SKP INCORPORATED v AUCKLAND COUNCIL [2019] NZHC 900 [24 April 2019]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV-2018-404-1876

[2019] NZHC 900

UNDER

the Resource Management Act 1991 (the

Act)

IN THE MATTER

of a proposed appeal under s 299 of the Act

AND

IN THE MATTER

of an application under s 306 of the Act

BETWEEN

SKP INCORPORATED

Appellant

AND

AUCKLAND COUNCIL

Respondent

AND

KENNEDY POINT BOATHARBOUR

LIMITED

Consent Holder

Hearing:

11 March 2019

Appearances:

JDK Gardner-Hopkins for the Appellant

M C Allan for the Respondent

MHL Morrison for the Consent Holder

Judgment:

24 April 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 24 April 2019 at 4:00 p.m.

pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

[1] The appellant (SKP) applies to extend time for the filing of an appeal against

a decision of the Environment Court,1 and for leave to adduce further evidence.

[2] The respondent (the Council) intended to abide the decision of the Court.

However, some matters raised in SKP’s submissions meant that its counsel, Mr Allan,

appeared to address those matters.

[3] The consent holder, Kennedy Point Boatharbour Limited (KPB), vigorously

opposes an extension.

Factual background

[4] The dispute concerns a proposed marina at Kennedy Point, Waiheke Island.

In September 2016 KPB applied to the Council for a resource consent to develop a

186 (maximum) berth marina. The application was publicly notified in November

2016 and heard before Commissioners in April 2017. Consent was granted in May

2017.

[5] On 7 June 2017 SKP was incorporated by a number of those who had been

submitters opposing the consent application. SKP was incorporated partly to succeed

to the rights of its founding members to appeal the resource consent decision. But its

purposes also include environmental protection objectives relating to Waiheke Island

and the wider Hauraki Gulf and recognising the importance of Te Ao Māori (the Māori

world view), particularly in terms of kaitiakitanga and respect for the mauri and wairua

of the living world.

[6] On 9 June 2017 SKP filed an appeal in the Environment Court against the

consent.

[7] Following a hearing in late February and early March 2018, the Environment

Court issued its decision on 30 May 2018 dismissing the appeal. In relation to cultural

matters, the Environment Court’s approach was that mana whenua are best placed to

convey the position, and thus the evidence from the Ngāti Pāoa Iwi Trust (the Iwi

1 SKP Incorporated v Auckland Council [2018] NZEnvC 81.

Trust) witness, Mr Morehu Wilson, supporting the applicant was favoured over the

opposition of witnesses from Piritahi Marae.

[8] It is common ground that the deadline for an appeal was 20 June 2018.2

With no appeal filed, the consent took effect on 27 June 2018.3

[9] Shortly before the Environment Court’s decision, SKP was contacted by the

Ngāti Pāoa Trust Board (the Trust Board) outlining the Trust Board’s concern that it

was the mandated authority for Ngāti Pāoa and that it had not been consulted as part

of the marina development. The Trust Board said it had only become aware of the

marina application because of a media article quoting a member of Piritahi Marae

expressing disappointment in Ngāti Pāoa for not supporting the Marae in relation to

significant cultural concerns that the Marae had regarding the marina. Unlike the Iwi

Trust, the Trust Board is opposed to the marina development. The Trust Board is

concerned the Iwi Trust has a commercial agreement with KPB.

[10] Having engaged with the Trust Board, on 31 August 2018 SKP filed a notice

of appeal and application to extend time in this Court.4 On the same day, SKP also

filed an application in the Environment Court for a rehearing.5 Counsel advised that

that application is currently on hold as the parties have not progressed it in the

Environment Court, at least pending this Court’s hearing of the application to extend

time to appeal.

[11] SKP’s primary ground of appeal, said to be a question of law, is that the

Environment Court was mistaken in its understanding that the Iwi Trust was the (only)

representative of Ngāti Pāoa – whereas the Trust Board was also a representative of

Ngāti Pāoa (the representation issue). SKP says that KPB and the Council contributed

to the Court’s mistake as they knew of the existence of the Trust Board and the

representation issue and failed to tell the Court.

2 Resource Management Act 1991, s 300(1). 3 Section 116. 4 Sections 299 and 306. 5 Section 294.

[12] On 15 February 2019 SKP applied to adduce further evidence.

The applications were heard together. It is convenient to deal first with SKP’s

application for leave to adduce further evidence. KPB also sought costs in relation to

an abandoned discovery application by SKP but that was not argued at the hearing.

Application to adduce further evidence

[13] SKP seeks leave to adduce three additional documents. Two of the documents

came into existence in December 2018 and record the Council’s updated position to

engage with the Trust Board on all resource management matters until there is a final

resolution of the representation issue. The third document is a memorandum to the

Environment Court on behalf of the Council dated July 2014 which, it is said, will

assist in understanding an earlier decision of the Environment Court relevant to the

representation issue.6

[14] The application was initially opposed by KPB. However, by the hearing, SKP

had clarified that leave was sought in support of its application for an extension of

time to file its appeal and therefore the documents could be admitted by affidavit under

r 20.16, which provides that, without leave, a party to an appeal may adduce further

evidence on a question of fact if the evidence is necessary to determine an

interlocutory application that relates to the appeal. I admit the further affidavit of

Mr Greve exhibiting the additional documents on that basis.

Nature of appeal and extension of time

[15] It is common ground that an appeal to the High Court is limited to questions

of law.7 It is also common ground that this Court may extend the time for an appeal.8

The discretion must be exercised in the overall interests of justice. Relevant factors

may include the length of and reasons for the delay, other conduct of the parties

(particularly the applicant), prejudice to the respondent or others, and the significance

of the issues and the merits of the appeal, at least where they are obvious.9

6 Re Waiheke Marinas Ltd [2014] NZEnvC 163. 7 Resource Management Act 1991, s 299. 8 Section 306. 9 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 (albeit relating to civil appeals to the Court

of Appeal); and Lau v Auckland Council [2016] NZHC 2556 at [6].

Issue

[16] The issue for determination is whether it is in the interests of justice to extend

time for this appeal.

[17] Although the application for extension was not heard together with the

substantive appeal, a good deal of the argument focused on the importance and

prospects of the appeal, particularly whether the primary ground of appeal involved a

question of law. Mr Gardner-Hopkins, counsel for SKP, submitted the primary ground

of appeal is a question of law, and one of significant merit. He acknowledged the

Court may examine the merits of the appeal somewhat more where leave to appeal is

limited to questions of law. He also acknowledged that the other grounds of appeal

would not meet the test on their own but should be included if the extension is granted

on the primary ground of appeal. On the other hand, Mr Morrison, counsel for KPB,

submitted the representation issue is a question of fact and therefore has no prospect

of success, and leave can be declined on this basis alone. Moreover, he submitted SKP

can seek, and has sought, a rehearing in the Environment Court to hear fresh evidence

so there is no need for this Court to extend time to appeal. He submitted the appeal is

vexatious, duplicitous and of no merit.

[18] Before turning to the importance and prospects of the appeal, I deal with the

other factors relevant to the discretion, which were also strongly fought. This requires

an introduction to the Trust Board and Iwi Trust and their dispute concerning the

representation issue, and to the earlier Waiheke Marinas case.10

Introduction to Trust Board and the Iwi Trust

[19] The Trust Board was incorporated in 2004. Its mandate as representative

authority for Ngāti Pāoa in respect of matters under the Resource Management Act

1991 (RMA) was confirmed by the Māori Land Court in 2009.11

[20] The Iwi Trust was established in 2013 as a post-settlement governance entity

in order to meet requirements prescribed by the Crown. The Trust Board’s position is

10 Re Waiheke Marinas Ltd [2014] NZEnvC 163; and Re Waiheke Marinas Ltd [2015] NZEnvC 218. 11 Re Ngāti Pāoa Whanau Trust (2009) 141 Waikato MB 271 (141 W 271).

that the Iwi Trust could in theory take over representation from the Trust Board on

matters under the RMA but that has not occurred yet. The Iwi Trust’s position is that

the Trust Board ceased to have any representative role for Ngāti Pāoa in the area of

resource management and local government in late 2013.

[21] The Trust Board acknowledges that, for a period between 2014 and 2017,

it was legally inoperative. Following a process directed by the High Court in October

2016,12 elections were held in March 2017.

[22] In a recent review in December 2018, the Māori Land Court amended its 2009

order to end on 21 December 2018, noting that both the Iwi Trust and the Trust Board

are now actively participating in RMA matters, and directed mediation between

them.13 The Māori Land Court described the Trust Board’s standing in the

Environment Court as a legislative right.14

The Waiheke Marinas case

[23] The Waiheke Marinas case was an earlier consent application concerning a

similarly large marina proposal on Waiheke Island, but at Matiatia Bay.15 The Iwi

Trust was also involved in that case in the Environment Court in 2014/2015, that time

opposing the marina development successfully. Mr Wilson also gave evidence for the

Iwi Trust in that case, recording his concerns with the marina proposal.16 In that case,

the Environment Court concluded that the proposal would be contrary to ss 5 and 6(e)

of the RMA as to the relationship of Māori and their cultural traditions with their

ancestral lands, water and other taonga, and s 7(a) (kaitiakitanga).17

[24] During that case, the representation issue also arose insofar as the Iwi Trust

sought to be joined to the proceeding and the Council explained its understanding to

the Environment Court.18 I will return to this below.

12 Roebeck v The Ngāti Paoa Trust Board [2016] NZHC 2458. 13 Ngāti Pāoa Iwi Trust v Ngāti Pāoa Trust Board (2018) 173 Waikato Maniapoto MB 51 (173 WMN

51) at [56] and [79]. I was told the decision is subject to appeal. 14 At [65]. 15 Re Waiheke Marinas Ltd [2014] NZEnvC 163; and Re Waiheke Marinas Ltd [2015] NZEnvC 218. 16 Re Waiheke Marinas Ltd [2015] NZEnvC 218 at [439]. 17 At [446]. See also [674]-[676]. 18 Re Waiheke Marinas Ltd [2014] NZEnvC 163 at [14]-[15] and [18].

SKP’s delay

[25] SKP filed its notice of appeal and application to extend time over 10 weeks

after the appeal deadline. That is a significant delay in the circumstances of this case.

The resource consent took effect one week after the appeal deadline and KPB was

proceeding with its marina plans acting on the consent and would have been expected

to do so.

[26] SKP sought to explain the reason for the delay. It says it only became aware

of the Trust Board’s existence and its opposition to the marina four days before the

Environment Court’s decision (due in part at least to the conduct of KPB and the

Council, addressed next). On 27 May 2018 the Trust Board told SKP it was the

representative entity for Ngāti Pāoa in relation to the RMA. SKP then needed to satisfy

itself that the Trust Board’s position was valid, and that the Trust Board would support

an appeal. That due diligence took time. SKP was facing a barrage of applications

from KPB including an application for costs from SKP’s individual foundation

members, which was a significant diversion. SKP needed advice from senior counsel,

which took time. Once SKP had that final advice, it moved swiftly to appoint new

counsel and file its appeal.

[27] Mr Morrison, counsel for KPB, submitted that SKP knew all it needed to know

even before the Environment Court’s judgment and brazenly ignored the appeal

deadline. He submitted SKP and the Trust Board sat on their hands. Mr Morrison

characterised SKP as a proxy for the Trust Board, and the Trust Board knew the

position in April 2018, the month before it contacted SKP. Further, he submitted that

Mr Greve of SKP knew of the Trust Board’s existence and the representation issue

years before (which Mr Greve strongly rejected in a further affidavit).

Mr Morrison suggested SKP’s actions were designed to cause delay. Also, KPB

doubted the Trust Board’s ignorance of the resource consent application until April

2018 given it was publicly notified and the extent of KPB’s consultation. I cannot

make any such factual findings on the affidavit evidence.

[28] SKP’s explanation justifies some time - including awaiting legal advice from

senior counsel - but it is unsatisfactory that it took SKP 10 weeks to file its appeal.

SKP’s delay weighs against an extension. SKP did not suggest it foreshadowed the

appeal to KPB, which could have mitigated the delay. I do note the Trust Board, whose

interests are aligned with SKP, did email the Council and KPB on 9 July 2018 asserting

its mandate and that the consent was approved without notice to it, and requesting the

Council refrain from issuing the consent and KPB agree not to implement the marina

development until they had consulted and the Trust Board provided its support.

Other conduct of the parties

[29] There was no suggestion of a history of previous non-cooperation or delay by

SKP, but Mr Morrison submitted subsequent conduct of SKP was relevant, referring

to its discovery application in this proceeding, which was ultimately abandoned. I am

in no position to conclude that conduct was a delaying tactic.

[30] Mr Gardner-Hopkins submitted that the conduct of KPB and the Council was

relevant. He submitted they contributed to the Court’s mistake as they knew of the

existence of the Trust Board and the representation issue. They should have drawn

this to the Court’s attention.

[31] In relation to KPB’s knowledge, Mr Gardner-Hopkins submitted that

Mr Littlejohn, who was both counsel and a witness for KPB in the Environment Court,

knew of the existence of the Trust Board and the debate about whether the Iwi Trust

or the Trust Board was the representative body from his earlier role in the Waiheke

Marinas proceeding. In that case the representation issue was raised and referred to

in a decision of the Environment Court in July 2014.19 Mr Gardner-Hopkins submitted

that Mr Littlejohn’s knowledge could be imputed to KPB.

[32] Mr Gardner-Hopkins also submitted the representation issue was known to the

Iwi Trust when its representative gave evidence in the Environment Court on behalf

of KPB.

19 Re Waiheke Marinas Ltd [2014] NZEnvC 163 at [14], [15] and [18].

[33] Mr Morrison submitted the focus of conduct as a factor should be on the

applicant only, but he also rejected the allegation that KPB lacked clean hands.

He referred to the Māori Land Court’s finding that the Trust Board was legally

inoperative at least during the period between 2015 and 2017.20 Mr Mair of KPB said

he first learned of the Trust Board’s existence when he received its email of 9 July

2018.

[34] There was no affidavit from Mr Littlejohn. Even if his knowledge as counsel

in the earlier Waiheke Marinas case concerning the representation issue in 2014 could

be imputed to KPB, there is no evidence indicating Mr Littlejohn’s knowledge of the

Trust Board’s revived position in 2017.

[35] It does appear from Mr Thompson’s evidence that the Iwi Trust was aware that

steps were taken to revive the Trust Board in late 2016 and early 2017, but there is no

evidence this was conveyed to KPB.

[36] I do not consider the evidence shows that KPB knew from Mr Littlejohn or the

Iwi Trust witness of the Trust Board’s revival in 2017 and the ongoing representation

issue. It follows that KPB is not responsible for failing to draw it to the Environment

Court’s attention in this proceeding.

[37] Mr Gardner-Hopkins submitted that witnesses subject to the code of conduct

for experts had a duty of disclosure. However, the evidence does not indicate that an

expert witness from the Iwi Trust knew of the representation issue and failed to

disclose it to the Court. He also submitted the Iwi Trust evidence to the Court

amounted to a half truth or an omission for which they bear some responsibility. Based

on the affidavit evidence, I cannot conclude that the evidence to the Environment

Court about cultural effects was given by a witness from the Iwi Trust who knew that

the Trust Board had been revived and asserted a representative role. Even if I could

so conclude, in the absence of evidence that was known to KPB, I consider it would

only be a modest factor weighing in favour of extending time.

20 Ngāti Pāoa Iwi Trust v Ngāti Pāoa Trust Board (2018) 173 Waikato Maniapoto MB 51 (173 WMN

51) at [62].

[38] In relation to the Council’s knowledge, Mr Gardner-Hopkins submitted that it

knew even more directly of the representation issue from the earlier Waiheke Marinas

proceeding, and indeed had explained to the Environment Court in that proceeding

how it updated its records in 2014 to identify the Iwi Trust as the representative of

Ngāti Pāoa following advice from the Iwi Trust of its formation. Mr Gardner-Hopkins

took issue with how the Council removed the Trust Board from its register given its

obligation to keep records about iwi and hapu,21 and its refusal to reinstate it until

December 2018 following the Māori Land Court’s recent decision,22 when the Council

changed its position and confirmed that it will engage with both the Trust Board and

the Iwi Trust on all new RMA matters until the representation issue has been resolved.

Mr Gardner-Hopkins submitted that is the approach the Council should have adopted

when approached by the Trust Board in 2014 and 2017. He submitted the Council’s

approach between 2014 and December 2018 meant that the Trust Board ceased to be

notified of consent applications and was unable to be found by the wider public.

This underpinned Mr Gardner-Hopkins’ submission that the Council failed to

discharge its duties to the Environment Court to prevent the Court from proceeding on

the basis of a mistake.

[39] In response, Mr Allan helpfully summarised the Council’s position in the

evidence. To some extent, Mr Gardner-Hopkins raises issues that cannot be

determined on affidavit evidence on this application. What can be gleaned is that:

(a) Following the Iwi Trust’s advice to Council with supporting documents

in late 2013,23 the Council accepted that the Iwi Trust was the mandated

body to work with Council, updated its records accordingly, and

maintained that position despite concerns raised by the Trust Board in

2014. The Council’s response to the Trust Board in July 2014 indicated

that the Council accepted the Iwi Trust as the mandated body in good

faith and that the Council remained open to discussions with the Trust

Board. The Trust Board did not pursue the matter further at that time.

21 Resource Management Act 1991, s 35A. The Council rejects any allegation of breach of s 35A. 22 Ngāti Pāoa Iwi Trust v Ngāti Pāoa Trust Board (2018) 173 Waikato Maniapoto MB 51 (173 WMN

51). 23 The Trust Board disputes the resolution the Iwi Trust provided to the Council: Ngāti Pāoa Iwi

Trust v Ngāti Pāoa Trust Board (2018) 173 Waikato Maniapoto MB 51 (173 WMN 51) at [33].

(b) The July 2014 memorandum to the Environment Court in the Waiheke

Marinas case explaining that the Council had updated its records to

identify the Iwi Trust as Kaitiaki contact for Ngāti Pāoa for resource

consent engagement purposes, and advised the Court that there had

been discussions between the Council and both the Ngāti Pāoa Trust

(understood to be the Trust Board) and the Iwi Trust concerning matters

of mandate and representation.

(c) The Trust Board ceased operating from 2014/2015 until early 2017.

(d) In July 2017 the Trust Board wrote to the Council again asserting its

representative status and raising concern about a Council payment to

the Iwi Trust to settle another dispute. This was during the early stage

of the Environment Court appeal in this proceeding.

[40] I do not consider the Council’s conduct in 2013/2014 weighs in favour of leave.

Following receipt of the Trust Board’s July 2017 correspondence, it is not clear from

the affidavit evidence what the Council did except that it did not update its register,

nor did it tell the Environment Court in this proceeding that the Trust Board had again

asserted representative status. In that sense, it appears that from July 2017 the Council

was aware of the existence (revival) of the representation issue and did not draw it to

the Environment Court’s attention in this proceeding. I am in no position, however,

to conclude on the affidavit evidence that the Council acted otherwise than in good

faith, nor that it misled the Environment Court. I therefore consider that its role in the

Court’s “mistake” is only a modest factor weighing in favour of extending time.

Prejudice

[41] KPB submitted it would suffer significant prejudice if an extension were

granted. In the two months after the appeal deadline expired before the appeal was

filed, it progressed detailed planning for the project (aiming to start construction on-

site in early 2019 given its aspiration to open the marina before the America’s Cup

challenger and defender races in 2020-2021) and committed to a further $400,000 of

expenditure. KPB has also appointed Mr Schmack to a full-time role and he has

rearranged his business affairs to take up the role. Mr Mair indicated initially that if

the extension is allowed, he would not feel comfortable proceeding with the sales and

marketing programme. The delay would destroy his aspiration to be open for the

America’s Cup. Mr Mair’s updating affidavit, however, stated that KPB had

reconsidered its stance and has been preparing to start sales. One reason for the change

was market feedback that interested parties are not concerned about signing up for a

berth on a conditional basis in the face of SKP’s legal proceedings.

[42] Even if the appeal had been filed in time, Mr Gardner-Hopkins submitted KPB

would have similarly had to contemplate delaying its development, albeit two months

earlier. KPB would also have had to deal with the s 294 application. To combat any

further prejudice, Mr Gardner-Hopkins offered, if an extension were granted, that SKP

would consent to a condition or direction that it ask the Environment Court to

timetable a hearing of the s 294 application at the first available opportunity.

[43] Mr Gardner-Hopkins also submitted that if the primary ground were not

considered a question of law, judicial review proceedings might still be available.

He accepted there was a legitimate concern to avoid multiple sequential challenges

and offered a condition of the extension that any judicial review proceeding be filed

within five days of the granted extension.

[44] Mr Gardner-Hopkins submitted that much of KPB’s expenditure in the period

was for a boat, which would not be wasted. He also submitted that any prejudice is a

consequence of KPB and the Council not notifying or consulting with the Trust Board.

[45] I consider SKP’s 10 week delay has resulted in some prejudice to KPB. This

is not to be conflated, however, with the consequences of a timely appeal or timely s

294 application that would have occurred anyway.

[46] Each party also referred to the conditions of the consent. Mr Gardner-Hopkins

noted that the representation issue may need to be resolved in any event before KPB

can exercise the consent because mana whenua engagement is a condition of the

consent. He submitted this reduces the prejudice of an appeal to KPB.

[47] On the other hand, Mr Morrison submitted the conditions of consent requiring

further consultation with Ngāti Pāoa provide some protection for Ngāti Pāoa cultural

values, reducing SKP’s prejudice. KPB now knows that the Trust Board also claims

a representative role for Ngāti Pāoa. I accept, however, that future consultation falls

short of enabling outright opposition potentially to stop the development.

[48] Mr Morrison submitted that SKP can seek, and has sought, a rehearing in the

Environment Court pursuant to s 294 of the RMA to hear fresh evidence, so there is

no need for this Court to extend time to appeal. He submitted it is vexatious and

duplicitous. This submission is somewhat undermined by the acknowledgment that

KPB also vigorously opposes the s 294 application. Nevertheless, it is significant that

if the appeal were to proceed, and succeed, on the basis that the mistake relied on

amounted to an error of law, the appropriate remedy would likely be to refer the case

back to the Environment Court for reconsideration. Mr Gardner-Hopkins submitted

that under s 294 the Environment Court’s jurisdiction requires there to be new and

important evidence or a change of circumstances that might affect the decision.

That application would seem to be a more direct and appropriate way to consider the

consequences of the claimed “mistake” on the representation issue. I expect the

discretionary factors at play there given that that application was also made out of time

would be similar to those applying here. In this Court, I consider the concurrent s 294

application pathway is a significant factor weighing against the proposed appeal.

Significance of the issues

[49] Mr Gardner-Hopkins characterised RMA proceedings as public law

proceedings in which public interests may transcend the private interests of the parties.

In particular, he submitted the public interests include:

(a) ensuring proper regard is given to ss 6(e), 7(a) and 8 of the RMA;

(b) ensuring the Environment Court takes into account the views of the

Trust Board, a recognised representative of Ngāti Pāoa Iwi, who hold

mana whenua for the area;

(c) righting the injustice of the Environment Court being led to believe that

a different representative of Ngāti Pāoa, the Iwi Trust, was either the

only entity that existed or the only entity entitled to represent Ngāti

Pāoa.

[50] Mr Gardner-Hopkins emphasised the requirements in Part 2 of the RMA to

take Māori issues into account, referring to ss 6, 7(a) and 8. He submitted they are

strong directions, to be borne in mind at every stage of the process, and include both

substantive and procedural requirements. He referred to the judgment of the Privy

Council in McGuire v Hastings District Council:24

Section 5(1) of the RMA declares that the purpose of the Act is to promote the

sustainable management of natural and physical resources. But this does not

mean that the Act is concerned only with economic considerations. Far from

that, it contains many provisions about the protection of the environment,

social and cultural wellbeing, heritage sites, and similar matters. The Act has

a single broad purpose. Nonetheless, in achieving it, all the authorities

concerned are bound by certain requirements and these include particular

sensitivity to Maori issues. By section 6, in achieving the purpose of the Act,

all persons exercising functions and powers under it, in relation to managing

the use, development, and protection of natural and physical resources, shall

recognise and provide for various matters of national importance, including

“(e) The relationship of Maori and their culture and traditions with their

ancestral lands, water, sites, waahi tapu [sacred places], and other taonga

[treasures]”. By section 7 particular regard is to be had to a list of

environmental factors, beginning with “(a) Kaitiakitanga [a defined term

which may be summarised as guardianship of resources by the Maori people

of the area]”. By section 8 the principles of the Treaty of Waitangi are to be

taken into account. These are strong directions, to be borne in mind at every

stage of the planning process. The Treaty of Waitangi guaranteed Maori the

full exclusive and undisturbed possession of their lands and estates, forests,

fisheries and other properties which they desired to retain.

[51] In Environmental Defence Society Inc v New Zealand King Salmon Co Ltd,

the Supreme Court noted that the obligation in s 8 to have regard to the principles of

the Treaty of Waitangi will have procedural as well as substantive implications, which

decision-makers must always have in mind.25

24 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC) at [21]. 25 Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38,

[2014] 1 NZLR 593 at [88].

[52] Mr Gardner-Hopkins submitted these statutory requirements lie at the heart of

the intended appeal. He submitted that in these circumstances the merits of the appeal

are of greater relevance than in other extension applications.

[53] I accept that the issues raised by the proposed appeal are significant. The views

of mana whenua are of key importance in the RMA process, mandated under Part 2.

Here, the Trust Board claims a representative role for Ngāti Pāoa. I deal with the

Environment Court’s approach to cultural effects next.

Merits of appeal

[54] Mr Gardner-Hopkins submitted the question of law as to the Environment

Court’s mistake on the representation issue is a question with significant merit.

He submitted it was pivotal to the Court’s decision.

The Environment Court’s approach to cultural effects

[55] The Environment Court decision noted that there was an unfortunate division

of evidence about Māori cultural effects. The Council called no evidence in this area,

submitting simply that persons who hold mana whenua are best placed to identify

impacts of any proposal on the physical and cultural environment valued by them, and

making submissions about provisions of the RMA and findings from relevant case law

on these matters. The Environment Court approved of that approach.

[56] The Environment Court outlined the applicant KPB’s approach, stating that it

placed what the Court considered to be appropriate emphasis on gaining an

understanding of Māori cultural values, and being guided by them. The Court said

that KPB initially contacted representatives of the Ngāti Pāoa iwi who they understood

held mana whenua for Waiheke Island. In addition to its understanding concerning

the position of Ngāti Pāoa, KPB actively sought cultural values assessments from it

and other iwi registered with the Council as having cultural values in the region. In the

event, two detailed cultural values assessments were received, one by the Iwi Trust

and the other by Ngāi Tai Ki Tamaki Tribal Trust. KPB called evidence from

Mr Wilson, rangatira of Ngāti Pāoa, authorised to speak on behalf of the Iwi Trust.

The Court said it was the position of Ngāti Pāoa that it is the principal mana whenua

of Waiheke Island and its surrounding waters. Mr Wilson’s evidence was quite

unequivocal as to views of Ngāti Pāoa and the project; that is, it supported it subject

to the conditions proposed by KPB.

[57] SKP called the evidence of four witnesses from and on behalf of Piritahi Marae.

They were concerned about, amongst other things, lack of consultation, impacts on

the wairua and mana of Putaki Bay, breaches of tikanga and impacts on the cultural

landscape.

[58] As to lack of consultation, the Court reiterated there is no duty under the RMA

to consult but, as held in many cases, risk of lack of consultation by an applicant is on

it because it might not discover things that are important to a proposal and its wider

interests.26

[59] The Court said it hesitated to analyse and contrast the very detailed information

offered by the Marae witnesses and the mana whenua witnesses, and the conflicting

conclusions drawn by those two groups. The Court concluded:27

The issues can be quite shortly resolved without undertaking such a

complicated exercise. This is because while some of the members of Piritahi

Marae, including witnesses, whakapapa to Ngāti Paoa amongst other Iwi, the

policy framework that we must work with, particularly that in the AUP’s

Regional Policy Statement, Chapter B6 Mana Whenua, definitively addresses

the provisions of Part 2 RMA on Māori cultural matters in the Auckland

regional context. We think the matter was described well in the final report

and decision of the Board of Inquiry into the East-West Link Proposal where

it was recorded:

[T]he RPS identifies Mana Whenua as the specialists in identification

of cultural values and effects. [The Board] notes that the Unitary Plan

also recognises Mana Whenua as specialists in tikanga of their hapū

or iwi and as being best placed to convey their relationship with their

ancestral lands, water, sites, waahi tapu and other taonga.

We rely on the information and overall stance offered by mana whenua, Ngāti

Paoa Iwi, so our findings on these issues favour the applicant.

26 As the Environment Court said in Wairoa District Council v Hawkes Bay Regional Council

[2010] NZEnvC 420 at [16], the important thing is that, one way or another, the decision-maker

(ie the Court, in a proceeding such as this) has sufficient material before it to make the necessary

decisions about Part 2 issues. 27 SKP Incorporated v Auckland Council [2018] NZEnvC 81 at [166]-[167] (footnotes omitted).

[60] These findings carried through to the Court’s conclusion on the exercise of

discretion where the Court said that, to the extent that s 8 is relevant, the applicant had

undertaken appropriate consultation with tangata whenua, whose participation in the

proceeding has been properly enabled, and whose views have been appropriately taken

account of.

[61] Mr Gardner-Hopkins acknowledged that relying on the information and overall

stance offered by mana whenua is the approach the Environment Court generally

takes. The approach is not in issue. However, as indicated, Mr Gardner-Hopkins

submitted that here both KPB and the Council knew of the Trust Board’s existence

and did not bring it to the Environment Court’s attention. He submitted that it was

particularly importantly for the Environment Court to hear from the correct mana

whenua, and the Environment Court was deprived of that in this case. He submitted

that, taking its usual approach, the Court’s findings were inevitable given it only heard

from the Iwi Trust as mana whenua.

[62] Mr Gardner-Hopkins submitted that in this case the advice or representation

by KPB and the Council to the Environment Court that the Iwi Trust was the

representative of Ngāti Pāoa without acknowledging the existence of the Trust Board

was erroneous and materially if not conclusively affected the Court’s findings on

cultural values. Mr Gardner-Hopkins submitted that if the Environment Court had

received much opposition in this case, as it did in the earlier Waiheke Marinas case,

it may well have made very different findings about the effects on cultural values,

which would have weighed heavily on the outcome.

[63] It is not for this Court to predict how the Environment Court would have

assessed evidence from Trust Board witnesses contesting that given by the Iwi Trust.

The Environment Court is best placed to decide whether that would have made a

difference. This also indicates that the s 294 application is the more appropriate

course.

Error of law?

[64] Mr Gardner-Hopkins submitted this mistake on the representation issue was an

error of law by the Environment Court, relying by analogy on Ririnui v Landcorp

Farming Ltd.28 That case concerned a decision by a Minister based on incorrect

information. The Crown was mistaken in thinking that Ngāti Whakahemo’s Wai 1471

claim had been settled, when it had not. In the High Court and Court of Appeal this

had been characterised as an error of law.29 In the Supreme Court, Elias CJ and

Arnold J said that, while there may be scope for argument about whether the mistake

was one of fact or law, the distinction was not material in that case.30 The Ministers

were given incorrect information, they based their decision on that information, and

their decision was susceptible to judicial review.31

[65] Mr Gardner-Hopkins also relied on Ngāti Tama Ki Te Waipounamu v Tasman

District Council,32 where an incorrect analysis as to a lack of physical connection

between the point of take and Te Waikoropupū Springs, which effectively entitled the

Council to disregard any spiritual or cultural effects, was a mistake of fact pivotal to

the conclusion that no persons were considered adversely affected.

[66] While acknowledging these were both judicial review cases, Mr Gardner-

Hopkins submitted that procedural errors normally associated with judicial review can

also found a point of law appeal.33

[67] Mr Gardner-Hopkins also characterised the issue as a failure to have regard to

relevant information, namely the existence of the Trust Board, which was pivotal to

the Court’s finding that cultural effects favoured KPB. He submitted that ss 6-8 in

Part 2 of the RMA do establish mandatory relevant considerations. He also relied on

the greater specificity in the Auckland Unitary Plan.34 He submitted it is a mandatory

relevant consideration to get the Iwi entities right, and in that sense the process verges

into an inquiry although he acknowledged not a full inquisitorial process.

28 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056. 29 Ririnui v Landcorp Farming Ltd [2014] NZHC 1128 at [89], and Attorney-General v Ririnui

[2015] NZCA 160 at [33]. 30 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [54]. 31 At [97]. 32 Ngāti Tama Ki Te Waipounamu v Tasman District Council [2017] NZHC 1081, [2017] NZRMA

269 at [92]. 33 Kawerau Jet Services Holdings Ltd v QLDC [2015] NZHC 2343 at [40]-[48] concerning natural

justice. 34 See [59] above.

[68] Mr Morrison submitted the representation issue was a question of fact;

it therefore has no prospect of success, and leave can be declined on this basis alone.

[69] Mr Morrison sought to distinguish Ririnui and Ngāti Tama as judicial review

cases involving mandatory considerations and where the decision-makers had erred

by ignoring the interests of particular Maori groups despite clear evidence of the

conflicting interests of those groups which should have been taken into account. Here,

he pointed out, there is no duty to consult on the applicant, the consent authority or the

Environment Court. Even so, KPB did consult widely including pre-application, and

the application was publicly notified. The Trust Board could have submitted to the

consent authority or even applied to the Environment Court under s 274. Part 2

considerations, he submitted, are based only on the evidence before the Court.

The position might be different if the Environment Court had an inquisitorial

responsibility, but it does not.

[70] Mr Morrison referred to Estate Homes Ltd v Waitakere City Council, where the

Court of Appeal stated:35

The scheme of the Resource Management Act is to confer fact-finding

and policy-making power on a consent authority which is either, in the

case of the council, an elected body or, in the case of the Environment

Court, a specialist tribunal. The initial decision is that of the council.

But at the de novo hearing on appeal the council decision has no greater

status than is accorded it by the Environment Court, which has plenary

authority to find facts and make policy evaluations within the scheme

of the Resource Management Act and the district plan. The role of the

Courts of general jurisdiction – the High Court and this Court – is

confined to correction of legal error on the statutory appeal on points of

law under ss 299 and 308. As the Supreme Court has recently

emphasised (Bryson v Three Foot Six Ltd [2005] 3 NZLR 721), an

appellate Court whose jurisdiction is limited to matters of law is not

authorised under that guise to make factual findings.

35 Estate Homes Ltd v Waitakere City Council [2006] 2 NZLR 619 (CA) at [198] (overturned on

appeal on other grounds, see Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007]

2 NZLR 149).

[71] In Bryson v Three Foot Six Ltd, after dealing with legal misdirection,

the Supreme Court stated: 36

An appeal cannot however be said to be on a question of law where the

fact finding court has merely applied law which it has correctly

understood to the facts of an individual case. It is for the court to weigh

the relevant facts in the light of the applicable law. Provided that the

court has not overlooked any relevant matter or taken account of some

matter which is irrelevant to the proper application of the law, the

conclusion is a matter for the fact-finding court, unless it is clearly

insupportable.

[72] On the basis of the evidence before the Environment Court, this is not a case

where it can be said the Court’s conclusions are insupportable.

[73] Mr Morrison also referred to the early RMA decision of a Full Court of the

High Court in Countdown Properties (Northlands) Ltd v Dunedin City Council, where

it stated that this Court will interfere with decisions of the (former) Planning Tribunal

only if it considers that the Tribunal:37

(a) applied a wrong legal test; or

(b) came to a conclusion without evidence or one to which, on evidence, it

could not reasonably have come; or

(c) took into account matters which it should not have taken into account;

or

(d) failed to take into account matters which it should have taken into

account.

36 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25] (dealing with appellate

jurisdiction in an employment case). 37 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC).

[74] Mr Morrison relied on Chamberlain v Scott,38 where Fogarty J dismissed an

application to admit further evidence said to show factual error on the part of the

Environment Court on the basis that the Environment Court is the final adjudicator on

questions of fact. Mr Gardner-Hopkins sought to distinguish Chamberlain v Scott on

the basis that it involved an attempt to adduce competing expert evidence.

[75] Despite counsel’s focus on whether the primary ground of appeal is a question

of law, I do not consider that I should seek to determine that on this application to

extend time. Having considered the submissions, I doubt whether the claimed

“mistake” on the representation issue raises a question of law based on the orthodox

approach to appellate jurisdiction on questions of law, but I would not say the appeal

is clearly hopeless or the merits otherwise sufficiently obvious that they should weigh

materially in the exercise of discretion against granting an extension of time.

Conclusion

[76] Standing back and weighing these various factors, I consider that it is not in

the interests of justice to extend time for this appeal. The factors in favour of an appeal

are the significance of cultural effects under Part 2 of the RMA, that the representation

issue was not drawn to the Environment Court’s attention, and its possible impact.

These factors, however, are outweighed by the combined effect of SKP’s delay, some

prejudice to KPB, doubt as to whether the “mistake” amounts to a question of law

(I do not place much weight on this factor as I do not say the appeal is clearly hopeless)

and, significantly, the more direct and appropriate method of addressing the issue by

way of the s 294 rehearing application to the Environment Court.

Result

[77] SKP’s application to adduce the further affidavit of Mr Greve exhibiting the

additional documents is granted.

[78] SKP’s application to extend time to appeal is dismissed.

38 Chamberlain v Scott [2012] NZHC 2596, (2012) 21 PRNZ 176 at [22].

Costs

[79] KPB is entitled to costs. It sought costs on an indemnity basis. I am inclined

to award costs according to scale on a 2B basis. But as costs were not argued, if they

cannot be agreed, counsel are to file memoranda seeking costs within 10 working days

and memoranda in response within a further five working days.

________________________________

Gault J

Solicitors / Counsel: Mr JDK Gardner-Hopkins, Barrister, Wellington Mr T Greenwood (appellant’s instructing solicitor), Greenwood Law Ltd, Waiheke Island Mr M C Allan, Brookfields, Solicitors, Auckland Mr MHL Morrison, Morrison Mallett, Solicitors, Auckland