The Supreme Court decision in Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency,^[1] released at the end of last week, found that the Board of Inquiry (BOI) misinterpreted the relevant RMA provisions when granting consent to the East-West Link (EWL) project, and that the High Court erred in dismissing appeals against the BOI’s decision.   

Gerald Lanning and Chris Ryan of Simpson Grierson’s Planning and Environment team represented Auckland Council in the proceedings.

In this article we briefly discuss the background to the proceedings, the Supreme Court’s decision, and its impact.

Background and the High Court’s decision

The EWL is a proposed arterial road connecting State Highway 20 (SH20) in Onehunga with State Highway 1 (SH1) in Mt Wellington. The construction of the EWL, and the associated works to provide for stormwater and leachate management, required reclamation of areas along the northern edge of the Māngere Inlet. 

That aspect of the proposal was controversial, as both the Māngere Inlet and the adjacent land subject to the proposed EWL were ecologically significant, including as a habitat for birds, and were recognised as significant ecological areas (SEAs) in the Auckland Unitary Plan (AUP).

The resource consents and notices of requirement required for the EWL were granted by a Board of Inquiry (BOI), established by the Minister of the Environment to determine those applications, following a 49-day (over 12 weeks) hearing.

Rights of appeal against the decision of the BOI are limited to points of law only. Both Royal Forest and Bird Protection Society of New Zealand Inc (RFB) and Ngāti Whātua Ōrākei Whai Maia Ltd (Ngāti Whātua) appealed the BOI’s decision to the High Court. The High Court upheld the BOI’s decision, and leave was granted to RFB and Ngāti Whātua to appeal to the Supreme Court.

In exceptional circumstances, infrastructure projects requiring reclamation in the CMA will be able to find a consenting pathway through policies that “give effect” to the NZCPS

By way of context, policy 11 of the New Zealand Coastal Policy Statement (NZCPS) provides that in order “to protect indigenous biodiversity in the coastal environment”, certain adverse effects on particular species, ecosystems and areas were to be avoided. The Court found that while that provides “a strong direction against” locating major infrastructure in the Coastal Marine Area (CMA), “when read in context, it does not impose a blanket prohibition” on certain infrastructure locating in the CMA. Such exceptions will be those that do not subvert the policy, and that are otherwise consistent with the provisions of Part 2 of the RMA.

Policy 11 is “given effect to” by several AUP provisions. Despite the AUP’s directive to avoid adverse effects on those SEAs, the Supreme Court held that the most relevant of those provisions, did not necessarily prohibit certain infrastructure needing to be located in SEAs.

The Supreme Court concluded that when those policies are read in the round, a proponent seeking to locate significant infrastructure requiring reclamation in an SEA needs to show that:

• The relevant infrastructure is a necessary, as opposed to merely desirable, solution and there is no practicable alternative location for it;
• The adverse effects that cannot be avoided, have been remedied or mitigated to an extent that correspondends with the significance of the environment, ecosystems or species on which effects should have otherwise been avoided; and 
• The benefits of the infrastructure plainly justify the environmental costs.

Justice Glazebrook in her concurrent opinion suggested this approach subverted the view taken by the Supreme Court in its earlier King Salmon and Port Otago decisions.^[3] However, the majority emphasised that the EWL was a difficult case relative to those decisions, holding that “it would be wrong to treat the distinctive context of Auckland and the EWL as irrelevant: this would risk subverting the purpose of the RMA”.

The focus of the Court’s decision in this case related to the particular statutory tests that apply when deciding whether to grant an application for a resource consent, or when making a recommendation on a notice of requirement. The Court’s 2023 Port Otago decision (which we summarised here), addresses how “avoid” directives are to be “given effect to” in the plan making process.

The Supreme Court overturned the BOI and High Court’s decisions

While the Supreme Court considered that the High Court’s approach was “closer to the mark” than that of the BOI, it determined that both had erred. 

The majority held that the BOI had incorrectly taken an “overall judgment” approach, in which policies in tension could be re-weighted depending on the circumstances. Instead, the BOI should have turned its attention to the three bullet points listed above.

In respect of the High Court’s decision, the Supreme Court held that Powell J had wrongly come to the view that the BOI had a broad discretion to “give genuine attention and thought” to the relevant directive policies, only to refuse to apply them.

The majority held that on that basis the EWL needed to be referred back to the BOI for reconsideration.

The Court then addressed the other issue on appeal, whether measures proposed with positive environmental effects, to offset or compensate for adverse effects could satisfy the “avoidance” directives. The majority held that:

• Whether such offsetting and compensation was appropriate depended on the environmental effects at issue, and the terms of the relevant “avoid” directive; but
•  In exceptional circumstances where an avoid policy could not be fully satisfied, compensatory measures could be relevant in considering whether the project sufficiently remedied or mitigated the effects that could not be avoided.

This decision is highly significant for infrastructure proposals

Often infrastructure cannot simply be put ‘anywhere’. Rather, it must integrate with the surrounding environment, including existing infrastructure. That is reflected in plans often containing provisions that carefully enable infrastructure to be developed in areas where other development might not be allowed. The Supreme Court has clearly grappled with that context in reaching its conclusions.

However, to the extent that plan provisions might provide a consenting pathway for important infrastructure projects in environments where adverse effects must be avoided, the Court’s decision emphasises that projects will need to be very carefully designed to “thread the needle” and will need to carefully respond to the particular environments that they effect. The Supreme Court’s decision represents the current law on how decision-makers, and those proposing projects, should go about that.

Where to from here for the East West Link?

Although the Supreme Court directed that the BOI is to reconsider the EWL, that could be far from straightforward. As William Young J noted in his dissent, reconstituting the BOI may be difficult and is not clear from the Court’s decision how the BOI is to affect its reconsideration.

The Minister of Transport has indicated a desire to consent the Government’s Roads of National Significance, which include the EWL, through its proposed Fast Track consenting process.^[4] That process may be an alternative to a reconsideration by the BOI. As we explained in our earlier article (here) the focus on “the delivery of infrastructure and development projects with significant regional or national benefits” under that fast-track regime, may circumvent aspects of the Supreme Court’s approach and the Court’s emphasis on the avoidance of adverse effects as a way of giving effect to the RMA’s purpose.

Contact us

To learn more about this decision and its implications, please contact one of our experts listed below.

Special thanks to Chris Ryan for his assistance in writing this article.