only to the Sulphur Point wharf extension – the reference to the Mount Maunganui wharf extension was omitted.
After enactment, the Port applied to the Environmental Protection Authority (“EPA”)to have its application for the Stella Passage Development (including the Mount Maunganui wharf extension) referred to an expert panel. Under s 46 of the FTA, the EPA could only refer an application if it “relate[d] solely to a [project listed in Schedule 2 of the FTA]”.
The EPA referred the project, and an expert panel was convened. Before the expert panel commenced its determinations, two hapū affiliated to Whareroa Marae filed judicial review proceedings challenging the EPA decision as an error of law.
The case
The sole issue before the court was whether the Port’s application for the Stella Passage Development could be interpreted as “solely” relating to the Schedule 2 listing (which did not expressly refer to the Mount Maunganui wharf extension). If it did not, the EPA’s decision to refer the application was beyond its powers.
The Port argued that while Schedule 2 did not expressly refer to the Mount Maunganui extension, the omission was a drafting mistake. They pointed to context clues within the description of the project, including its designated name (the Stella Passage Development, suggesting works on both sides of the passage), and that the project’s geographic description was 8.5 ha in the Sulphur Point and Mount Maunganui region (which could only have made sense if the Mount Maunganui extension was included). They also stated that the Schedule 2 description of the development contained at least one other error, suggesting a rushed or careless drafting process.
The court accepted that in some cases, it could interpret legislation in a manner contrary to its clear wording – this would ordinarily be appropriate to correct an obvious error or avoid a result that was absurd or clearly contrary to Parliament’s intent. However, the courts would generally only depart from the clear meaning of the words where there was no other available interpretation.
The court was not satisfied that a drafting error was the only explanation for the omission of the Mount Maunganui extension from Schedule 2. It was also possible that Parliament deliberately excluded the extension.
The court compared the FTA regime, with its focus on speed, to the default resource consent regime under the Resource Management Act 1991. The latter, the court held, allowed for a balancing of interests (including Māori relationships with their lands) to achieve the purpose of sustainable management. While the FTA required decision-makers to take some of these factors into account, it did not involve the same kind of balancing exercise, and was more heavily weighted towards speed.
The court observed that the Environment Court had distinguished between the impacts of the Sulphur Point and Mount Maunganui extensions in its decision, the latter of which noted unresolved concerns about cultural and amenity values impacts on the Whareroa Marae.
A thoughtful Minister (or advisor) could have been aware of this decision, and that there could have been a legitimate distinction in environmental impacts between the two. In this context, they could have concluded that the more nuanced approach required under the Resource Management Act was appropriate instead of the accelerated FTA procedure.
Accordingly, the court held that it was not sufficiently clear that Parliament intended to include the Mount Maunganui extension as a listed project in Schedule 2. As a result, the Port’s application did not relate solely to a listed project, and the EPA had acted beyond its powers when referring the application to an expert panel.
Result
The court left it for the parties to agree on permanent orders, while making an interim order that no further work is to be done on the Port’s Stella Passage Development under the fast-track approvals process.
The Port is currently seeking an urgent amendment to the FTA to ensure that the Mount Maunganui extension is included in the Stella Passage Development.
For further information on this or similar cases please contact Director Brigitte Morten
