Updated Case Brief: Tauranga Environmental Protection Society v Tauranga City Council

February 24, 2022

Summary

The High Court upheld the appeal of the Environment Court’s decision to grant consent for Transpower to relocate a set of controversially placed power lines next to the entrance of the Maungatapu Marae.

The Court of Appeal refused leave to appeal further, holding the additional questions posed by Transpower did not warrant further consideration.

Background

Ngāti Hē is a hapū in Maungatapu with a longstanding grievance regarding the location of transmission lines built near their land against their wishes. The Deed of Settlement between Ngāi Te Rangi and the Crown acknowledged the infrastructure networks in the area had “enduring negative effects on the lands, resources and cultural identify of Ngāi Te Rangi.

 

Transpower proposed to relocate the transmission lines next to the entrance of the Maungatapu Marae. Ngāti Hē regarded the proposal as a ‘cure worse than the disease’ and gave evidence that they would prefer the status quo until a suitable alternative was found. Despite this, consents were granted, and the Environment Court upheld the consents.

 

The Tauranga Environmental Protection Society and others appealed the decision to the High Court, arguing that the Environment Court was wrong to ignore Ngāti Hē’s evidence.

High Court

Evidence of adverse effects

Palmer J agreed the Environment Court was right to consider Transpower’s proposal in its entirety, evaluating both the current and new location for the lines. It was wrong, however, to consider that the effects of the relocation to the entrance of the Marae would be minimal. Where Ngāti Hē gave genuine evidence of adverse cultural effects, it was not open to the Environment Court to find otherwise. This evidence was further supported by the relevant policy planning documents and the Deed of Settlement.

Decisions of fact, such as the Environment Court finding the benefits of relocation would outweigh the costs, are not often overturned on appeal. However, Palmer J considered this a rare case where the finding was “so insupportable – so clearly untenable – as to amount to an error of law”. Palmer J held “Ngāti Hē’s view is determinative of those findings” and finding otherwise was inconsistent with Ngāti Hē’s rangatiratanga, which the court was required to consider under the Resource Management Act 1991 (“RMA”).

Approach to planning documents

Palmer J also found the Environment Court applied the wrong approach to the relevant RMA planning documents. The Environment Court had applied an “overall judgment” approach, which the Supreme Court has previously discarded as incorrect. The Environment Court should have carefully interpreted and applied the relevant planning instruments, which already gave effect to and reconciled higher-order planning documents, like the New Zealand Coastal Policy Statement.

These planning documents imposed cultural bottom lines that require the practicability, possibility, or practicality of alternatives to be assessed. The Environment Court considered that alternatives favoured by Ngāti Hē would “entail costs of an order of magnitude greater” than the proposal, but failed to acknowledge these factors.

Decision

Palmer J quashed the Environment Court’s decision and sent it back for further consideration. The Environment Court was asked to consider whether alternatives to the proposal were practicable, possible or practical before making a new decision.

Court of Appeal

Transpower applied for leave to appeal to the Court of Appeal, basing their application on 12 questions of law.

The Court held Questions 1 and 2 both asked whether the High Court could lawfully overturn the Environment Court’s factual findings as an error of law. This turned on whether the Environment Court had sufficient evidence to reach its conclusion.

In these circumstances, the Court could only grant leave if the appeal concerned a matter of general or public importance, with broad application beyond the case itself. The Court held the issues raised by Transpower were not sufficient to reach this threshold, and did not justify consideration. As the remaining 10 questions were dependent on answers given to Questions 1 and 2, these too failed.

Result

The Court of Appeal declined Transpower’s application for leave to appeal. The matter has been remitted to the Environment Court to reconsider their decision.

Since the original decision in the Environment Court, issues now raised have been addressed in the cases Port Otago Limited v Environmental Defence Society Inc and RJ Davidson Family Trust v Marlborough District Council. The Environment Court will need to bear these cases in mind when reconsidering its decision.

Kós P added it is “entirely feasible” that further appeals will flow from the reconsideration.

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