High Court’s Decision on NZTA’s Notice of Requirement for the Basin Reserve Bridge
On 17 June 2013, NZTA lodged a notice of requirement and applications for related resource consents to construct, operate and maintain a two lane one-way bridge on the North side of the Basin Reserve in Wellington as part of State Highway 1 between Paterson Street and Taranaki Street (“Project“).
Following an extensive hearing, the Board released its Final Report and Decision on 29 August 2014 cancelling the NoR and declining the related resource consents, essentially based on the following reasons:
- The dominance of the Basin Reserve Bridge, resulting from its bulk and scale in relation to the present environment, and the future environment, which does not anticipate a substantial elevated structure in such a significant open space that would have enduring and significant permanent adverse landscape, amenity and heritage effects;
- The design, landscape and amenity mitigation measures, while offering some offset, do not mitigate the Project; and
- Even with its transportation and economic benefits, confirming the NoR would not promote the sustainable management purpose described in Section 5.
NZTA filed an appeal under section 149V of the RMA (which only allows appeals on questions of law) on 24 September 2014. An amended notice of appeal, raising 34 questions of law, was filed on 27 November 2014, in response to some of the respondents contending that aspects of the appeal were not focused on questions of law but related to factual conclusions or the weight which the Board had placed on certain evidence.
Limits of the High Court’s jurisdiction on appeals of law
Appellants, including NZTA in this case, are increasingly formulating questions of law in notices of appeal to the High Court based on the Edwards v Bairstow  AC 14 approach. In addressing NZTA’s questions of law, the High Court provided a useful discussion on how such questions should be framed.
The High Court recognised that in identifying circumstances in which it is permissible to interfere with a tribunal’s decision, a number of High Court judgements have included the formula “a conclusion [the tribunal] could not reasonably have come to”. But found there to be “significant potential for confusion when such formulation is reframed without the inclusion of a negative with the consequence that the question becomes: is the conclusion one to which a tribunal could reasonably have come to on the evidence? The High Court stating:
 It is useful, I suggest, to recall why Lord Radcliffe preferred his third description in Edwards v Bairstow, namely one in which the true and only reasonable conclusion contradicts the determination:
…Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.
 In my view paraphrasing the established tests by reference to “not a reasonable finding on the evidence” or “without any reasonable evidential foundation” does not advance the analysis and has the potential to extend the inquiry beyond the proper boundary of what constitutes a question of law.
Consequently, when the High Court addressed those questions of law in NZTA’s amended notice of appeal which adopted the “could reasonably have come to on the evidence” formula, Brown J reframed the question to align precisely with Lord Radcliffe’s third description: one in which the true and only reasonable conclusion contradicts the determination.
The operation of section 171
The Board was required to consider the decision under section 149P(4) of the RMA which requires the Board to have regard to the matters set out in section 171(1) which states:
When considering a requirement and any submissions received, a territorial authority must, subject to Part 2, consider the effects on the environment of allowing the requirement, having particular regard to—
(a) any relevant provisions of—
(i) a national policy statement:
(ii) a New Zealand coastal policy statement:
(iii) a regional policy statement or proposed regional policy statement:
(iv) a plan or proposed plan; and
(b) whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work if—
(i) the requiring authority does not have an interest in the land sufficient for undertaking the work; or
(ii) it is likely that the work will have a significant adverse effect on the environment; and
(c) whether the work and designation are reasonably necessary for achieving the objectives of the requiring authority for which the designation is sought; and
(d) any other matter the territorial authority considers reasonably necessary in order to make a recommendation on the requirement. [emphasis added]
Subject to Part 2
NZTA contended that the consequence of the 2003 amendment to section 171(1) (which moved the “subject to part two” phrase from the beginning of the subsection to where it is currently located) changed the focus of the application of Part 2 within section 171(1) so that “subject to part 2” only related to the assessment of effects and that the (a) to (d) matters were no longer directly subject to Part 2.
The High Court rejected this submission stating there was nothing to suggest that the relocation of the phrase within section 171(1) was for the significant purpose contended by NZTA.
In relation to the application of the King Salmon decision to this issue, the Board stated that:
…properly construed, this aspect of King Salmon involved consideration of a plan change, and therefore different statutory tests from those applying to [NZTA’s] NoR. Importantly the Supreme Court observed that section 67(3)(b) provides a strong directive, creating a firm obligation on that part of those subject to it, to give effect to the New Zealand Coastal Policy Statement…
 By contrast, in considering the NoR we are required to have particular regard to the relevant instruments…
 For the above reasons, the statutory framework and expectation of Section 171(1) relevant to our current decision can be contrasted with the situation in King Salmon, the plan change being considered in that case was required to give effect to a higher order planning document which the Supreme court considered should already give substance to pt 2’s provisions in relation to…[the] coastal environment. By contrast, here we are required to consider the environmental effects of the NoR, subject to Part 2 and having particular regard to the relevant statutory planning documents.
The High Court agreed with the view taken by the Board above and held that the Board correctly analysed and well understood the ratio of the King Salmon decision.
On the subject of heritage and amenity the High Court held that on a section 171(1) application a District Plan is not exhaustive concerning items of historic heritage and that that the decision maker’s consideration of Part 2 considerations is not restricted to instances of unresolvable conflict. Provided that it has discharged the obligation to have particular regard to the specified matters in pursuance of its Part 2 obligation, the Board was not precluded from also taking into consideration as effects on the environment, the adverse effects of the requirement on other items it identified as being significant historic heritage.
The High Court held that a decision-makers’ consideration of Part 2 is also not confined to situations where one of the three King Salmon caveats (that essentially relate to some inadequacy in the plan) is applicable, noting:
…The role of the caveats identified in King Salmon was to address the situation where there was, what one might describe generically as, some inadequacy in the plan. The caveats accordingly qualified the obligation to give effect to such an inadequate plan and preserved the avenue of reference back to Part 2 which the “give effect to” formula had removed.
 As explained earlier, the manner of recourse to Part 2 in the context of s 171 (and other sections stated to be “subject to Part 2”) is not limited in the manner described in King Salmon. Of course the three caveats may still have application in relation to inadequate plans so far as concerns the obligation to have particular regard to them.
Adequate consideration of alternative options
The Board relied on the High Court in Queenstown Airport Corporation Ltd v Queenstown Lakes District Council  NZHC 2347 to determine the extent to which it should investigate alternative options under section 171(1)(b). The High Court in Queenstown Airport stated that:
 The section presupposes that where private land will be affected by a designation, adequate consideration of alternative sites not involving private land must be undertaken by the requiring authority. Furthermore, the measure of adequacy will depend on the extent of the land affected by the designation. The greater the impact on private land, the more careful the assessment of alternative sites not affecting private land will need to be.
The Board considered that the same logic that the High Court applied to section 171(1)(b)(i) must apply to the extent of the Project’s significant adverse effects on the environment under section 171(1)(b)(ii). As such, the measure of adequacy of the consideration of alternatives will depend on the impact on the environment of adverse effects. The High Court agreed with this conclusion finding that:
 In my view the analysis in Queenstown Airport is correct. I consider that it must logically apply to both the scenarios described in s 171(1)(b). It is simply common sense that what will amount to sufficient consideration of alternative sites will be influenced to some degree by the extent of the consequences of the scenarios in s 171(1)(b)(i) and (ii).
The High Court therefore held that the Board’s approach to its consideration of alternatives was “not vulnerable to criticism”. In addition, the High Court held that section 171(1)(b) did not require a requiring authority to fully evaluate every non-suppositious alternative with potentially reduced environment effects. The High Court further noted that in some, but by no means in all, cases it may be necessary for the decision-maker to gain access to the weightings in a multi-criteria analysis in order to be satisfied that adequate consideration has been given to alternatives.
A key issue during the Board hearing was the implications of NZTA having sought approvals for the Project separately from those related parts of the network, particularly the Mt Victoria Tunnel duplication, and in advance of details of the Public Transport Spine Study and its outcomes being finalised.
The Board found that:
 We do not consider the evidence before us sufficiently establishes that the enabling element of the Project is something unique to, or which can only be achieved by, [NZTA’s] current NoR.
 Perhaps more importantly, we have no guarantee that either (or both) of those projects would in fact go ahead. Indeed, as outlined elsewhere in our decision, we are required to make our determination on the basis that the Mt Victoria Tunnel duplication does not form part of the future state of the environment, and on the basis of the limited information currently available to us regarding the Public Transport Spine Study outcomes.
 That is the key result of [NZTA’s] election to seek approval for the Project separately from that for the Mt Victoria Tunnel duplication, and in advance of the Public Transport Spine Study and its outcomes being finalised. In having made that strategic decision, [NZTA] must now accept the consequences of doing so. Put simply, and using the wording from Elderslie, we cannot place any significant weight on a supposed (but not quantified) Project benefit which is not real – in that we have no certainty or assurance it would actually materialise.
The Board went on to find that the Mt Victoria Tunnel duplication should not be assumed to occur for the purposes of evaluating the Project. It was the Board’s view that it would not be sustainable, or provide for sustainable management, to approve projects because they were necessary to facilitate future developments which may (or may not) proceed. The Board concluded:
 Accordingly, we consider the most appropriate way to take into account the Project’s facilitating or enabling element is not as an identifiable benefit in and of itself, but in the context of Section 171(1), and particular sub-sections (a) and (d). That is, the extent to which the Project is consistent with the strategies identified and in the context of the other RoNS related projects.
NZTA contended that the Board had failed to treat the Project’s enabling benefits as separate and identifiable positive effects of the Project that properly fall within the scope of “effect” as defined in the RMA.
The High Court rejected this claim and found that the Board took into account and gave at least some weight to the enabling effect of the Project in arriving at its Decision. The High Court concluding that a project’s enabling benefit can constitute an effect to be taken into account under section 171(1) and/or section 5. An enabling effect of benefits of a project will inevitably be circumstances specific. In order to be given weight, the enabling benefit need not be unique to a project, guaranteed to go ahead or able to be quantified.
The Decision of the High Court provides useful guidance to integrated infrastructure providers. In order to get the green light, it is beneficial if applicants can provide evidence that the enabling element of the project is something unique to, or which can only be achieved by, the actual project put forward. In addition, alternatives must be appropriately considered based on the extent to which the adverse effects of the Project impact on the environment. The Decision is also useful in how King Salmon should be applied to other sections of the RMA. The High Court affirmed the clear distinction made by the Board between the circumstances in King Salmon (a plan change required to give effect to a higher order planning document) and the circumstances of this case (consideration of the environmental effects of the NoR, subject to Part 2 and having particular regard to the relevant statutory planning documents).