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Court of Appeal of New Zealand |
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Court of Appeal of New ZealandLast Updated: 5 March 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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First Respondent
TAKAMORE TRUSTEES
Second Respondent |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] This appeal has its genesis in a decision made by the first respondent to register land at Waikanae as a wāhi tapu area for the purposes of the Historic Places Act 1993 (the HPA).[1] A wāhi tapu is defined as a place sacred to Maori in the traditional, spiritual, religious, ritual or mythological sense.[2] A wāhi tapu area is an area of land that contains one or more wāhi tapu.[3] The decision resulted in a significant extension of an existing wāhi tapu area and included land owned by the appellant which operates a camping ground known as El Rancho. We will refer to the appellant as WCHP and to the first respondent as the Council.
[2] The registration had been initiated by the second respondent (the Takamore trustees) who have informed the Court through counsel that they abide the decision of this Court. WCHP and other parties had made written submissions to the Council opposing the registration but the Council determined on 25 August 2011 to register the extended area as a wāhi tapu area.
[3] WCHP then sought judicial review of the decision on a number of grounds. These were that the decision of the Council was invalid because:
(a) The request by the Takamore trustees to review and extend the existing registration did not include a legal description of the land affected.
(b) The Council had failed to disclose certain documents.
(c) The Council ought to have allowed an oral hearing at which those opposing registration could be heard.
(d) The Council gave no reasons for its decision.
(e) The Council wrongly failed or declined to consider the adverse effects of the registration on the value of WCHP’s land.
(f) The cumulative effect of the errors was such that the Council’s decision and the registration of the land as a wāhi tapu area should be quashed.
[4] In a careful and comprehensive judgment delivered on 6 September 2013, Goddard J rejected all of the grounds raised by WCHP and dismissed the application for judicial review.[4]
[5] On appeal, WCHP submits the High Court was wrong to dismiss the application for judicial review and essentially canvasses the same grounds already rejected by the High Court.
The statutory scheme
Purpose and principles
[6] The purpose and principles of the HPA are set out in s 4 of the Act:
(1) The purpose of this Act is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand.
(2) In achieving the purpose of this Act, all persons exercising functions and powers under it shall recognise—
(a) the principle that historic places have lasting value in their own right and provide evidence of the origins of New Zealand’s distinct society; and
(b) the principle that the identification, protection, preservation, and conservation of New Zealand’s historical and cultural heritage should—
(i) take account of all relevant cultural values, knowledge, and disciplines; and
(ii) take account of material of cultural heritage value and involve the least possible alteration or loss of it; and
(iii) safeguard the options of present and future generations; and
(iv) be fully researched, documented, and recorded, where culturally appropriate; and
(c) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga.
[7] It is evident that the HPA has a single purpose in promoting the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand. Amongst other things, persons exercising functions and powers under the HPA are obliged to recognise the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga.
Administration
[8] The HPA maintained the Historic Places Trust as the lead historic heritage agency in New Zealand. It is governed by an independent Board, the appointed members of which must have knowledge of tikanga Maori and te ao Maori (Maori worldview).[5]
[9] The Council[6] has a specialised role under the HPA in relation to any historic area, historic place, wāhi tapu or wāhi tapu area associated with Maori heritage.[7] All but one of its eight members are appointed for their specialist skills, knowledge or cultural background appropriate to the functions and powers of the Council.[8]
[10] The Judge described the membership of the Council in these terms:
[77] The chair of the Council, Sir Tumu Te Heuheu, is the paramount chief of Ngāti Tuwharetoa. Dr Apirana Mahuika is the chairman of Te Runanga O Ngāti Porou and has been recognised for his commitment to the preservation and protection of historic places.[9] Manos Nathan, a Council member, is a practising artist and educator in fine art in the tertiary sector. He has also been involved in researching and presenting evidence to the Waitangi Tribunal, including in relation to wahi tapu issues. Another member, Mr Ian Athfield, was elected by the other members for his architectural expertise.[10] These examples illustrate the ambit of experience and expertise deemed necessary for the discharge of the Council’s functions, including its decision-making function.
[11] The statutory functions of the Council are set out in s 85:
85 Functions of Council
The Maori Heritage Council shall have the following functions:
(a) to ensure that, in the protection of wahi tapu, wahi tapu areas, and historic places and historic areas of Maori interest, the Trust meets the needs of Maori in a culturally sensitive manner:
(b) to develop Maori programmes for the identification and conservation of wahi tapu, wahi tapu areas, and historic places and historic areas of Maori interest, and to inform the Board of all activities, needs and developments relating to Maori interests in such areas and places:
(c) to assist the Trust to develop and reflect a bicultural view in the exercise of its powers and functions:
(d) to develop its own iwi and other consultative and reporting processes and to recommend such processes for adoption by the Board, branches, and staff of the Trust when dealing with matters of Maori interest:
(e) to make recommendations to the Trust on applications referred by the Trust under section 14(3) that relate to archaeological sites of Maori interest:
(f) to consider and determine proposals for the registration of wahi tapu and wahi tapu areas:
(g) to propose the registration of historic places and historic areas of Maori interest:
(h) to make recommendations to the Trust on applications for resource consents referred by the Trust under section 33:
(i) to perform such functions as are delegated to the Council by the Board:
(j) to perform such other functions as are imposed on the Council by this Act or any other Act:
(k) to advocate the interests of the Trust and the Council so far as they relate to matters of Maori heritage at any public or Maori forum.
(emphasis added)
[12] One of the functions of the Council is to develop Maori programmes for the identification, conservation and protection of wāhi tapu, wāhi tapu areas, historic places and historic areas of Maori interest. Of particular relevance to the present case is the function of the Council in considering and determining proposals for the registration of wāhi tapu and wāhi tapu areas. That includes the review, variation or removal of such registrations under s 37 of the HPA.
Registers required to be established under the Act
[13] The Historic Places Trust is required to establish and maintain a register with four parts: one for historic places, one for historic areas, one for wāhi tapu and one for wāhi tapu areas.[11] The register must be open for public inspection.[12] Of particular significance are the purposes of the register under s 22(2) of the HPA:
(2) The purposes of the register shall be as follows:
(a) to inform members of the public about historic places, historic areas, wahi tapu, and wahi tapu areas:
(b) to notify owners of historic places, historic areas, wahi tapu, and wahi tapu areas where necessary for the purposes of this Act:
(c) to assist historic places, historic areas, wahi tapu, and wahi tapu areas to be protected under the Resource Management Act 1991
Processes for registration and review of wāhi tapu areas
[14] Section 32 of the HPA provides:
32 Provisions relating to wahi tapu areas
(1) Any person may propose to the Maori Heritage Council that any wahi tapu area be entered on the register.
(2) Every proposal for registration shall contain a legal description of the general area of land affected and specify the general nature of the wahi tapu included in the area.
(3) If satisfied that the proposal is supported by sufficient evidence, the Council must—
(a) publicly notify the proposal for registration in the manner that the Council considers appropriate; and
(b) give notice in writing of the proposal to—
(i) any person that—
(A) is an owner of the wahi tapu area or part of the wahi tapu area; or
(B) has a registered interest in the wahi tapu area or part of the wahi tapu area; and
(ii) the relevant territorial authority and regional council; and
(iii) the appropriate iwi.
(4) Despite subsection (3)(b), the Council is not required to give notice under subsection (3)(b)(i) if—
(a) the person is both—
(i) unknown to the Council; and
(ii) unidentifiable by the Council from publicly available records; or
(b) the person's address is both—
(i) unknown to the Council; and
(ii) unidentifiable by the Council from publicly available records.
(5) An owner of a wahi tapu area or part of a wahi tapu area who receives a notice under subsection (3)(b)(i)(A) must give notice in writing of the proposal to any occupiers of the wahi tapu area or part of the wahi tapu area owned by the owner.
(6) Failure to give notice under subsection (5) does not invalidate the registration process.
(7) In the case of an application affecting Maori land, the Trust must give notice of the application to the appropriate Registrar of the Maori Land Court, who must record the notice in the court records.
(8) For the purposes of this section, address means usual or last known place of—
(a) residence; or
(b) business.
[15] When registration of a wāhi tapu area is proposed, s 32 envisages a two stage process. The first stage requires the Council to consider whether there is “sufficient evidence” supporting the proposal. If the Council is satisfied there is sufficient evidence to support the proposal, the second stage requires the Council to publicly notify the proposal and to give notice to the parties specified in s 32(3)(b). Mr Millard QC for WCHP pointed out that the HPA requires notice to be given not only to the owners of the affected land but also anyone who has a registered interest in that land. This would include, for example, a mortgagee.
[16] Section 32A of the HPA sets out the procedure to be followed if a wāhi tapu area is proposed and the Council decides to proceed with public notification:
32A Procedure if registration of historic area or wahi tapu area proposed
(1) The following persons may make written submissions on a proposal under section 31 to register an historic area or on a proposal under section 32 to enter a wahi tapu area on the register:
(a) every owner of the historic area or wahi tapu area, or part of the historic area or wahi tapu area:
(b) any occupier of the historic area or wahi tapu area, or part of the historic area or wahi tapu area:
(c) every person having a registered interest in the historic area or wahi tapu area, or part of the historic area or wahi tapu area:
(d) any incorporated society or body corporate engaged in or having as one of its objects the protection of historical and cultural heritage:
(e) the relevant territorial authority and regional council:
(f) the appropriate iwi.
(2) The submissions must be made to the Trust or Council, as the case may require, within—
(a) 20 working days after the public notification of the proposal or application; or
(b) any longer period specified by the Trust or Council in a particular case, but not longer than 40 working days after the public notification of the proposal or application.
(3) The Council may make any inquiries that it sees fit before deciding whether to register a wahi tapu area.
(4) If the Trust considers that an historic area proposed for registration is of Maori interest, the Trust must refer the proposal to the Council for its recommendation as to whether the historic area should be registered.
[17] The key features of this provision are:
(a) It refers only to the making of written submissions by persons interested.
(b) It makes no provision for an oral hearing.
(c) The Council is empowered to make its own enquiries before deciding whether to register a wāhi tapu area.
[18] Section 37 of the HPA deals with the review, variation or removal of the registration of a wāhi tapu area after a period of three years from the date of registration or the last review. It relevantly provides:
37 Review, variation, or removal of registration
(1) The Trust (in the case of an historic place or historic area) or the Council (in the case of a wahi tapu or wahi tapu area) may, at any time, review the registration of the historic place, historic area, wahi tapu, or wahi tapu area.
(2) Any person may—
(a) apply to the Trust for a review of the registration of any historic place or historic area:
(b) apply to the Council for a review of the registration of any wahi tapu or wahi tapu area.
(3) However, no person may apply for a review of a registration within 3 years after the date of—
(a) the registration; or
(b) the last review of the registration.
(4) An application for the review of a registration must be made in the prescribed form (if any) and state the grounds for review.
(5) An application for the review of registration must be considered by the Trust or the Council (as the case may be) not later than 1 year after the date of its receipt by the Trust or the Council.
(6) However, the Trust or the Council (as the case may be)—
(a) may decline to consider any application that does not state any grounds for review or if it considers that the grounds stated are insufficient to justify a review; and
(b) must notify the applicant of its decision in writing.
(7) If the Trust or the Council decides to review a registration (whether on its own initiative or as a result of an application), the Trust or the Council (as the case may be) must conduct the review in the same manner as if it were a proposal for registration or an application to enter on the register (as appropriate) under this Act.
(8) When its review is completed, the Trust or the Council (as the case may be) may—
(a) vary the registration; or
(b) remove the registration; or
(c) confirm the registration; or
(d) in the case of an historic place, change or confirm the category of registration.
...
[19] The salient features of the process for review under s 37 are:
(a) The application for the review of a registration must be made in the prescribed form (if any) and state the grounds for review.[13]
(b) There is a similar two stage process to that involved under s 32 when the original proposal for registration is made. As a first step, the Council may decline to consider any application that does not state any grounds for review or if it considers that the grounds stated are insufficient to justify a review.
(c) If the Council decides to review a registration (whether on its own initiative or as a result of an application by a third party), the Council is obliged to conduct the review in the same way as if it were a proposal for registration.
(d) When the review is completed, the Council may vary, remove or confirm the registration.
The effects of registration as a wāhi tapu area
[20] The High Court Judge canvassed at some length the provisions of the HPA relating to the effects of registration under the HPA as a wāhi tapu area. She discussed the implications for a landowner of registration under the HPA, the Resource Management Act 1991 (the RMA) and the Building Act 2004. The Judge also contrasted the more serious consequences for a landowner that would flow from the making of a heritage order under Part 8 of the RMA. Under the HPA, the Historic Places Trust or the Minister responsible for the administration had the power to give notice to a territorial authority of a requirement for a heritage order.[14] If a heritage order is made and included in a district plan after the processes under the RMA are completed, the restrictions on any interference with the wāhi tapu are substantial. No person may, without the prior written consent of the relevant heritage protection authority, do anything that would wholly or partially nullify the effect of the heritage order including undertaking any use or subdivision of the land or changing the character, intensity or scale of the use of the land.[15]
[21] The Judge identified certain other consequences flowing from registration of an area as wāhi tapu. She instanced s 32D of the HPA in terms of which district and regional councils must have particular regard to any recommendations the Council may make as to appropriate measures that should be taken to assist in the conservation and protection of a registered wāhi tapu area. She noted that, under the RMA, territorial authorities must have regard to the register in preparing their district plans and regional policy statements.[16] Reference was also made to s 33 of the HPA which sets out the obligations of the Trust, the Council and the relevant territorial authority where the latter advises the Trust that an application for a resource consent has been made in respect of any wāhi tapu area. This requires a process of consultation to be conducted by the Council which may cause a delay of up to three months in the resource consent process. Finally, the Judge noted s 34 of the HPA (which requires the Trust to notify a territorial authority of the registration of a wāhi tapu area which must then be noted on a LIM report)[17] and s 5 of the Building Act 2004 (which requires such information to be included in any project information memorandum).[18]
[22] After referring to the purpose of the HPA under s 4 and the purposes of registration under s 22, the Judge found:[19]
... the signification of heritage value through registration alone does not, of itself, restrict land use or otherwise impact on the legal rights of property owners. It does not impose any regulation on land use. As [counsel for the Council] submitted, registration simply confirms that there are wahi tapu values associated with the land: thus, it is a signifier of heritage value
[23] While recognising that there might be a “chilling effect” as a consequence of heritage value, this was a practical rather than a legal consequence.[20] The Judge went on to state:
[106] Whilst a decision by the Council to register or confirm an area as wahi tapu is the exercise of a statutory power of decision, it does not determine anything. This is in contrast to the effect of a heritage order under the RMA. The only effect of the Council’s decision in this case was to put on public record in the register its considered and expert opinion that a greater area of land in the Takamore wahi tapu area had been identified and notified as possessing “cultural, historical, ... spiritual, traditional significance or value”.
[24] Elaborating further, the Judge said:
[159] In terms of the effect or consequences of registration, a decision to determine that an area should be registered as wahi tapu has no more effect than that of identifying and informing owners, the public, community organisations, government agencies and local authorities about significant heritage value. Essentially it “assists” with the protection and conservation of a wahi tapu area. As Mr Teira deposed, registration simply indicates there are wahi tapu values associated with particular land.[21] That is not dependent on whether kōiwi or archaeological evidence has been located on the land. Nor does registration alone provide legal protection for wahi tapu or other features of heritage value. Legal protection occurs only if a heritage order is made under the RMA, in which case there will be consequences for a landowner who, for example, wishes to develop the subject land. However, until and unless that happens there are no regulatory consequences.
[25] The Judge noted that where notice of a requirement for a heritage order was given, process rights under the RMA were triggered including an express obligation to give reasons along with a right of appeal to the Environment Court and ultimately, on questions of law, to the High Court.[22]
The background facts
[26] Mr Millard accepted (with one exception we mention below)[23] that the Judge’s factual findings were correct. He acknowledged that it was open for the Council on the evidence before it to conclude there was a proper foundation for registration of a wāhi tapu area. Counsel also clarified that WCHP did not suggest the decision made was irrational or unreasonable in the Wednesbury sense and no such allegation was pleaded.[24] It follows from these concessions that it is unnecessary for us to canvass in detail the materials placed before the Council upon which it based its decision. Rather, the focus of the appeal is confined to the complaints about the process adopted. It was said this had led to a breach of natural justice.
[27] In 1995, the then chair of the Takamore trustees, Mr Robert Ngaia[25] applied to the Council for registration of an area of land as wāhi tapu on the basis that it contained an urupā (a burial ground) and a macrocarpa tree known as the Maketu Burial Tree. The tree marked a number of sacred gravesites. The Council accepted the application and registered the area as wāhi tapu. It comprised approximately 19.2 hectares in total. For some reason (possibly oversight) the Maketu Burial Tree was omitted from the registration. The registration of the area as wāhi tapu was notified by the Kapiti Coast District Council and subsequently recorded in its Heritage Register.
[28] In 1997, a notice of requirement under the RMA was issued by the Kapiti Coast District Council for a roading project known as the Western Link Road Project. This requirement gave rise to extensive litigation in the Environment Court and in the High Court between 2002 and 2004. WCHP was a party to the litigation. A historian with special expertise in historical Maori land issues, Mr Bruce Stirling gave evidence on behalf of WCHP at one of the Environment Court hearings based on a report he had earlier provided on the history of the Takamore urupā in 2001.
[29] As a result of the court proceedings, the Kapiti Coast District Council acquired 6.3 hectares of land from WCHP in 2008 for the purposes of the Western Link Road Project. This land included the site of the Maketu Burial Tree.
[30] Later, in 2010, the New Zealand Transport Agency (NZTA) proposed an expressway, with two options, one of which would have avoided the Takamore wāhi tapu area. As a result of the NZTA’s proposed expressway, the Takamore trustees realised there were anomalies in the area of land registered as wāhi tapu in 1995. A significant aspect of this was the exclusion of the Maketu Burial Tree site. In consequence, the lawyer for the Takamore trustees wrote to the Historic Places Trust on 27 June 2011 requesting a review of the existing registration with a view to expanding it. The letter did not contain a legal description of any land affected but stated as follows:
1. I have instructions from the Takamore Trustees. Thank you for making time with your Historic Places Trust colleagues to meet with Trust chairperson Ben Ngaia and the writer on 2 June 2011 to discuss the potential impacts of the proposed Expressway route on the Takamore waahi tapu area.
2. The Trustees have instructed me to formally request from the Historic Places Trust a review of the waahi tapu area, with particular reference to the fact that the boundaries of the registered waahi tapu do not accord with oral tradition and archaeological evidence concerning the presence of kōiwi and taonga.
3. In one particularly recent example, you have been provided with a report from archaeologist for the New Zealand Transport Agency, Ms Mary O’Keeffe which clearly evidences the presence of kōiwi in and around the Maketu tree area, which is outside the current boundaries of the registered waahi tapu. There are also other examples of similar anomalies.
4. The Trustees would wish to participate in any review process and share the information that they have collated. The Trustees also reiterate that this process is an urgent one, given the fact that NZTA have publicly announced the preferred route for the Expressway.
[31] Given NZTA’s roading proposal the Council recognised there was a degree of urgency in considering the request for a review. An internal registration project brief was prepared by Ms Collins, a Council staff member. This included a proposal to engage Mr Stirling as an independent contractor to carry out the necessary research and prepare a report for the consideration of the Council. He was engaged by the Council on 12 July 2011. His research was to include an assessment of the existing 1994 Takamore wāhi tapu area registration and the sources of information for that which were contained in three volumes. Mr Stirling requested any other documentation the Takamore trustees had included with the application but was advised there was none.
[32] At the request of the Council, the Takamore trustees provided a completed form of application for review on 20 July 2011. It referred to a block of land with some glasshouses owned by the NZTA and to the Maketu Burial Tree but did not refer to land owned by WCHP. Nor did it contain any legal description of the affected land. The grounds for review were stated as follows:
(1) The current boundaries of the registered waahi tapu are inaccurate in that they follow cadastral boundaries and do not accord with the boundaries of the waahi tapu as provided in the oral tradition of the kaitiaki.
(2) One complete title block within the waahi tapu is excluded from the registered waahi tapu boundary, being locally referred to as “the greenhouse block” now owned by NZTA.
(3) The registered waahi tapu does not include the Maketu Tree, which is an important part of the cultural heritage landscape and the waahi tapu as known by the kaitiaki.
[33] In order to clarify the area of the proposed extension, Mr Stirling met with Mr Ben Ngaia and another of the Takamore trustees on 16 July 2011.[26] The meeting lasted approximately two hours. Those present walked over some of the land in question although not over WCHP’s land. The extent of the area to be included in the review was discussed. Mr Ngaia also outlined to Mr Stirling the traditional history of the area and identified landscape features and locations associated with it. Mr Stirling included and referenced this information for inclusion in his report which he produced in draft form on 21 July.
[34] Shortly afterward, the Technical Review Committee (TRC) of the Historic Places Trust met to discuss the review proposal. The TRC comprised Mr Teira, other members of the Trust, and Ms Collins. As a consequence of this meeting, Mr Stirling was asked to provide more information on how the boundaries for the Takamore wāhi tapu area were to be determined. It was also suggested that it would be useful to include a map in his report showing the boundaries of the wāhi tapu area at the date of registration in 1995 and the proposed extended boundaries.
[35] Following receipt of Mr Stirling’s response to this request, a meeting of the Historic Places Trust lead team was held on 2 August 2011. This was a wider group of persons than those who had participated in the earlier TRC meeting. It comprised Mr Teira and others. The proposal to initiate a review of the registration of the Takamore wāhi tapu area was considered in the light of a formal discussion paper prepared for the meeting.
[36] On 5 August 2011, Mr Stirling provided his final report. The Judge summarised the content of this report:
[49] ... In it he set out in detail which land was to be assessed for an extension of registration. This included [WCHP’s] land. A detailed review of the history of the area proposed was also included in the report. In brief summary, this outlined how Te Ata Awa had migrated to the land in around 1820-30 and had battled Ngati Raukawa for land ownership. This led to the Battle of Te Kuititanga in 1839. Some of the dead from that battle were said to have fallen in the Ngahuruhuru cultivation (within the proposed Takamore wahi tapu area) and were buried there. This rendered that tract of land tapu. The same land is part of the surrounding cultural landscape and contains many pa sites to the north, east and west. In 1840, Te Ati Awa left the area but some of the iwi later returned in 1848-49 and the Takamore urupā was then subject to more extensive use. The iwi moved on again in the 1890s, but left behind taonga buried in the urupā. The southern part of the urupā was marked by the Maketu Burial Tree. Mr Stirling recorded that not only had the original registration of the area as wahi tapu not included the Maketu Burial Tree, neither had it included other significant areas, including the Ngahuruhuru cultivation where kōiwi (human bones) had recently been located during the NZTA archaeological excavations. Mr Stirling referred to the evidence Robert Ngaia (the then Chairman of the Trustees) had given to the Environment Court in the 2002-2004 court proceedings that “many of our dead lie in their lands” (a reference to [WCHP’s] land including part of the Ngahuruhuru cultivation grounds) and to the recent opinion of the NZTA archaeologist, that further unrecorded sites will be located if the area is more thoroughly excavated. There was also reference to another significant wahi tapu omitted from the original registration, being two punawai (sacred springs) situated next to the glasshouses on the land owned by the NZTA.
[37] She also referred to Mr Stirling’s advice that:[27]
The wahi tapu area contains sites of cultural and historical importance, including wahi tapu, and interrelated cultural features such as the Takamore urupa, the Maketu tree and grave, whare kohanga, punawai, kōiwi, Ngahuruhuru area, and a range of archaeological sites.
[38] Goddard J noted that Mr Stirling’s report included legal descriptions of the affected properties including WCHP’s land. She recorded that Mr Stirling’s report included a map showing the boundaries of the proposed extended wāhi tapu area and, by way of comparison, the boundaries of the original 1995 registered area. Aerial maps were also included in Mr Stirling’s report showing features and boundaries of the land. Search copies of the certificates of title of the land proposed to be affected (including the title for WCHP’s land) were attached to the report.
[39] It is not in dispute that Mr Stirling relied on a number of primary and secondary sources in order to determine whether there was sufficient evidence to support the boundaries of the Takamore wāhi tapu area being extended for the purpose of protecting and conserving Maori culture taonga and traditions within the Takamore ancestral land. Mr Stirling also described in detail how he had arrived at the boundaries of the proposed area, including some areas and excluding others.
[40] The Council met on 25 August 2011. The meeting was chaired by Sir Tumu Te Heuheu and attended by other members of the Council was well as Board members of the Historic Places Trust. The meeting was convened to consider a paper circulated in advance by Ms Collins. The Council concluded that the request by the Takamore trustees was valid under s 37(2) of the HPA and recommended that the review be initiated. The public notification of the review was approved.
[41] On 5 September 2011, Mr Teira sent a letter of notification to WCHP enclosing a copy of Mr Stirling’s report and advising that WCHP’s land was to be included in the review. The period of 20 working days for written submissions in response was later extended to 40 days.
[42] On 11 October 2011, WCHP requested from the Council an assessment of the evidence submitted by the Takamore trustees in support of their application. As no evidence had been submitted by the Takamore trustees, none was supplied. WCHP renewed its request on 28 October 2011 and also made the same request directly to the Takamore trustees. The latter provided WCHP with a copy of a Cultural Impact Assessment in relation to the potential impacts of the proposed expressway on the Takamore wāhi tapu area. This document had also been supplied by the Takamore trustees to the Council but was not relied upon by Mr Stirling in preparing his report. Nor, the Judge said, was it part of the Council’s consideration.
[43] Certain other information requested by WCHP (including a copy of the original 1995 application for registration by the Takamore trustees) was provided to WCHP at its request. WCHP maintains it asked for the Takamore trustees’ initial letter of request of 27 June 2011 but it was never supplied. Mr Teira’s evidence was that he was not aware of receiving any such request. The Judge said WCHP did not request this letter but this is disputed by WCHP. For reasons we discuss later, we do not consider the failure to supply this letter (if it occurred) to be material.
[44] WCHP sent extensive written submissions to the Council opposing the extension of the wāhi tapu area on 4 November 2011. It also asked for the opportunity to be heard. Amongst the concerns expressed by WCHP were that the value of its land would be diminished, its ability to exercise its rights over the property would be restricted, the historical evidence relied upon was unreliable, and there was a lack of clarity as to what land was wāhi tapu.
[45] At the Council’s request, Mr Stirling prepared a memorandum to enable the Council to respond to WCHP’s concerns. The Council summarised Mr Stirling’s response in a letter to WCHP of 17 November 2011 which was apparently not received by WCHP until 8 December 2011. The Council advised WCHP there was no provision for oral submissions and that the Council would consider further written submissions. The Council also informed WCHP that registration did not, of itself, impact on the rights of a property owner and that an historical reference source upon which WCHP was relying in its submission,[28] had not formed part of Mr Stirling’s report. WCHP replied to the Council’s letter of 17 November 2011 on 12 December 2011.
[46] In the meantime, Mr Teira met with WCHP’s business manager on 25 November 2011 and was taken on a tour of WCHP’s property. During the meeting, Mr Teira discussed a number of aspects of the registration proposal with the manager.
[47] The Council met on 14 December 2011 to consider the review and the proposed extension of the wāhi tapu area. It had before it an extensive report from Ms Collins, a copy of Mr Stirling’s report, a copy of all the written submissions that had been filed including those by WCHP, a copy of the Council’s response to the concerns raised by WCHP and WCHP’s further letter of 12 December 2011 by way of reply.
[48] Those present at the meeting included Sir Tumu Te Heuheu (Chair of the Council and Board member), Ms Naida Glavich (also a Board member), Mr Manos Nathan, Mr Che Wilson, Mr Gerard O’Regan, and Mr Ian Athfield (also a Board Member). Also present at the meeting were Mr Bruce Chapman, Ms Collins, Ms Anna Glassie, Mr Rei Kohere, Mr Dean Whiting, and Mr Teira.
[49] Mr Teira said the Council had a lengthy discussion regarding the application. In relation to WCHP he said:
The Council discussed the submissions received by WCHP in detail and considered WCHP submissions that the proposed extension of the Takamore wahi tapu area would diminish its land value including its ability to exercise right of ownership, occupation, and property development. The Council did not accept this comment as valid and noted that registration did not in itself diminish property rights.
[50] The decision of the Council as recorded in the minutes of the meeting on 14 December 2011 and as notified to the affected parties was:
Takamore
It was resolved that
(i) The Māori Heritage Council having considered the issues raised in the submissions received the response to those issues provided by NZHPT management the registration of the following:
Takamore, Flaxmere Street, Gates Road, Weggery Drive, Waikanae River, Kauri Road and Puriri Road, WAIKANAE BEACH (Record no.7263) as a wahi tapu area be confirmed.
(ii) The following recommendation be made to the territorial authority:
To ensure the long-term conservation for Takamore wahi tapu area, that the Kapiti Coast District Council update their Kapiti District Council Operative 1999 Plan to reflect the amended Takamore Wahi Tapu Area boundary.
[51] The Council also confirmed in its letter to submitters of 12 January 2012 that it had given “careful consideration to the registration proposal, the submissions received and the response to the submissions”.
[52] We now address each of the grounds of appeal.
The absence of a legal description of the land affected by the review
[53] Mr Millard submitted there was a mandatory obligation under the HPA to include a legal description of the affected lands in an application to register or review a wāhi tapu area. The absence of any such description in either the letter from the Takamore trustees of 27 June 2011 or the form of application dated 20 July 2011 meant that the application for review was fatally flawed.
[54] The Judge noted a submission made on behalf of the Council that the requirement for a legal description relates only to an application for registration in the first instance and not to an application for review of an existing registration. Section 37(4) the HPA requires an application for review to be in the prescribed form (if any) and to state the grounds for review. The inclusion of a legal description of the land is not mentioned. Nor was provision made for a legal description in the form sent by the Council for the Takamore trustees to complete. Section 32(2) of the HPA requires a legal description for every proposal for registration. Arguably, this requirement is imported in relation to an application for review by virtue of s 37(7) of the HPA. Certainly, that would clearly be desirable, particularly where an extension of the original registered area is being sought.
[55] The Judge did not find it necessary to decide the point because she was satisfied that any deficiencies were cured by Mr Stirling’s identification of all of the land affected which he detailed in his report. As noted, this included all relevant legal descriptions and certificates of title.[29] We agree with the Judge that there is no merit in this point. A failure to meet a statutory requirement does not automatically lead to invalidity. As noted by Graham Taylor the old dichotomy between mandatory and directory requirements has given way to an assessment of the substance of the case.[30] The court considers the nature and purpose of the legislation as well as the degree and effect of non-compliance to determine whether Parliament intended that non-compliance would result in invalidity.[31]
[56] We are satisfied that the purpose of the requirement for a legal description (assuming it was required on a review) was to assist the territorial authority, landowners and other interested parties to identify the exact boundaries of a registered wāhi tapu area and the boundaries of any proposed variation of such an area. That purpose was met in this case. The need to clarify the boundaries of the land affected for the purposes of the review was recognised by the Council at an early stage. Mr Stirling was engaged for the purpose of addressing that very issue. In his report provided to WCHP, the boundaries and legal descriptions of the affected land were described in detail. WCHP could not have been under any misapprehension about the boundaries of the land affected by the review proposal nor that the whole of its land was included in the proposal. In the absence of any material prejudice to WCHP, the Judge was right to decline judicial review on this ground. If there was an obligation to include a legal description in the review application, Parliament cannot have intended that a failure to do so would result in the invalidity of the application or of the Council’s later decision.
The failure of the Council to disclose certain documents
[57] Mr Millard submitted that the Council had failed to disclose to WCHP:
(a) The letter from the Takamore trustees of 27 June 2011 requesting a review.
(b) The application form subsequently completed by the Takamore trustees at the request of the Council.
(c) Any evidence submitted by the Takamore trustees in support.
(d) Mr Stirling’s memorandum to the Council responding to WCHP’s submission in opposition.
[58] The Judge found that any deficiencies in disclosure were cured by Mr Stirling’s research and report disclosed to WCHP and other parties.[32] We agree and simply note the following points. First, the initial letter from the Takamore trustees did not set out any detailed grounds for the application or provide any supporting evidence that could have been disclosed. Second, the steps taken thereafter were an iterative process involving research by Mr Stirling as well as discussions between the Takamore trustees and Mr Stirling and discussions between Mr Teira and WCHP. The material gathered was then included in Mr Stirling’s report and circulated to WCHP and others for their comments and submissions. We agree with the Judge’s observation that:[33]
Given the depth of research and the detail in that report, and the particularity of the legal descriptions set out in it, the plaintiff and other submitters were fully appraised of what was being proposed, what land was involved, and why.
[59] Mr Millard argued that if WCHP had been aware that the Takamore trustees had not raised the inclusion of the WCHP land in its request for a review and had not provided any supporting evidence at the outset, then this could have been relied upon by WCHP to support a submission that there was insufficient evidence to justify the inclusion of its land as part of the revised wāhi tapu area or at least to cast doubt on the weight to be attached to the significance of any cultural or spiritual values attaching to the WCHP land. We are not persuaded this was likely to have carried any weight in the Council’s assessment which was undertaken on the evidence presented by Mr Stirling in his report, considered in the light of all the submissions including those of WCHP opposing the inclusion of its land in the proposal.
[60] Mr Millard was critical of the failure to disclose Mr Stirling’s actual memorandum to the Council responding to WCHP’s submission. But the Council summarised his response in a lengthy letter to WCHP to which WCHP responded in writing. All of this material was before the Council when it made its decision. We are not persuaded that WCHP was materially prejudiced in any respect.
Was an oral hearing required?
[61] Mr Millard accepted there was no mandatory requirement under the HPA to provide an oral hearing of the application for review of the wāhi tapu area. But he submitted the Council had a discretion to hold an oral hearing when fairness required. An oral hearing should have been held he said because of the disclosure deficiencies already mentioned and because WCHP disputed that the matters relied upon in Mr Stirling’s report applied to the WCHP land. Although WCHP and other submitters had sought an oral hearing, the Council had advised that it was not its practice to do so.
[62] Mr Millard did not submit that a “full hearing” was required. He clarified this would not have included the presentation of evidence through witnesses or cross-examination. Rather, he submitted WCHP and other submitters should have been given the opportunity to “speak to their submission”.[34] If that had occurred, he submitted the Council would have been more likely to appreciate the significance of the points made by WCHP in its submissions. Points of difference with the views offered by Mr Stirling in his report could have been highlighted.
[63] The Judge accepted the Council’s submission that the HPA does not contemplate an adversarial process and that cross-examination would not have been appropriate or useful.[35] There was no legitimate expectation of an oral hearing given the focus of the HPA on written submissions and the appointment of Council members with specialist knowledge and expertise in tikanga Maori and te ao Maori.
[64] We agree that the HPA does not contemplate an oral hearing although one might be afforded as a matter of discretion.[36] The scheme of the HPA requires only written submissions. It deliberately goes no further. The function of the Council to “consider and determine” proposals for wāhi tapu registration under s 85(f) does not alter that. The process contemplated by the HPA is much closer to being inquisitorial than adversarial in nature. That is most strongly supported by the ability of the Council to make such inquiries as it sees fit under s 32A(3) but is also evident from the specialised membership of the Council, as the Judge thought, and the Council’s ability to review the registration of a wāhi tapu area on its own initiative under s 37(7).
[65] Ultimately it was a matter of discretion for the Council to decide whether it should afford any form of oral hearing. We agree with the Judge that there is nothing to suggest that this would have provided any material benefit to WCHP beyond the detailed written submissions it had made and its discussions with the Council officer Mr Teira.
Was the Council required to give reasons for its decision?
[66] Mr Millard accepted there was no express requirement under the HPA for the Council to give reasons for its decisions but he submitted that there may be circumstances where this should occur. This was implicit in the statute or was grounded in common law precedent, citing this Court’s decision in Lewis v Wilson & Horton Ltd.[37] WCHP pointed to a Government Committee Report prepared at the time of the 2006 Amendment to the HPA which resulted in the insertion of s 32A into the HPA. The report spoke of the need to provide “greater transparency and accountability” and “a more rigorous notification and submissions regime” for affected parties in respect of registrations under the legislation.[38]
[67] Mr Millard submitted that the proposed extension of the wāhi tapu area was substantial and was disputed. This suggested reasons should have been given yet none were in the formal decision as recorded by the Council or as notified to the parties.
[68] The Judge considered that the HPA did not require reasons to be given. The process adopted by the Council showed it had given careful consideration to the review and had discharged its duties appropriately.
[69] It is clear there was no express requirement under the HPA for the Council to give reasons for its decision and we are not persuaded there was any implicit requirement to do so.[39] If there was a duty to give reasons it could only arise at common law.
[70] In Lewis v Wilson & Horton Ltd this Court confirmed that there is no invariable rule at common law that public body decision-makers must give reasons for their decisions.[40] We accept however that there is a growing trend towards a presumptive duty to give reasons and that, in some cases, fairness may demand them.[41]
[71] The main reasons cited for the proposition that reasons are desirable are:
(a) Openness in the administration of justice.
(b) To assist a court exercising supervisory jurisdiction.
(c) To provide a discipline for the decision-maker.
[72] If reasons are given, they may be abbreviated and in some cases, they may be evident without express reference.[42]
[73] We accept Mr Wilson’s submission on behalf of the Council that no reasons were required to be given in this case and, in any event, that the reasons sufficiently emerged from the materials prepared for and by the Council as part of the review process. We refer in particular to Mr Stirling’s report and recommendations. They made the reasons for the review and extended wāhi tapu area abundantly clear. It is implicit in the Council’s decision that it accepted Mr Stirling’s recommendations and rejected the opposing submissions made by WCHP and other parties. We add that the Council’s letter of 17 November 2011 to WCHP gave a detailed response to the matters raised by WCHP in its submissions. The Council was not required to do more.
[74] None of the reasons usually advanced for giving reasons apply in the present case. The process was undoubtedly open; there was no need to assist the High Court in the exercise of its supervisory jurisdiction beyond the material readily available; and the careful and thorough process adopted by the Council showed that a formal statement of reasons was not required as a discipline for the decision-maker.
[75] Mr Wilson referred us to s 78(9) of the Heritage New Zealand Pouhere Taonga Act 2014 which now requires the Council to give reasons when reviewing a wāhi tapu registration and suggested in his written submissions this could assist in interpreting the HPA. However, there is clear authority that subsequent statutory amendments of this nature do not assist in determining the meaning of repealed legislation and we do not attach any significance to this point.[43]
Was the Council required to consider any adverse effects on the value of WCHP’s land?
[76] It was submitted for WCHP that the Council had wrongly concluded that registration had no effect on land value. Since the evidence later produced in the High Court established there was a loss of value, it was submitted the Council had failed to take into account a relevant consideration.
[77] The Judge’s conclusions on this point are best set out in full:
[163] For the reasons I have already given in rejecting the previous four grounds of review, this ground of review must also fail. Again, the specialist nature of the Council and its functions are relevant. The members’ expertise does not extend to determination of land values and to evaluating any commercial effect on the land through signification of heritage value. Such considerations are not within the expertise of the Council members and are not envisaged by the legislation as relevant.
[164] Issues of land use and property development are extrinsic to the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand, and to the recognition of the relationship of Māori and their culture and traditions with their ancestral lands, wahi tapu and other taonga.
[165] As already stated, the Council’s confirmation of the boundary extensions was not determinative of the plaintiff’s land rights or land use. In effect, it determined nothing. In this regard it can be distinguished from a situation of compulsory acquisition or land confiscation as in In Re Horowhenua, Subdivision No 14.[44] Any chilling effect on the value of land by the signification of heritage value is an unrelated by-product. It could not influence the Council’s thinking. It is essentially a practical consequence, albeit perhaps an unfortunate one for a landowner, depending on how it is viewed.
[78] Mr Millard submitted that the expertise of the Council (or the lack of it in the field of valuation) was irrelevant. The Judge was wrong to conclude that the effect on land value was not relevant. Counsel pointed to the requirement under s 32(3)(b) to serve notice on others with a registered interest in the land (such as mortgagees) as an indicator that Parliament had intended economic effects to be relevant to the Council’s consideration when an application for registration or a review is made. Mr Wilson submitted that the Judge was correct, essentially for the reasons she gave.
[79] We are inclined to the view that the consequences for a landowner of registration of a wāhi tapu area are more serious than the Judge was prepared to acknowledge. While there may be no direct regulatory obligations on a landowner by virtue of the registration, we accept that registration does have consequences for a landowner that may include a diminution in the value of the land. Indeed, evidence to that effect was placed before the High Court, apparently without objection. The Judge accurately identified the consequences of registration under relevant legislation. But the question for present purposes is whether the HPA imposed any obligation on the Council to take such consequences into account as WCHP submitted.
[80] We are satisfied that the potential for adverse effects on land value is not a relevant consideration under the HPA. Such a requirement is conspicuous by its absence in ss 32, 37 and 85. WCHP was unable to direct us to any provision in the legislation suggesting economic effects were relevant other than the requirement in s 32 to serve those with a registered interest in the land. A notice requirement of this kind is no more than procedural and could not give rise to the inference that economic effects are relevant because, for example, a mortgagee with a registered interest has to be served with the application. The obligation to notify those with a registered interest in the land is not confined to mortgagees but could extend, for example, to a third party entitled to the benefit of a registered easement.
[81] Importantly, an examination of the HPA shows that it has a single focus. In broad terms, its purpose is to promote the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand. The principles of the HPA demonstrate that historic places (including wāhi tapu areas) have lasting value in their own right and provide evidence of the origins of New Zealand’s distinct society. Those exercising authority under the HPA are required to recognise and take account of material of cultural heritage value, to act so as to involve the least possible alteration or loss of it, and to safeguard the options of present and future generations.
[82] Nowhere does the HPA require or suggest that economic or other effects on landowners are to be considered in the Council’s consideration of registration or review. Rather, the task of the Council under s 32 is to assess first whether there is sufficient evidence to support the proposed registration and, if so, to publicly notify the proposal and to seek submissions from interested parties. That necessarily involves an assessment of whether there is evidence demonstrating that the area in question has the characteristics of a wāhi tapu area as defined by the HPA. A similar process applies on a review under s 37. In exercising its functions under these provisions the Council must be guided primarily by the purpose and principles of the HPA. It must recognise that the proposal should be fully researched, documented and recorded where culturally appropriate and it is obliged to recognise the relationship of Maori and their culture and traditions with, amongst other things, wāhi tapu.[45] It is entitled to rely on its own expertise in evaluating the materials placed before it including any submissions made by interested parties.
[83] The Council is entitled to conclude that an existing registered wāhi tapu area should be varied to include additional land if that is appropriate having regard to the purposes and principles of the HPA.
[84] The specific purposes of registration and s 22 support the single focus of the HPA. The register is to inform members of the public of historic places (including wāhi tapu areas), to notify landowners, and to assist in the protection of such places under the RMA.
[85] The HPA is to be contrasted with the RMA under which a wide range of effects, including economic effects, are relevant considerations.[46] WCHP would, for example, be entitled to raise any adverse effects on its land arising from the registration of the wāhi tapu area on any application to review or change the district plan for the area or upon an application for a resource consent. Similarly if a heritage protection order were sought under the RMA with full rights of appeal against any adverse decision.
[86] We conclude that the Judge was correct to find that the economic effects on landowners of the registration of a wāhi tapu area were not relevant to the Council’s consideration of the issues arising on the review.
[87] For completeness we note that registration under the HPA does not necessarily remain indefinitely. It may be reviewed on the application of any person at three yearly intervals and may be varied, removed or confirmed.
Cumulative impropriety
[88] WCHP’s final ground of appeal was based on the so-called “innominate” ground of judicial review. Mr Millard submitted that, in a cumulative sense, the decision-making process by the Council had gone wrong to such a degree as to require the intervention of the Court.[47] Counsel was unable to advance any specific ground for this submission beyond those already dealt with.
[89] The Judge rejected this ground. We agree. There was nothing in the process of considering the application for a review savouring of unfairness. To the contrary, the Council acted fairly in investigating the application, disclosing relevant materials to WCHP and in considering its submissions. As we have found, any minor deficiencies in the process did not prejudice WCHP which had a full opportunity to make its opposition known through the lodging of detailed written submissions and discussions with the Council’s representative. While the process was carried out under some urgency, there is no evidence that this led to an inadequate investigation or that WCHP was prejudiced in consequence.
Conclusion and disposition
[90] We are satisfied that the High Court was right to dismiss the application for judicial review.
[91] The appeal is dismissed.
[92] The appellant must pay costs to the first respondent for a standard appeal on a Band A basis with usual disbursements.
Solicitors:
Rees-Thomas Law Ltd, Wellington for
Appellant
Kensington Swan, Wellington for First Respondent
[1] Now repealed and replaced by the Heritage New Zealand Pouhere Taonga Act 2014 with effect from 20 May 2014.
[2] Historic Places Act 1993, s 2.
[3] Historic Places Act, s 2.
[4] Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Maori Heritage Council [2013] NZHC 2319 (judgment reissued on 11 September 2013) [High Court judgment].
[5] Historic Places Act, s 42(3).
[6] Established under s 84 of the Historic Places Act.
[7] Historic Places Act, s 85.
[8] Historic Places Act, s 84(2).
[9] Since deceased.
[10] Since deceased.
[11] Historic Places Act, s 22(3).
[12] Historic Places Act, s 36.
[13] We were told that no form has been prescribed.
[14] Under s 13(i) of the Heritage New Zealand Pouhere Taonga Act, Heritage New Zealand Pouhere Taonga is empowered to act as a heritage protection authority under Part 8 of the Resource Management Act 1991. As such, it is able to give notice to a territorial authority of its requirement for a protection order: Resource Management Act, s 189.
[15] Resource Management Act, s 193.
[16] Resource Management Act, ss 61(2)(c)(iia), 66(2)(a)(iia) and 74(2)(b)(iia).
[17] Local Government Official Information and Meetings Act 1987, s 44A.
[18] Section 35(1)(b) of the Building Act 2004.
[19] High Court judgment, above n 4, at [81].
[20] At [89].
[21] Mr Te Kenehi Teira, the Kaihautū (director) of the Historic Places Trust.
[22] At [160].
[24] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223 (CA).
[25] Now deceased.
[26] We understand Mr Ben Ngaia to be a relative of the late Mr Robert Ngaia.
[27] At [50].
[28] Percy Smith History and traditions of the Maoris of the West Coast of the North Island of New Zealand, Prior to 1840 (Polynesian Society, New Plymouth, 1910).
[29] High Court judgment, above n 4, at [133].
[30] Graham Taylor Judicial Review: A New Zealand Perspective (3rd ed, LexisNexis, Wellington) at [13.05].
[31] Citing in particular London and Clydeside Estates Ltd v Aberdeen District Council [1979] UKHL 7; [1980] 1 WLR 182 (HL) at 190; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 (PC) at 1296.
[32] At [144].
[33] At [139].
[34] This is consistent with WCHP’s request to the Council.
[35] At [147].
[36] See the broad powers under s 86(1) of the Historic Places Act and the ability to refer matters to a delegated body under s 86(2)(a).
[37] Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA) at [76] and [79] per Elias CJ.
[38] The report of the Government Administration Committee on the Historic Places Amendment Bill 2006 (162–2, 21 February 2005). The 2006 Bill was enacted as the Historic Places Amendment Act 2006.
[39] There is now an express requirement to give reasons under s 78(9) of the Heritage New Zealand Pouhere Taonga Act.
[40] Lewis v Wilson & Horton Ltd, above n 37, at [75].
[41] Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington, 2011) at 845 and Graham Taylor, above n 30, at [9.16] citing Lewis v Wilson and Horton Ltd, above n 37, at [85].
[42] Lewis v Wilson & Horton Ltd, above n 37, at [81].
[43] Databank Systems Ltd v Commissioner of Inland Revenue [1990] UKPC 37; [1990] 3 NZLR 385 (PC) at 394; Teddy v New Zealand Police [2014] NZCA 422 at [32] (leave to appeal to Supreme Court refused) and JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 644.
[44] In Re Horowhenua, Subdivision No 14 (1897) 16 NZLR 532 (SC) at 539–540.
[45] See Historic Places Act, ss 4(2)(b)(iv) and 4(2)(c).
[46] See Resource Management Act, s 5(2)(c), and the definitions of “effects” under s 3 and “environment” under s 2.
[47] Citing Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641 (CA) at 652–653.
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