The Supreme Court recently released its much-anticipated decision on the East West Link project (“EWL”) – the proposal by NZ Transport Agency Waka Kotahi for a new arterial road connecting SH20 at Onehunga with SH1 at Penrose/Mt Wellington.
The 160 page judgment is the latest landmark RMA decision from the Supreme Court, adding to the likes of King Salmon [Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38] and Port Otago [Port Otago Ltd v Environmental Defence Society Inc [2023] NZSC 112].
Background
The EWL is proposed to run along the northern shore of the Mangere inlet. It involves a range of works, including reclamation, some of which are in areas identified in the Auckland Unitary Plan (“Unitary Plan”) as “significant ecological areas” and may have adverse effects on indigenous birds and plants.
A Board of Inquiry originally granted the resource consents and notices of requirement for the EWL. This decision was appealed to the High Court. Because the proposal is a non-complying activity, it needs to pass through the RMA s104D gateway test, in addition to the s104 “test”. The appeal centred on whether the EWL is contrary to the objectives and policies of the Unitary Plan (and therefore would not pass the s104D gateway test) and whether the Board had correctly considered the New Zealand Coastal Policy Statement (“NZCPS”). The High Court dismissed the appeals. The High Court decision was appealed to the Supreme Court.
The Supreme Court decision
The Supreme Court allowed the appeal by a majority, ruling that the decision should be sent back to the Board of Inquiry for reconsideration in line with the terms of the judgment.
While three sets of reasons are given by the Court, we have distilled key takeaways below:
The majority (as to reasons) found that the Unitary Plan, interpreted in line with the NZCPS, provides only a very narrow window for the approval of proposed significant infrastructure that will have adverse effects on indigenous biodiversity. The Court was clear that it would be very challenging for project proponents to successfully navigate this narrow window.
Essentially, the majority found that the Board incorrectly took an “overall judgment” approach; confused the RMA’s s171 requirement that the EWL be “reasonably necessary” with the requirement under the Unitary Plan and NZCPS that there be “no practicable alternative”; and assessed effects on the environment in a way that was inconsistent with the applicable planning framework.
Glazebrook J disagreed with the majority’s reasons, but agreed with the result. Glazebrook J would have upheld an even stricter interpretation of the avoid policies in the Unitary Plan and NZCPS – that they apply as absolute bottom lines, meaning that the EWL could not pass through s104 and 171.
In a strong dissenting judgment, William Young J would have found that the planning framework retains flexibility as to how avoid policies are to be considered. William Young J considered that the EWL proposal could navigate the relevant RMA provisions and that the original board of inquiry made no error of law.
Comment: the very narrow window and its chilling effect
We set out some observations regarding the decision below:
Many in the development community were hoping that the Supreme Court would pick up and run with some of the themes in its recent decision in Port Otago – which focussed on port development – and confirm a viable consenting pathway for important infrastructure developments in the face of directive “avoid” planning provisions.
Instead, the EWL decision confirms that proponents of infrastructure projects with effects on indigenous biodiversity in the coastal environment will need to design projects to forensically “thread the needle” through the very narrow window provided in the planning framework.
In reality, the decision will likely make a range of important projects essentially non-starters. In this context, many applicants for significant infrastructure and other projects will be looking to take advantage of the new process under the Fast-track Approvals Bill and its much more permissive decision-making framework. Under the fast-track regime, the types of planning issues that scuttled EWL will not represent absolute (almost) road-blocks.
Beyond its core policy interpretation findings, some of the Supreme Court’s other findings were surprising and/or will present difficulties for developers, for example:
The majority essentially held that the requirement under s104 of the RMA to “have regard to” the NZCPS and corresponding policies in the Unitary Plan can be construed as requiring consent authorities to “give effect to” the NZCPS and the Unitary Plan policies.
The majority found that analysis of the Unitary Plan provisions for the purpose of the s104D(1)(b) gateway must be “undertaken with one eye on the NZCPS”.
The majority stated “non-complying status ensures that… approval will be obtained only in truly exceptional circumstances”.
If you want to discuss how the Supreme Court’s decision may impact your business, please contact one of the ChanceryGreen team.