Supreme court overturns East-West Link approval

The previous National government proposed a four-lane arterial road in Auckland connecting State Highway 1 at Penrose to State Highway 20 at Onehunga. The proposal was dubbed the 'East-West Link'. It involved a bi-directional four lane highway along the northern shores of the Mangere Inlet and required 24 resource consents and two notices of requirement. The proposal required reclamation of parts of the coastal marine area and would result in permanent loss to Significant Ecological Areas identified in the Auckland Unitary Plan (AUP).

In 2017 a Board of Inquiry was convened to decide the resource consents and notices of requirement for the East-West Link. The resource consents were assessed as a non-complying activity. NZTA was unable to demonstrate that the effects of the proposal were minor, therefore they had to rely on the proposal not being contrary to the relevant objectives and policies under section 104D of the RMA. When undertaking that assessment, the Board concluded that an overall assessment of the relevant AUP objectives and policies, such that a measure of inconsistency did not necessarily mean that the proposal was contrary to them

The Board's decision was appealed to the High Court on a question of whether the East-West Link proposal was contrary to the relevant objectives and policies. Additionally, a question was raised as to whether the Board had failed to have regard to the New Zealand Coastal Policy Statement (NZCPS). The High Court held that the Board had not erred in this regard and confirmed the Board's decision.

The High Court's decision was appealed directly to the Supreme Court on the basis of three broad issues, but ultimately the key focus for the Supreme Court was the interpretation, application and interaction of the relevant provisions in the NZCPS and AUP. The Supreme Court returned a majority decision (3-2) of over 160 pages that overturned the Board's decision on the East-West Link project.

When deciding a resource consent or making a recommendation for a notice of requirement, the decision maker has to have 'regard to' or 'particular regard to' (respectively) the relevant provisions of statutory planning documents. In addition, when deciding a resource consent for a non-complying activity, a consenting authority must only grant consent if the activity is not contrary to the objectives and policies of the relevant plan/proposed plan. In this context, the majority of the Court held that 'isolating and de-contextualising individual provisions in a manner that does not fairly reflect the broad intent of the drafters must be avoided'. However, they went on to say:

That does not mean all objectives and policies can simply be put in a blender with the possible effect that stronger policies are weakened and weaker policies strengthened. Rather, attention must be paid to relevant objectives and policies both on their own terms and as they relate to one another in the overall policy statement or plan. As the Environment Court noted in Akaroa Civic Trust v Christchurch City Council, the interpretive exercise must acknowledge that some policies will, in context, be more important than others. The way in which inevitable tensions between policies are identified and worked through in the documents must be grappled with. As King Salmon held, the mere presence of tension does not open up an unfettered discretion to choose between unequal policies. On the other hand, the presence of tension between stronger and weaker policies will not always be resolved in favour of the stronger. Ecosystems are complex and dynamic, as is the impact of human communities located within them. Fact and context will be important in determining how tensions between policies will be resolved.

The majority then went on to undertake a 'fair appraisal' (per the Court of Appeal in Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA)) of the relevant AUP and NZCPS objectives and policies. They concluded:

…for present purposes at least, that large scale infrastructure located in the CMA is not, by definition and without regard to circumstance, prohibited by the objectives and policies of the AUP or the NZCPS. Such infrastructure is therefore not inevitably contrary to the objectives and policies of the AUP(plans) for the purposes of the s 104D(1)(b) gateway, nor is it necessarily inconsistent with the NZCPS- or AUP-related requirements of ss 104 and 171.

However, the majority still did not agree with the approach of the Board, holding that:

…the Board misinterpreted the “have regard to” standard in ss 104 and 171, misused the s 171 options selection process to serve the stricter requirements of the AUP policies, and decoupled the consideration of adverse effects from the assessment of practicable alternatives. These missteps left the door open for the Board to regress to an overall judgment approach by which it could undervalue the avoid policies and overvalue the pro-infrastructure policies. Consequently, the Board started from a more neutral starting point than that required by the AUP. In the result, the Board failed to engage properly with the central premise of the AUP, which is that the EWL is presumptively inconsistent with and contrary to relevant objectives and policies and should not be approved except in narrowly defined exceptional circumstances.

In respect of the 'have regard to' (or 'particular regard to') threshold in sections 104 and 171 of the RMA, the Court built on the Court of Appeal's decision in RJ Davidson Family Trust v Marlborough District Council:

…there is a corollary to Cooper J’s rejection of the proposition that “have regard to” and Part 2 could authorise consent authorities to subvert relevant policies in their decision-making. The corollary is that a genuine, on-the-merits exception, by its nature, will not subvert a general policy, even a directive one. On the contrary, true exceptions can protect the integrity of the subject policy from the corrosive effect of anomalous or unintended outcomes. There is a fundamental difference between allowing consent authorities to routinely undermine important policy choices in the NZCPS (as rejected in RJ Davidson), and permitting true exceptions that will not subvert them. Of course, the more precise and sharp-edged the policy, the less room there will be for outcomes that can fairly be considered so anomalous or unintended that an exception is justified.

Justices Glazebrook and William Young dissented, although Glazebrook J still allowed the appeal. Justice Glazebrook considered the NZCPS and AUP provisions did not allow for the exception provided by the majority. Justice William Young provided for an even wider exception than the majority and would have dismissed the appeal. Ultimately, the appeal was allowed and remitted back to Board to remake its decision (albeit Glazebrook J observed that if her views had prevailed 'there would likely have been little point remitting to the Board').

The Supreme Court's decision reinforces previous decisions (including King Salmon) that emphasise the need to carefully interpret and apply objectives and policies in planning documents. While there is helpful dicta by the majority that is potentially of general application, the specific 'true exception' identified by the majority may not necessarily be applicable in other planning contexts. Further, not all directive objectives and policies will necessarily be subject to such exceptions. It will all depend on context.