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

JurisdictionNew Zealand
CourtHigh Court
JudgePalmer J
Judgment Date08 December 2020
Neutral Citation[2020] NZHC 3228
Docket NumberCIV-2019-419-173
Date08 December 2020

[2020] NZHC 3228

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

Palmer J

CIV-2019-419-173

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
Appearances:

A W McDonald for the applicant

D J Neutze for the respondent

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

The issues were: whether the decision was unreasonable and whether the Council's decision-making process was lawful.

The Court held the decision was not unreasonable. There was no evidence the Council's decision had been based on misinformation or blanket denial of climate change. The Declaration contained “Council Commitments”. If the Declaration were signed, it was possible that could create a legally enforceable legitimate expectation, in some circumstances. A concern about that, and possible financial implications, meant Council's decision was not unreasonable.

However, the decision was a significant one. The Council's climate change strategy, and a proposed decision engaging with climate change issues at a strategic level, must be a significant issue in terms of the Local Government Act 2002 (“LGA”) and its Significance and Engagement Policy. The issues raised by the Declaration significantly affected the social, economic, environmental and cultural well-being of the district in the present and future, which was the purpose of local government under s10 LGA (purpose of local government). The Council had not undertaken the analysis or considered consultation with the District, as required by law. The Council had not taken steps towards meeting the requirements of s77 LGA (requirements in relation to decisions), had not considered the views and preferences of persons likely to be affected by, or have an interest in the decision, as required by s78 LGA (Community views in relation to decisions) and had failed to consider whether a consultation process was required, which was a mandatory consideration given the significance of the decision.

The decision by the Council, not to approve signing the Declaration, on the basis it had, was inconsistent with the requirements of the LGA and the Council's Significance and Engagement Policy to carry out analysis and consider consultation in making that decision.

The decision was quashed. The Council was directed to reconsider it, consistently with law.

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...

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