No alternative: Man O’War Station house is sent back to the Environment Court for reconsideration
In Man O’War Station Limited v Auckland Regional Council (CIV-2010-404-005288), the High Court allowed the Man O War’s appeal against the Environment Court’s decision to decline consent for the construction of a new residential dwelling in Owhiti Bay, Waiheke Island, on Man O’War’s property.
The proposal was for a non-complying activity which was granted consent by Hearing Commissioners appointed by the Auckland City Council in the first instance. That decision was appealed by the Auckland Regional Council, whose appeal was allowed by the Environment Court on the basis that the effects of the proposal on natural character of the coastal environment and outstanding natural landscapes were more than minor, even when mitigation and “environmental compensation” measures were taken into account. The Environment Court also considered that the proposal was inconsistent with the provisions of the natural and national and regional planning instruments.
The High Court considered a number alleged errors of law in turn, allowing the appeal on the basis of two errors that might have materially affected the Environment Court’s decision:
(a) that the Environment Court failed to have regard to the Council decision as required by s290A of the RMA; and
(b) that it incorrectly applied the requirement of the decision maker to assess alternatives to the proposal.
Consideration of Council level decision
The Environment Court had only made a passing reference to the Council’s decision, acknowledging the decision as a matter of record in the first two paragraphs of its decision. The High Court found that section 290A confirms Parliament’s intention that the Environment Court is required to give “genuine attention” to the Council decision. That does not require that the Council decision must be “observed or given effect to”. While section 290A does not require “reasons” for departing from a decision on appeal, the High Court observed that the Environment Court should generally as a matter of practice give genuine attention and thought to any such departure which would usually require an explanation for that departure.
The High Court found that the Environment Court had failed to give any genuine attention or thought to the Council’s decision, and had therefore made an error of law. The Environment Court had taken a contrary position to the Council hearing committee on the proposal’s effects on natural character, which were a key aspect of the case. In that context, the High Court considered the Environment Court was required to address the hearing committee’s findings and reasons underlying its decision. The High Court considered that the failure to do so may have materially affected the Environment Court’s decision, and the decision should be therefore be referred back to the it for reconsideration.
The High Court allowed the appeal on this point notwithstanding that the Environment Court’s decision did not form part of Man O’War’s case in the Environment Court. The High Court’s decision, therefore, forms a useful reminder to respondents in Environment Court litigation that they should assist the Court by ensuring that the first instance Council decision forms part of the Court’s consideration of any appeal. The scope of this “genuine attention” needs to be balanced against other recent decisions such as Upper Clutha Environmental Society Inc v Queenstown Lakes District Council (C173/2009) which cautions against over-emphasising the Council decision.
Assessment of alternative sites
Before the Environment Court, the Regional Council had argued that, because matters of national importance were raised in terms of sections 6(a) and (b) of the RMA, Man O’War was obliged to show that it had considered alternatives. In considering the assessment given to alternatives, the Environment Court had found that Man O’War had not undertaken a sufficient consideration of alternative sites – while Man O’War had addressed alternative sites along the beach, it had not considered alternatives elsewhere on its “very extensive” property.
The High Court referred to authorities (Meridian Energy v Central Otago District Council  1 NZLR 482) that alternatives that were to be considered must be contextually and geographically relevant. It found that the proposal was not to build accommodation for accommodation’s sake on Man O’War’s property, but to build accommodation at Owhiti Bay for the purposes of using that particular site. That defined the consideration of alternatives.
The High Court found the assessment of a number of potential alternatives within the bay was sufficient to meet the requirements of the RMA. Accordingly, it found that the Environment Court had erred in law by holding the assessment to be insufficient.
This decision confirms that the focus of any assessment of alternative sites will be context specific. It is not enough to say that accommodation can be proposed anywhere on an extensive property, and that alternatives throughout the property must be assessed. Where a proposal is for the use of a particular area, it may be that the proposal must be assessed on its merits in that location. While technically it is still possible to decline consent for such proposals, this approach arguably opens the door for focused or tailored consent applications to establish activities in particular, potentially sensitive, sites. A consent authority could then arguably only look at alternative uses of that site/area in making its decision.
The appeal was allowed and the case referred back to the Environment Court for reconsideration. It will be interesting to see whether the clarification of these two legal questions affects whether the Environment Court is minded to confirm consent, or uphold its previous decision to decline consent.