Tauranga City Council granted Transpower consent to relocate a set of controversially placed power lines right next to the entrance to the Maungatapu Marae. This was upheld in the Environment Court. 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 that the adverse cultural effects of the proposal would be worse than the status quo.
Palmer J in the High Court upheld the appeal, finding that there were material errors of law.
Ngāti Hē is a hapū of Ngāi Te Rangi and has a longstanding grievance about the location of transmission lines across the bay between the Maungatapu and Matapihi Peninsulas, which currently cross over Ngāti Hē land. The Deed of Settlement between Ngāi Te Rangi and the Crown acknowledged that the infrastructure networks in the area have had “enduring negative effects on the lands, resources and cultural identify of Ngāi Te Rangi".
Transpower proposed to relocate the transmission lines right next to the entrance of the Maungatapu Marae. Ngāti Hē supported the idea of relocation but regarded the proposal as a ‘cure worse than the disease’ and gave evidence that they would prefer to maintain the status quo and all its problems until a suitable solution was found.
Evidence of adverse effects
Palmer J agreed the Environment Court was right to consider Transpower’s proposal in its entirety (i.e. as a single proposal for removal of the lines from their current location and relocation to near the Marae entrance) but said it was wrong to consider that the effects of the relocation to the entrance of the Marae would be minimal.
Importantly, Palmer J ruled that, where Ngāti Hē gave genuine evidence of adverse cultural effects, it was not open to the Environment Court to find otherwise, particularly where this evidence is supported by the relevant policy and planning documents and the Deed of Settlement. Its findings had to reflect the evidence before it.
Ultimate decisions of fact (here, that the benefits of relocation would outweigh the costs) are not often overturned on appeal. However, Palmer J considered this was one of those rare cases where the finding is “so insupportable – so clearly untenable – as to amount to an error of law because proper application of the law requires a different answer.”
The effect of the Environment Court’s decision was to substitute its view for Ngāti Hē’s own view on how the proposal affected them. Palmer J found that “Ngāti Hē’s view is determinative of those findings” and finding otherwise “is inconsistent with Ngāti Hē’s rangatiratanga, guaranteed to them by art 2 of the Treaty of Waitangi, which the Court was bound to take into account by s 8 of the RMA”.
Approach to planning documents
Palmer J also found that the Environment Court applied the wrong approach to the relevant RMA planning documents. He found the Court had applied an “overall judgment” approach to the planning documents, which the Supreme Court has previously discarded as incorrect.
Instead of considering what would promote overall sustainable management of the environment, the Environment Court should have carefully interpreted and applied the relevant planning instruments. These planning instruments already give effect to and reconcile 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, while technically feasible, would “entail costs of an order of magnitude greater” than the proposal, but failed to consider whether these were practicable, possible or practical.
Palmer J quashed the Environment Court’s decision and sent it back for further consideration in light of his judgment. In particular, the Environment Court has been asked to consider whether alternatives to the proposal are practicable, possible or practical before making a new decision.