Hauraki Coromandel Climate Action Inc. v Thames-Coromandel District Council

• Jurisdiction: New Zealand
• Judge: Palmer J
• Judgment Date: 08 December 2020
• Neutral Citation: [2020] NZHC 3228
• Court: High Court
• Docket Number: CIV-2019-419-173
• Date: 08 December 2020

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER of an application for judicial review of a decision of the Thames-Coromandel District Council

Between

Hauraki Coromandel Climate Action Incorporated

Applicant

and

Thames-Coromandel District Council

Respondent

[2020] NZHC 3228

Palmer J

CIV-2019-419-173

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

Environment, Judicial Review — application to judicially review a decision of the respondent not to sign the Local Government Leaders' Climate Change Declaration — unreasonableness — decision making process — duty to carry out an analysis and to consider consultation — failure to take into account community views — Local Government Act 2002

Appearances:

A W McDonald for the applicant

D J Neutze for the respondent

JUDGMENT OF Palmer J

This judgment was delivered by me on Tuesday 8 December 2020 at 11.00am. Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Summary

1 On 2 April 2019, the Thames-Coromandel District Council (the Council) decided not to approve the Mayor, Ms Sandra Goudie, signing the Local Government Leaders' Climate Change Declaration (the Declaration). Hauraki Coromandel Climate Action Inc (HCCA) challenges the decision. Decisions about climate change deserve heightened scrutiny on judicial review, depending on their context. The Declaration contains “Council Commitments”. If the Declaration were signed by a Mayor with the approval of a council and on its behalf, it is possible that could create a legally enforceable legitimate expectation, in some circumstances, as HCCA submits. A concern about that, and possible financial implications, was why the Council did not approve signing the Declaration. So the Council's decision was not unreasonable.

2 But the decision was a significant one. And the Council did not do the analysis or consider consultation with the District, as required by law. I declare the decision by the Council, not to approve signing the Declaration, on the basis it did, was inconsistent with the requirements of the Local Government Act 2002 (the LGA) and the Council's Significance and Engagement Policy (the Policy) to carry out analysis and consider consultation in making that decision. I quash the decision and direct the Council to reconsider it, consistently with law.

What happened?

Climate change

3 HCCA adduces expert evidence regarding the nature and effects of anthropogenic climate change, including on the Thames-Coromandel district, from Professor Timothy Naish of Earth Sciences in the Antarctic Research Centre at Victoria University of Wellington. He describes the consensus of the global scientific community on the causes and effects of climate change and what is required to mitigate those effects. The High Court has previously accepted that the reports of the Intergovernmental Panel on Climate Change (IPCC) provide a factual basis on which the decisions of domestic courts can be made. 1

4 The evidence about climate change is not disputed so I do not need to traverse it fully. However, I accept the expert evidence demonstrates unequivocally that anthropogenic climate change is occurring. I accept it demonstrates that the scientific consensus is that the effects of climate change, if unmitigated, include:

• (a) rising global mean sea level at an accelerating rate and more frequent extreme sea level events; 2

• (b) increasing ocean temperatures, upper ocean stratification and acidification and oxygen decline; 3

• (c) risks of severe impact on the biodiversity, structure and function of coastal ecosystems including loss of species habitat and diversity and degradation of ecosystem functions; 4

• (d) compromising effects of high temperature and humidity on food growing and, in urban areas, increased health, economic and ecosystem risks from heat stress, storms, extreme precipitation, flooding, landslides, air pollution, drought, water scarcity, sea level rise and storm surges. 5

5 I also accept the evidence that the scientific consensus demonstrates dangerous anthropogenic warming is likely to be unavoidable unless substantial mitigation steps are undertaken immediately. 6

6 The Council accepts that the Thames-Coromandel District is likely to be materially affected by anthropogenic climate change. 7 It accepts over 20 per cent of water supply in the District comes from groundwater and is used domestically, for irrigation, and for industry. It accepts the District will be significantly impacted by the effects of anthropogenic climate change in the following ways, though it says the

precise extent of those effects on the District are not clear and may not become clear until they occur

• (a) Any increase in sea levels and/or the frequency of storm surges means a greater risk of coastal inundation and/or erosion affecting the District.

• (b) More frequent coastal inundation and/or erosion will put pressure on coastal infrastructure, including roads and communication networks.

• (c) Climate change will impact on existing fresh and salt water balances in coastal margins.

• (d) Higher sea levels will lead to saline water intrusion into unconfined aquifers.

• (e) Effects on groundwater levels in coastal aquifers will impact on waste and storm water services and other buried infrastructure.

• (f) Increased frequency of severe weather events will significantly impact the District, in particular those areas prone to landslides and flooding.

• (g) The risk of fire and drought in the District will increase.

• (h) Indigenous terrestrial, fresh water, and coastal and marine biodiversity will be negative impacted.

• (i) Terrestrial and aquatic biosecurity will become more difficult to maintain.

• (j) Oceanic impacts such as acidification will likely occur in the Firth of Thames.

7 The Ministry for the Environment's National Climate Change Risk Assessment assesses the most significant risks of climate change are the risks to social cohesion, community well-being, exacerbated inequalities and new inequities. 8 It identifies people in low-lying coastal areas, people who rely on strong social networks such as the elderly, people in lower socio-economic circumstances, and Maori communities are more sensitive to the risks of climate change. 9 Information on the Council website suggests the Thames-Coromandel District has a higher than average proportion of people in these categories. 10 The Council also accepts the replacement value of core Council infrastructure projected to be affected by sea level rise alone ranges from $63 million to $500 million depending on whether the sea level rises by half a metre or up to three metres.

The Local Government Leaders' Climate Change Declaration

8 Mr Malcolm Alexander was the Chief Executive of Local Government New Zealand (LGNZ) until August 2020. LGNZ represents 78 local, regional and unitary authorities around New Zealand. Mr Alexander's evidence is that LGNZ drafted and promoted the Declaration. 11 It was an initiative of the larger urban councils but was approved by the National Council of LGNZ and circulated in draft to mayors and regional council chairs on 15 October 2015. LGNZ sought signatures in the lead-up to the 21st Conference of the Parties (COP21) to the 1992 United Nations Framework Convention on Climate Change in Paris in December 2015.

9 By 30 November 2015, 28 mayors and chairs had signed the Declaration. LGNZ initiated a further drive for signatures in 2017, noting that “many of the Mayors and Chairs who have signed to date view the Declaration as a leaders declaration and so have felt comfortable signing up to the Declaration”. 12 By 25 June 2019, 65 mayors and chairs had signed the Declaration. 13 Mr McDonald, for the HCCA, tells me there are now 67 signatories out of some 97 councils and territorial local authorities.

10 The Declaration is three pages long, plus signatures. It declares “an urgent need for responsive leadership and a holistic approach to climate change”. On the first page, it records:

We have come together, as a group of Mayors and Chairs representing local government from across New Zealand to:

• 1. acknowledge the importance and urgent need to address climate change for the benefit of current and future generations;

• 2. give our support to the New Zealand Government for developing and implementing, in collaboration with councils, communities and business, an ambitious transition plan toward a low carbon and resilient New Zealand;

• 3. encourage Government to be more ambitious with climate change mitigation measures;

• 4. outline key commitments our council will take in responding to the opportunities and risks posed by climate change; and

• 5. recommend important guiding principles for responding to climate change.

11 It calls on the government to make an ambitious transition plan a priority underpinned by a holistic economic assessment of New Zealand's vulnerabilities and opportunities. On page two, it says:

Council commitments

For our part we commit to:

• 1. Develop and implement ambitious action plans that reduce greenhouse gas emissions and support resilience within our own councils and for our local communities. These plans will:

  • • promote walking, cycling, public transport and other low carbon transport options;

  • • work to improve the resource efficiency and health of homes, businesses and infrastructure in our district; and

  • • support the use of renewable energy and uptake of electric vehicles.

• 2. Work with our communities to understand, prepare for and respond to the physical impacts of climate change.

• 3. Work with central government to deliver on national emission reduction targets and support resilience in our communities.

12 On pages two and three, the Declaration outlines seven “guiding principles” for decision-making on climate change titled: Precaution;...