Dome Valley Landfill appeals – the High Court's decision

In December 2024, the High Court released its decision in Te Rūnanga o Ngāti Whātua v Auckland Council, concerning the Waste Management NZ Limited’s Dome Valley landfill resource consent appeals. This article explores the history and key issues of the decision.

Te Rūnanga o Ngāti Whātua v Auckland Council [2024] NZHC 3794 relates to the appeals to Auckland Council's decision to grant Waste Management NZ Limited's resource consent application to construct and operate what the High Court termed an “exceptionally large” landfill in Wayby Valley, Wellsford, north of Auckland. This was a contentious application with a high public interest. It has been through both the Environment Court and High Court, with an application for leave to appeal to the Court of Appeal currently pending.

The High Court appeal was heard midway through last year, and the High Court issued its decision in December 2024, ultimately dismissing the appeals. The High Court's decision is comprehensive and deals with some complex issues raised in the appeals, including significant cultural and freshwater issues and issues related to the correct interpretation and application of the Resource Management Act 1991 (RMA) and the Auckland Unitary Plan (Operative in Part) (AUP).

The proposed landfill site spans approximately 1,001 hectares and is expected to take 50% of Auckland's annual residual waste. There are approximately 134 hectares of permanent, intermittent and ephemeral streams in the landfill site with 12.2 km of these permanent and intermittent streams being located within the landfill footprint itself. The landfill activities were assessed as an overall non-complying activity under the AUP.

 

Environment Court

The Council Decision was appealed by eight parties to the Environment Court. The appeal was heard over 13 weeks, with over 160 briefs of evidence presented. The Environment Court issued an interim decision which did not decline nor grant the landfill consent application, but stated:

[932] The Court concludes that a modified application, conditions and Management Plans could meet the purpose of the Act, and the relevant matters under s 104. We would need to see amendments to the proposal, conditions and management plans sufficient to satisfy us that the consent can be granted.

 

High Court

Two appeals were filed against the Environment Court's interim decision, by Te Rūnanga o Ngāti Whātua (Te Rūnanga) and Royal Forest and Bird Protection Society of New Zealand (F&B). The High Court ultimately dismissed both appeals.

The High Court identified three "key issues" from the two appeals at paragraph [6] of its lengthy decision:

• Did the Court correctly address competing mana whenua positions?
• Did the Court correctly apply the ‘avoid’ policies of the NPS-FM and the AUP?
• Is ‘no material harm’ a proper measure of ‘avoid’?

First key issue: Mana whenua status and cultural effects

A key issue was in regard to the relative strength of iwi parties' relationship to the landfill site. This case involved genuine conflicting tikanga ā-iwi positions with corresponding significant impacts on the affected iwi in the event of breach of Policy E3.3(5), which requires:

(5) Avoid significant adverse effects, and avoid, remedy or mitigate other adverse effects of activities in, on, under or over the beds of lakes, rivers, streams or wetlands on:

(a) the mauri of the freshwater environment; and

(b) mana whenua values in relation to the freshwater environment.

The appellant iwi parties argued that the landfill will significantly adversely affect the mauri of Papatūānuku, the Hōteo Awa and the Kaipara Moana in breach of their tikanga and this is enough to warrant decline of the consent having regard to AUP policies. The appellants also argued that the Environment Court was required, but failed, to apply the guidance in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768 (Ngati Maru) decision regarding strength of relationship.

High Court findings: The High Court found that the key factual findings regarding mana whenua, including that Ngāti Manuhiri have a more intimate relationship with site, were available to the Environment Court. The High Court noted that it would have been better for Environment Court to have applied the three-pronged Ngāti Maru approach when assessing strength of relationship, but Whata J was satisfied the Environment Court applied it in substance.

Second key issue: NPS-FM and AUP "avoid" policies

The second key issue regards the navigation and interpretation of "avoid" policies, which continue to be critical and litigated throughout the courts.

The National Policy Statement for Freshwater Management 2020 (NPS-FM) and the AUP include a range of relevant "avoid" policies, relevantly, in this case, E3.3(17) and E3.3(18) (which the Council was required to directly import into the AUP without a Schedule 1 process):

(17) wetlands – is directed to avoiding the loss of extent of natural inland wetlands, protecting their values and promoting their restoration subject to certain exceptions, which include that there are no practicable alternative sites for the activity.

(18) rivers – states that loss of river extent and values is to be avoided unless there is a functional need for the activity in the location.

The Environment Court adopted a “pragmatic and proportional” as well as a “holistic” approach to interpretation and application of key “avoid” policies and treated Policies E.3.3(17) and (18) as one policy among others, judged against the AUP as a whole. The appellants argued this approach was wrong and the Environment Court instead should have applied the exceptions pathway approach used in the Supreme Court's decision Royal Forest and Bird v NZTA [2024] NZSC 26 (East West Link).

High Court findings: the High Court found that a “pragmatic and proportional” approach was not the same as an overall broad judgment approach, noting a whole of AUP approach to the interpretation of policies including "avoid" policies was endorsed by the Supreme Court in East West Link, and there is nothing wrong with a holistic approach to the effects assessment.

Third key issue: Material harm

The Environment Court concluded it had to be satisfied that the application "avoids material harm". This approach was challenged by the appellants in regard to the "avoid" requirement, especially relating to the AUP Policy requiring that loss of river extent must be avoided.

High Court findings: the High Court rejected this claim, noting that the Supreme Court in Trans-Tasman and Port Otago endorsed no material harm as a valid measure of "avoid" and concluded that there was no error in adopting a "no material harm" threshold of effects.

 

Court of Appeal

F&B has applied for leave to appeal the High Court's decision to the Court of Appeal.