Minister for Land Information v Dromgool

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 05 March 2021
• Neutral Citation: [2021] NZCA 44
• Court: Court of Appeal
• Docket Number: CA364/2019
• Date: 05 March 2021

Between

Minister for Land Information

Appellant

and

Shane Dromgool and Dorothy Dromgool

First Respondents

Alan Darvall Poulton and Jennifer Poulton

Second Respondents

Newman Farms Limited

Third Respondents

[2021] NZCA 44

Court:

Cooper, Clifford and Goddard JJ

CA364/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PIRA O AOTEAROA

Property — appeal against a High Court decision which held that the Minister's response to a request for compulsory acquisition by a network utility operator under the Resource Management Act 1991 was not fully discretionary — consideration of the role and obligations of the appellant's compulsory acquisition powers — Public Works Act 1981 — Treaty of Waitangi

Counsel:

A N Isac QC, M C McCarthy and E M Jamieson for Appellant

D M Salmon and A W McDonald for Respondents

• A The appeal is allowed.

• B The decision of the High Court is set aside.

• C The report of the Environment Court is confirmed.

• D The matter is referred back to the Environment Court to finalise the terms of the easements.

• E There is no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

	Para No.
Introduction	[1]
Relevant facts	[9]
The Environment Court's report	[16]
The appeal to the High Court	[19]
The relevant statutory provisions	[29]
The RMA	[30]
The PWA	[40]
The interrelationship between the RMA and PWA	[52]
The appeal	[55]
Appellant's argument	[55]
Respondents' argument	[60]
Decision	[70]
The nature of the Minister's power under s 186 of the RMA	[70]
The role of the Minister	[76]
Other issues	[108]
Improper/irrelevant considerations and omissions	[109]
The OTS land	[113]
Notice of intention	[123]
Costs	[127]
Result	[128]

Introduction

1 This appeal raises an important issue concerning the role and obligations of the Minister for Land Information (the Minister) under s 186(1) of the Resource Management Act 1991 (the RMA). 1

2 Section 186(1) of the RMA provides that a network utility operator that is a requiring authority may apply to the Minister to have land required for a project or work acquired or taken under pt 2 of the Public Works Act 1981 (the PWA) “as if the project or work were a government work within the meaning of that Act”. The provision then states that the land may be taken or acquired “if the Minister … agrees”.

3 Under pt 2 of the PWA land may be acquired by agreement, or compulsorily. In either case, there must be a period of negotiation in good faith in an attempt to reach an agreement for the acquisition of the land. 2 If agreement cannot be reached, the Minister may proceed to take the land under the PWA. 3

4 Every person having any estate or interest in the land may object to the Environment Court, 4 which considers the objection in accordance with s 24 of the PWA. Section 24(7) states what the Environment Court is required to do. It must ascertain the Minister's objectives; enquire into the adequacy of the consideration given to alternative sites, routes or other methods of achieving those objectives; and decide whether it would be “fair, sound, and reasonably necessary” for achieving the objectives of the Minister for the land of the objector to be taken. 5 It must then submit a written report to the Minister setting out its findings. 6 The Environment Court's report and findings are binding on the Minister. 7

5 In this case, Top Energy Ltd (TEL), a requiring authority, sought to acquire easements to enable construction of an electricity transmission line between Kaikohe and Kaitaia. It made requests to the Minister under s 186(1) of the RMA, in relation to land along the route. The Minister gave her agreement. There were objections to the Environment Court from affected landowners.

6 In its report on the objections the Environment Court held that the Minister's response to a request under s 186(1) was “fully discretionary”. 8 It rejected an argument advanced by counsel for the objectors that the Minister was obliged to consider the matters that would be considered subsequently by the Environment Court in dealing with, and reporting on, an objection under s 24 of the PWA. 9 It found that adequate consideration had been given to alternative sites, routes and methods to

achieve the objectives of the Minister and TEL. 10 The Court concluded that the taking of the land would be fair, sound and reasonably necessary for achieving those objectives, and furnished a written report to the Minister accordingly. 11

7 The objectors appealed the Environment Court's report to the High Court. 12 Courtney J allowed the appeal and set aside the Environment Court's report. 13 This Court then granted leave for the present appeal, 14 stating that the approved question was whether the High Court erred in law in allowing the appeal and setting aside the Environment Court's report. 15 In granting leave, this Court also said:

C Counsel should focus their submissions on:

• (a) the role and obligations of the Minister under s 186 of the Resource Management Act 1991; and

• (b) whether the inquiry into the adequacy of consideration of alternatives contemplated by s 24(7) of the Public Works Act 1981 is an inquiry into the adequacy of consideration of alternatives by the requiring authority, by the Minister, or by both.

8 For the reasons we address, we allow the Minister's appeal and confirm the Environment Court's report. We hold that where the Minister's agreement is sought under s 186 of the RMA, the Minister needs to be satisfied that the project of the network utility operator is capable of achieving a favourable report from the Environment Court under s 24(7) of the PWA. But the Minister need not personally assess the merits of, and choose between, alternative means of achieving the objectives of the network utility operator. We further hold that the Minister may withhold consent if the proposal is contrary to the purpose and principles of the RMA, or is undesirable for other reasons that are consistent with the statutory framework. We consider that where the Minister has agreed to the taking under s 186(1), it is likely that the main

consideration of alternatives will have been by the network utility operator (which can be expected to have the institutional knowledge and expertise required for that purpose) and it is legitimate for the Environment Court to focus its enquiry accordingly

Relevant facts

9 TEL owns and operates a 110kV transmission line which runs between Kaikohe and Kaitaia. The Environment Court accepted evidence from TEL's Chief Executive Officer, establishing that: 16

• (a) the line requires maintenance as it is around 60 years old, and requires replacement within the foreseeable future (around 2030);

• (b) maintenance works on poles and repairs of breakages have been an ongoing and significant requirement since the takeover. In particular, around 6km of the line runs through the Mangamuku Gorge and is vulnerable to major events;

• (c) between 2013 and 2017 there were some nine outages of 47.7 hours to substantial parts of the network. Measured in terms of the economic impact of those outages, the cost to the Far North economy is estimated to be $13,368,956;

• (d) the Juken timber mill in Kaitaia is a major employer, and particularly susceptible to outages. An unplanned outage can mean a cost to the production line through a restart of some $150,000 each time[;]

• (e) the historic pattern of demand has changed from the urban centres of Kaikohe and Kaitaia, with increasing population on the eastern seaboard area (Kerikeri Peninsula and the Bay of Islands);

• (f) it was considered that an alternative route to the eastern seaboard would increase supply through the 11kV local network lines, and permit some upgrading to 33kV (for example in Kaeo and Wiroa). Examples were given by Mr Shaw, including Mt Pokaka having to supply their own power for a timber mill employing 100 people, and an 800 unit accommodation in Karikari Peninsula having no secure supply of power;

• (g) the existing GXP 110kW single circuit was on a route involving the Mangaweka Gorge, and is susceptible to failure through natural events. Significant resilience would be achieved by creating a second circuit to Kaitaia.

10 TEL instructed Boffa Miskell, an environmental planning and design consultancy, to investigate a potential new route to serve the eastern side of the region by means of a proposed “ring circuit”, incorporating the substations at Kaikohe and Kaitaia which are used for the existing line. The infrastructure would be upgraded, and a second line installed closer to the new areas of demand. As part of the overall project, TEL investigated a potential route linking a new substation in Wiroa near Kerikeri to a substation at Pamapuria near Kaitaia. That proposed route would affect about 96 properties, over most of which TEL was able to secure easements. The objections heard by the Environment Court related to a route option for an approximately 7-km stretch, known as the “Mangakaretu” section which would run between Wiroa and Kaeo, in respect of which agreement could not be reached.

11 Boffa Miskell's initial evaluation identified a route passing over land owned by the Office of Treaty Settlements and land-banked for the purpose of claims for redress under the Treaty of Waitangi (the OTS land). In addition to crossing the OTS land, this route (the OTS route) ran through rural land referred to by the Environment Court as the Taylor property, the Poulton property and “Greenacres”. 17

12 Between 2012 and 2014, TEL pursued the OTS route as its preferred route. It entered into an agreement to grant easements with the owners of the Poulton and Greenacres properties, but could not secure agreement from the owners of the...