Te Runanga-A-Iwi O Ngati Kahu v Carrington Farms Limited HC Whangarei CIV 2010-488-348 [2011] NZHC 1264 (29 September 2011)

IN THE MATTER OF an application for declarations in respect of settlement agreements dated 5 March 2001 and 16 May 2002

R Brabant, I M Gault (on 17 and 18 March 2011) and R A Havelock for First, Second and Third Defendants

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This judgment was delivered by me on 29 September 2011 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

	Para
Introduction	[1]
The parties	[7]
Factual Background	[10]
The 1999 Resource Consents	[10]
The 2000 judicial review proceeding	[13]
The Carrington Estate Special Zone	[14]
The addition of waahi tapu sites	[15]
The 2001 settlement	[16]
Agreed consultation process	[17]
Tangata Whenua Protocols	[19]
The text of the 2001 settlement	[20]
The 2001 consent order	[21]
The amended settlement agreement	[26]
The Carrington Estate Special Zone	[28]
Other consents	[29]
2008 dwelling house consent	[30]
2009 subdivision consent	[39]
The appeal by Ngāti Kahu to the Environment Court	[43]
The appeals by Ngāti Kahu and Carrington to this Court	[46]
The present proceeding	[49]
The Declaratory Judgments Act 1908 cause of action	[53]
Submissions for Ngāti Kahu	[56]
Submissions for Carrington	[57]
Reply for Ngāti Kahu	[61]
The interpretation of the settlement agreement as amended	[64]
Relief	[75]
The Judicature Amendment Act 1972 cause of action	[80]
Submissions for Ngāti Kahu	[87]
Submissions for Carrington	[89]
Submissions for the Council	[93]
Reply for Ngati Kahu	[95]
_{Further submissions on “special circumstances”}	_[98]

[1] On 22 December 2008 the Far North District Council (the Council) granted Carrington Farms Limited (Carrington), on a non-notified basis, a land use consent to construct residential dwellings on land owned by Carrington on the Karikari Peninsula adjacent to Carrington’s country club, golf course, accommodation units and vineyard (the country club development). The plaintiff, Te Rūnanga-ā-Iwi O Ngāti Kahu (Ngāti Kahu), has two claims:

(a) Ngāti Kahu seeks declarations that the 2008 land use consent was obtained in breach of settlement agreements dated 5 March 2001 and

16 May 2002 relating to a previous judicial review proceeding challenging resource consents granted by the Council in 1999 to Carrington in respect of the country club development; and

(b) Ngāti Kahu seeks orders setting aside the 2008 land use consent and referring the original application back to the Council for consideration on the grounds that the Council failed to seek further information in relation to the quantum of earthworks for the purposes of assessing the activity status of the proposed land use activity and also failed to notify Ngāti Kahu as an affected person of the application.

[2] The defendants, Carrington and the Council, dispute all of Ngāti Kahu’s claims. They also claim that the Court should not grant any relief because it would serve no useful purpose in view of the subsequent interim decision of the Environment Court on 3 November 20101 that the land, the subject of the 2008 consent, has no waahi tapu (a large burial cave) on it and because Ngāti Kahu delayed unduly in bringing its application for judicial review.

[3] Ngāti Kahu issued the present proceeding on 3 June 2010, approximately a year after apparently first becoming aware of the 2008 land use consent. At the same time Ngāti Kahu sought interim orders under s 8 of the Judicature Amendment Act

_{1972 restraining Carrington from exercising rights under the consent.
Gendall J}

1 Te Rūnanga-Ā-Iwi O Ngāti Kahu v Far North District Council [2010] NZ EnvC 372.

declined the application in a judgment delivered on 7 September 2010.2 There was no appeal.

[4] In the meantime Carrington had also sought and obtained from the Council on 7 October 2009 a subdivision resource consent to create 12 freehold lots on the land, which was the subject of the 2008 land use consent. The 2009 subdivision consent was processed on a notified basis. Ngāti Kahu opposed it and, when it was granted, lodged an appeal to the Environment Court. The appeal was declined in the interim decision delivered on 3 November 2010. The Environment Court decision is the subject of separate appeals by Ngāti Kahu and Carrington which were heard at the same time as the present proceeding. The appeals are the subject of a separate

23 March 2011, I sought further submissions from the parties on whether, if the judicial review proceeding was successful and the 2008 dwellings consent was set aside, the 2009 subdivision consent, the subject of the appeals, would also be

―unsound‖ and should be set aside. The further submissions received from the parties by memoranda dated 31 March and 1 and 4 April 2011 are referred to in my other judgment.

[6] I also subsequently sought further submissions from the parties on the separate question whether declarations of breach of the 2001 settlement agreement as sought by Ngāti Kahu would, if granted, have the effect of invalidating the 2008 dwelling house consent. The further submissions received from the parties by memoranda dated 13 and 20 May 2011 are referred to later in this judgment.

1957 and represents tangata whenua having kaitiakanga (guardianship) and mana whenua (trusteeship of land) over the Karikari Peninsula, its beaches, the coast and

2 Te Rūnanga-Ā-Iwi O Ngāti Kahu v Carrington Farms Ltd HC Whangarei CIV-2010-488-348,

3 Te Rūnanga-Ā-Iwi O Ngāti Kahu v Far North District Council HC Whangarei CIV-2010-488-766,

adjacent rural land. For Ngāti Kahu, the Karikari Peninsula is not only an attractive and unique environment with considerable cultural significance, it is also the location of Te Ana O Taite, an ancient burial cave.

1,000 hectares on the Peninsula for farming, subdivision and tourist facility purposes. Carrington has obtained various resource consents from the Council for its country club development.

[9] The Council is the local authority with responsibility for processing and determining applications for resource consents under the Resource Management Act

[10] In March 1999 Carrington applied to the Council for three resource consents: (a) A subdivision consent to subdivide the country club development,

(c) A land consent to establish a country club comprising a golf course, lodge, 384 accommodation units and ancillary buildings.

[11] With each application, Carrington provided plans indicating the location of each part of the country club development. Apart from the vineyard, the country club development was depicted on the plans within the boundary line of the proposed golf course. The golf course and vineyard were in turn shown as being well within the boundaries of the properties owned by Carrington and ranging from

1,160 to 1,950 metres from the coast line. As required by s 88 and Schedule 4 of the

RMA, the land use applications were accompanied by an assessment of environmental effects.

[12] The three applications were processed by the Council on a non-notified basis and were granted in May 1999. Each decision granting the resource consent referred to the legal descriptions of the Carrington properties, but made it clear that the resource consent itself related to the particular aspect of the country club development shown on the plans Carrington submitted with its application.

[13] In February 2000 Ngāti Kahu and the Environmental Defence Society (EDS) issued a judicial review proceeding in the High Court at Whangarei challenging the validity of the three resource consents. The grounds for the challenge were that the applications should not have been processed on a non-notified basis and that, in granting the consents, the Council had failed to have regard to relevant considerations. Such relevant considerations included adverse effects on the relationship of tangata whenua with their ancestral lands, the special significance of the Karikari Peninsula to tangata whenua, the patterns of use of the coast line of the Karikari Peninsula and the natural character and landscape values of the Karikari Peninsula. Carrington was named as a defendant to the proceeding. Ngāti Kahu’s statement of claim referred to the legal descriptions of the properties owned by Carrington, the applications by Carrington for the resource consents and the Council’s decisions granting the consents. But it did not make specific reference to the plans submitted by Carrington with its applications.

[14] On 1 April 2000 the Council publicly notified its proposed District Plan. On

21 July 2000 Carrington lodged a submission on the proposed district plan seeking inclusion of a special zone to be known as the ―Carrington Estate Special Zone‖. I refer to the outcome of Carrington’s submission later.

[15] On 31 July 2000 Ngāti Kahu lodged a submission with the Council seeking to add waahi tapu sites to the proposed District Plan. The application was unsuccessful and Ngāti Kahu did not appeal against the Council’s decision.

[16] Before these issues were resolved, Ngāti Kahu, the Council and Carrington negotiated a settlement of the 2000 judicial review proceeding relating to the validity of the three 1999 resource consents. The settlement was recorded in an agreement dated 5 March 2001. As the terms of the agreement are the basis of Ngāti Kahu’s current proceeding, it is necessary to set them out in full:

a) The parties to this agreement are parties to judicial review proceedings in the High Court at Auckland (M/404/45/01).

1. Carrington Farms agrees to consult in good faith with EDS and Te Runanga concerning resource management matters of mutual interest relating to any part of the development site (including the parts referred to in the following paragraphs and the streams) which may arise in future. This commitment is to be incorporated, on a prospective basis, into the conditions of the consent granted by the FNDC.

2. Furthermore, Carrington Farms agrees not to develop the beach (including the dunes) and wetland areas of its property as identified on the attached plan, and to use its best endeavours to preserve and enhance those areas for the purpose of restoring the natural state of the wetland. The parties agree that this commitment is to be incorporated, on a prospective basis, into the conditions of consent granted by the FNDC.

3. The parties agree that protocols for dealing with any interference with any site or find of cultural (including koiwi, waahi tapu or other taonga) or heritage (including any archaeological sites) significance are to be incorporated, on a prospective basis, into the conditions of consent granted by the FNDC.

4. Carrington Farms agrees not to seek to expand the currently consented provision for accommodation (including hotel, villas or

any other form of accommodation), subject to any ―as of right‖ development that may be able to take place without the need for a resource consent at the time of this agreement and any re-siting of elements within the development site. Such re-siting shall not without the consent of the plaintiffs:

(a) involve the relocation of any building covered by the consents to a position closer to the coast than the nearest building permitted in terms of the resource consents which are the subject of this proceeding; and

(b) have any adverse effects on the environment having regard to what is contemplated by those resource consents.

Carrington Farms agrees that Te Runanga and EDS would be affected parties for the purposes of section 94(2) of the RMA in respect of any further development of the site subject to these proceedings.

5. The parties agree that it is not for the applicant for a resource consent to determine the status of a given hapu or iwi as tangata whenua or man whenua and if this has caused offence, it has not been deliberate. Carrington Farms acted in good faith and relied on advice, and it is regretted if offence has been caused or taken.

6. Without limiting its statutory duties and obligations the FNDC agrees that Te Runanga and EDS would be affected parties for the purposes of s 94(2) of the Resource Management Act in respect of any further development of the site subject to these proceedings.

7. The FNDC agrees that for the purposes of consultation developers must be referred to relevant iwi groups, including local marae and runanga.

8. The FNDC acknowledges the particular interest of EDS in significant developments affecting the coast and of Te Runanga and local marae in significant developments affecting the coast within the rohe of Ngati Kahu.

9. The FNDC regrets any concerns which have been caused to any tangata whenua arising out of the processes which it has followed in this case. Such concerns have not been intended as the FNDC had attempted to ensure that consultation with tangata whenua took place on an appropriate basis.

10. The FNDC acknowledges that EDS’s strongly held view is that the consents should have been notified and acknowledges that public participation in significant projects is desirable.

11. The FNDC agrees to consider submissions EDS intents to make about its notification process and if it considers it appropriate shall undertake a review of those processes.

12. The parties will issue a joint media statement in which the parties indicate a win-win-situation using a tone of co-operation with the stated objective of achieving a culturally and environmentally sensitive development. The agreed statement shall include a statement attributed to Dr Mutu to the effect that Te Runanga was acting on behalf of Te Whanau Moana of Karikari. The parties agree that no other public statement will be made which is inconsistent with the spirit of the agreed statement, of if no agreed statement is reached, which is inconsistent with this agreement.

13. The parties will use best endeavours to agree to the terms of the joint media statement for issue within 14 days of concluding this agreement.

14. All parties to this Settlement Agreement confirm that they shall in implementing the terms of this Settlement Agreement in all respects act in good faith including using best endeavours to achieve the alteration to the conditions of consent contemplated by this agreement within a reasonable time.

15. The parties agree that this Settlement Agreement settles all issues, concerns and disputes however arising out of the grant or exercise of all existing resource consents obtained for the development provided such exercise is in accordance with the conditions of the consents, including the conditions referred to in this agreement.

17. In all respects the agreement concluded, including the further agreements in relation to an agreed consultation protocol and agreed tangata whenua protocols, has effect from the date hereof.

―the beach (including the dunes) and wetland areas‖ of Carrington’s property. These areas were within the ―Outstanding Natural Landscape‖ in the Council’s District Plan Zone Map.

[18] The agreed consultation process referred to in clause 1 of the settlement agreement was the subject of two separate agreements both dated 5 March 2001, one between Carrington and Ngāti Kahu and the other between Carrington and EDS. The separate agreement between Carrington and Ngāti Kahu provided:

Preamble: This consultation process is agreed pursuant to Clause 1 of the Settlement Agreement. It is not for Carrington Farms Limited to determine the status of a given hapu or iwi as tangata whenua or manua whenua.

1. When both parties consider it appropriate Carrington Farms and Te Runanga (on the instructions of the Kaumatua of the tangata whenua) will consult in order to:

fully explain the development authorised by the resource consents (―the development‖) including the methodologies applied and the rationale adopted;

review and discuss identified potential adverse effects of the development on the spiritual and cultural relationship that the tangata whenua have with their taonga, inclusive of their lands and waterways;

identify ways in which any adverse effects associated with the development might be avoided, mitigated or remedied;

identify relevant subject matters requiring the provision of additional information; and

2. To this end, unless mutually agreed, to ensure that tangata whenua are properly informed as to the consent holder’s intentions for further development of the site during a forthcoming summer construction season, the following minimum consultation meetings shall be undertaken:

(a) At the conclusion of the present season on 30 April 2001 or as soon as can conveniently be arranged with Te Runanga a meeting on site or at another agreed location shall be held. The purpose of that meeting will be to explain in detail the programme of works contemplated for the next season 1

October 2001 – 30 April 2002. To facilitate that need the following steps shall be taken:

(ii) the Secretary of Te Runanga will estimate the number of representatives likely to attend that meeting to facilitate catering arrangements, and will advise Carrington Farms accordingly; and

(iii) the company will provide to the Secretary at least seven days before that meeting plans outlining in general terms the development contemplated for the relevant period.

3. A subsequent meeting conducted under equivalent arrangements will be held upon the site at a time to be agreed with the Secretary at the

4. The same arrangements will prevail in each year when development work is to be undertaken on the site.

5. Both parties to this protocol agree to have further meetings should they be necessary and discuss important matters arising out of this protocol.

6. Carrington Farms agrees to meet the actual and responsible costs associated with the initial meeting but not to exceed $1,000 for that meeting and in respect of any subsequent meetings, the costs to be discussed and agreed.

7. All plans and proposed plans produced by Carrington Farms Limited directly related to the development project which are not protected by legal privilege but which are necessary for a full RMA understanding of the overall plan, will be forwarded by Carrington Farms to Te Runanga as soon as possible in every case where they have not already been provided.

8. If Carrington Farms and Te Runanga agree that further archaeological work should be carried out in respect of additional development on the company’s land not authorised by existing resource consents then such work should be undertaken for Carrington Farms by a mutually acceptable professional archaeologist.

9. Any archaeologist associated with this project must adhere to protocols agreed between Carrington Farms and Te Runanga for archaeological surveys.

10. A confidentiality protocol will be developed and agreed between Carrington Farms and Te Runanga to provide for the protection of tangata whenua interests in the event that any information from an archaeological survey pertaining to a site or sites is considered by them to be sufficiently sensitive to warrant confidentiality.

11. Any reasonable recommendations made by the archaeologist arising from the work referred to in clause 8 above, will be given proper consideration and, where practicable, implemented by Carrington Farms in consultation with Te Runanga.

12. Te Runganga will with reasonable endeavour produce a Maori Values Assessment (―MVA‖) associated with the development within two months of the date of signing this Memorandum of agreed consultation process.

consents and must taken into account the fact that a major portion of the contemplated development works have now already been undertaken.

14. Any reasonable recommendations made on the MVA will be given proper consideration by Carrington Farms after consultation with tangata whenua.

15. Carrington Farms recognises Te Runanga as the owner of the information provided through the MVA. Te Runanga agrees to authorise Carrington Farms to make available within the development but for reference only by persons visiting the development copies of the open sections of that report. Te Runanga will confirm on delivery of the MVA those points of it which shall remain confidential.

17. Carrington Farms undertakes to pay all the costs associated with the preparation of the MVA but not to exceed $5,000 plus GST provided that it is able to reach agreement with Te Runanga as to the authorship of the report.

18. Tangata Whenua have a traditional role as kaitiaki over the Karikari Peninsula (including the development area). This is recognised by Carrington Farms. Should conflict emerge between the parties regarding their respective interests, the parties agree to attempt to resolve it through an agreed process of mediation or negotiation.

19. The original or copies of this memorandum as to agreed consultation process and any archaeological survey or Maori Values Assessment reports shall not be realised by Carrington Farms to any third parties without the prior written consent of Te Runanga which consent shall not be unreasonable withheld.

[19] The protocols referred to in clause 3 of the settlement agreement were also the subject of a separate agreement between Carrington and Ngāti Kahu dated

Preamble: These protocols are agreed pursuant to Clause 3 of the Settlement Agreement executed contemporaneously with this documents. It is not for Carrington Farms Limited to determine the status of a given hapu or iwi as tangata whenua or mana whenua.

Should any koiwi / human remains be uncovered on the project site, subject to the statutory requirements of relevant legislation, Te Runanga on the instructions of the Kaumata of the tangata whenua will be the sole determiner of the future of any koiwi uncovered.

In the event of any such discovery, the work shall cease immediately and the Secretary of Te Runanga, the Secretary of the Haititaimarangai Marae and the Northland Regional Council shall be notified within one working day. The area holding the koiwi shall be secured from interference or otherwise isolated. Te Runanga will ensure that the consent holder is advised as to the appropriate course of action to be taken within a reasonable time after receiving the notification.

If Te Runanga considers it appropriate, Te Runanga will remove the koiwi in an appropriate manner.

If Te Runanga does not consider that it would be appropriate to remove the koiwi, the koiwi shall be left untouched and such area as may reasonably be required to protect the koiwi made permanently secure from any further interference.

The consent holder shall, to the satisfaction of the Northland Regional Council, ensure that the exercise of this consent shall not disturb sites of spiritual or cultural significance to the tangata whenua.

To this end the consent holder and Te Runanga have entered into the arrangements for consultation recorded in the agreed consultation document executed contemporaneously with this protocol.

In the event that any archaeological sites, remains, artefacts, taonga are unearthed, dislodged, uncovered or otherwise found or discovered during the exercise of this consent, the Secretary of Te Runanga, the Secretary of the Haititaimarangai Marae and the Northland Regional Council shall be advised in writing by the consent holder within one day.

In the event of any discovery, the works shall cease immediately. Works may recommence when advised to do so by the Northland Regional Council. Such advice shall be given after the Northland Regional Council has considered:

The NZ Police, Coroner and Historic Places Trust shall also be contacted as appropriate, and the work shall not recommence in the affected area until any necessary statutory authorisations or consents have been obtained.

[20] For present purposes the following features of the text of the settlement agreement may be noted at this point:

(a) Under clause 1 Carrington’s ―good faith‖ consultation obligation concerning ―resource management matters of mutual interest‖ related to any part of ―the development site‖.

(b) Although ―the development site‖ was not defined in the settlement agreement, it extended beyond ―the parts‖ expressly included, namely those parts ―referred to in the following paragraphs and the streams‖.

(i) clause 2 – the beach (including the dunes) and wetland areas of Carrington’s property;

(iii) clause 4 – the areas occupied by the hotel, villas and any other form of accommodation ―within the development site‖; and

(d) On this basis ―the development site‖ referred to in clause 1 extended to cover any part of Carrington’s property on the Karikari Peninsula that it might decide to develop in the future and was not limited to the site the subject of the judicial review proceeding.

(e) A broad interpretation of the expression ―the development site‖ would be consistent with the spirit of Carrington’s ―good faith‖ consultation obligation reflected in the terms of the separate agreement relating to the consultation process and the Tangata Whenua Protocols. The separate agreement relating to the consultation process referred to

(f) Under clause 4 of the settlement agreement Carrington agreed, subject to two exceptions, not to seek to expand ―the currently consented provision for accommodation‖. The two exceptions were:

(i) any ―as of right‖ development that might take place without the need for a resource consent at the time of the agreement; and

―re-siting‖ would, however, require the consent of Ngāti Kahu and EDS if subclauses (a) and (b) applied. Subclause (a) related to ―the relocation of any building covered by the consents‖ (ie the existing 1999 consents the subject of the judicial review proceeding).

(g) Consistent with the scope of Carrington’s ―good faith‖ consultation obligation, Carrington’s agreement under clause 4 not to seek to expand its accommodation related to any part of its property on the Karikari Peninsula that it might decide to develop in the future.

(h) The separate reference in the concluding sentence of clause 4 to ―any further development of the site subject to these proceedings‖ was to be distinguished from the scope of the other obligations under clauses

(i) Subject to the Council’s statutory duties and obligations, the Council agreed under clause 6 that Ngāti Kahu and EDS would be ―affected parties‖ for the purposes of s 94(2) of the RMA in respect of ―any further development of the site subject to these proceedings‖. This specific agreement was narrower than Carrington’s ―good faith‖

consultation obligation which included, but was not limited to, development of the site the subject of the judicial review proceeding.

(j) The Council also acknowledged in clause 8 the ―particular interest‖ of Ngāti Kahu in ―significant developments‖ affecting the coast within the rohe (territory or region) of Ngāti Kahu.

[21] The terms of the settlement agreement and the protocols were then inserted as conditions to the three resource consents by way of a consent order of this Court dated 14 March 2001 which read:

Consultation Protocol agreed between Carrington Farms Limited and Environmental Defence Society Incorporated dated 5 March 2001; and

(ii) “The Consent Holder shall act in accordance with the Tangata Whenua Protocol agreed between Carrington Farms Limited and Te Runanga-a-Iwi ) Ngati Kahu dated 5 March 2001, regarding koiwi and other cultural discovery.”

“The consent holder shall not develop the beach (including the dunes) and wetland areas of its property as identified on the plan attached and marked “A”, and shall use its best endeavours to preserve and enhance those areas for the purpose of restoring the natural state of the wetland.”

[22] The plan attached to the Court order was the same plan as had been attached to the settlement agreement dated 5 March 2001.

[23] On this basis Ngāti Kahu discontinued its 2000 judicial review proceeding.

[24] The Environment Court in its interim decision of 3 November 2010 in respect of the appeals by Ngāti Kahu and Carrington relating to the subsequent 2009 subdivision consent pointed out that:

[61] Both the Settlement Agreement and the consent order purported to vary the terms of the relevant resource consents to include the identified amended provisions as conditions of the relevant consents. There was no discussion before us as to the validity of such amendment process which clearly does not follow the provisions of ss 127 and 128 RMA, although we do not consider that anything necessarily turns on that in this case.

[25] Similarly, no party to the current proceeding or to the appeals suggested that the settlement agreement or the High Court consent order implementing it was invalid on any ground. I therefore proceed on the basis that both were valid.

(a) Carrington Farms has commissioned a landscape and ecological study (―the study‖) for the land titles encompassing the Carrington Club, winery/vineyards, wetlands and beach areas. The parties acknowledge that this is being undertaken on a voluntary basis by Carrington Farms and not in response to any outstanding contractual or regulatory violations. The purpose of the study is to identify procedures which will help to restore, enhance and maintain the environmentally sensitive wetlands and beach areas and to enhance the presence of native trees, bushes and flora throughout the overall site. Copies of the report have been provided to EDS and Te Runanga, and a copy is attached to this agreement.

(b) Carrington Farms will consider in good faith all such recommendations contained in the study, and implement such to the degree which it deems to be practicable. All practicable recommendations adopted will be commenced in a timely manner.

The parties agree to vary clause 4(a) of the Settlement Agreement to permit re-siting provided there remains an 800 metre setback from the beach (mean highwater) for the construction of any structures related to the Carrington Club and winery/vineyards.

(a) The parties agree to support Carrington Farms’ special zone application for the Carrington Club and winery/vineyards project in relation to the FNDC’s proposed District Plan and its successors, and agree to co-operate with each other to the fullest extent possible to get the special zone implemented.

(b) In consideration of this support, Carrington Farms agrees that, upon the proposed District Plan becoming operative with the said special zone designation, Carrington Farm’s consented villa/condominium units will be reduced to 230 units, and its consented hotel/overnight accommodation units (including the winery bed and breakfast) will be reduced to 113 units. The foregoing reduced unit levels may be substituted between villas/condominiums and hotel/overnight accommodation units by Carrington Farms on a basis of one villa/condominium unit equalling three hotel/overnight accommodation units, such that Carrington Farms can (subject to the normal regulatory constraints for amending an existing consented building plan) construct three hotel/overnight accommodation units for each villa/condominium unit which it may surrender under this Agreement.

[27] For present purposes it is to be noted that clause 2 of the amended settlement agreement varied clause 4(a) of the original settlement agreement which related solely to ―the relocation of any building covered by the [existing 1999] consents‖. As the Environment Court pointed out in its interim decision of 3 November 2010:

[66] Para 2 of the Amended Agreement appears to contain a prohibition on the re-siting (whatever that means) of structures related to the Carrington Club and winery/vineyards within 800 metres of mean high-water. It was common ground before us that the subdivision site is within 800 metres of mean high-water.

[28] As the Council did not accept all aspects of the Carrington Estate Special Zone proposed by Carrington, Carrington filed an appeal to the Environment Court on 29 August 2003. The appeal was ultimately settled and the parties finalised the incorporation of the Carrington Estate Special Zone into the District Plan by a

consent order of the Environment Court on 21 August 2004. The Council then signed the amended settlement agreement on 26 August 2004.

[29] In the period August 2003 to September 2008 Carrington applied to the Council for various other consents, but counsel were in agreement that none of these applications was material to the issues that arise in this proceeding.

[30] On 24 January 2008 Carrington applied to the Council for a land use consent for the construction and use of 12 single residential units on land it owned adjacent to its country club development. The location of the site was described as:

Off Matai Bay Road, Whatuwhiwhi and has the legal description of Proposed Lots 5 to 15, Lots 17 to 21 containing 210.5ha authorised under RC 2040084.

[31] The information provided by Carrington in support of the application included the following further detail:

2.1 The application involves the construction and use of twelve dwelling houses. The proposed dwelling houses are located within Proposed Lots 13,

14 and 15 approved under RC 2040084 on 28 September 2005 being the subdivision of Lots 1 – 11DP 201677, a copy of that scheme plan is attached.

The Survey Plan for approval under Section 223 of the Act for this subdivision has yet to be presented to Council. The three sites were part of some 22 lots approved under that subdivision consent which effectively

2.2 For the purpose of this application we seek to rely upon this subdivision approval given the underlying appellations do not correspond with all the zones of the District Plan. In this regard Lots 5 to 15 and Lots

17 to 21 are applicable and deemed to establish a permitted baseline for this application.

2.3 The dwelling houses are yet to be designed but will comply in respect of all the bulk and location requirements of the District Plan. Given

that this application, if required, would relate to traffic movements it is considered that specific designs of the dwelling houses is not relevant at this point in time. Rather it is the traffic generated by the activity over which Council needs to assess.

2.4 We have therefore attached a plan prepared by Williams and King, Reference 20351-6, which depicts the location of the twelve dwelling houses. This plan also identifies the following components –

2.5 Please note that at the time of undertaking the archaeological survey the development anticipated the creation of twenty sites. Those sites are depicted in Figure 4 of the Archaeological Report. However following consultation with the local Iwi it has been decided to reduce the number of dwellings from 20 to 12. This reduction has not however shifted the general location of the house sites. We have also attached a copy of DP 201677 with the extent of the aerial photograph contained with Figure 4 being identified.

3.1 Under the District Plan the site is zoned Rural Production. There are no features depicted on the Resource Maps that apply to the application site. There are a number of archaeological sites, both previously recorded and additional sites now recently recorded, in proximity to the proposed dwelling houses however none of these sites are being disturbed by the application. In fact the application relocates the access drive away from such sites. A copy of the archaeological report for these sites is attached.

4.1 As noted within the Introduction this application is lodged for completeness given the manner in which the rules of the District Plan are written. To clarify the manner in which this situation has arisen the following summarises the Permitted Activity Rules of the Rural Production Zone with comments on the applicability of the development standard being discussed in italics below.

The Traffic Intensity Factor [Tif] in this zone for new activities is 60 one way movements with single residential units being exempt from the rule. Appendix 3A within Part 4 determines that a standard residential unit will create 10 movements.

The District Plan is silent in relation to this application as each dwelling house is for the purpose of a residential unit. It may therefore be considered to fall within the status of a Permitted Activity. However the District Plan is not clear on this issue. This

application is sought to detail the manner in the residential units attain the outcomes of the District Plan. In addition the effects of traffic movements would sit within the thresholds of the permitted baseline given the underlying subdivision consent. The consideration of the Tif is assessed under a separate heading to follow.

4.2 In addition to the Rural Production Zone Rules there are rules which apply across all zones. These are called the District Wide Rules and relate to the following –

This rule allows 2000m3 in any 12 month per providing no cut or fill is greater than 1.5m.

[32] The plan attached to the application showed that the 12 proposed dwelling houses would all be located on land owned by Carrington within the Rural Production Zone, but outside the area of the country club development for which the three 1999 resource consents had been obtained and the Carrington Estate Special Zone subsequently adopted by the Council. The sites for the 12 proposed dwelling houses were shown as located 410 metres from the coastline, ie within the 800 metre set-back referred to in clause 2 of the amended settlement agreement dated 16 May

2002. Although none of the proposed sites was within the beach, the dunes or the wetland areas of Carrington’s property referred to in clause 2 of the 2001 settlement agreement, they were adjacent to the ―Outstanding Natural Landscape‖ areas shown in the Council’s District Plan Zone Map.

[33] The reference in the information provided by Carrington to the Council to the reduction of the number of dwellings from 20 to 12 after consultation with the local iwi was not consultation with Ngāti Kahu in terms of clause 1 of the settlement agreement.

[34] The reference in the information provided by Carrington to the Council suggesting that the relevant earthworks rule allowed 2,000m3 in any 12 month period was an error. The correct figure was 5,000m3.

[35] Following further correspondence between the Council and Carrington, Carrington lodged an amended application for the land consent for the 12 dwelling houses on 30 September 2008. For present purposes there were no significant changes between the original and the amended application. The reference to the

[36] It does not appear that the application disclosed whether Carrington intended to retain or sell the proposed 12 dwelling houses. By the time the Environment Court heard the appeal against the subsequent subdivision consent, however, Carrington was suggesting that it intended to sell the 12 units: Environment Court decision at [102]-[109].

[37] The application was processed by the Council on a non-notified basis and granted on 22 December 2008 (RC 2080553). In reaching its decision to grant the application, the Council recorded that the adverse effects from the proposal, including the traffic intensity factor, were considered ―minor‖ and that no other parties were affected by the proposal. On the issues of adverse effects and the need for notification of the application, the Council’s notification decision recorded:

2B. If there are adverse effects, are these effects more than those permitted in the District Plan?

It is considered (as outlined earlier) that the activity will not result in adverse effects when considered against the relevant

Section 94A of the RMA requires that Council disregard any adverse effects that does not relate to the matters specified in the

No other parties are considered to be affected by the proposal. It is noted that section 94B(3) of the RMA specifies that a person must not be treated as adversely affected if there are adverse effects that do not relate to matter[s] over which discretion has been reserved. As such no person is considered to be affected by such matters as residential intensity, design etc. As such it is considered that no other parties are affected by the traffic generation as the access and Matai Bay Road are considered to be of suitable standard to handle the traffic generated by the proposal. Similarly no other persons are considered to be affected by the non-provision of a public roda [sic].

No, although the applicant has submitted an archaeological report as part of the underlying subdivision. Consultation is not

considered necessary as none of the matters over which discretion has been reserved relate to cultural matters.

No, as the effects are considered to be minor and no other parties are considered to be affected, such a course is not considered to be necessary

5. Public notification of proposal if requested by applicant or if special circumstances exist

Public notification has not been requested. Whilst previous developments in the area by the applicant have been subject to

scrutiny from iwi and the public, this is not sufficient reason to require public notification.

The proposal does not offend the matters over which Council has reserved its discretion and as such merits approval.

That the application be approved and be processed without service or public notification.

That pursuant to Section 93(1)(b) and Section 94(2) of the Resource Management Act 1991, the Council considers that the Land Use Consent Application RC-2080553-RMALUC by Carrington Farms Limited will be processed without the need to serve notice (non-notified).

1. Taking into account the effect of the proposal, the adverse effects (when assessed against the matters over which Council has reserved its discretion) on the environment of the activity for which consent is sought will be no more than minor.

2. No other parties are considered to be affected by the matters over which Council has reserved its discretion.

[38] Ngāti Kahu was aware of vegetation clearance on the site in April 2009, but

[39] In the meantime on 16 March 2009 Carrington applied to the Council for subdivision consent to create 15 allotments, one each for the 12 dwelling houses and three other lots which are not in dispute.

[40] On 29 May 2009 the Council notified Ngāti Kahu of Carrington’s application

[41] On 30 June 2009 Ngāti Kahu lodged submissions in opposition to Carrington’s subdivision consent application on the grounds that the application was non-complying and its adverse effects were more than minor. Reference was made to the settlement agreement, the amended settlement agreement, the absence of consultation in terms of the agreements, and the adverse effects on the natural character of the coastal environment, including visual intrusion, rural character, public use of coastal resources, heritage values, land use compatibility, effect on the neighbourhood and community and cumulative effects on the environment.

[42] Following a Council report recommending that the consent be granted and a hearing before Commissioners on 7 September 2009, the Council granted the consent on 7 October 2009 subject to certain conditions.

[43] On 30 October 2009 Ngāti Kahu lodged an appeal to the Environment Court against the decision of the Council granting the subdivision consent. The principal grounds for Ngāti Kahu’s appeal were that the Council’s decision was contrary to the purpose and principles of the RMA and failed to recognise Ngāti Kahu’s status and role, to assess the effects of the consent on Te Ana O Taite, and to take into account Carrington’s obligations under the settlement agreement.

[44] The Environment Court heard Ngāti Kahu’s appeal, which was opposed by the Council and Carrington, on 30 April and 11-14 May 2010. The appeal was dismissed in the interim decision delivered on 3 November 2010. The decision was interim because the Environment Court proposed to impose certain conditions in respect of which it sought further submissions from the parties.

[45] The decision of the Environment Court is summarised in my other judgment issued today. The Environment Court was aware that the interpretation and effect of the settlement agreement and the amended agreement were vigorously disputed by Ngāti Kahu and Carrington and that these proceedings had been filed by Ngāti Kahu: at [67] and [125]-[126]. The Environment Court recognised the uncertainties involved as a result of the present proceeding, but considered that it would be inappropriate to make assumptions as to the likely outcome or to await the final

outcome: at [127]-[129]. The Environment Court recognised that if Ngāti Kahu was successful in upholding its interpretation of the settlement agreement, development on the subdivision site would be precluded in any event: at [130]. The Environment Court was satisfied that, subject to the outcome of the present proceeding, RC2080553 was likely to be implemented and that any uncertainties should be addressed by the imposition of appropriate conditions: at [131]-[133] and [215].

[46] Both Ngāti Kahu and Carrington have appealed to this Court against the decision of the Environment Court. The background to their appeals is set out in my other judgment.

[47] For present purposes it is necessary to note that Ngāti Kahu was not entitled to, and therefore did not, appeal against the factual findings by the Environment Court which led to the conclusion that the evidence heard by that Court did not establish that the burial cave Te Ana O Taite extended underneath Carrington’s subdivision site as contended by Ngāti Kahu.

[48] The impact of my decision in the present proceeding on the outcome of the appeals is dealt with in my other judgment at [149]-[156].

[49] In the meantime Ngāti Kahu, following correspondence from Carrington, had issued the present proceeding on 3 June 2010 and had sought an order under s 8 of the Judicature Amendment Act 1972 restricting Carrington from implementing its land use consent for the 12 dwelling houses.

[50] As already noted, the application for the interim order was declined by Gendall J in his judgment of 13 September 2010. The reasons for his decision are set out in his conclusion:

[37] Balancing all factors as but I can, I have come to the view that the Court’s discretion should not be exercised in favour of Te Rūnanga [–ā-Iwi O Ngāti Kahu] to grant the interim orders sought under s 8. Essentially, the reasons for this are:

(1) The Court is not satisfied that an interim order as sought is reasonably necessary to preserve Te Rūnanga’s position, which can adequately be protected by other measures;

(2) If Te Rūnanga are successful in the substantive judicial review proceedings, the consent application would be remitted back to the Council to be determined on a notified basis, and despite whatever evidence is then adduced on the extent of the earthworks issue, the grant of the consents sought are unlikely to be prevented. Te Rūnanga cannot prevent what is permitted, nor insist on a condition as to excavation extent, because that is in the rule;

(3) The provisions of s 99 of the Historic Places Act 1993 are known to Carrington and its advisors and there is no suggestion that Carrington would act in breach of that section;

(4) So also, the provisions of the district plan earthworks restrictions are clearly known to Carrington and its advisors, the breach of which would lead to punitive and other sanctions;

(5) The delay in bringing this judicial review, and interim relief, application has not been satisfactorily explained so far, and if there was the urgency that Te Rūnanga now says exists it could have been expected to have brought these proceedings and sought interim orders many months ago;

(6) Carrington interests are not actioning the consent at the moment and will not do so at least until after the Environment Court delivers its decision and the outcome of that is in its favour. There is no reason why an early fixture cannot now be granted for the determination of the substantive proceedings on an urgent basis. That probably cannot be in the Whangarei High Court, but as Associate Judge Bell envisaged an early fixture should be able to be allocated in the Auckland High Court, given it now has a full complement of Judges and that Registry is being assisted from time to time by Visiting Judges from Wellington. I direct the Whangarei Registrar to liaise immediately with the Auckland Registry to secure an early fixture;

(7) Te Rūnanga has available to it the option of seeking an interim injunction under the Court’s equitable jurisdiction, founded upon its first cause of action being the allegations relating to the settlement agreement to pursue if it wishes. That, of course, would require the giving of the undertaking as to damages however.

[38] So, I have concluded that whilst there may be an arguable issue an interim order is not in my view reasonably necessary for the purposes of preserving Te Rūnanga’s legal or factual position under the [Judicature] Amendment Act 1972. Further, in the exercise of the Court’s discretion I weigh the advantages and detriments to the respective parties, the current

status quo, the public and private repercussions, delay in bringing the interim relief application and the overall justice.

[39] If circumstances should change before the substantive application is heard and sufficient grounds then exist Te Rūnanga, naturally, may apply again for an interim order under s 8, or it may pursue an application for interim injunction in the Court’s equity jurisdiction.

[51] Ngāti Kahu did not appeal against the decision or make any further application for an interim order. Nor did Ngāti Kahu seek an interim injunction under the court’s equitable jurisdiction.

[52] I propose to consider the two causes of action separately, noting that the Declaratory Judgments Act 1908 cause of action relates to Carrington and not to the Council.

[53] In its statement of claim of 3 June 2010, Ngāti Kahu first alleges that Carrington has breached the ―No Further Accommodation‖ clause and the ―Re-siting and 800 metre Setback‖ clause in the settlement agreement and seeks declarations that:

12 dwelling houses) was subject to the ―No Further Accommodation‖ clause (clause 4 in the 2001 settlement agreement) and the ―800 metre Setback‖ clause (clause 2 in the amended settlement agreement); and

(b) The consents and certificates of compliance for vegetation clearance and the obtaining of the 2008 land use consent on a non-notified basis and the 2009 subdivision consent were in breach of the settlement agreement.

[54] Ngāti Kahu then sought injunctions restraining Carrington from taking any further steps to implement the certificates of compliance and the 2008 and 2009 consents, from seeking any further consents to enable accommodation on the Proposed Accommodation Site, and from disposing of its interests in the Proposed Accommodation Site without provision for compliance with the settlement

agreement. Ngāti Kahu now accepts, however, that the Court has no jurisdiction under the Declaratory Judgments Act 1908 to make the injunctions sought in the statement of claim and that separate proceedings for breach of the provisions of the settlement agreement would be necessary to seek and obtain such injunctions. Ngāti Kahu’s position is that if the declarations are granted it would then be able to obtain injunctions in the event that Carrington proceeded to implement the consents notwithstanding the declarations.

[55] The parties were agreed that the real issue in respect of the Declaratory Judgments Act 1908 cause of action was whether clause 4 of the settlement agreement, correctly interpreted, meant that Carrington had agreed not to seek to expand its accommodation on to the site which was the subject of its amended land use consent application dated 30 September 2008.

[56] For Ngāti Kahu, Mr Gardner-Hopkins submitted that the settlement agreement, as amended, on its face and in its context proscribed development by Carrington within the 800 metre setback. In particular he relied on:

(a) Ngāti Kahu’s concerns with the cultural significance of the outstanding landscape of the Karikari Peninsula extending beyond the land the subject of the original three 1999 resource consents;

(b) The land descriptions in the 1999 applications and consents which were not limited to the specific land the subject of the three resource consents;

(c) The scope of the 2000 judicial review proceeding which was also not limited to the specific land the subject of the three resource consents; and

(d) The provisions of the settlement agreement, as amended, which needed to be read in this wider context, particularly the preamble and

Carrington had agreed that it would not expand the provision of accommodation on the site other than already permitted development and it would not relocate any of the consented

The site logically must include the 800 metre setback, otherwise the reference was superfluous. The protected area was clearly within the site as illustrated on the site plans

This interpretation was reinforced by a contextual reading of the provisions of the settlement agreement as amended. The purpose of the agreement was to resolve the judicial review proceeding, acknowledge affected persons, record the area of concern, record the basis for avoiding challenge to consents for any development, namely no dwellings within the 800 metre

The interpretation was also reinforced by the wider factual matrix: Ngāti Kahu’s concerns which were identified specifically within the 800 metre setback, Carrington’s objective to secure development outside the 800 metre setback, the fact that the agreement would be pointless if it did not protect the identified area within the 800 metre setback and to arrive at a contrary conclusion would be to impute an intention

Notably clause 4 of the settlement agreement allowed accommodation that was ―permitted‖ and that would be superfluous if the agreement allowed the newly consented development.

[57] For Carrington, Mr Gault submitted that the settlement agreement, as amended, did not preclude Carrington from seeking and implementing the resource consent to erect 12 dwellings on land outside of the development site to which the earlier judicial review proceeding and settlement applied. Carrington was not in breach of the 2001 settlement agreement, as amended. This involved a straightforward question of contractual interpretation against an undisputed factual context. Contrary to Ngāti Kahu’s position, which focused on reference to the 800 metre setback in isolation, it was clear from the wording and context of the settlement agreement, as amended, that its terms, properly interpreted, did not prevent Carrington from implementing the 2008 land use consent.

terms of the Council’s resource consent decisions and the provisions of clauses 4 and

6 of the settlement agreement and clause 2 of the amended settlement agreement. He submitted that there was no dispute that the site for the 12 dwellings at issue in the present proceeding was separate from the earlier development site. As a result the site for the dwelling houses was not subject to clause 4 of the settlement agreement as amended by clause 2 of the amended agreement.

[59] Finally, Mr Gault submitted that Carrington’s interpretation was confirmed by the provisions in the amended settlement agreement relating to the support to be provided by Ngāti Kahu and EDS in respect of Carrington’s Special Zone application relating to the land. This application, which was ultimately accepted, coincided with the land the subject of the settlement agreement. It was common ground that the 12 dwellings were outside the Carrington Estate Special Zone.

[60] Mr Gault also submitted that granting the declarations sought by Ngāti Kahu would serve no useful or practical purpose now that the Environment Court had concluded that the substantial weight of evidence heard by the Court failed to support Ngāti Kahu’s contention that there was a large burial cave physically underlying the Carrington subdivision site. Reference was made to Public Trustee v

4 Public Trustee v Attorney-General (Re Chase) [1989] 1 NZLR 325 (CA) at 334, 338 and 343; and

[61] In reply for Ngāti Kahu, Mr Gardner-Hopkins submitted that, contrary to Carrington’s contention, the development site referred to in clause 4 of the settlement agreement did not relate only to the golf course site and the vineyard because, as the map attached to the agreement showed, the boundaries of the ―indicative golf course‖ expanded across the wider site. Elements within even the expanded development site (the indicative golf course) could be re-sited under the amended settlement agreement to the 800 metre boundary, a large part of which sat on the wider site outside the expanded indicative golf course. Specific provisions of the settlement agreement, such as clause 2, referred to land outside the indicative golf course, namely the beach and wetland areas.

[62] Ngāti Kahu’s agreement to support the Special Carrington Estate Zone, which related to the expanded golf course site, did not assist Carrington. Nor did the terms of the protocols assist Carrington because they were not determinative. Carrington’s interpretation of the settlement agreement as amended could not have been the objective intention of the parties because it ignored the ―cultural context‖. Ngāti Kahu would not have entered into a settlement that failed to protect a site that it considered waahi tapu and a wider area of the utmost cultural importance. Notwithstanding the later finding of the Environment Court as to the size and location of the waahi tapu, that would have been ―culturally absurd‖. There was no reason why Ngāti Kahu would have elected to enter such an agreement when pursuing the earlier review proceeding could have produced a much more favourable outcome (ie quashing of the resource consents), or at worst an outcome not much different from that secured in the agreement as contended by Carrington. For Carrington, the price of settlement was restriction on the later development of its land (―shall not seek to expand‖) in return for securing, without litigation, its initial consents, subject to some modification.

[63] Mr Gardner-Hopkins also submitted that the declarations sought by Ngāti Kahu would serve a useful purpose. They would restrain Carrington from seeking to expand beyond the 800 metre line into areas of significant cultural importance to Ngāti Kahu. The Environment Court’s findings did not undermine the firmly and

genuinely held belief that the area was waahi tapu and of wider significance. Policy reasons also supported making a declaration if Ngāti Kahu’s case was made out. Parties to litigation should be able to settle in good faith and with confidence that any benefits secured would be upheld.

(a) Ngāti Kahu was entitled to apply to the Court for a declaratory order determining the construction of the settlement agreement, as amended: s 3 of the Declaratory Judgments Act 1908.

(b) The High Court has jurisdiction to determine Ngāti Kahu’s application under the Declaratory Judgments Act 1908, but the question whether the declarations sought by Ngāti Kahu should be granted was in the Court’s discretion and depended on all the circumstances of the case.5

(c) It was necessary to interpret the provisions of the settlement agreement, as amended, on the basis that the Court is required to ascertain, objectively, the intentions of the parties from the terms of the agreement in light of the context in which the parties entered into it.6 The subjective views of the parties as to the meaning of the settlement agreement, as amended, were not relevant to the interpretation exercise.

[65] I start with the terms of the settlement agreement as amended. First, as already noted, I consider from the text of the agreement that the ―good faith‖ consultation obligation imposed on Carrington under clause 1 extended to all parts of its ―development site‖ on the Karikari Peninsula, including those parts referred to

_{specifically in the settlement agreement. The ―good faith‖
consultation obligation}

5 Section 10 of the Declaratory Judgments Act 1908; Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Thomson Brookers, Wellington, 2007) at [26.3.3]; Lord Woolf, Jeremy Woolf and Lord Clyde Zamir and Woolf: The Declaratory Judgment (3rd ed, Sweet & Maxwell, London, 2002) at [4.001]; and Clive Lewis Judicial Remedies in Public Law (4th ed, Sweet

[66] Second, Carrington’s agreement in clause 4 of the settlement agreement ―not to seek to expand the currently consented provision for accommodation (including hotel, villas or any other form of accommodation)‖ was clear and, subject to the express exceptions, was unequivocal. Carrington had agreed not to expand its accommodation on the Karikari Peninsula at all unless one of the exceptions applied.

[67] Third, the first exception to Carrington’s non-expansion agreement related to any ―as of right‖ development that might be able to take place ―without the need for a resource consent‖ at the time of the agreement. As there was no dispute in this case that Carrington was required to obtain the land use consent for the construction of the 12 residential units, the first exception to Carrington’s non-expansion agreement did not apply.

[68] Fourth, the second exception to Carrington’s non-expansion agreement related to ―any re-siting of elements within the development site‖. As the Environment Court recognised in its interim decision at [66], the meaning of the reference to ―re-siting‖ is not clear. Did it relate only to ―re-siting‖ the then

―currently consented‖ accommodation within the existing development site (the narrow interpretation) or did it extend to cover any further accommodation in the wider site the subject of Carrington’s ―good faith‖ consultation obligation (the wide interpretation)? Subclause (a) of clause 4 provides some support for the narrow interpretation by referring to ―the relocation of any building covered by the consents‖. On the other hand, that reference might also be read as an example of the accommodation covered by the wide interpretation. The wide interpretation is also supported by the language of the variation to clause 4 in clause 2 of the amendment to the settlement agreement which applied to land beyond the consented country club plan, but did not fall within the protected wetlands and dunes.

[69] Resolution of this issue of interpretation is not, however, necessary in the present case. Either way Carrington’s 12 residential dwellings, the subject of RC2080553, were not within the second exception as:

―separate from the earlier development site‖, ie the site the subject of the then ―currently consented‖ accommodation; and

(b) on the wide interpretation, they were within the development site, but pursued without the required consent of Ngāti Kahu and EDS.

[70] On this basis neither exception to Carrington’s non-expansion agreement in clause 4 of the settlement agreement applied. As there was no dispute that Carrington’s 12 residential dwellings were within the expression ―any other form of accommodation‖ in clause 4, Carrington was seeking to expand its accommodation contrary to its non-expansion agreement in clause 4 of the settlement agreement.

[71] Turning then to the context of the settlement agreement as amended, I see no reason why a different conclusion should be reached. On the contrary, the conclusion I have reached is consistent with the context in which the parties entered into the agreements, namely:

(a) Ngāti Kahu’s acknowledged interest in and concern for the cultural significance of the whole of the Karikari Peninsula, including all the land owned by Carrington there, but especially the land within the

―coastal environment‖ and constituting an ―outstanding natural ... landscape‖ and their ancestral lands and waahi tapu in terms of s 6(a), (b) and (e) of the RMA.

(b) The agreement was executed by the parties in settlement of the 2000 judicial review proceeding which in turn had challenged the validity of the three 1999 resource consents for Carrington’s country club development and vineyard as shown on the plans the subject of the applications and consents. As Mr Gardner-Hopkins submitted, Carrington’s agreement not to expand in any form the accommodation on any of its property on the Karikari Peninsula was in exchange for Ngāti Kahu’s consent to the three resource consents.

(c) Ngāti Kahu’s 2000 judicial review proceeding challenged the validity of the three 1999 resource consents on the grounds that the Council had failed to have regard to the matters of national importance referred to in s 6(a), (b) and (e) of the RMA as relevant considerations. If the proceeding had not been settled, the Court would have had to decide whether the Council had taken these matters into account and, if not, whether the three resource consents ought to have been set aside on that ground. The settlement of the proceeding meant that those issues were not determined by the Court.

(d) Subject to the amendments to the three consents inserted by the Court’s consent order of 14 March 2001, the three consents were accepted as valid.

[72] I do not accept the submission of Mr Gardner-Hopkins that clause 2 of the amended settlement agreement (the 800 metre setback provision) applied because, while the sites for the 12 proposed dwelling houses were within the 800 metre setback, they were not buildings covered by the 1999 consents. At the same time, however, the fact that the parties had gone to the trouble of amending clause 4(a) of the original agreement to add the 800 metre setback provision does provide some support for the wide interpretation of clause 4 itself.

[73] Nor do I accept Mr Gault’s submission that Carrington’s interpretation was confirmed by the provisions in the amended settlement agreement relating to the Carrington Special Zone application. The fact that Ngāti Kahu and EDS agreed to support Carrington’s Special Zone, which related to the land the subject of the 1999 resource consents and did not include the site the subject of the 2008 dwelling house consent, did not alter or modify the scope of Carrington’s ―good faith‖ obligation or non-expansion agreement under clauses 1 and 4 of the settlement agreement.

[74] For these reasons therefore I consider that clause 4 of the settlement agreement means that Carrington had agreed not to seek to expand its accommodation on its land on the Karikari Peninsula, including the land the subject of the three 1999 resource consents and the 2000 judicial review proceeding.

[75] As already noted, the Court has a discretion to exercise in deciding whether in the circumstances of the case to grant the declarations sought by Ngāti Kahu as to the interpretation and breach of the settlement agreement. In considering whether to exercise the Court’s discretion, I accept that if the declarations would serve no useful or practical purpose they should not be granted: Banks v Grey District Council.7

[76] I also accept Mr Gault’s submission that the Environment Court’s factual finding that the evidence did not establish that Te Ana O Taite was located under the site of the dwellings consent (RC 2080553) means that the declarations sought by Ngāti Kahu would not be justified on that ground. But Ngāti Kahu does not seek the declarations solely because of Te Ana O Taite. Ngāti Kahu seeks the declarations because it considers that Carrington is in breach of its non-expansion agreement under the terms of the 2001 settlement agreement. Ngāti Kahu agreed to the settlement and the 1999 resource consents in return for Carrington’s agreement not to expand its accommodation in any form beyond the then existing consents and subject to the later 800 metre setback provision. In these circumstances a declaration designed to confirm Ngāti Kahu’s interpretation of the settlement agreement would serve a useful and practical purpose.

[77] I therefore consider that I should exercise the Court’s discretion to make the declaration sought by Ngāti Kahu as to the interpretation of the 2001 settlement agreement insofar as it relates to the agreement by Carrington not to expand its accommodation on to the land the subject of the 2008 land use consent. The declaration will be in the following form:

Under clause 4 of the settlement agreement dated 5 March 2001 Carrington agreed not to seek to expand its accommodation on to land that included the site the subject of its amended land use consent application dated

[78] In view of the decision I reach in the judicial review cause of action as to the invalidity of the 2008 land use consent (RC 2080553), however, I do not consider

that I should exercise the Court’s discretion to grant the declaration sought by Ngāti Kahu relating to breach of the settlement agreement. That declaration is not now necessary or appropriate.8

[79] I also agree with the further submissions for the parties after the hearing that the declaration as to the interpretation of the settlement agreement does not of itself invalidate the dwellings consent (RC 2080553). It therefore remains necessary to consider the judicial review cause of action that challenges the validity of RC 2080553.

[80] In its statement of claim of 3 June 2010 Ngāti Kahu alleges first that the 2008 dwelling house consent (RC 2080553) was erroneously processed on a non-notified basis in contravention of ss 93, 94, 94A-D and 104 of the RMA in that:

(a) Ngāti Kahu was an ―affected person‖ or potentially so by virtue of the provisions of the 2001 consent order and the 2001 settlement agreement, as amended;

(c) If Ngāti Kahu had been notified it would have produced information in relation to: the activity status of the application; the extent of the earthworks; and the potential effects of the earthworks and associated proposed buildings on tangata whenua, landscape and natural character;

(d) Ngāti Kahu was denied the opportunity to submit and provide information for the resource consent by the decision to proceed on a

8 Section 3 of the Declaratory Judgments Act 1908; Zamir &Woolf: The Declaratory Judgment at

(e) The Council had insufficient information on the scale of the earthworks to properly assess the application; and

―a special circumstance‖ [under s 94C(2) of the RMA] justifying notification to Ngāti Kahu, but no consideration was given to this at the time of making the decision to proceed on a non-notified basis.

[81] On this basis Ngāti Kahu seeks orders and directions from the Court that: (a) The 2008 consent (for the 12 dwelling houses) be set aside;

(b) Carrington’s application be referred back to the Council for consideration as a restricted discretionary activity in terms of the District Plan Rules; and

[82] At the time of the hearing the parties were in agreement that the issues in respect of the judicial review causes of actions were:

(a) whether the Council was obliged to seek further information in relation to the quantum of earthworks for the purposes of assessing the activity status of the proposed land use activity; and

(b) whether Ngāti Kahu was an ―affected person‖ and, if so, whether the Council erred in failing to notify Ngāti Kahu of the 2008 land use resource consent application.

[83] During the hearing, however, it became clear from the submissions for the parties that there was a further wider issue, namely:

(c) whether in all the circumstances the decision of the Council not to notify Ngāti Kahu of Carrington’s 2008 dwelling house resource consent application was reasonable.

[84] Furthermore, in the further submissions for the parties following the hearing, it emerged that also in issue was:

―special circumstances‖ existed requiring public notification was erroneous, particularly in view of the notification clause in the 2001 settlement agreement.

[85] In their further submissions counsel for Carrington and the Council objected to counsel for Ngāti Kahu raising issue (d) in its further submissions on the ground that Ngāti Kahu had gone beyond the specific matter on which the Court had sought further submissions and had already closed its case in relation to the judicial review cause of action. Although the Court was asked to disregard Ngāti Kahu’s further submissions, counsel for both Carrington and the Council noted that submissions had been made at the hearing as to the scope of the settlement agreement and the Council’s non-notification determination. The Council also took the opportunity to make further submissions on the issue. Carrington adopted those further submissions.

[86] For the following reasons I consider that issue (d) should be addressed and determined in the context of Ngāti Kahu’s judicial review cause of action:

(a) Ngāti Kahu specifically pleaded in its statement of claim that the notification clause (in the 2001 settlement agreement) constituted ―a special circumstance‖ [under s 94C(2) of the RMA] justifying notification to Ngāti Kahu.

(b) As counsel for Carrington and the Council accepted, submissions were made at the hearing as to the scope of the settlement agreement and the Council’s non-notification determination.

(c) Counsel for the Council had the opportunity, which was exercised, in her further submissions after the hearing to address issue (d) after Ngāti Kahu’s further submissions. Carrington adopted the Council’s submissions.

(d) In these circumstances there is no prejudice to Carrington or the Council if I determine issue (d). In doing so I address the relevant submissions raised by Carrington and the Council.

[87] For Ngāti Kahu, Mr Gardner-Hopkins submitted that the 2008 dwelling house consent should not have been granted because the Council breached s 94 of the RMA by failing to publicly notify Carrington’s dwelling house consent application and by failing to treat Ngāti Kahu as an affected person. The Council ought not to have been satisfied that it had sufficient information that the proposed earthworks were less than 5,000 m3 so as to deprive the public of its right to

participate: Discount Brands Ltd v Westfield (NZ) Ltd.9 The purpose of clause 4 of

the settlement agreement and clause 2 of the amended agreement was to ensure that Ngāti Kahu was treated as an affected party and notified of the application so it could defend its taonga. As there was no prospect of development within the 800 metre setback without challenge from Ngāti Kahu, Carrington and the Council went to extraordinary lengths to exclude Ngāti Kahu’s ability to participate in the consenting processes affecting that area. The contention, accepted by Gendall J in the interim decision at [30], that there was no duty on the Council to notify Ngāti Kahu because the earthworks were limited to permitted levels, was wrong. The Council should not have accepted Carrington’s assertion, but should have made its own independent inquiries. By entering into the settlement agreement, the Council had agreed to fetter its statutory discretion to process the application for consent on a non-notified basis. Where a statutory power is validly exercised creating a right, the existence of the right pro tanto excludes the exercise of other statutory powers in respect of the same subject matter: Dowty Boulton Paul Ltd v Wolverhampton

Corporation and Aoraki Water Trust v Meridian Energy Trust Ltd.10 Carrington and

the Council had breached the obligation under the settlement agreement to act in good faith.

9 _{Discount Brands Ltd v Westfield (NZ) Ltd
[2005] 2 NZLR 597 (SC) at [51] and [114] – [115].}

10 Dowty Boulton Paul Ltd v Wolverhampton Corporation [1971] 2 All ER 277 at 282 (EWHC); and

Aoraki Water Trust v Meridian Energy Trust Ltd [2005] 2 NZLR 268 (HC) at [33].

[88] Mr Gardner-Hopkins also submitted that, contrary to the view of Gendall J in the interim decision at [35], Ngāti Kahu had not procrastinated in protecting its interests because it immediately opposed the subdivision application once it was publicly notified. Ngāti Kahu was essentially a representative body with limited resources and sought initially to protect Te Ana O Taite through the Council processes and then, when it was advised of its full options, through the Court. Carrington must be responsible for some of the delay, electing to proceed on a non- notified basis, knowing full well that Ngāti Kahu would oppose the applications. Carrington proceeded in the face of the settlement and therefore assumed the risk that Ngāti Kahu would challenge the proposed dwellings.

[89] For Carrington, Mr Gault submitted that public notification of the dwelling house consent application was not required under s 93 of the RMA and that Ngāti Kahu was not a party which might have been adversely affected by the proposed activity in terms of s 94(1). The only matters where discretion was restricted under the Partly Operative District Plan were traffic intensity and vehicle access issues which Ngāti Kahu did not suggest affected it. Without downplaying Part 2 of the RMA, Ngāti Kahu’s arguments that the Council had to have sufficient information to

be satisfied that the proposed earthworks were less than 5,000 m3 was misconceived.

Such earthworks were a permitted activity for which no resource consent was required. As noted in the interim judgment of Gendall J at [24], Carrington had not applied for consent in relation to earthworks and the consent granted did not authorise earthworks. If an activity is permitted under a district plan, consent is not required. Clause 4 of the settlement agreement recognised ―as of right‖ development as a permitted activity. Carrington was permitted to excavate and fill provided it did

not exceed 5,000 m3 in any 12 month period per site. If it were to seek to do so, it

would need to apply for an earthworks resource consent. Rather, Ngāti Kahu’s challenge to a resource consent on the basis of an activity for which no consent is required is something of a collateral attack.

[90] Mr Gault also submitted that, contrary to the submissions for Ngāti Kahu, the Council’s obligation to be ―satisfied‖ under s 93(1)(b) of the RMA was an obligation to be ―satisfied‖ that adverse effects on the environment would be minor for the

purposes of an exception to the requirement to notify. The provisions of ss 93 and

94 of the RMA related to the activity for which consent was sought. There was no wider obligation on consent authorities to investigate matters beyond the activity or activities for which consent was sought. The decision in Discount Brands Ltd v Westfield (NZ) Ltd, which related to the interpretation of ss 93 and 94 of the RMA before they were substantially amended by the Resource Management Amendment Act 2003 and to proposed activities, some of which were discretionary or non- complying, did not apply.

[91] Mr Gault submitted that relief should be refused in the Court’s discretion because it would be futile, and because of the delay by Ngāti Kahu and prejudice to Carrington. It would be futile to require the Council to consider the adverse effects on waahi tapu because the Environment Court has now ruled that Ngāti Kahu’s claimed waahi tapu is not adequately supported by evidence. Ngāti Kahu’s position is already protected under the Historic Places Act 1993 in the event that a waahi tapu site were discovered in the course of implementing the consent. It is well established that judicial review proceedings must serve a useful purpose: Auckland

Acclimatisation Society Inc v Sutton Holdings Ltd.11 Relief would be declined if it

would be futile: New Zealand Maori Council v Attorney-General, Fowler and Roderique Ltd v Attorney-General and Maddever v Umawera School Board of Trustees.12

[92] On the issue of delay, Mr Gault pointed out that instead of challenging the

2008 dwelling house resource consent decision in May 2009 when it became aware of it, Ngāti Kahu first opposed the subdivision consent application before the Council and then appealed to the Environment Court. The present proceeding was not filed until 3 June 2010 after closing submissions were made in the Environment Court appeal even though Ngāti Kahu had argued that the dwelling house consent decision was invalid. In the interim decision at [35] Gendall J had accepted that delay had been significant and that it had not been satisfactorily explained in the evidence. The financial interests of Carrington were prejudiced by the effects of the

11 _{Auckland Acclimatisation Society Inc v
Sutton Holdings Ltd [1985] 2 NZLR 94 (CA) at 103.}

12 New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 (CA) at 168; Fowler and Roderique Ltd v Attorney-General [1987] 2 NZLR 56 (CA) at 78; and Maddever v Umawera School Board of Trustees (1993) 2 NZLR 478 (HC) at 502.

[93] For the Council, Ms Baguley submitted that the dwelling house resource consent did not authorise any breach of the earthworks’ provisions in the district plan. Ngāti Kahu’s argument that the Council should have required more information about possible earthworks was therefore misconceived. It was not contemplated that the resource consent would extend to a breach of the earthworks’ standard. It would have been unreasonable for the Council to have required independent expert reports for a permitted standard for earthworks. The Council relied on the decision of the Court of Appeal in Palmerston North City Council v

(a) The function of the Court is to review the lawfulness of the Council’s decision, not to substitute its own decision: Quarantine Waste (NZ) Ltd v Waste Resources Ltd and Sheppard v North Shore City Council.14

(b) In terms of ss 94-94D of the RMA, as they stood at the time, and the relevant traffic intensity and access rules under the Partly Completed District Plan, the Council properly did not consider Ngāti Kahu to be a person affected by the dwelling house consent application who should be notified of the application in accordance with s 94B(3).

(c) Had the Council notified Ngāti Kahu of the application because of potential adverse effects on cultural issues, landscape issues or tangata whenua, it would have committed an error of law because they were not matters over which it had reserved discretion under the relevant rules of the District Plan: cf Auckland City Council v John Woolley

13 _{Palmerston North City Council v Dury
[2007] NZCA 521; [2008] NZRMA 90 at [21], [23] and [28].}

14 Quarantine Waste (NZ) Ltd v Waste Resources Ltd [1994] NZRMA 529 (HC); and Sheppard v

15 Auckland City Council v John Woolley Trust [2008] NZHC 28; [2008] NZRMA 260 (HC).

(d) The Council was obliged to apply the rigorous legal tests of ―affected persons‖ under s 94B(3) and could not treat the settlement agreement on an earlier unrelated consent as usurping that legal test. Clause 6 of the settlement agreement expressly recorded that the Council signed it

(e) It was not possible for the Council to fetter its powers in relation to the resource consent process. The decisions in Dowty Boulton Paul Ltd v Wolverhampton Corporation and Aoraki Water Trust v Meridian Energy Trust Ltd relied on by Ngāti Kahu were distinguishable. Entering into a specific agreement to fail to exercise its obligations under the RMA is simply not something a council has power to do:

(f) In terms of s 94D(2) of the RMA, as it then stood, and Chapter 4.3.2.1 of the Council’s Partly Operative District Plan the Council did not have authority to notify an application for a restricted discretionary activity.

(g) The decision made by the Council not to notify Ngāti Kahu was reasonable in the Wednesbury sense: S & M Property Holdings Ltd v Wellington City Council17 and Palmerston North City Council v Dury at [53] – [54].

(a) While breach of natural justice was not pleaded in the statement of claim, the concept was an overlay or linked to the right to be notified and heard and linked to the good faith commitments and agreements

17 S & M Property Holdings Ltd v Wellington City Council [2003] NZRMA 193 (HC) at [22].

(b) Ngāti Kahu should have been notified by the Council of the application for the 12 dwellings given the settlement agreement. It was accepted that if the application was only for consent for traffic intensity and vehicle access issues then Ngāti Kahu would not otherwise have qualified as an affected person given the narrow scope of the matters to which discretion was restricted. If, however, the Council had undertaken a basic inquiry as to likely volume of earthworks, it would also have required an earthworks consent to be obtained for 12 dwellings. Had that occurred, Ngāti Kahu would have qualified as an affected person in terms of the matters reserved for discretion for the earthworks consent, as well as because of the settlement agreement.

parties give up their legal rights to challenge and/or make compromises on their position; and

It is the primary consent authority’s duty to consider whether the application is complete (s 88(3)), whether further information is required (s 92), or whether other consents are

Discount Brands emphasises the duty on a council to satisfy itself that it has sufficient information to understand the effects of a proposed activity. Even more fundamental is that a council has sufficient information to understand what consents are

The decision in Palmerston North City Council v Dury should be distinguished because in Dury there was nothing to suggest that the proposed activity could not comply with the noise standard at issue. In this case, had the Council turned its mind to the issue (as it did in respect of other aspects of the proposal) then it would have found, as the Environment Court did, that there was at least a ―degree of uncertainty‖ as to whether

The remedial options available to the residents in Dury are not available to Ngāti Kahu. The grant of the dwellings consent (which the Environment Court described as the ―apex‖ of the environmental creep [at 146]) enabled the subdivision to occur, and even if some dwellings can be constructed before earthworks consents are required, the damage – the desecration which Ngāti Kahu fears, will have been done and will be

[96] Mr Gardner-Hopkins also submitted that granting relief would not be futile because setting aside the dwellings consent would unwind the subdivision consent

and enable both aspects of the Carrington proposal to be advanced together in accordance with good planning practice.

[97] Mr Gardner-Hopkins then submitted that delay in Ngāti Kahu filing its judicial review proceeding was not, in the circumstances, unreasonable and should not disentitle it to relief if the Court finds the errors alleged:

(b) The dwellings consent had also itself taken a year to be granted – it was lodged in January 2008.

(c) In terms of the settlement agreement, Ngāti Kahu should have been notified at the outset, but was not. Carrington chose to proceed in secret and against the terms and spirit of the settlement agreement. That shut Ngāti Kahu out of the process.

(d) At around the same time as it discovered the existence of the dwellings consent, Ngāti Kahu was also notified of the subdivision consent application. Understandably, Ngāti Kahu’s focus was then on that application which was going through the statutory consenting process. In early October 2009 that process resulted in the grant of consent to the subdivision.

(e) In late October 2009 Ngāti Kahu appealed that decision. In that appeal it put Carrington on notice that it considered the dwellings consent to have been granted unlawfully.

11 February 2010. Carrington’s letter of that date also adopted an aggressive position on the matter of costs.

(g) Ngāti Kahu was still focusing its limited resources on the subdivision appeal which was proceeding to hearing (being heard in May 2010).

(h) Once that hearing was complete, Ngāti Kahu was then able to focus on the dwellings consent and filed its review proceeding in June 2010 and sought an interim order at the same time.

(i) Carrington had not acted to implement the dwellings consent so it had not altered its position to its detriment.

[98] For Ngāti Kahu, Mr Gardner-Hopkins submitted that the Council’s failure to consider whether the notification clause in the settlement agreement was a ―special circumstance‖ justifying notification to Ngāti Kahu was a clear ground for review.

(a) The Council’s notification determination shows that the Council did in fact turn its mind to whether special circumstances existed and had particular regard in a broader sense to historical concerns of Ngāti Kahu.

(b) In doing so, the Council properly discharged its duty to give reasonable consideration to whether any special circumstances existed requiring notification.

(c) Where a Council has turned its mind to the question of special circumstances, and makes a finding of fact and exercises its judgment, the Court cannot substitute its own judgment in judicial review proceedings, even if it disagrees with it: S & M Property Holdings Ltd

18 S & M Property Holdings Ltd v Wellington City Council [2003] NZRMA 193 (HC) at [51].

(d) In the present case the Council was reasonably entitled to decide that special circumstances did not exist arising out of the settlement agreement or otherwise in relation to Ngāti Kahu and the Court cannot substitute its own judgment on special circumstances in relation to that determination.

[100] It is important to recognise at the outset that Ngāti Kahu has no right of appeal and therefore is not appealing against the decisions of the Council which led to the grant of the 2008 dwelling house consent to Carrington. Instead Ngāti Kahu is challenging the validity of the Council’s decisions on administrative law grounds. These grounds are well-established and require the Court to be persuaded that an impugned decision is contrary to law, was made erroneously or unfairly or was

―reasonableness‖ in the context of administrative law and in its application to the circumstances of particular cases.20 Whether a decision is categorised as

―unreasonable‖ in administrative law terms will depend on a range of factors, including the relevant statutory or regulatory framework within which the decision is made, the functions and status and the role and responsibilities of the decision- maker, the nature of the particular decision, its political or policy content, and its consequences for individuals, the wider public interest and the overall justice of the case. Bodies exercising public regulatory functions may expect more intensive judicial scrutiny than decision-makers entrusted to develop and apply policy.

[102] The Supreme Court settled the correct approach to an application for judicial review of a consent authority’s non-notification decision under the RMA in Discount Brands Ltd v Westfield (New Zealand) Ltd.21 As Blanchard J said:

[116] Because the consequence of a decision not to notify an application is to shut out from participation in the process those who might have sought to

21 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597 at [25], [26], [54], [116], [117], [118], [148] and [179].

oppose it, the court will upon a judicial review application carefully scrutinise the material on which the consent authority's non-notification decision was based in order to determine whether the authority could reasonably have been satisfied that in the circumstances the information was adequate in the various respects discussed above.

[103] Notwithstanding subsequent changes to the notification provisions of the RMA, the approach of the Supreme Court remains applicable to the provisions the subject of the present case: Palmerston North City Council v Dury.22 I therefore do not accept Mr Gault’s submission to the contrary.

[104] In an application for judicial review of a consent authority’s decision under s 94C(2) of the RMA as to the presence or absence of ―special circumstances‖ justifying notification, it is well-established that:

(a) A ―special circumstance‖ is one outside the common run of things, which is exceptional, abnormal or unusual, but something less than extraordinary or unique: Peninsula Watchdog Group (Inc) v Minister of Energy, Murray v Whakatane District Council and S & M Property Holdings Ltd v Wellington City Council.23

(b) Circumstances which are ―special‖ will be those which make notification desirable, despite the general provisions excluding the need for notification: Murray v Whakatane District Council.24 In the High Court Elias J said:

.... Discretionary powers which do not in their terms of conferment expressly refer to the purpose for which they may be used, must still be exercised in conformity with the legislation and the purpose to be discerned from it. In the context of the notification provisions of an Act dependent upon participation for informed decision making, in the wider public interest, it seems to me that circumstances which are ―special'' will be circumstances which make notification desirable, notwithstanding the general provisions in subss (1) to (3). The policy evident in those subsections seems to be based upon an assumption that the consent authority does not require the additional information

22 _{Palmerston North City Council v Dury
[2007] NZCA 521; [2008] NZRMA 90 (CA) at [53]-[54].}

23 Peninsula Watchdog Group (Inc) v Minister of Energy [1996] 2 NZLR 529 (CA) at 536; Murray v Whakatane District Council [1999] 3 NZLR 276 (HC and CA) at 310; and S & M Property Holdings Ltd v Wellington City Council [2003] NZRMA 193 (HC) at [31].

which notification may provide because the principles to be applied in the decision are clear and non-contentious (as they will generally be if settled by district plan) or the adverse effects are minor. Where a consent does not fit within that general policy, it may be seen to be unusual. While no doubt it is not necessary for the consent authority to turn its mind to the desirability of notification in every case covered by s 94(1) to (3), where there are indications that the case is out of the ordinary because it does not fall within the general policy, it will be necessary to consider the discretion under s 94(5).

(c) While the Court must take care not to interpose its judgment on questions of fact in judicial review proceedings, it must still bear in mind the approach required by the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd and carefully scrutinise the material on which the consent authority’s non-notification decision was based: cf S & M Property Holdings Ltd v Wellington City

[105] Applying this approach to the Council’s decisions in the present case, it is convenient to examine the Council’s non-notification decision first. In doing so, I recognise that Ngāti Kahu does not question that:

(a) The construction and use of Carrington’s 12 dwelling houses was a permitted activity in the Rural Production Zone under the Council’s District Plan for which resource consent was not required.

(b) Excavation and/or filling was a permitted activity in the Rural Production Zone under the Council’s District Plan up to the level prescribed by the rules.

(c) The adverse effects of the traffic intensity and vehicle access activities, which were restricted discretionary activities in the Rural Production Zone under the Council’s District Plan and for which

[106] It is convenient to set out first the relevant provisions of the RMA which

(1) A consent authority must notify an application for a resource consent unless—

(b) the consent authority is satisfied that the adverse effects of the activity on the environment will be minor.

(2) If subsection (1) applies, the consent authority must notify the application by—

(1) If notification is not required under section 93(1), the consent authority must serve notice of the application on all persons who, in the opinion of the consent authority, may be adversely affected by the activity, even if some of those persons have given their written approval to the activity.

(2) However, a consent authority is not required to serve notice of the application under subsection (1) if all persons who, in the opinion of the consent authority, may be adversely affected by the activity have given their written approval to the activity.

94A Forming opinion as to whether adverse effects are minor or more than minor

When forming an opinion, for the purpose of section 93, as to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority—

(a) may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect; and

(b) for a restricted discretionary activity, must disregard an adverse effect of the activity on the environment that does not relate to a matter specified in the plan or proposed plan as a matter for which discretion is restricted for the activity; and

(1) Subsections (2) to (4) apply when a consent authority is forming an opinion, for the purpose of section 94(1), as to who may be adversely affected by the activity.

(2) The consent authority must have regard to every relevant statutory acknowledgement, within the meaning of an Act specified in Schedule 11, made in accordance with the provisions of that Act.

(a) may be treated as not being adversely affected if, in relation to the adverse effects of the activity on the person, the plan permits an activity with that effect; or

(b) in relation to a controlled or restricted discretionary activity, must not be treated as being adversely affected if the adverse effects of the activity on the environment do not relate to a matter specified in the plan or proposed plan as a matter for which—

(c) must not be treated as being adversely affected if it is unreasonable in the circumstances to seek the written approval of that person.

(4) However, the holder of a customary rights order must be treated as being adversely affected if, in the opinion of the consent authority, the grant of a resource consent may adversely affect a recognised customary activity carried out in accordance with section 17A(2).

94C Public notification if applicant requests or if special circumstances exist

(1) If an applicant requests, a consent authority must notify an application for a resource consent by—

(2) If a consent authority considers that special circumstances exist, a consent authority may notify an application for a resource consent by—

(1) Despite section 93(1)(a), a consent authority must notify an application for a resource consent for a controlled activity in accordance with section 93(2) if a rule in a plan or proposed plan expressly provides that such an application must be notified.

(2) Despite section 93(1)(b), a consent authority is not required to notify an application for a resource consent for a restricted discretionary activity if a rule in a plan or proposed plan expressly provides that such an application does not need to be notified.

(3) Despite section 94(1), a consent authority is not required to serve notice of an application for a resource consent for a controlled or restricted discretionary activity if a rule in a plan or proposed plan expressly provides that notice of such applications does not need to be served.

(4) A rule included in a plan under subsection (3) does not waive the need to serve an application if, in the opinion of the consent authority, the grant of a resource consent may adversely affect a recognised customary activity carried out in accordance with section

[107] These provisions created a three stage inquiry when a consent authority was dealing with the question of notification of an application relating to a restricted discretionary activity, as in the present case. This three stage inquiry was:

(a) Was the consent authority ―satisfied‖ that the adverse effects of the activity on the environment would be ―minor‖? Unless the authority was so satisfied, the application had to be notified: s 93(1)(b). In forming an opinion for that purpose, the authority, in the case of a restricted discretionary activity, had to disregard an adverse effect of the activity on the environment that did not relate to a matter specified in the plan or proposed plan as a matter for which discretion was restricted for the activity: s 94A(a) and (b).

(b) If notification was not required under s 93(1), was the authority of the opinion that there were persons ―adversely affected by the activity‖ even if some of those persons had given their written approval to the activity? If the authority was of that opinion, the application had to be served on all such persons: s 94(1). When forming an opinion for that purpose, the authority had to apply s 94B(2) to (4): s 94B(1). Under

s 94B(3)(b)(ii) a person in relation to a restricted discretionary activity was not to be treated as being ―adversely affected‖ if the adverse effects of the activity on the environment did not relate to a matter specified in the plan or proposed plan as a matter for which discretion was restricted for the activity.

(c) If notification was not required under s 93 or s 94, did ―special circumstances‖ exist in terms of s 94C(2) which meant that the application should nonetheless be publicly notified? The provisions of s 94C were significant not only because they extended the scope of the consent authority’s discretion to decide that in a particular case, notwithstanding the absence of any obligation to do so under ss 93 or

94A-B, there should still be public notification, but also because the applicant for the resource consent was able to request that the application be publicly notified.

[108] The full text of the Council’s non-notification decision has been set out earlier in my judgment. The Council decided that notification was not required under s 94B of the RMA because:

(a) under s 94B(3) of the RMA a person must not be treated as adversely affected if there were adverse effects that did not relate to matters over which discretion had been reserved;

(b) as such no person was considered to be affected by such matters as residential intensity, design etc;

(d) no other persons were considered to be affected by the non-provision of a public road; and

(e) although Carrington had submitted an archaeological report as part of the underlying subdivision, consultation with iwi was not considered necessary as none of the matters over which discretion had been reserved relate to cultural matters.

[109] The Council next considered that limited notification was not necessary because the effects were considered to be minor and no other parties were affected.

[110] In relation to the existence of ―special circumstances‖, the Council’s decision

Whilst previous developments in the area by [Carrington] have been subject to scrutiny from iwi and the public, this is not sufficient reason to require public notification.

On this basis the Council resolved that special circumstances requiring notification did not exist.

[111] This means that in the present case when the Council came to consider the question whether Carrington’s application for consent for its dwelling houses needed to be notified under s 94B the issues were limited. Provided they met the intensity standard, the dwelling houses themselves were a permitted activity in the Rural Production Zone under the district plan and the traffic intensity and vehicle access activities were restricted discretionary activities. On this basis, as the Council’s decision of 22 December 2008 recorded, the Council:

[112] As already noted, Ngāti Kahu’s acceptance that the adverse effects of the traffic intensity and vehicle access activities were ―minor‖ means that there is no challenge to this aspect of the Council’s decision that notification was not required under s 93(1)(b). Ngāti Kahu also accepted that by virtue of s 94B(3)(b)(ii) it was not an ―affected person‖ if the application was properly limited to the traffic intensity

and vehicle access issues. As the application was so properly limited, there can be no basis for the challenge to this aspect of the Council’s decision that notification was not required under s 94(1).

[113] In these circumstances it is necessary to consider the Council’s non- notification decision in the context of s 94C(2) and its overall reasonableness in administrative law terms. Notwithstanding that notification was not required by ss 93 and 94A-B, there may still be ―special circumstances‖ which make notification

―desirable‖ because the case is ―out of the ordinary‖: Murray v Whakatane District

[114] There is little doubt that, as Ms Baguley submitted, the Council did turn its mind to the question whether, in terms of s 94C(2) of the RMA, ―special circumstances‖ existed which would have justified public notification of Carrington’s dwelling house consent application. But there is also little doubt that the Council in its non-notification decision took into account only its view that scrutiny from iwi and the public of previous developments by Carrington in the area was not sufficient to justify notification. There was no indication in the Council’s decision and no evidence or submission that the Council recognised or took into account any other matters that might have constituted ―special circumstances‖ in reaching its non-notification decision under s 94C(2).

[115] In my view, however, there were in this case ―special circumstances‖ which took it ―out of the ordinary‖ in respect of notification decision-making. The ―special circumstances‖ were:

(a) Carrington’s dwelling house application was unlikely to be able to be implemented without a subdivision application as well: Environment Court interim decision at [106]-[110]. In terms of s 91 of the RMA, the Council therefore needed to consider whether Carrington should have been required to make applications for both consents: see my appeals’ judgment at [125]-[126].

the dwelling house application before its intended subdivision application was therefore contrary to principles of good resource management practice and the long-standing principle that all resource consent applications necessary for a proposal ought to be made at the same time: cf Environment Court interim decision at [90] and [137]- [140] and my appeals’ judgment at [121].

(c) Carrington’s subdivision was non-complying and, as the Environment Court subsequently found, was contrary to the overall thrust of the relevant objectives and policies of the District Plan and, importantly, those which were concerned to implement the matters in Part 2 of the RMA: Environment Court interim decision at [154]-[157] and [164] and [167]-[175]. In particular, the site was within both the ―coastal environment‖ and was an ―outstanding natural...landscape‖ in terms of s 6(a) and (b) of the RMA: Environment Court interim decision at [42]. Matters of ―national importance‖ were involved.

(d) Ngati Kahu had a unique and special interest in the cultural significance of the outstanding landscape of the Karikari Peninsula and had taken significant steps to protect its interests in respect of the Carrington development, including the 2000 judicial review proceeding and the 2001 settlement agreement. Carrington’s dwelling house application was made contrary to its ―good faith‖ consultation obligation and its agreement not to expand its accommodation under the 2001 settlement agreement. Notwithstanding Carrington’s ability to implement its ―good faith‖ obligation to Ngāti Kahu by asking the Council to notify the dwelling house application under s 94C(1) of the RMA, it did not do so.

(e) The Council itself had acknowledged under clause 8 of the 2001 settlement agreement that Ngāti Kahu had a ―particular interest‖ in significant developments affecting the coast within Ngāti Kahu’s rohe.

The Council could have reasonably been expected to make inquiry as to whether or not it was anticipated that subdivision would follow RC2080553. In light of Mr Kelly’s [Carrington’s] acknowledgement that subdivision was always intended, the answer would have been yes.

There was no evidence that the Council made the inquiry of Carrington that it ought to have made. The Council knew that Carrington’s process of proceeding with the dwelling house application before its subdivision application was contrary to principles of good resource management practice and the long-standing principle that all resource consent applications necessary for a proposal ought to be made at the same time. The Council was a party to the 2000 judicial review proceeding and the 2001 settlement agreement and therefore knew that Carrington was acting contrary to its ―good faith‖ consultation obligation and its agreement not to expand its accommodation. The Council knew of Ngāti Kahu’s special interest in the cultural significance of the outstanding landscape of the Karikari Peninsula. The Council knew that the site was within both the ―coastal environment‖ and was an

[117] There was no evidence, or any suggestion from the Council, that it had turned its mind to the ―special circumstances‖ in this case which took it ―out of the ordinary‖ and made notification ―desirable‖. In failing to do so, the Council did not exercise its discretion under s 94C(2) properly. This is not a case where the Court is substituting its judgment as to the effect that the ―special circumstances‖ might have had if they had been taken into account by the consent authority. The Court is identifying relevant ―special circumstances‖ which the Council, as the consent authority, failed to take into account.

[118] The significance of the matters which constituted ―special circumstances‖ and the Council’s failure to take them into account in making its non-notification decision also means that the Council’s decision was unreasonable in administrative law terms. It must be said that, in view of the existence of these significant matters, it is surprising that the Council made its decision without considering them at all. The wider obligations on the Council under clause 8 of the 2001 settlement

agreement as well as the provisions of s 6(a) and (b) of the RMA and the requirements of good resource management practice meant that this was not a case where a narrow approach to the issue of notification was justified.

[119] In reaching this conclusion I do not accept Mr Baguley’s submission for the Council that the 2001 settlement agreement involved any unlawful fettering of the Council’s powers in respect of its statutory notification obligations. The principle that the Crown and a public body, like the Council, may not, by contract or representation, fetter their future freedom of action is not absolute, but applies when the contract or representation is incompatible with the public authority’s statutory functions or involves the public authority renouncing ―its birthright‖: The Power Co Ltd v Gore District Council and Constitutional and Administrative Law in New

Zealand.26 In the present case the Council’s agreement under clause 6 of the

settlement agreement to treat Ngāti Kahu and EDS as ―affected parties‖ for the purposes of s 94(2) of the RMA in respect of any further development of the site subject to the 2000 judicial review proceeding and the Council’s acknowledgment under clause 8 of the settlement agreement that Ngāti Kahu had a ―particular interest‖ in significant developments affecting the coast within its rohe were not incompatible with the Council’s statutory functions and did not involve the Council renouncing ―its birthright‖.

[120] The Council was at liberty to accept for the future that Ngāti Kahu and EDS would be ―affected parties‖ in the particular circumstances envisaged by clause 6 of the settlement agreement. The Council was also at liberty to acknowledge Ngāti Kahu’s ―particular interest‖ in significant developments affecting the coast within its rohe. These provisions in the settlement agreement were consistent with the Council’s functions under the RMA and recognised that there would be ―special circumstances‖ requiring public notification of consent applications relating to further developments on the Karikari Peninsula.

_{[121] On the basis of my conclusions that the Council’s
non-notification decision}

26 The Power Co Ltd v Gore District Council [1997] 1 NZLR 537 (CA) at 547-548; and

was erroneous in terms of s 94C(2) of the RMA and unreasonable in administrative law terms I consider that, subject to the submissions for Carrington relating to the Court’s discretion to decline relief, I should exercise the Court’s discretion to:

(b) refer Carrington’s amended application for the dwelling house consent dated 30 September 2008 back to the Council for reconsideration with directions that:

(ii) the application is to be considered with the subdivision application for the same site under s 91.

[122] Directions to the Council would be made under s 4(5) of the Judicature Amendment Act 1972 and would follow the approach of the Courts in Murray v Whakatane District Council and Rennie v Thames-Coromandel District Council.27

[123] The question whether the Council should reconsider Carrington’s 2008 dwelling house consent application, together with Carrington’s subdivision application, under the provisions of the RMA as they stood in 2008 or under the provisions of the RMA as they stand now was not addressed by counsel: cf s 18 of the Interpretation Act 1999 and Statute Law in New Zealand.28 In these circumstances I propose to reserve leave to any party to apply further if necessary for any amendment to the form of the orders I make to give effect to the intent of my judgment.

[124] There is no dispute that in deciding whether to grant this relief I have a discretion to exercise under s 4(3) of the Judicature Amendment Act 1972. As

27 Murray v Whakatane District Council [1999] 3 NZLR 276 (HC) at 324 and 329 at [23]; and Rennie v Thames-Coromandel District Council [2008] NZHC 183; (2008) 14 ELRNZ 191 (HC) at [159]-[160].

28 J F Burrows and R I Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at

submitted for Carrington, questions of futility and delay are relevant to the exercise of the discretion. At the same time, however, the discretion not to grant relief is a narrow one. There is a presumption that relief will be granted: Air Nelson Ltd v Minister of Transport.29 Furthermore, it would be rare to refuse relief where an error of law is involved or an unreasonable decision has been reached: GXL Royalties Ltd v Minister of Energy and Survey Nelson Ltd v Maritime New Zealand.30

[125] On the question of the futility of granting relief, I do not accept Mr Gault’s submissions for Carrington. The fact that the Environment Court has ruled against Ngāti Kahu’s claimed waahi tapu does not mean that it would be futile to grant relief. The other relevant matters identified by the Environment Court, in particular the matters of national importance under s 6(a) and (b) of the RMA, mean that granting relief in this case is not futile. The Council should be required to take these matters into account when considering Carrington’s two applications together.

Carrington. The fact that Ngāti Kahu did not file its judicial review proceeding until

3 June 2010, a year after it discovered in May 2009 that the Council had granted RC 2080553 to Carrington on 22 December 2008, is not in my view fatal to the exercise of the Court’s discretion to grant relief. My reasons essentially reflect the submissions of Mr Gardner-Hopkins for Ngāti Kahu:

(a) It is well-established that an applicant for judicial review must move with ―reasonable expedition‖. Because there are no fixed time limits under the Judicature Amendment Act 1972, everything turns on the particular circumstances: Auckland Casino Ltd v Casino Control Authority and McGechan on Procedure.31

(b) The time Ngāti Kahu took to bring the judicial review proceeding needs to be viewed in perspective. Notwithstanding their obligations

30 GXL Royalties Ltd v Minister of Energy [2010] NZCA 185 at [67]; and Survey Nelson Ltd v

31 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 152; and McGechan on Procedure (looseleaf ed, Brookers) at [JA 4.03(4)].

proceeded without notifying Ngāti Kahu of the dwelling house application. The application took the best part of a year to consider (24 January to 22 December 2008). Ngāti Kahu discovered the existence of RC 2080553 in May 2009 at the same time as it was notified by the Council of Carrington’s subdivision consent for the site. Ngāti Kahu then took steps to oppose the subdivision application and to pursue its appeal to the Environment Court. In its notice of appeal dated 30 October 2009 Ngāti Kahu put Carrington on notice that it considered RC 2080553 to have been granted unlawfully. Ngāti Kahu then used its limited resources to pursue its appeal to the Environment Court.

(c) This is not a case where an applicant for judicial review has taken no steps at all to seek a remedy. In opposing the notified subdivision application and in pursuing its appeal to the Environment Court, Ngāti Kahu raised issues about Carrington’s development of the site, the subject of the two applications, which have proved at this stage to have been justified.

(d) The fact that the application for an interim order was declined in part because of the delay in bringing the judicial review proceeding is not determinative now that it has been accepted that the dwelling house application for the unimplemented RC 2080553 should be referred back to the Council for consideration, on a notified basis, together with the subdivision application.

(e) The fact that Carrington has not taken steps to implement RC 2080553 means that it has not been prejudiced as a result of Ngāti Kahu’s delay in bringing its judicial review proceeding. This is not a case where an applicant for a resource consent has in reliance on a consent proceeded to implement it by, for instance, constructing dwelling houses. Indeed in this case, as the Environment Court pointed out in its interim decision at [106]-[109], Carrington may well not have been able to proceed with the construction of dwelling houses on the site without first obtaining its subdivision consent.

(f) While Mr Kelly, the director of Carrington, in his affidavit in opposition to Ngāti Kahu’s application for interim orders, referred to the proceeds from property sales as a necessary element in funding payrolls and operating costs and deposed that any untoward delay in cashflow generation would lead to cutbacks affecting the local economy or expensive borrowing costs for Carrington, there was no other evidence before the Court to support Mr Gault’s submission that the financial interests of Carrington had in fact been prejudiced by the effects of the further unanticipated delay.

[127] For these reasons therefore I am satisfied that I should exercise the Court’s

discretion to grant relief to Ngāti Kahu in the judicial review cause of action.

[128] In view of this conclusion it is unnecessary to consider issue (a) in the judicial review cause of action relating to the alleged obligation on the Council to seek further information in relation to the quantum of earthworks for the purpose of assessing the activity status of the proposed land use activity. For completeness, however, I do so.

[129] There is no dispute that the relevant earthworks provision in the Council’s

EXCAVATION AND/OR FILLING, EXCLUDING MINING AND QUARRYING, IN THE RURAL PRODUCTION ZONE OR KAURI CLIFFS ZONE.

[130] Excavation and/or filling within this rule on any site in the Rural Production Zone is a permitted activity for which resource consent is not required. Equally, excavation and/or filling beyond the scope of the rule would require a resource consent: s 9(3) of the RMA.

[131] Carrington did not seek resource consent in 2008 to carry out excavation and/or filling on the site for the 12 dwelling houses because it did not intend to exceed the limit imposed by the rule. Indeed, it appears from Carrington’s application and amended application, that it did not intend to exceed 2,000 m3.

[132] There is no dispute that the Council did not seek any further information from Carrington about the quantum of earthworks involved in the dwelling house application under s 92 of the RMA.

[133] Unless Carrington applied for a resource consent to exceed the limit imposed by the rule, there was no relevant application for the Council to consider under the RMA. The Council granted no resource consent relating to earthworks. There is therefore no basis for Ngāti Kahu’s criticism of the Council for failing to consider the quantum of earthworks involved in the 2008 application. Although the Council had a discretion under s 92 of the RMA to seek further information about the earthworks, it had no obligation to do so in the circumstances of this case.

[134] The situation would be different if Carrington decided to exceed the limit imposed by the rule. Carrington would then need to seek a resource consent for that purpose from the Council, but, unless and until it does so, there is no resource consent application for the Council to consider.

[135] If Carrington were to exceed the limit imposed by the rule without a consent, it would, in contravening s 9(3) of the RMA, commit an offence under s 338(1)(a) and be liable to the penalties referred to in s 339 of the RMA. The Council would also be able to issue an abatement order or seek an enforcement order under ss 314 -

[136] The expert evidence of Mr Todd adduced by Ngāti Kahu in the judicial review proceeding to suggest that Carrington’s earthworks on the dwelling house site were likely to exceed the prescribed limit does not alter this conclusion. The evidence did not take into account the temporal element of the rule which permits

5,000 m3 ―in any 12 month period‖. It would also be wrong in law for the Court to

impugn the Council’s decision on the basis of Mr Todd’s evidence which was not

before the Council at the time its decision was made: Palmerston North City Council

v Dury.32 There was nothing to suggest that Carrington could not meet the requirements of the earthworks rule: Palmerston North City Council v Dury at [21], [23] and [28]. Contrary to the submission for Ngāti Kahu, the decision in Dury on this issue is applicable and not able to be distinguished.

[137] For these reasons there would have been no basis for the claim by Ngāti Kahu that the Council was under any obligation to seek further information in relation to the quantum of earthworks for the purposes of assessing the activity status of the proposed land use activity. This ground for the relief sought in the Judicature Amendment Act 1972 cause of action would therefore not have been made out. At the same time, however, I recognise that the effect of my decision in this case is that Ngāti Kahu may have the opportunity to raise this issue again before the Council.

[138] In the cause of action under the Declaratory Judgments Act 1908 I make the following declaration:

[139] In the cause of action under the Judicature Amendment Act 1972 I make the following orders and directions:

(a) the decisions of the Council relating to RC 2080553 and RC 2080553 itself are quashed;

(b) Carrington’s amended application for the dwelling house consent dated 30 September 2008 is referred back to the Council for

32 Palmerston North City Council v Dury [2007] NZCA 521; [2008] NZ RMA 90 at [62] – [65]. Leave to appeal to

(ii) the application is to be considered with the subdivision application for the same site under s 91; and

(c) leave is reserved to any party to apply further if necessary for any amendment to the form of the orders made to give effect to the intent of the judgment.

[140] As Ngāti Kahu has been successful, I see no reason why it should not be entitled to an order for costs against both Carrington and the Council on a category 2 basis in accordance with Associate Judge Bell’s case management telephone conference minute dated 15 September 2010 at [5], with disbursements to be fixed by the Registrar. If the parties are unable to agree on costs, then Ngāti Kahu is to file a memorandum within 21 days of the date of this judgment, and Carrington and the

Scope of judicial review	[100]
Public notification of consent applications	[106]
The Council’s non-notification decision	[108]
Discretion to grant relief	[121]
Quantum of earthworks	[129]
_Result	_[138]

High Court of New Zealand Decisions

Te Runanga-A-Iwi O Ngati Kahu v Carrington Farms Limited HC Whangarei CIV 2010-488-348 [2011] NZHC 1264 (29 September 2011)