14/04/2021·3 mins to read
Court dismisses appeals on East West Link proposal
The High Court has dismissed appeals against the Board of Inquiry’s 2017 decision on the proposed East West Link in Auckland, upholding the Board’s decision to approve the resource consent applications and notices of requirement originally sought by Waka Kotahi NZ Transport Agency.
This case is a useful example of the Court reconciling competing policy directions in statutory planning documents. When determining whether an activity is “contrary to” the objectives and policies of the document - in this instance, the Auckland Unitary Plan (AUP) - the Court has confirmed that decision makers must evaluate all relevant provisions.
In this case, while some AUP provisions required the avoidance of effects, other provisions recognised the importance of infrastructure to provide for urban growth and development. And, importantly, even if a proposal is not contrary to the objectives and policies under section 104D(1)(b) of the Resource Management Act (RMA), it does not necessarily follow that resource consent should be granted.
East West Link
The East West Link (EWL) is a proposed four-lane arterial road and associated works, which would connect SH20 in Onehunga with SH1 in Penrose/Mt Wellington. The proposed EWL requires a significant reclamation and other works in the coastal environment - much of which was scheduled as significant ecological areas (SEA) under the AUP. These areas were scheduled due to their importance to birds and sensitive/unique ecology.
Board of Inquiry decision and High Court appeal
The proposed EWL was subject to a Board of Inquiry hearing in 2017, where the Board concluded that:
- while its effects would be more than minor, the proposal was not contrary to the objectives and policies of the AUP, and therefore could proceed through the ‘gateway test’ for non-complying activities under section 104D(1)(b) of the RMA; and
- the proposed EWL would create adverse effects during construction and in operation, but these effects could be sufficiently avoided, remedied or mitigated, pursuant to section 104 and 171 of the RMA.
Royal Forest and Bird Protection Society of New Zealand Inc (Forest and Bird), Ngāti Whātua Ōrākei Whai Maia Ltd (Ngāti Whātua), and Te Kawerau Iwi Tribal Authority (Te Kawerau) appealed the Board’s decision focusing on two questions of law:
- whether the Board had jurisdiction to consider the merits of the proposed EWL. Forest and Bird argued that the Board erred in concluding that the proposed EWL was not contrary to the objectives and policies of the AUP and that the proposed EWL did not meet the threshold test in section 104D(1)(b) of the RMA; and
- in any event, did the Board fail to have regard or particular regard to the New Zealand Coastal Policy Statement (NZCPS) as required by sections 104 and 171 of the RMA.
The Court found that the Board had adequately considered the NZCPS. We discuss the appellants’ first question below.
Was the proposed EWL “contrary to” the AUP’s objectives and policies?
Chapter D9 in the AUP sets out the objectives and policies for SEAs. Of importance to this appeal were policies D9.3(9) and (10) requiring the “avoidance” of effects on SEAs in the coastal environment, and objective D9.2(1) which states that areas of significant indigenous biodiversity value are protected from the adverse effects of development.
To determine the issue of whether the EWL was contrary to these objectives and policies, the Court held “the relevant plan provisions must all be considered comprehensively and, where possible, appropriately reconciled”, particularly with regard to the reconciliation between SEA protection in Chapter D9 and the provision for infrastructure in Chapter E26 of the AUP. In doing so, the High Court rejected an argument that the Supreme Court’s King Salmon decision applied to section 104D(1)(b) - because that case involved a proposed plan change.
Using this to ascertain whether the conclusion reached by the Board was available, the Court concluded:
“…when the relevant objectives and policies of the AUP are properly reconciled it is apparent that the AUP provides a specific, albeit narrow, framework for the consideration of infrastructure proposals rather than automatically excluding them at the s 104D stage. Instead, the AUP, through chapter E26 in particular, specifically contemplates the approval of significant infrastructure when other non-complying activities giving rise to more than minor adverse effects would be precluded as contrary to the objectives and policies of the AUP. Given this position, I conclude that when the relevant chapters are properly construed the AUP was never intended to categorically block infrastructure projects such as the proposed EWL at the s 104D stage as to do so would preclude the very analysis envisaged in chapter E26.”
The Court held that the Board did not err in reaching its conclusion.
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 The gateway test in section 104D(1)(b) states that a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that the application is for an activity that will not be contrary to the objectives and policies (of the AUP in this instance).
 Sections 104 and 171 state that the consent authority must have regard, or particular regard, to any relevant provisions of a New Zealand coastal policy statement.
 Chapter E26 of the AUP deals with infrastructure and provides a framework for the development, operation, use, maintenance, repair, upgrading and removal of infrastructure.