Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2023] NZCA 546 (3 November 2023)

Last Updated: 6 November 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA70/2023 [2023] NZCA 546

	BETWEEN	TRUSTEES OF THE MOTITI ROHE MOANA TRUST Applicants
	AND	BAY OF PLENTY REGIONAL COUNCIL Respondent

Court:	Courtney and Katz JJ
Counsel:	J W Maassen for Applicants M H Hill for Respondent
Judgment: (On the papers)	3 November 2023 at 11 am

JUDGMENT OF THE COURT

1. The application for leave to appeal is declined.
2. The Trustees must pay the Council costs for a standard appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

• [1] The trustees of the Motiti Rohe Moana Trust (the Trustees) apply for leave to appeal a High Court decision in which Hinton J dismissed the Trustees’ appeal against a decision of the Environment Court. The Environment Court had refused the Trustees’ application for a statutory declaration as to the lawfulness of a decision by the Bay of Plenty Regional Council (the Council) to withdraw a proposed plan change to the Bay of Plenty Natural Resource Plan (NRP).^[1]

Factual background

• [2] In 2016 the Council notified Plan Change 9 (PC9), a proposed plan change to the NRP. PC9 formed part of the implementation programme for the National Policy Statement for Freshwater Management. It addressed regional issues relating to water allocation and proposed a policy framework for working with tangata whenua and the community on local water quality planning actions.^[2] The National Policy Statement for Freshwater Management was promulgated in 2010, replaced in 2014 (NPS-FM 2014) and amended in 2017. PC9 related, in part, to freshwater rights and interests on Motiti Island. The Trustees represent the interests of the tangata whenua of Motiti Island.
• [3] There were several appeals to the Environment Court against PC9, including by the Trustees. A court-assisted mediation in 2019 was unsuccessful. A draft National Policy Statement for Freshwater Management was released in 2019 to come into force in 2020 (NPS-FM 2020), which was set to change NPS-FM 2014, as amended in 2017. By then the Council was concerned about the utility of proceeding with the proposed plan change — the changes required by NPS-FM 2020 meant that PC9 would be superseded by a replacement plan change that had to be notified by 31 December 2024,^[3] and it was unlikely that the appeals against PC9 would be determined by then.
• [4] The Council decided to withdraw PC9. It was entitled to do so under cl 8D of sch 1 of the Resource Management Act 1991 and it is common ground that the prerequisites under that provision were satisfied. There is no right of appeal from that decision.
• [5] The Trustees considered that, in withdrawing PC9, the Council had failed to take into account the relevant principles of te Tiriti o Waitangi | the Treaty of Waitangi which protect customary interests. They applied for judicial review of the Council’s decision to withdraw PC9. They also applied to the Environment Court under s 310 of the Resource Management Act 1991 (RMA) for declarations concerning the Council’s power to withdraw PC9. The Environment Court dismissed the application, finding that it had no jurisdiction to make the declarations sought.^[4] The Trustees appealed the Environment Court’s decision. Hinton J heard the appeal and the judicial review application together and dismissed both.^[5]
• [6] The Supreme Court declined the Trustees’ application for leave to appeal the High Court decision directly to it.^[6] The Trustees now seek leave from this Court to appeal the High Court’s decision dismissing their appeal against the Environment Court’s decision.^[7]
• [7] The Trustees’ right of appeal to the High Court was limited to questions of law.^[8] Any further appeal to this Court is governed by subpt 8 of pt 6 of the Criminal Procedure Act 2011 (CPA).^[9] An appeal to this Court may only be brought with leave and on a question of law.^[10] Under s 303(2) of the CPA this Court must not grant leave to appeal unless satisfied either (1) that the appeal involves a matter of general or public importance or (2) a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.
• [8] As to the first limb, the Trustees need to satisfy us that the proposed appeal both raises a question of law that is capable of bona fide and serious argument,^[11] and that the question of law raised is of general or public importance. To meet this threshold, they need to identify an important question of law that has broad application beyond the circumstances of this case.^[12]
• [9] To demonstrate that a miscarriage of justice may have occurred or may occur, the Trustees need to show an error, irregularity or occurrence in relation to the High Court appeal that created a real risk that the outcome of the appeal was affected.^[13]
• [10] The Council opposes the application on the basis that neither limb of s 303(2) has been met.

The Environment Court decision

• [11] Section 311 of the RMA permits any person to apply to the Environment Court for a declaration. Section 310 relevantly provides that:

A declaration may declare—

(a) the existence or extent of any function, power, right or duty under this Act, including (but, except as expressly provided, without limitation)—

(i) any duty under this Act to prepare and have regard to an evaluation report or to undertake and have particular regard to a further evaluation or imposed by section 32 or 32AA (other than any duty in relation to a plan or proposed plan or any provision of a plan or proposed plan); and

(ii) any duty imposed by section 55; or

...

(c) whether or not an act or omission, or a proposed act or omission, contravenes or is likely to contravene this Act, regulations made under this Act, or a rule in a plan or proposed plan, a requirement for a designation or for a heritage order, or a resource consent; or

...

(h) any other issue or matter relating to the interpretation, administration, and enforcement of this Act, except for an issue as to whether any of sections 95 to 95G have been, or will be contravened.

• [12] Initially, the Trustees sought a declaration in the following terms:^[14]

That the decision by the Bay of Plenty Regional Council to withdraw Plan Change 9 was made unlawfully because it was in breach of the Resource Management Act 1991 by not complying with the duty in the RMA, s 8 and ... no rational local authority complying with that duty could reach the conclusion withdrawal was [appropriate]...

• [13] In an amended application, the Trustees sought eight separate declarations asserting different aspects of unlawfulness in the Council’s decision to withdraw PC9, including the failure to comply with s 8 of the RMA.^[15]
• [14] The Council argued that the Environment Court did not have jurisdiction to make the declaration sought, as the application for declaratory relief effectively sought judicial review. It contended that the power under cl 8D was a mechanical provision, and that, in making the decision to withdraw PC9, the Council was not required to consider s 8 of the RMA (though it had done so in any event).
• [15] Judge Kirkpatrick dealt with the issue of jurisdiction as a preliminary question.^[16] It was unclear to him whether the declarations sought in the amended application substantively amended the original application or amplified it or identified further grounds for the original application.^[17] He proceeded on the following basis:

[33] ... Considered overall, the central issue is whether the Council’s withdrawal of Plan Change 9 was unlawful either because it was in breach of s 8 of the RMA or because it was unreasonable in the sense that it was a decision which no reasonable local authority, properly considering s 8 of the RMA, could have made. ...

• [16] The Judge considered that it was sufficient, in dealing with the preliminary question of jurisdiction, to approach the argument at that higher level rather than in terms of the more detailed declarations sought in the amended application.^[18] The Judge considered that the Environment Court’s power to grant declaratory relief is limited, given the statutory basis for its jurisdiction.^[19] He determined the application by reference to the specific grounds provided in s 310(a), (c) and (h) of the RMA.
• [17] As to s 310(a), although a declaration about the express requirements in cl 8D as to the timing, notice and giving of reasons (as opposed to the adequacy of any reasons) would be within the Court’s jurisdiction, those matters were not being raised by the Trustees; the application was, instead, directed at the appropriateness of the substantive provisions of PC9 and the inappropriateness of withdrawing PC9.^[20] Similarly, s 310(c) is directed towards whether an act or omission contravenes or is likely to contravene the RMA. While this would include the specific cl 8D requirements (which were complied with) it would not extend to the broader question of whether doing what cl 8D authorises accords with the principles of te Tiriti o Waitangi | the Treaty of Waitangi under s 8.^[21]
• [18] Nor did the provisions of s 310(h) provide any basis for the types of declarations being sought. That was intended as a catch-all provision to fill any gaps that arise in the more specific preceding provisions. It should not be read as including judicial review of administrative action under the RMA so as to create an additional substantive source of power to make declarations that would effectively render those preceding provisions redundant.^[22]
• [19] For these reasons, the Judge held the Environment Court did not have jurisdiction to make the declaration sought by the Trustees.

The High Court decision

• [20] In the High Court, the Trustees argued that the Environment Court was wrong to decline jurisdiction.^[23] Hinton J proceeded on the basis that the Trustees were not arguing that cl 8D had been contravened but rather that the Council had acted unlawfully for reasons other than those stated in cl 8D.^[24] She recorded the Trustees’ acknowledgement that the declaration sought was equivalent to an application for judicial review and that their argument was that s 310 conferred that power on the Environment Court.^[25]
• [21] The Judge considered previous decisions of the Environment Court in which it had expressly held that it did not have the power to made a declaration as to the legality of Council actions (both of which had been referred to by the Judge in the Environment Court).^[26] Acknowledging that neither was binding, the Judge, nevertheless accorded them weight, particularly given that one — Berryman — was longstanding and undisturbed authority.^[27] She did not accept that the authorities relied on by the Trustees supported their argument, either specifically, or as a broader proposition.^[28]
• [22] The Judge agreed with the Environment Court that s 310(a) only empowered that Court to make declarations about the express requirements of cl 8D rather than the adequacy of the reasons given for acting under it.^[29] Section 310(c) did not apply because it was not asserted that the Council had contravened cl 8D but, rather, that it had acted unlawfully for reasons other than those provided for in cl 8D.^[30] Finally, the Judge agreed that s 310(h) was a catch-all provision and could not sensibly be construed to establish a judicial review jurisdiction in the Environment Court.^[31]

Application for leave

• [23] Some of the grounds on which the application was originally advanced have been superseded by the judicial review application. The remaining grounds can be summarised as follows:

(a) The scope of the Environment Court’s jurisdiction to make determinations as to the lawfulness of powers and function under the RMA is important and the principle of mootness is inapt to apply to questions of public interest on the proper jurisdiction of the Court’s powers as conferred by Parliament.

(b) If the Environment Court declines to entertain challenges to functions and powers on the ground of legality, tangata whenua and other poorly resourced parties will be denied access to the less expensive processes of the Environment Court compared to judicial review in the High Court. This would frustrate the purpose of pt 12 of the RMA and deprive the parties of access to the specialist court.

(c) It is contrary to tikanga to determine a question concerning the failure to address pt 2 as it relates to tangata whenua interests as a preliminary question, resulting in prejudice and unfairness in the process.

• [24] In his written submissions Mr Maassen, for the Trustees, articulated the proposed ground of appeal as follows:

Did the Environment Court have the power under the RMA, s 310, to make declarations concerning the extent RMA, Part 2 applied to the Council’s decision to withdraw Plan Change 9 and whether the Council’s decision met the applicable statutory requirements?

• [25] Mr Maassen identified the core argument to be advanced in the proposed appeal as being that a key function of the Environment Court under s 310 is to ensure that those exercising powers and functions properly address the provisions of pt 2 concerning the interests of tangata whenua. The Trustees wish to argue that the High Court erred in its conclusion that the challenge to the Environment Court decision had been on the merits of the Council’s decision to withdraw rather than the legal boundaries and requirements for legality of that decision and was wrong to treat the Trustees’ application for declarations as being in the nature of judicial review.
• [26] The submissions made in support of the application do not directly address the statutory test for leave. However, Mr Maassen submits that the appeal is in the interests of justice and the points that he makes relate mainly to the desirability of access to the Environment Court as a means of addressing the issues regarding tangata whenua interests that the Trustees wish to argue in this case. A significant aspect is the specialist Environment Court is regarded as a cheaper option than judicial review in the High Court.
• [27] Whatever the merits of these arguments, this Court is very much constrained by the statutory test on which leave can be granted under s 303 of the CPA. The Trustees must identify a question of law arising from the High Court’s decision that is both capable of bona fide and serious argument and also raises a question of general or public importance or demonstrates that a miscarriage of justice has occurred or may occur. The proposed ground of appeal fails to do either.
• [28] First, it does not reflect the arguments advanced in the High Court nor the High Court’s decision. The High Court was asked to address the Council’s withdrawal of PC9 under cl 8D. It was not asked to, and did not, consider the broader question of the Environment Court’s power to make declarations about the applicability of pt 2 of the RMA. Leave cannot be granted to bring a second appeal that seeks to raise an entirely different, and much wider, question than that raised and determined in both the Environment Court and the High Court.
• [29] In any event, we do not consider that the proposed appeal is capable of bona fide and serious argument. The interpretation of s 310 being advanced by the Trustees is inconsistent with the High Court’s judicial review jurisdiction and with the scheme created by s 296 of the CPA. The authority on the Environment Court’s ability to grant declaratory relief, as discussed in the High Court, does not support the interpretation contended for.
• [30] Secondly, even if the High Court had addressed the wider question, this case turns on the very specific circumstances of the withdrawal of PC9. As the Judge noted there is no real utility in a further appeal given that no substantive relief had been sought and the substantive issues are already being pursued in the context of the judicial review appeal.^[32] Moreover, PC9 will be superseded next year by the further freshwater plan changes, giving this appeal “an element of futility”.^[33] As a result, nor is there any risk of a miscarriage of justice.

Result

• [31] The application for leave to appeal is declined.
• [32] The Trustees must pay the Council costs for a standard appeal.

Solicitors:
Kaupare Law and Consultancy, Auckland for Applicants
Cooney Lees Morgan, Tauranga for Respondent

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^[1] Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZHC 1846 [decision under appeal]; and Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 180, (2020) 22 ELRNZ 144 [Environment Court decision].

^[2] Decision under appeal, above n 1, at [17].

^[3] Resource Management Act 1991, s 80A(4).

^[4] Environment Court decision, above n 1, at [66]–[69] and [100].

^[5] Decision under appeal, above n 1, at [148]–[149].

^[6] Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZSC 144 [Supreme Court leave decision].

^[7] There is a separate appeal to this Court (CA69/2023) in respect of the High Court’s dismissal of the judicial review application.

^[8] Resource Management Act, s 299(1).

^[9] Section 308(1).

^[10] Criminal Procedure Act 2011, s 296(2).

^[11] Gertrude’s Saddlery Ltd v Arthurs Point Outstanding Natural Landscape Society Inc [2021] NZCA 398 at [20].

^[12] Te Whānau A Kai Trust v Gisborne District Council [2023] NZCA 55 at [12], quoting Transpower New Zealand Ltd v Tauranga Environmental Protection Society Inc [2022] NZCA 9 at [6].

^[13] Jackson v Police [2017] NZCA 374 at [29].

^[14] Environment Court decision, above n 1, at [12] (amendment in original).

^[15] Resource Management Act, s 8 requires that all persons take into account the principles of the te Tiriti o Waitangi | the Treaty of Waitangi when exercising functions and powers under the Resource Management Act in relation to managing the use, development, and protection of natural and physical resources.

^[16] Environment Court decision, above n 1, at [41].

^[17] At [33].

^[18] At [33].

^[19] At [62].

^[20] At [63].

^[21] At [65].

^[22] At [68].

^[23] Two other grounds of appeal were advanced in the High Court: that the Environment Court (1) should not have determined the jurisdictional issue on a preliminary basis; and (2) should not have referred to the evidence in reaching its view on jurisdiction. Both were rejected but they are not raised in the context of the present application, having been superseded by the judicial review application (CA69/2023), above n 7.

^[24] Decision under appeal, above n 1, at [65].

^[25] At [27] and [51].

^[26] At [54]–[56], citing Berryman v Waitakere City Council NZEnvC A046/98, 4 May 1998; and Liu v Auckland Council [2019] NZEnvC 33.

^[27] Decision under appeal, above n 1, at [56].

^[28] At [57], referring to Red Hill Properties Ltd v Papakura District Council, HC Auckland M2242/98, 8 February 2000, (2000) 6 ELRNZ 157; Graham v Auckland Council [2013] NZHC 833, [2013] NZAR 696; Minister of Conservation v Whakatane District Council Decision No W79/2003, [2003] NZEnvC 446; [2004] NZRMA 529 (NZEnvC); and Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017] NZEnvC 37.

^[29] Decision under appeal, above n 1, at [64].

^[30] At [65].

^[31] At [67].

^[32] Decision under appeal, above n 1, at [13]–[14].

^[33] Supreme Court leave decision, above n 6, at [21].