Nz Transport Agency v Architectural Centre Inc.

• Jurisdiction: New Zealand
• Judge: Brown J
• Judgment Date: 21 August 2015
• Neutral Citation: [2015] NZHC 1991
• Docket Number: CIV 2014-485-11253
• Court: High Court
• Date: 21 August 2015

UNDER the Resource Management Act 1991

IN THE MATTER OF an appeal under s 149V(1) of the Act against the Report and Decision of the Board of Inquiry into the Basin Bridge Proposal dated 29 August 2014

BETWEEN

New Zealand Transport Agency

Appellant

and

Architectural Centre Incorporated & ORS

Parties to the appeal under s 302(1) of the Act

[2015] NZHC 1991

CIV 2014-485-11253

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Appeal against the report and decision of the Board of Inquiry into a Proposal-the Board found the proposal's adverse effects were contrary to the themes in the planning instruments on heritage, landscape, visual amenity, open space and amenity and even with its transportation and economic benefits, confirming the proposal would not promote the sustainable management purpose described in s5 Resource Management Act 1991 (RMA) (purpose) — interpretation of “having particular regard to” under s171 RMA-relationship with s104 RMA (Consideration of applications) — relevance of Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd — when considering a requirement under s171(1) RMA, how were the words ‘having particular regard’ to be interpreted-what was the effect of the phrase “subject to Part 2” in s171 — whether the Board had misapplied s171(1)(b) RMA (adequacy of consideration given to alternatives) — whether a project's enabling element could constitute an effect to be taken into account under s171(1) RMA and/or s5 RMA-whether the Board had failed to have particular regard to s171(1) RMA with regard to assessing heritage and amenity effects.

Counsel:

M Casey QC, A F D Cameron, F Wedde and A Cameron for Appellant

K M Anderson and E Manohar for Wellington City Council (Interested Party)

P Milne for Architectural Centre Incorporated (Interested Party)

T Bennion for Mount Victoria Historical Society (Interested Party)

M S R Palmer QC for Save the Basin Campaign (Interested Party) and Mount Victoria Residents Association (Interested Party)

JUDGMENT OF Brown J

Table of Contents

	Paragraph No.
Overview	[1]
Scope of appeal	[7]
“A question of law”	[12]
Section 171	[27]
Section 171(1)(c)	[30]
Original form of s 171(1)	[32]
1993 Amendment	[33]
2003 Amendment	[41]
Sections 171(1) and 104(1) compared	[45]
The relevance of King Salmon	[48]
Sequence of consideration of the Issues	[50]
The meaning of “having particular regard to” in s 171	[56]
“have regard to”	[59]
“having particular regard to”	[64]
Did the Board adopt the correct approach?	[69]
The effect of the phrase “subject to Part 2” in s 171	[83]
The relocation of the phrase within s 171(1)	[86]
The implications of King Salmon	[99]
Consideration of alternative options - an overview	[119]
Chronology	[123]
The Board's general approach	[125]
Subissue 1A: Relating the measure of adequacy to the adversity of effects	[129]
Q 4(a): Does s 171(1)(b) of the Act require a more careful consideration of alternatives wherethere are more significant adverse effects of allowing the requirement?	[136]
Subissue 1B: The requirement to consider all non-suppositious options with potentially less adverse effects	[145]
Q 7(a): Does s 171(1)(b) require the requiring authority to fully evaluate every non-suppositious alternative with potentially reduced environmental effects?	[152]

Q 7(b)(i): Is the case one in which the true and only reasonable conclusion contradicts the determination that BRREO was a non-suppositious option?	[160]
Q 7(b)(ii): Is the case one in which the true and only reasonable conclusion contradicts the determination that Option X was an option with potentially less adverse effects?	[165]
Q 7(b)(iii): Is the case one in which true and only reasonable conclusion contradicts the determination that a long tunnel option was a non-suppositious option?	[172]
Subissue 1C: Interpreting adequacy as requiring transparency and replicability	[175]
Context	[175]
The transparency and replicability of the option evaluation	[179]
The issue	[180]
Subissue 1D: Requiring the assessment methodology to incorporate Part 2 weightings	[188]
Subissue 1E: Conflation of s 171(1)(b) and (c) considerations	[201]
Subissue 1F: Finding that adequate consideration was not given to alternatives following the Government's decision to underground Buckle Street	[208]
Context	[208]
Issues	[209]
Q 19(a)[recast]: Is this a case in which the true and only reasonable conclusion contradicts the determination that the review of alternatives carried out in July 2012 was cursory?	[211]
Q 19(b): In order for the consideration of alternatives to be relevant must the consideration be completed before the application documentation is well advanced?	[215]
Q 19(d)[recast]: Is this a case in which the true and only reasonable conclusion contradicts the determination that adequate consideration was not given to alternatives following the Government's decision?	[219]
Q 19(c): Is a requiring authority required to prepare a “feasible option type assessment” when the environment changes? Or is it entitled to rely on earlier work?	[222]
Subissue 1G: Adequacy of the consideration	[225]
Issue 2: Inquiring as to the outcome rather than the process of considering alternatives	[232]

Issue 3: Misapplication of s 171(1)	[240]
Issue 4: Incorrect approach to assessment of enabling benefits	[245]
A stand-alone project	[245]
Effects and benefits - terminology and meaning	[249]
The Board's Decision	[254]
The parties' positions	[259]
31(a): Is a project's enabling benefit an effect in terms of s 3 that can and should be taken into account unders 171(1) and/or s 5?	[261]
31(b): Where a project's enabling benefits are consistent with a programme of infrastructure development that is recognised in relevant documents under s 171(1)(a) and (d), should those enabling benefits be given considerable weight as an effect of the project under s 171(1) and/or s 5?	[267]
31(c): In order to be taken into account, must a project's enabling benefits be unique to that project, guaranteed and go ahead, and able to be quantified?	[268]
31(d): Does the definition of the future environment constrain the ability of a decision-maker to consider the enabling benefits of a project?	[270]
31(e): In order for the positive effects of a future development to be taken into account must the approvals for that development be sought at the same time as(or in advance of) the project?	[278]
31(f): Is it consistent with sustainable management (in terms of s 5) to approve an infrastructure project because it is necessary to facilitate future developments; and does it make a difference if the project is primarily necessary to facilitate those future infrastructure developments?	[283]
31(g): In the alternative, given its conclusion that the Proposal was necessary primarily to enable future roading projects, did the Board err in law by failing to consider conditions to address this concern?	[288]
Issue 5: Assessment of transportation benefits - an overview	[289]

Subissue 5A: Standard of proof required to demonstrate transportation benefits	[293]
Q 36(a): Is a higher standard of proof required to demonstrate the transportation benefits of a project where it will have adverse effects that are more than minimal?	[297]
Q 36(b): If the Board applied the wrong standard of proof, were the Board's findings regarding the transportation benefits of the Proposal ones that the Board could reasonably have come to on the evidence?	[302]
Subissue 5B: Assessment of immediate transportation benefits	[303]
Q 39(a): Did the Board fail to take into account a relevant matter in failing to have regard to the immediate transportation benefits of the Proposal?	[307]
The meaning of Q 39(b)?	[311]
Subissue 5C: Requiring the Proposal to demonstrate benefits that go beyond the requiring authority's objections	[313]
Mode shift	[314]
The issue of a long-term solution	[322]
Issues 6, 7 and 8: Questions of law relevant to heritage and amenity	[329]
The refinement of the questions of law	[329]
Q 45A: When assessing the heritage or amenity effects on the environment under s 171(1), must the decision-maker do so ‘through the lens’ of the relevant plans under s 171(1)(a) and, if relevant, s 171(1)(d) documents? That is, should the effects be assessed ‘through the lens’ of the recognition and protection provided by those plans and/or documents?	[333]
The planning framework	[334]
The Board's decision	[337]
The parties' contentions	[343]
Analysis	[351]
Q 45B: Further, should the Board have assessed the effects having particular regard to its finding at [1230] that the works were reasonably necessary to achieve the objectives under s 171(1)(c)?	[356]

Q 45C: When there is no ‘invalidity, incomplete coverage or uncertainty of meaning’ in the relevant plans under s 171(1)(a), is it appropriate for a decision-maker to assess effects against s 6(f) (for historic heritage) and s 7(c) (for amenity values)?	[361]
Q 45D: Did the Board correctly apply the definition of ‘historic heritage’ under s 2?	[367]
The parties' contentions	[369]
Analysis	[374]
Q 45E: What is the correct approach to the application of the test of ‘inappropriateness’ in s 6(f) [should the Court consider resort to Part 2 of the RMA was available to the Board in the circumstances of this case]?	[384]
Issue 8: Failure to consider options within the scope of the application to address amenity and heritage related...