Max Pakinga-Barber

Summary

Local residents and iwi failed in their challenge to the extension of a water bottling plant on plastic pollution grounds, with the Supreme Court dismissing their appeals by a majority.

Background

OSL operated a kiwifruit orchard at a Bay of Plenty property, along with a water bottling plant which bottled water sourced from an aquifer under the property. They proposed to expand the plant, increasing production capacity for bottled water from 1.9 million litres to 580 million litres per year. To do so, they sought resource consents under the Resource Management Act 1991 (“RMA”), a land-use consent from Whakatane District Council for their proposed expansion of the bottle manufacturing operation, and a water consent from the regional council for the increased take from the aquifer.

Expert evidence showed that the proposed water take would have minimal negative impact on the sustainability of the aquifer.

The land-use consent was opposed by Sustainable Otakiri Inc, a local resident’s group (“SOI”). The water take consent was challenged by an entity affiliated with the local iwi (“TRONA”). Both groups appealed to the Environment Court.

It was in the Environment Court that the environmental effects of plastic disposal were raised for the first time (by the dissenting judge in the case, not the appellants). However, the court majority concluded that it did not have jurisdiction under the RMA to consider such effects.

SOI appealed the Environment Court’s decision based on, among other things, failure to consider the effects of plastic disposal. TRONA appealed based on failure to properly consider tikanga evidence.

In 2025, the Supreme Court heard both appeals.

The case

SOI appeal - Effects of plastic disposal

Section 104(1)(a) of the RMA requires consent authorities to consider any actual and potential effects on the environment of allowing the activity.

SOI argued that the consent authority and lower courts had erred by concluding that the effects from disposal of plastics were too remote from the issue of plastic bottle manufacture to qualify as ‘effects’ per the definition in the RMA. In wrongly excluding these effects from their deliberations, they had failed to comply with s 104(1)(a). They sought for the consent decision to be referred back to the Environment Court for a rehearing.

The majority agreed with SOI that the definition of “effect” in the RMA was, in the abstract, sufficiently broad to extend to the end-user disposal of plastics, including disposal outside New Zealand. The fact that the environmental effects of an activity were dependent on the actions of a third party did not mean that those effects were outside scope, particularly where (as in this case) those third-party actions were inevitable.

However, there must be some limit on the effects that Parliament intended decision-makers to consider when assessing effects in the context of an individual resource consent application. In the context of a particular consent application, some effects would be too remote

The court sympathised with arguments from the respondents in the appeal that dealing the global problem of plastics pollution at the consent level would result in piecemeal and inconsistent regulation. It also accepted that Parliament had already provided for this issue at the national level via the Waste Minimisation Act 2008. However, on its face, the broad definition of effect meant that this problem could also be dealt with at the consent level under the RMA. It could not be said that the RMA and Waste Management Act regimes were incompatible. The Environment Court had erred in law by concluding it had no jurisdiction to consider plastic disposal effects.

However, as the issue had only been raised at a late stage in the proceedings, the majority dismissed the appeal, holding that it would be contrary to procedural fairness to remit the matter back to the Environment Court.

In a dissenting judgment, Winkelmann CJ and Glazebrook J held that they would have allowed the appeal. They adopted largely the same reasoning as the majority but were less equivocal about the recognition of plastic pollution in the RMA, which their reasoning suggests was self-evident. It was for the consent applicant to have addressed these effects in its consent application. Its failure to do so meant that the resulting decisions were tainted by errors of law. In contrast to the majority, the dissent characterised the unfairness of remitting the matter to the Environment Court as a “pleadings point”, which had to be considered against the “devastating effects of plastic pollution on the environment globally”.  

TRONA appeal –Consideration of tikanga evidence

On appeal, TRONA argued that the Environment Court had failed to properly consider evidence about the tikanga impacts of exporting water from the aquifer internationally, and the effect this had on kaitiaki responsibilities of the local iwi. Instead, they argued that the court had considered tikanga evidence solely by reference to physical effects on the aquifer and had ignored metaphysical effects. Its resulting conclusion was not available on the evidence and therefore amounted to an error of law.  

The court did not agree. The Environment Court had been faced with conflicting evidence from tikanga experts. One emphasised the degradation of kaitiakitanga resulting from exporting aquifer water internationally; the other emphasised the positive effects of job creation among the local iwi. Faced with conflicting witnesses, the court preferred the evidence of the latter because, among other things, it was more consistent with the physical evidence that the water take would no negatively impact the aquifer.

This was a conclusion the Environment Court was entitled to reach on the evidence, and there was therefore no error of law. The majority dismissed the appeal accordingly.

Winkelmann CJ and Glazebrook J (dissenting) would have allowed the appeal. They held that the Environment Court had erred in law in that they had focused on tikanga evidence exclusively by reference to the water take and had excluded metaphysical and other effects from their consideration. There had, accordingly, been a failure to consider adverse effects on the environment as required by s 104(1)(a) of the RMA, and an error of law.

Other grounds of appeal

The court majority rejected appeals from SOI and TRONA on other matters, including points of interpretation around the district plan, and the relevance of Part 2 of the RMA. In contrast, the dissenters would have allowed the appeal on these grounds.

Result

The appeals were dismissed by a majority.

The broader significance of the decision lies in its approach to the scope of “effect”. Both the majority and the minority favoured an expansive approach to the definition, and established that second-tier effects which rely on the actions of third parties (such as plastic pollution and carbon emissions) must be taken into account by local authorities deciding on resource consents unless they are too remote, with little guidance provided about what remoteness means.

The Planning and Natural Environment Bills, currently before Parliament, will repeal and replace the RMA. Because the Natural Environment Bill adopts the same definition of ‘effect’ as the RMA, the issue of plastics pollution is likely to be of ongoing relevance in the new regime. The same applies to activities whose effects arise due to the actions of third parties, including exploration and mining for coal and petroleum.

For information on this or similar cases please contact Director Brigitte Morten.

Summary

The High Court upheld a consenting panel’s decision to decline resource consent for a large-scale housing development, based on special character zoning rules.

Background

In 2021, Parliament amended the Resource Management Act 1991 (“RMA”). The amendments required certain local councils to include medium density residential standards (“MDRS”) and urban intensification objectives and policies in their district plans. While the MDRS changes initially had bipartisan support, the Coalition Government that took office in 2023 promised to reverse the changes on the basis that they were an interference with local democratic decision-making.

The MDRS and intensification objectives were implemented through district plans, but were (largely) mandatory statutory requirements. Councils were only excused from implementing them if they could establish that one or more ‘qualifying matters’ (defined in the RMA) applied in a particular area.

The Auckland Council notified a plan change (“PC78”) implementing the MDRS and intensification objectives on 18 August 2022.

Around the same time, Box Property Investments Ltd (“BPIL”) applied for an RMA resource consent under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (“FTCA”) for a large scale residential development to be constructed in East Auckland. The development site fell within the single-residential housing zone (“SHZ”) under the operative district plan. SHZ objectives and policies were strongly focused on preserving neighbourhood character and limiting intensive residential development.

During BPIL’s application, PC78 was not in effect at the development site, which remained governed by the SHZ. However, because PC78 was a proposed plan, the consent authority was required to have regard to it (as well as to the SHZ) under the FTCA.

When the Panel determined BPIL’s application, the key issue for determination was whether to give preference to operative SHZ rules or to the proposed PC78 – or, in other words, whether to give weight to special character protections or urban intensification imperatives. The Panel ultimately chose the former. It determined that BPIL’s intensive development would be fundamentally out of step with SHZ character preservation policies, and declined the consent.

BPIL appealed the Panel’s decision to the High Court, alleging seven errors of law.

The case

First ground – Irrelevant considerations

When assessing the weight to be given to PC78, the Panel had regard to policy announcements made by the Government, including proposed law reforms that would have made the MDRS optional. BPIL contended that these proposed law reforms were irrelevant, and that the Panel had erred in law in considering them.

The court agreed, emphasising the importance of the principle that Parliament can only speak to the courts through legislation. While the executive branch of government (represented by Cabinet) may have ultimate control over the legislative programme, it could not provide any assurance about future legislation that the courts could act on. The clear effect of the famous Fitzgerald v Muldoon decision was that no person or body was recognised by law as having the right to set aside the legislation of Parliament other than Parliament itself. Citizens must always have access to the courts to have their rights and interests determined according to the law applicable at the time.

However, because the Panel’s erroneous consideration of announced law reforms had not materially influenced their assessment of the status of PC78, the court dismissed this ground of appeal.

Ground 2 – Natural justice

During the hearing, the Panel commissioned an independent consultancy to peer review reports provided to it by BPIL. The Panel refused BPIL an opportunity to respond to the consultants’ report. BPIL alleged the refusal was a breach of its natural justice rights.

The court disagreed. The FTCA’s express purpose was to streamline RMA consent applications, and to this end the Panel had been given wide powers to regulate its own procedure. It was these powers that it had relied on to commission the report. If the court required the Panel to allow applicants to respond to every adverse factual finding, it would derail the streamlined procedure and undermine the purpose of the FTCA.

Grounds 3 – 5 – Status of PC78

BPIL’s third, fourth, and fifth grounds rested on the assertion that the Panel had not correctly recognised the status of PC78 relative to the SHZ rules in the operative plan. Because adoption of the MDRS was largely mandatory, BPIL argued, it was not enough for the Panel to consider PC78 – it should have been a dominant consideration for the Panel. The Panel had erred in law by giving undue weight to the SHZ.

The court held that each of these grounds were effectively attempts to challenge the merits of the Panel’s decision framed as legal errors. The Panel had clearly considered PC78, as they were legally required to. Beyond this, it was for the Panel to determine the respective weight given to the SHZ and PC78. This was a matter that could not be disturbed on an error of law appeal.

Ground 6 – Misinterpretation of SHZ

In its sixth ground, BPIL argued that the Panel had misinterpreted the SHZ. It based this argument on the Panel’s conclusion that the development was inconsistent with the SHZ. The court found that this was effectively another challenge to the merits of the decision, and dismissed the appeal on this ground.

Ground 7 – Part 2 of the RMA

BPIL’s final ground of appeal alleged that the Panel had erroneously concluded that the SHZ was consistent with Part 2 of the RMA. The court held that it was not for the Panel to determine whether SHZ was consistent with Part 2 – rather, its role was to determine the consent application in accordance with the RMA and the FTCA. It had done so, and accordingly this ground of appeal failed.

Result

The court dismissed the appeal on all grounds, effectively halting BPIL’s proposed development.

The court’s decision provides a welcome affirmation of the principle of Parliamentary sovereignty, confirming that law-makers must apply the law as it stands at the time, rather than what Crown Ministers or others say it is likely to be following in future law reforms.

Shortly before the court’s decision, the Resource Management (Consenting and Other System Changes) Amendment Bill reported back from Select Committee. The Bill, which received the Royal assent on 19 August 2025, allows Auckland Council to withdraw PC78, but requires the Council to provide for levels of urban development comparable to those in PC78 if they choose to do so.

On 24 September 2025, the Council’s Policy and Planning Committee voted to reject PC78, and to endorse PC120, a plan change allowing for a similar level of intensive development. The Committee meeting saw passionate and emotive appeals from councillors in favour of preserving the special character of inner city suburbs. However, the final vote did not reflect this, with PC120 being carried by 18 votes for to 5 against.

Submissions on PC120 are open until 19 December 2025.

For further information on this or similar cases please contact Director Brigitte Morten

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Summary

In a landmark decision, the Broadcasting Standards Authority found its jurisdiction to enforce broadcasting standards extended to content transmitted via the internet.

Background

The Platform NZ Ltd regularly streamed an internet livestream which involved commentary on topical political issues. In a segment of the programme in July 2025, programme host Sean Plunket made comments about tikanga. An individual complained to The Platform under the Broadcasting Act 1989 (“Act”) alleging that the statement was racist. The Platform dismissed the complaint on the basis that it was not subject to the Act because it was not a broadcaster.

The complainant subsequently referred the complaint to the Broadcasting Standards Authority (“BSA”). In a provisional decision, the BSA held that The Platform was a broadcaster, and that it therefore had jurisdiction to determine whether the statement complied with broadcasting standards under the Act (which include requirements for good taste and decency, and political balance).

In submissions, The Platform disputed that it was a broadcaster subject to the Act. It was joined by interested party Reality Check Radio (“RCR”)

On 31 March 2026, the BSA issued its final decision on jurisdiction. It concluded that The Platform was a ‘broadcaster’ and it therefore had jurisdiction to determine the complaint. It has yet to determine the complaint as to whether the statement breached broadcasting standards.

The case

The definition of ‘broadcaster’ in the Act is defined by reference to the separate definition of ‘broadcasting’. Broadcasting means “any transmission of programmes, whether or not encrypted by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus”. However, transmissions of programmes on the demand of a particular person for reception only by that person are excluded from the definition (“On-Demand Exception”)

Are internet transmissions an “other means of telecommunication”

‍The BSA held that internet transmissions were clearly a form of ‘telecommunication’ based on dictionary meanings of the term, as well as usage in other legislation. The key issue was whether it was an ‘other means of telecommunication’ for the purposes of the Act.  

In submissions, The Platform and RCR argued that Parliament intended to limit broadcasting to traditional radio and television transmission. It argued that the Act was made in 1989 before the internet existed, and that the standards were relics of a bygone era where programme standards were the corollary of state licensure of the radio/television spectrum. The Act, they submitted, was not technology neutral and could not be read to extend to the internet without adopting an artificial and impractical interpretation of the legislation.

The BSA disagreed. The purpose of the Act did not relate to licensing of the radio/television spectrum. Instead, it determined (erroneously) that the purpose of the Act was to “maintain programme standards for the New Zealand public". This interpretation required a broad and generous approach to determining the meaning of ‘broadcasting’. The fact that the internet post-dated the Act was not a hindrance, with the BSA relying on the interpretation principle that legislation applies to circumstances as they arise.

Accordingly, transmission of content via the internet would be subject to the Act (including the BSA's jurisdiction in respect of programme standards), unless an exception applied.

On-Demand Exception

The Platform and RCR both argued that the On-Demand Exception applied because its internet content inherently required active user engagement – users needed to seek out and click on the content, rather than passively receiving it by activating a receiving apparatus (as would be sufficient with television and radio broadcasts). Both disputed the BSA’s view that traditional broadcasts were functionally equivalent to internet livestreams. They argued the Act could not be read as technology neutral, and that technological differences meant that radio/television broadcasts were conceptually distinct from transmissions via the internet.

The BSA acknowledged that the scope of the On-Demand Exception was unclear. It relied on tangential comments by the Royal Commission preceding the Act, as well as a definition from the Copyright Act 1994, to hold that the exception was narrow. It only applied where there was a "subscription element", which implied that a user could be assumed to have a foreknowledge and choice about the nature of the content to be consumed. It dismissed the extensive technological distinctions argued by The Platform and RCR as “technical arguments” which were inconsistent with the BSA’s broad conception of the purpose of the Act.

Relevance of freedom of expression

The Platform argued that a broad definition of 'broadcasting' that extended to the internet was an unjustifiable limit on the right to freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990 ("NZBORA"), in that it would subject a large swathe of new content to what was essentially a state censorship power. Section 6 of the NZBORA requires that wherever legislation can be given a NZBORA consistent interpretation, it must be given that meaning.

The BSA dismissed the relevance of the NZBORA, holding that the meaning of 'broadcasting' was so clear that a rights-consistent interpretation could not apply. It went on to state that, if this conclusion was incorrect, the broad purpose of the Act (which it had erroneously concluded was "the maintenance of programme standards in New Zealand") was inherently to limit expression on the internet. Any such limitation was therefore deemed by Parliament to be reasonably justified.

Practical impacts

If the BSA’s interpretation was applied according to its terms, it would extend application of the Act to every person transmitting content via the internet. This meant not only application of broadcasting standards, but also requirements to file annual returns and, for broadcasters with revenue over $500,000 per year, to pay broadcasting levies. These requirements are mandatory under the Act.

Conscious of this, the BSA sought to confine its broad principle only to services like The Platform – namely those that stream in linear form (ie: continuously) content readily accessible via the internet and that are companies holding themselves out as media outlets and deriving revenue from their operations (including advertising). It purported to exclude from its jurisdiction individuals sharing content online 'ad hoc', content delivered by streaming services like Netflix, Disney+, and Youtube, and overseas entities streaming content in New Zealand. The statutory basis for this distinction was not made clear in its decision and will need to be further developed in subsequent complaints.

Result

The BSA concluded that The Platform was a broadcaster and therefore that it had jurisdiction to hear the complaint.

The practical ramifications of the decision are problematic. While the BSA purported to confine the decision to entities like The Platform, statutory rules are of general application. The reasoning in the decision supports a broad approach to the definition of 'broadcasting' (and a narrow approach to the On-Demand Exception) that potentially subjects broad swathes of internet content creators to the BSA's de-facto censorship powers.

For further information, please contact Director Brigitte Morten

Franks Ogilvie represents The Platform in the BSA proceedings.