NORMAN v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY [2020] NZHC 3425

NORMAN v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY [2020] NZHC 3425 [22 December2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2019-404-2682[2020] NZHC 3425UNDER the Judicial Review Procedure Act 2016BETWEEN AVERIL ROSEMARY NORMAN andWARWICK BRUCE NORMANApplicantsAND TŪPUNA MAUNGA O TĀMAKIMAKAURAU AUTHORITYFirst RespondentAUCKLAND COUNCILSecond RespondentHearing: 8 and 9 June 2020Counsel: R J Hollyman QC, J W H Little and J K Grimmer for ApplicantsP T Beverley and R A Balasingam for First RespondentP M S McNamara and S J Mitchell for Second RespondentJudgment: 22 December 2020JUDGMENT OF GWYN JThis judgment was delivered by me on 22 December 2020 at 2.30pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:R J Hollyman QC, AucklandJ W H Little, AucklandDuncan King Law, AucklandBuddle Findlay, AucklandSimpson Grierson, AucklandContentsIntroduction [1]Context [8]The claims [13]Role of the Court on review [16]What was the decision under review? [20]First ground of review: Reserves Act 1977 [35]Second ground of review: failure to consult [104]Third ground of review: Council cannot follow an unlawful direction [188]Fourth ground of review: non-notification of resource consent application [190]Result [384]Costs [385]Introduction[1] Ōwairaka, or Mt Albert (Ōwairaka), is one of fourteen Tūpuna Maunga, orancestral mountains, of Tāmaki Makaurau, or Auckland (Tāmaki Makaurau), whichwere transferred from Crown ownership to the 13 iwi and hapū of Ngā Mana Whenuao Tāmaki Makaurau (Nga Mana Whenua) under the Ngā Mana Whenua o TāmakiMakaurau Collective Redress Act 2014 (Collective Redress Act).[2] Under the Collective Redress Act, the fee simple estate in the 14 TūpunaMaunga, including Ōwairaka, is vested in Ngā Mana Whenua's collective legal entity,the Tūpuna Taonga o Tāmaki Makaurau Trust (Tūpuna Taonga Trust) 1 for the commonbenefit of the iwi and hapū of Ngā Mana Whenua and the other people of Auckland.2[3] The Tūpuna Maunga o Tāmaki Makaurau Authority (Maunga Authority) is thegovernance and administering body of Ōwairaka, as it is for most of the transferredTūpuna Maunga,3 for the purposes of the Reserves Act 1977 (Reserves Act).4 Thisstatutory co-governance authority has equal representation from Ngā Mana Whenuaand Auckland Council,5 with one (non-voting) Crown representative.61 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 8.2 Section 41(2).3 Rarotonga/Mt Smart excepted: ss 17 and 39.4 Reserves Act 1977, ss 22(4) and 106.5 Also referred to in this judgment as "the Council".6 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 107.[4] The Tūpuna Maunga are classified as reserves under the Reserves Act and thatclassification was maintained by the Collective Redress Act.7 Ōwairaka is a recreationreserve,8 located in the suburb of Mt Albert, Tāmaki Makaurau. It comprisesapproximately 9.5 hectares.[5] In the period between 9 August 2018 and 11 October 2018, the MaungaAuthority made a decision to remove 345 exotic trees from Ōwairaka and to replant13,000 native plants.[6] It is that decision, or part of it, that Mr and Ms Norman seek to review in thisCourt.9 The applicants are Averil Norman and Warwick Norman. Ms Norman'sevidence is that she is a frequent visitor to Ōwairaka. In her evidence she describesthe beauty of the Maunga and the close connection she feels to it. There is otherevidence before the Court that indicates that Ōwairaka is enjoyed and well-used bylocal residents and visitors from further afield. Various personal and historicalconnections are described in the evidence.[7] The applicants also challenge the actions of Auckland Council, to the extentthe Council is to implement the challenged decision10 and, separately, the Council'sdecision that it was not necessary to publicly notify or give limited notification of theMaunga Authority/Council's application to carry out the tree felling and planting workunder ss 95A to 95E of the Resource Management Act 1991 (RMA).Context[8] The preamble to the Collective Redress Act sets out the historical context tothis proceeding regarding Ōwairaka:7 Pursuant to s 22 the reservation of Ōwairaka as a recreation reserve was revoked for the purposesof vesting the fee simple estate in the trustees of the Tūpuna Taonga Trust. Ōwairaka was thendeclared a reserve and classified as a recreation reserve under s 17 of the Reserves Act.8 Reserves Act 1977, ss 16 and 17.9 What is comprised in "the decision" that the applicants seek to challenge is discussed belowat [20]–[34].10 Under s 61 of the Collective Redress Act the Council is responsible for "routine management" ofthe Maunga, under the direction of the Maunga Authority and in accordance with the AnnualOperational Plan and any standard operating procedures agreed between the Authority and theCouncil. In practice, as the evidence shows, Council officers under the Maunga Authority'soperational work, since the Authority does not have its own staff. Mr Turoa who is the TūpunaMaunga manager for the Maunga Authority, is also a Council employee.Preamble(a) The iwi and hapū constituting the collective known as Ngā ManaWhenua o Tāmaki Makaurau have claims to Tāmaki Makaurau basedon historical breaches of the Treaty of Waitangi (Te Tiriti o Waitangi)by the Crown;(b) Settlement of these claims is progressing through negotiationsbetween the Crown and each individual iwi and hapū;(c) At the same time, the Crown has been negotiating other redress withNgā Mana Whenua o Tāmaki Makaurau—(i) that relates to certain maunga, motu, and lands of TāmakiMakaurau; and(ii) in respect of which all the iwi and hapū have interests; and(iii) in respect of which all the iwi and hapū will share;(d) The maunga and motu are taonga in relation to which the iwi and hapūhave always—(i) maintained a unique relationship; and(ii) honoured their intergenerational role as kaitiaki;(e) The negotiations between the Crown and Ngā Mana Whenua oTāmaki Makaurau began in July 2009;(f) On 12 February 2010, the Crown and Ngā Mana Whenua o TāmakiMakaurau signed a Framework Agreement;(g) On 5 November 2011, the Crown and Ngā Mana Whenua o TāmakiMakaurau signed a Record of Agreement;(h) On 7 June 2012, the Crown and Ngā Mana Whenua o TāmakiMakaurau initialled a deed encapsulating the agreed redress arisingfrom the Framework Agreement and the Record of Agreement;(i) On 8 September 2012, representatives of the Crown and Ngā ManaWhenua o Tāmaki Makaurau signed the deed;(j) To implement the deed, legislation is required.[9] The Collective Redress Act gives effect to the Ngā Mana Whenua o TāmakiMakaurau Collective Redress Deed (Collective Redress Deed). Section 3 of theCollective Redress Act provides:3 Purpose of ActThe purpose of this Act is to give effect to certain provisions of the collectivedeed, which provides shared redress to the iwi and hapū constituting NgāMana Whenua o Tāmaki Makaurau, including by—(a) restoring ownership of certain maunga and motu of Tāmaki Makaurauto the iwi and hapū, the maunga and motu being treasured sources ofmana to the iwi and hapū; and(b) providing mechanisms by which the iwi and hapū may exercise manawhenua and kaitiakitanga over the maunga and motu; and(c) providing a right of first refusal regime in respect of certain land ofTāmaki Makaurau to enable those iwi and hapū to build an economicbase for their members.[10] Paul Majurey is the Chair of the Maunga Authority and has been since itsestablishment in 2014. Mr Majurey was also the Chair of the Tāmaki Collective, theTreaty settlement negotiations entity for the 13 iwi and hapū of Tāmaki Makaurau thatnegotiated the Collective Redress Deed. His evidence is given on behalf of theAuthority.[11] Mr Majurey notes that the Tūpuna Maunga are among the most significantspiritual, cultural, historical and geological landscapes in the Auckland region. Hedescribes the Tūpuna Maunga as fundamental and sacred to Mana Whenua, beingtaonga tuku iho, or treasures handed down the generations. Since human occupationof Tāmaki Makaurau commenced some 1,000 years ago, Maori settled and establishedpā, kainga and extensive cultivations in and around the Tūpuna Maunga. The Maungahave been central to the lives of tribes of Tāmaki Makaurau as places of habitation,rituals of daily life and worship, the cultivation of food, and sometimes warfare. Henotes that the tangible inscriptions of the Tūpuna Maunga remain today in, forexample, the modified terraced fortified pā, cultivated areas and stone features.[12] As the Waitangi Tribunal recorded:11 maunga are iconic landscape features for Maori. They are iconic notbecause of their scenic attributes, but because they represent an enduringsymbolic connection between tangata whenua groups and distinctive landforms. Sometimes, these land forms are the physical embodiment of tūpuna.11 The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 95 (footnotes omitted).This is the Waitangi Tribunal report on Treaty settlement processes in Tāmaki Makaurau. Thescope of the inquiry included the Tūpuna Maunga of Tāmaki Makaurau.Thus, associations with maunga are imbued with mana and wairua that occupythe spiritual as well as the terrestrial realm. Maunga express a group's manaand identity. This connection and expression is an integral part of Maoriculture.The claimsOverview[13] The applicants seek an order quashing the decision to fell the exotic trees, adeclaration that the Maunga Authority acted unlawfully in making that decision andan order injuncting the Maunga Authority from taking any steps to implement thedecision.[14] The applicants' application for judicial review was filed, together with anapplication for urgent interim relief, on 6 December 2019. The interim injunctionapplication sought orders preventing the proposed felling of the 345 exotic trees untilthe judicial review application is determined. The applicants and the first respondenthave agreed that the status quo be preserved (that is, the proposed tree felling not takeplace) until the substantive judicial review proceeding has been determined. Thatagreement is recorded in a Minute of Lang J dated 13 December 2019.[15] The grounds of review are:(a) first ground of review: the decision does not comply with ss 42 and 17of the Reserves Act;(b) second ground of review: there was an obligation on the MaungaAuthority to consult regarding the decision to fell the 345 exotic treesand it failed to do so;(c) third ground of review: the Council cannot lawfully follow a directionfrom the Maunga Authority to fell the trees given that the decision tofell was unlawful in terms of either the first or second ground of review;(d) fourth ground of review: the Council erred in terms of the RMA indeciding not to require notification of the resource consent applicationto fell the exotic trees to either the public or to users of the reserve.Role of the Court on review[16] The proper approach on judicial review is not in dispute. However, in light ofthe content of some of the affidavit evidence before me, which might be seen asinviting me to reach a different view to that of the Maunga Authority and the Councilon the substance of their respective decisions, it may be useful to set out that approach.[17] Judicial review is not an appeal from the decisions in question, but a review ofthe manner in which the decisions were made.12 It is not for the Court to interfere withthe way the Maunga Authority and/or the Council exercised the powers given to themby statute, simply on the basis that the Court thinks the decision should have beendifferent – for example, not removing the trees or doing so in a staged manner over anextended period.[18] The Court of Appeal in Pring v Wanganui District Council said:13It is well established that in judicial review [proceedings] the Court does notsubstitute its own factual conclusions for that of the [authority under review].It merely determines, as a matter of law, whether the proper procedures werefollowed, whether all relevant, and no irrelevant considerations were takeninto account, and whether the decision was one which, upon the basis of theinformation available to it, a reasonable decision-maker could have made.Unless the statute otherwise directs, the weight to be given to particularrelevant matters is one for the consent authority, not the Court, to determine,but, of course, there must be some material capable of supporting the decision.[19] Because an application for judicial review does not involve a review of thedecision's merits, the Court must focus only on the information that was before theMaunga Authority and the Council at the time they made their decisions, not thefurther information that has been made available through the evidence of theapplicants and their experts and the evidence in reply.1412 Chief Constable for North Wales v Evans [1982] 1 WLR 1155 at 1174 (HL).13 Pring v Wanganui District Council (1999) 5 ELRNZ 464 (CA) at [7].14 Evans v Clutha District Council [2018] NZHC 3355 at [38]–[39].What was the decision under review?[20] It is important to clarify at the outset what is the decision that the applicantswant to review. In the period of 9 August 2018 to 11 October 2018, the MaungaAuthority made a decision to remove 345 exotic trees from Ōwairaka and to replant13,000 native plants. That decision was made by Nicholas Turoa (who is the TūpunaMaunga Manager for the Maunga Authority and an employee of Auckland Council)on behalf of the Maunga Authority.[21] The applicants solely seek to review the decision by the Authority tosimultaneously cut down the 345 exotic trees. They do not challenge the proposal toplant native plants in their place.[22] Mr Hollyman QC, for the applicants, says that their case is not about whetherplanting more native trees on the reserve is lawful or otherwise a good thing; theapplicants are not opposed to the planting of many more native trees. His submissionis that, by conflating the proposed felling of the 345 exotic trees with the intendedplanting of 13,000 native plants, the respondents are seeking to have the Court inferthat the former is necessary to achieve the latter, when that is not the case.[23] This also bears on the applicants' fourth ground of review, against the Council.The applicants say the respondents in their (successful) application for consenterroneously grouped together two separate proposals – removal of exotic trees fromthe reserve and planting of native trees and shrubs in certain parts of the reserve – asa single proposal. They say these should have been two separate applications, and thebundling of the two affected the way the Commissioner considered and decidednotification issues.[24] Mr Turoa, and the respondents, frame the decision as a single operationalimplementation decision as part of a broader sequence of decision-making thatincluded the Tūpuna Maunga Integrated Management Plan (IMP)15 and the 2018/18Annual Operational Plan. This is the Ōwairaka ecological restoration project.15 Mr Turoa's evidence is that the IMP was developed in accordance with the Collective Redress Actand s 41 of the Reserves Act and was unanimously adopted by the Maunga Authority at its Hui 19on 23 June 2016.[25] That framing is reflected in the resource consent application which soughtconsent to restore the central and historical quarry faces of the Maunga with over12,2000 native plantings to recreate a WF7 Pūriri broad leaf forest. It is also consistentwith the evidence of Antony Yates, the consultant planner for the Maunga Authorityduring the resource consent application process. He notes that the purpose of theresource consent application was to facilitate the restoration of the cultural, spiritualand native landscape of Ōwairaka, whilst avoiding adverse effects on in-situarchaeology and the high landscape, geological and visual values of the Maunga.16[26] In Mr Turoa's evidence he summarises the procedural context of the decisionfollowing the approval of the Maunga Authority's 2018/2019 Annual OperationalPlan:(a) Pre-planning internal meetings – approval of the project operationsplan through to August 2018;(b) initial site visit to Ōwairaka/Te Ahi-kā-a-Rakataura – 9 August 2018;(c) ongoing planning meetings and discussions – 9 August 2018 toapproximately 10 October 2018;(d) archaeological, ecological, landscape and other assessmentsundertaken - 9 August 2018 through to late September 2018;(e) review of draft expert reports and ongoing discussions – lateSeptember 2018 through to 10 October 2018;(f) decision made that 345 exotic trees would be removed – 9 August2018 through to 11 October 2018;(g) application for resource consent prepared – October 2018 and lodgedon 19 October 2018;(h) application for resource consent granted 20 February 2019; and(i) post-resource consent actions and meetings in preparation for projectcommencement – 20 February 2019 through to November 2019.16 In the context of the fourth ground of review, the Council notes that the "Proposal" as describedin the Notification Decision, was "to remove exotic vegetation and undertake restoration plantingon Ōwairaka." While a number of separate land use consents were required because differentrules under the Auckland Unitary Plan were engaged, there was a single proposal involving bothvegetation removal and restoration planting. The Council observes that the draft conditionsannexed to the AEE included requirements that the planting be undertaken in accordance with afinalised planting plan (a draft of which was submitted with the Application) and maintainedthereafter. These conditions were an inherent part of the proposal for which resource consent wassought. I discuss later in this judgment the significance of what activities consent was sought forand granted.Analysis[27] "Decision" is not defined in the Judicial Review Procedure Act 2016 but, as inTaylor, Judicial Review A New Zealand Perspective, it is to be interpreted in a commonsense way. 17[28] I accept the submission of Mr McNamara for the Council that it would beartificial to attempt to separate out the Maunga Authority's decision to fell all theexotic trees from its decision to carry out replanting on the Maunga. Such an approachwould isolate Mr Turoa's operational decision from its wider context and theAuthority's high level decisions. While the applicants are correct that the felling oftrees is not strictly necessary for the replanting, which will not occur in exactly thesame places as the felled trees, the reasons for the felling of the exotic trees areinextricably bound up with the replanting: that is, to facilitate the restoration of the"natural, spiritual and native landscape."[29] As the Maunga Authority's evidence details, that has a number of aspects.Mr Majurey says:18For Mana Whenua, the return to indigenous vegetation is an important part ofthe journey of reconnection with the Tūpuna Maunga. All of our histories, allof our matauranga (knowledge) and all of our connections with the spiritualand temporal worlds of the Tūpuna Maunga revolve around native flora andfauna. They are imprinted on the very names of the Maunga – Maungawhauand Maungakiekie (in reference to the native whau tree and kiekie plant) andMatukūtururu (in reference to the native owl) are a few examples. Returningthe Tūpuna Maunga to a state of indigenous vegetation reflects the Maoriworld view that the vegetation that originally cloaked these significantMaunga should be restored. That is fundamental to our identity.[30] Mr Taipari, a Mana Whenua representative on the Independent Maori StatutoryBoard, says:19The Authority's proposals for ecological restoration at Owairaka/Te Ahi-kā-a-Rakataura and other Tūpuna Maunga are of fundamental importance toMana Whenua. The proposals to re-introduce indigenous vegetation andremove exotic vegetation is significant to our cultural well[be]ing and the re-connection between Mana Whenua and the Tūpuna Maunga. The cultural17 Graham Taylor, Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at [5.14].18 Affidavit of Paul Francis Majurey, 5 February 2020 at [42].19 Affidavit of David Errol Taipari, 19 February 2020 at [25].landscapes and the protection of the views to and from the Tūpuna Maungaare also of fundamental importance to Mana Whenua.[31] Mr Turoa notes:20The Owiaraka/Te Ahi-kā-a-Rakataura ecological restoration project willfacilitate the restoration of the natural, spiritual and indigenous landscape ofthe Maunga. This project represents a significant step toward the realisationof the Integrated Management Plan. This includes opening up viewshafts anddefensive site lines from Maunga to Maunga while also opening up theterracing and other important archaeological features of the Maunga. Theprotection and restoration of these archaeological values is a very importantelement of this project.[32] The Maunga Authority also observes that the Ōwairaka project is part of abroader ecological restoration programme being undertaken by the Maunga Authorityacross the Tūpuna Maunga. For example:(a) 180 exotic trees have been removed from Maungarei/Mt Wellington;(b) 150 exotic trees have been removed at Māngere Mountain; and(c) 165 exotic trees have been removed at Ōhuiarangi/Pigeon Mountain.[33] In conjunction with those removals there has been restoration plantingprogrammes undertaken on each of those Tūpuna Maunga. The Maunga Authorityplans to have approximately 74,000 native trees planted across the Tūpuna Maungaby 2021, 8,260 of which have already been planted.[34] I have concluded that, as a matter of fact, and for the purpose of the first threegrounds of review, there was one decision, which encompassed removal of the exotictrees, retention of the existing native trees and a programme of new planting of nativetrees and plants. I will consider separately the decisions involved in the RMA groundof review.20 Affidavit of Nicholas Henry Turoa, 31 January 2020 at [43].First ground of review: Reserves Act 1977[35] The applicants' first ground of review focuses on alleged breaches of ss 17 and42 of the Reserves Act.[36] Ōwairaka is a recreation reserve to which s 17 of the Reserves Act applies. Theapplicants say that the Maunga Authority, as the administering body of the ŌwairakaReserve, is required to act in compliance with ss 17 and 42 of the Reserves Act, andthe decision is inconsistent with those provisions.[37] To begin I set out for convenience s 109 of the Collective Redress Act, whichis relevant to this cause of action:109 Functions and powers(1) The Maunga Authority has the powers and functions conferred on itby or under this Act or any other enactment.(2) In exercising its powers and carrying out its functions in relation tothe maunga, the Maunga Authority must have regard to—(a) the spiritual, ancestral, cultural, customary, and historicalsignificance of the maunga to Ngā Mana Whenua o TāmakiMakaurau; and(b) section 41(2) [which states: "The maunga is held by thetrustee for the common benefit of Ngā Mana Whenua oTāmaki Makaurau and the other people of Auckland."].(3) In exercising its powers and carrying out its functions in relation tothe administered lands, the Maunga Authority must have regard to thespiritual, ancestral, cultural, customary, and historical significance ofthe administered lands to Ngā Mana Whenua o Tāmaki Makaurau.[38] The starting point in terms of the Reserves Act is s 16(8), which says that areserve shall be held and administered for the purpose(s) for which it is classified andfor no other purpose. Section 40 provides that administering bodies shall administer,manage and control reserves in accordance with the appropriate provisions of theReserves Act, "so as to ensure the use, enjoyment, development, maintenance,protection, and preservation, as the case may require, of the reserve for the purposefor which it is classified:". Section 53(1) sets out powers the administering body of arecreation reserve may utilise "in the exercise of its functions under section 40 and tothe extent necessary to give effect to the principles set out in section 17."[39] Section 17 itself provides:17 Recreation reserves(1) It is hereby declared that the appropriate provisions of this Act shallhave effect, in relation to reserves classified as recreation reserves, forthe purpose of providing areas for the recreation and sportingactivities and the physical welfare and enjoyment of the public, andfor the protection of the natural environment and beauty of thecountryside, with emphasis on the retention of open spaces and onoutdoor recreational activities, including recreational tracks in thecountryside.(2) It is hereby further declared that, having regard to the general purposesspecified in subsection (1), every recreation reserve shall be soadministered under the appropriate provisions of this Act that—(a) the public shall have freedom of entry and access to thereserve, subject to the specific powers conferred on theadministering body by sections 53 and 54, to any bylawsunder this Act applying to the reserve, and to such conditionsand restrictions as the administering body considers to benecessary for the protection and general well-being of thereserve and for the protection and control of the public usingit:(b) where scenic, historic, archaeological, biological, geological,or other scientific features or native flora or fauna or wildlifeare present on the reserve, those features or that flora or faunaor wildlife shall be managed and protected to the extentcompatible with the principal or primary purpose of thereserve:provided that nothing in this subsection shall authorise thedoing of anything with respect to fauna that would contraveneany provision of the Wildlife Act 1953 or any regulations orProclamation or notification under that Act, or the doing ofanything with respect to archaeological features in any reservethat would contravene any provision of the Heritage NewZealand Pouhere Taonga Act 2014:(c) those qualities of the reserve which contribute to thepleasantness, harmony, and cohesion of the naturalenvironment and to the better use and enjoyment of thereserve shall be conserved:(d) to the extent compatible with the principal or primary purposeof the reserve, its value as a soil, water, and forestconservation area shall be maintained.[40] The essence of Mr Hollyman's case regarding s 17 is that it acts as a constrainton the Maunga Authority's decision-making power regarding Ōwairaka, and that thesignificant damage that the Ōwairaka restoration project would do to existing featuresof the reserve is not consistent with either the general purposes in s 17(1) or the morespecific purposes in s 17(2).21 In particular, felling a substantial number of trees iscontrary to the protection and pleasantness, harmony and cohesion of the existingnatural environment.[41] Section 42 of the Reserves Act limits the circumstances in which cutting ordestruction of trees or bush on any recreation reserve may be undertaken. It provides:42 Preservation of trees and bush(1) The trees and bush on any historic reserve or scenic reserve or naturereserve or scientific reserve shall not be cut or destroyed, except inaccordance with a permit granted under section 48A or with theexpress consent in writing of the Minister and subject to such termsand conditions as the Minister may determine, including (asappropriate) the method of cutting, extraction, and restoration.(2) The trees or bush on any recreation reserve, or government purposereserve, or local purpose reserve shall not be cut or destroyed, exceptin accordance with a permit granted under section 48A or unless theadministering body of the reserve is satisfied that the cutting ordestruction is necessary for the proper management or maintenance ofthe reserve, or for the management or preservation of other trees orbush, or in the interests of the safety of persons on or near the reserveor of the safety of property adjoining the reserve, or that the cutting isnecessary to harvest trees planted for revenue producing purposes.(3) Where in the case of any recreation reserve or government purposereserve or local purpose reserve the administering body is satisfiedthat the cutting or destruction of trees or bush is necessary for any ofthe reasons mentioned in subsection (2), the administering body shallnot proceed with the cutting or destruction and extraction except in amanner which will have a minimal impact on the reserve and until, ascircumstances warrant, provision is made for replacement, planting,or restoration; and the administering body shall not proceed toauthorise the cutting or destruction, except subject to conditions as tothe method of cutting or destruction and extraction which will haveminimal impact on the reserve and, as circumstances warrant,replacement, planting, or restoration; and any other conditions whichthe administering body considers to be appropriate in thecircumstances.21 Supporting this point, counsel pointed to various smaller-scale actions that could be taken whichwould be feasible within s 17 while having regard to s 109 of the Collective Redress Act – suchas accounting for areas of significance to Ngā Mana Whenua when determining a new walkingtrack, considering activities that are culturally significant to Ngā Mana Whenua when determiningwhat recreational activities should be provided for at the archery club grounds, closing the roadon the Maunga, protecting areas of cultural or spiritual significance, and closing the reserve orparts of it for Matariki celebrations and other celebrations.The applicants' submissions[42] The applicants say that the Maunga Authority cannot reasonably have beensatisfied that the decision to fell the trees was "necessary" for any of the purposes setout in s 42(2), including the "proper management or maintenance" of the reserve.[43] Further, the applicants say that, even if the Maunga Authority was reasonablysatisfied that felling the trees is necessary for one of those purposes, the MaungaAuthority may not proceed with the cutting of the trees "except in a manner whichwill have a minimal impact on the reserve".22 They say that the tree felling ifimplemented as planned will have a more than minimal impact on the reserve.[44] I will set out, in turn, each of the applicants' four principal arguments as to whythe decision to fell the trees was inconsistent with the Reserves Act:(a) The Maunga Authority failed to consider whether the cutting down ofany of the trees was necessary for the purposes specified in s 42(2) orat all.(b) To the extent there was a decision under s 42(2), it was unreasonableand not for a permitted purpose.(c) The felling of 345 exotic trees will not conserve the qualities of thereserve identified in s 17(2)(c).(d) The felling of almost half of the trees on the reserve at the same timewill not have a "minimal impact" in terms of s 42(3).(a) That the decision is not necessary in terms of s 42(2)[45] The applicants' submission is that the "necessary" test in s 42(2) is consistentwith the substantial weight placed on conservation and preservation in the ReservesAct, both generally, and also in relation to recreation reserves specifically, pointing tos 17. They say the statute requires that each tree be specifically and individually22 Section 42(3).considered. Mr Hollyman emphasised the word "necessary" as a "strong word fallingin between expedient or desirable on the one hand and essential on the other".23[46] The applicants also say that a threshold of necessity is consistent with the factthat trees (whether native or not) are integral to the qualities that s 17(2)(c) requires beconserved: those "which contribute to pleasantness, harmony, and cohesion of thenatural environment and to the better use and enjoyment of the reserve." Further,s 42(2) requires felling of trees be necessary for the proper management ormaintenance of a reserve. Counsel says "proper management or maintenance"must be read in light of the s 17 purposes of a recreation reserve – furtherheightening the focus on protection and conservation of existing natural features.[47] The applicants say that the Maunga Authority did not ever consider whetherthe felling of the 345 trees was necessary for the purposes of s 42(2) and thereforecould not have been "satisfied" on that matter. They point to the absence of a writtenrecord setting out the decision or the reason for it, noting that it is, instead containedin Mr Turoa's affidavit.[48] The applicants are critical of that affidavit for two reasons. First, whileMr Turoa says that he is aware of the relevant Reserves Act provisions, he does notassert that he considered the test under s 42(2) at the time of making the decision. Andsecond, nor does he refer to any of the purposes of recreational reserves under s 17.(b) That the decision was not reasonable[49] The applicants say that if there was a decision under s 42(2), it wasunreasonable and not for a permitted purpose. They cite the reasons given for thedecision, which are:24(a) Some of the trees are classified as pest plants.(b) Some of the trees pose risks to health and safety.23 Environmental Defence Society v Maungonui County [1989] 3 NZLR 257 (CA) at 260 perCooke P.24 In the evidence of Mr Majurey and Mr Turoa.(c) Some of the trees pose risks to archaeological features.(d) Some of the trees affect viewshafts.(e) The project will "facilitate" the restoration of the "natural, spiritual andindigenous landscape."[50] However, the applicants say that the decision by the Maunga Authority was tocut down all exotic trees. This was because of their status as exotic trees and notbecause all exotic trees qualify under one of the first four identified reasons.Accordingly, the first four reasons are not rationally connected to the decision.[51] Further, counsel submits that if the first four reasons were really taken intoaccount, it was unreasonable of the decision-maker to have done so.[52] Only the fifth consideration, restoration of the "natural, spiritual and nativelandscape," might be directed to all of the exotic trees. The contemporaneous RMAconsent application cites the fifth consideration as the reason for removing the trees.[53] The applicants contend that "proper management and maintenance" ofrecreation reserves under s 42(2) cannot extend to the destruction of exotic trees onthe mere basis that they are non-native trees. Section 42 does not distinguish nativetrees from exotic trees; it protects all trees equally. This is in contrast to the distinctionbetween native and exotic trees that is drawn in other parts of the Reserves Act.[54] The applicants say that s 109 of the Collective Redress Act does not assist theMaunga Authority. While s 109(2) and (3) require the Maunga Authority to haveregard to the "spiritual, ancestral, cultural, customary, and historical significance"of the maunga and administered lands when exercising its powers and carrying outits functions in relation to them, these do not expand the Maunga Authority'spowers beyond what is provided in the Reserves Act. Indeed, the applicants say, itis plain that the Maunga Authority and Mr Turoa did not take into account themandatory requirement to have regard to the fact that "the maunga is held by thetrustee for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and theother people of Auckland."25 The applicants say this provides further reason to quashthe decision to fell the exotic trees.[55] The applicants seek to distinguish Evans v Clutha District Council, whichappears to be the only other case on s 42(2), on the basis of its facts.26[56] Evans involved a decision by a local Council to remove two trees from aplayground in Balclutha. The trees were situated in a small recreation reserve adjacentto a home. The homeowners complained to the Council, over a number of years, thatthe trees encroached on their property. After a number of arborists' reports and a siteinspection by the Mayor and several Councillors, the Council decided to remove bothtrees following a public meeting. The decision was challenged by Ms Evans, amember of the public, on three grounds, including that the Council failed to complywith s 42(2) of the Reserves Act.[57] On s 42(2) both the High Court and the Court of Appeal accepted that theCouncil was satisfied that the destruction of the two trees was necessary for the propermanagement and maintenance of the reserve, on the basis that the trees adverselyaffected a neighbouring property, could be a danger in an extreme weather event andwere of a size incompatible with the nature of the reserve. The Court of Appeal,upholding the decision, said these were "proper management and maintenancereasons."27[58] Counsel submits that the facts in Evans are simply too different from those inthe present case for any analogy to hold. Further, the Council's reasons for removingthe trees were relevant to the decision made and reflected "proper management" of thereserve – which counsel contends is not so in this case.[59] The applicants also refer to Attorney-General v Ireland, in which the Court ofAppeal considered the legality of a decision relating to a reserve that was made for a25 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, ss 109(2)(b) and 41(2).26 Evans v Clutha District Council [2018] NZHC 3355; upheld in Evans v Clutha District Council[2020] NZCA 5 (Evans Appeal).27 At [40]."purpose" not explicitly recognised in the Reserves Act.28 The Court of Appeal heldthat the Department of Conservation's pursuit of the additional, unauthorised purposewas lawful, because their additional purpose did not prejudice or thwart the policy orobjectives of the Reserves Act.29[60] While that decision was later affirmed by the Supreme Court in UnisonNetworks Limited v Commerce Commission,30 the Supreme Court has sincesignificantly qualified the application of the Ireland principle in Hawkes Bay RegionalInvestment Company Ltd v Royal Forest and Bird Protection Society of New ZealandInc.31 In that case the Court distinguished Unison on the basis that the expert bodyexercising statutory power in that case, "was relatively unconstrained in identifyingthe broad policy considerations that it relied on."32 Here there is a specific set ofapplicable policy considerations (relating to recreation reserves) set out in statute. Onthat basis, Mr Hollyman says the principle in Ireland and Unison has little role to play.(c) That the decision will not conserve the qualities of the reserve identified ins 17(2)(c)[61] The applicants say that the felling of 345 trees will not conserve the qualitiesof the reserve identified in s 17(2)(c) of the Reserves Act. The emphasis on"conservation" confirms that it is the existing qualities of a recreation reserve thatcontribute to its pleasantness, harmony and cohesion, which have value and must bepreserved in their existing state. The destruction of the 345 exotic trees, all at once,will fail to conserve those qualities and so will be inconsistent with s 17(2)(c). Theapplicants point to the evidence they have filed as to the significant contribution madeby the exotic trees to the use and enjoyment of the reserve and therefore what the lossof those trees could mean. Sir Harold Marshall, Mary Tallon, Ms Norman and AnnaRedford have all given evidence in this regard. The applicants say that compellingevidence has not been contested.28 Attorney-General v Ireland [2002] 2 NZLR 220 (CA).29 At [42]–[45].30 Unison Networks Limited v Commerce Commission [2007] NZSC 71, [2008] 1 NZLR 42 at [53].31 Hawkes Bay Regional Investment Company Limited v Royal Forest and Bird Protection Societyof New Zealand Inc [2017] NZHC 106, [2017] 1 NZLR 1041.32 At [110].[62] The applicants refer also to uncontested evidence from Mary Inomata, thePresident of Mt Albert Historical Society, that the decision to fell will result in thedestruction of trees of considerable heritage value.33 The affidavit evidence ofPhilip Blakely, a landscape architect, covers the effect of felling all of the exotic treesat once, on the reserve's environment and on visitors' use and enjoyment. Mr Blakelysays that "it is clear and obvious that cutting down the 345 mature trees on the reservewill have an immediate, significant and negative effect on its amenity as experiencedby visitors in the many parts of it, and its use and enjoyment."34[63] The applicants' submissions anticipate the Maunga Authority's response,which notes that the replanting of native trees and plants, following the removal of theexotic trees, will conserve and enhance the pleasantness, harmony, use, enjoyment andamenity value of the reserve. Above, I have set out why I consider the felling andreplanting are part of the same decision. Nonetheless, for s 17(2)(c) purposes, theapplicants emphasise that the large majority of the new native trees and shrubs willnot be planted in the spaces currently occupied by the exotic trees. In particular, sometrees intended to be felled will not be directly replaced by native plants.[64] The applicants' experts also question the nature of the planting plan and thelikely success of it, in view of what the applicants say is the Maunga Authority's poortrack record to date of planting on the reserve and at Mangere Mountain and that themethod of some of the planting proposed ("mound" planting) is not proven and has noguarantee of success. Even if a positive outcome is achieved, it will only be in manyyears' time. This contrasts with the immediate impact of cutting down almost of thetrees on the reserve.33 Affidavit of Mary Rose Inomata, 13 February 2020 at [9]. By way of example, Ms Inomata givesexamples including an olive grove planted with seeds sent home by Jack Turner, a prisoner of war,from Palestine during World War II, eucalyptus trees known as the "penny trees" due to their seedshaving been purchased at a penny apiece, a large macrocarpa planted by one of Mt Albert's earliest(Pākehā) settlers and likely the oldest tree on the Maunga, cherry trees planted by Ethel Penmanin memory of her brother Edgar who died at Gallipoli and a woodland grove planted by pupilsfrom Mt Albert Primary School in the 1950s.34 Affidavit of Philip Ronald Blakely, 17 February 2020 at [34].(d) That the decision will have more than minimal impact[65] As to s 42(3) of the Reserves Act, the applicants rely on Mr Blakely's evidenceas to the "immediate, significant and negative impact" on the amenity of the reservefrom cutting down all of the exotic trees at once. He notes that the plan will result inlarge clusters of decaying tree stumps in many parts of the reserve; together with theimmediate loss of nesting and perching habitat involved in removing all the trees atonce. The applicants also rely on Andrew Barrell's evidence as to the "significant andnegative impact on the reserve's eco-system, including many of the remaining nativetrees, of felling of all the trees at once.Analysis[66] Rather than reiterate the respondents' comprehensive submissions in responseI have simply set out the points which I accept in my reasons.[67] The applicants' case was put forward on the basis that Ōwairaka is a recreationreserve "governed by the Reserves Act (as confirmed by Ngā Mana Whenua o TāmakiMakaurau Collective Redress Act 2014)." The submission for the applicants wasthat they "take no issue" with the underlying Treaty of Waitangi settlement that led tothe vesting of the reserve in the Tūpuna Taonga Trust and to the creation of the MaungaAuthority as the administering body of the reserve and other Maunga. They say thatwas a good thing. However, the effect of the applicants' interpretative approach to theReserves Act is to give only lip service to the Collective Redress Act and what sitsbehind it. Applying that approach consistently would have the effect of thwarting theunderlying settlement process and what it was designed to achieve.[68] In my view the applicants' analysis of the relevant statutory provisionsfundamentally misconstrues the overall statutory framework. I accept the submissionfrom the respondents that the Reserves Act must be read in the context of theCollective Redress Act, which itself gives effect to the settlement of and provision ofredress for historical Treaty breaches in respect of Ngā Mana Whenua, including byestablishing a clear regime for the Maunga Authority to govern the Tūpuna Maunga,including the exercise of mana whenua and kaitiakitanga by Ngā Mana Whenua.[69] Any analysis must start with the Collective Redress Act. Significantly, theCollective Redress Act:(a) gives effect to the Collective Redress Deed;35(b) recognises that the Maunga are taonga with which the iwi and hapū ofNgā Mana Whenua have always maintained a unique relationship andmaintained their intergenerational role as kaitiaki;36(c) restores ownership of certain Maunga and provides mechanisms bywhich the iwi and hapū may exercise mana whenua and kaitiakitangaover the Maunga;37(d) is to be interpreted in a manner that best furthers the agreementsexpressed in the Collective Redress Deed;38(e) notes that the Reserves Act applies to the Maunga, subject to theprovisions of the Collective Redress Act,39 and see also s 5(2) of theReserves Act:"Except as otherwise specially provided herein, this Act in itsapplication to any reserve shall be read subject to –(a) any Act (whether passed before or after the commencementof this Act) . making any special provision with respect tothat reserve, whether by direct reference thereto or by reasonof the reserve being vested in any particular local authority,board, or trustees, or in any local authority of a particularclass, or by reason of the reserve being one of any particularclass, or authorising the setting apart of any reserve for anypurpose (f) includes a direction that the Maunga Authority, in exercising its powersand carrying out its functions in relation to the Maunga, must haveregard to "the spiritual, ancestral, cultural, customary, and historical35 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, preamble and s 3.36 Preamble.37 Section 3.38 Section 7.39 Section 47(3).significance of the Maunga to Ngā Mana Whenua o Tāmaki Makaurau"and the fact that the trustee holds the Maunga for the common benefitof Ngā Mana Whenua and the other people of Auckland;40 and(g) establishes the Maunga Authority, which is a co-governance body ofNgā Mana Whenua and Auckland Council.41[70] That statutory framework is fundamental to understanding the statutorymandate of the Maunga Authority and the manner and purpose of the exercise of theAuthority's powers and compliance with its obligations under the Reserves Act. Thepractical effect is that ss 17 and 42 of the Reserves Act must be applied by the MaungaAuthority in a way that recognises that the Maunga are taonga, allows iwi and hapū toexercise mana whenua and kaitiakitanga over the Maunga and has regard to thespiritual, ancestral, cultural, customary, and historical significance of the Maunga toNgā Mana Whenua o Tāmaki Makaurau, as well as the fact that the Maunga is heldon trust for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and theother people of Auckland. That is the necessary starting point for the analysis of ss 17and 42 of the Reserves Act.(a) Whether felling trees will not conserve the qualities of the reserve identified ins 17(2)(c) of the Reserves Act 1977[71] I agree with Mr McNamara that s 17 sets out principles which are high leveland cannot be read as absolute requirements of law. Their language is aspirational andincompatible with objective measurement. I do not accept that they impose absolutestandards, breach of which is a legally reviewable error of law. Further, as therespondents argue, s 17 sets out a range of principles together, including s 17(2)(b),40 Section 109(2).41 Section 107.which specifically identifies indigenous flora as requiring protection, whereas exoticplants are not.42[72] The concept of management and protection in s 17(2)(b) must, Mr Beverleyfor the Maunga Authority says, also include the concept of an enhancement asproposed under the Ōwairaka Restoration Project. Although "managed" and"protected" are not defined in the Reserves Act, "protection" is defined in s 2 of theConservation Act 1987:protection, in relation to a resource, means its maintenance, so far as ispracticable, in its current state; but includes—(a) its restoration to some former state; and(b) its augmentation, enhancement, or expansion[73] The reference in s 17 Reserves Act to the "management" and "protection" ofthe indigenous flora on Ōwairaka must therefore include the restoration to a formerstate, and that flora's augmentation, enhancement or expansion. Mr Majurey'sevidence is that one of the key drivers of the project is to restore the native vegetationcover that once existed on the Maunga. That restoration principle is reflected in theIMP. I accept that submission.[74] I further accept Mr McNamara's submission for the Council that s 17(2)(c)requires an inherently subjective assessment. First, the authorised decision-makermust identify the "qualities of the reserve that contribute to the pleasantness, harmonyand cohesion of the natural environment and to the better use and enjoyment of thereserve". Then they must assess the trees' "contribution" to the named qualities(themselves subjective concepts), and what constitutes "better use and enjoyment" ofthe reserve. The evidence given on behalf of the applicants by a number of individuals42 Evans v Clutha District Council [2018] NZHC 3355 at [86]. I also note the submission for theMaunga Authority that s 53(1)(m) of the Reserves Act envisions the erection of huts for the use ofpersons engaged in the lawfully authorised destruction or eradication of introduced flora and fauna– further indicating that their destruction can be compatible with the Act. Section 3 of the ReservesAct further says the Act is to be administered for the purpose of providing, for the managementfor the benefit and enjoyment of the public, areas possessing (amongst other things) "indigenousflora or fauna". Ensuring the survival of "all indigenous species of flora" is also a statutorypurpose: s 3(1)(b).as to their experience and enjoyment of the reserve,43 and the landscape architect,44illustrates this point; all express "subjective views about inherently subjectivematters".[75] The applicants' view of the effect of felling the trees, while a valid andsincerely held view, cannot be treated as a legal conclusion that the felling would bein breach of s 17. The Collective Redress Act acknowledges that the Maunga aretaonga and that iwi and hapū have a unique relationship with the Maunga. TheMaunga Authority, as the administering body, had to reach its own view as to whichof the s 17(2)(c) qualities contribute to the "pleasantness, harmony and cohesion ofthe natural environment" and should be conserved. In doing so the Authority musthave regard to the "spiritual, ancestral, cultural, customary, and historical significanceof the Maunga to Ngā Mana Whenua o Tāmaki Makaurau" as well as the fact that theMaunga is held on trust for the common benefit of Ngā Mana Whenua and the otherpeople of Auckland (a further subjective assessment).45 I am satisfied that is what theMaunga Authority did. Applying those requirements, and in light of the purposes in s3 of the Collective Redress Act, it was plainly open to the Maunga Authority to reacha different view from the applicants as to what qualities of the reserve should beconserved or protected (including, as Mr Beverley submitted, being restored to itsformer, native state).[76] I turn now to s 42.(b) Whether the Maunga Authority failed to consider whether the cutting down oftrees was necessary for the purposes specified in s 42(2)[77] Section 42(2) requires the Maunga Authority as the administering body of thereserve to be "satisfied" that the cutting or destruction is "necessary for the propermanagement or maintenance of the reserve".[78] The applicants' submissions frame s 42(2) as requiring a conscious decision tobe made. They criticise both the Maunga Authority's failure to consciously address43 Sir Harold Marshall, Mary Tallon, Averil Norman, Anna Radford and Mary Inomata.44 Philip Blakely.45 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 109(2)(a).s 42(2) in its decision-making process, and the lack of a contemporaneous record asto any consideration of s 42(2).[79] I accept the respondents' submission that the Reserves Act does not require aparticular documented decision be made under s 42(2) confirming felling the trees isnecessary. The statutory powers under which the decision was made were ss 40 and53(1)(o). I agree too that s 42(2) does not impose an objective standard of necessity.It is a constraint on the exercise of a power, in the form of certain prerequisites thatmust be satisfied as a matter of fact before trees or bushes are destroyed.[80] Further, given no trees have been felled as yet and the s 42(2) prohibition is notengaged, Mr Majurey is able to demonstrate that the s 42(2) prerequisite is satisfiedby setting out the present position of the Maunga Authority in his affidavit:The Authority is also aware that Ōwairaka/Te Ahi-kā-a-rakataura is arecreation reserve under section 17 of the Reserves Act. In terms of section42(2) of that Act, I confirm, for the reasons set out in this affidavit, that theAuthority considers that the proposed tree removals at Ōwairaka/ Te Ahi-kā-a-rakataura are necessary for the proper management and maintenance of thereserve, for the management and preservation of other trees and bush and inthe interests of the safety of persons. In terms of section 42(3), I confirm, forthe reasons set out in this affidavit, that the Authority is also satisfied that thetree removals will be undertaken in a manner that will have a minimal impacton the Maunga and that an appropriate revegetation programme is in place.(c) Whether the decision to fell trees was unreasonable and not for a permittedpurpose by reference to s 42(2)[81] What is required is that the Maunga Authority, as the administering body, issatisfied as to the necessity of the destruction for the proper management ormaintenance of the reserve. In my view "necessary" as used in s 42(2) is at the"expedient or desirable" end of the spectrum of possible meanings.46[82] Section 109(2) of the Collective Redress Act informs what amounts to "propermanagement" of the reserve under s 42 of the Reserves Act. The proper managementof Ōwairaka and the other Maunga subject to the Collective Redress Act involves abroader range of matters than is the case for recreation reserves subject only to theReserves Act.46 See Evans Appeal, above n 26, at [40].[83] The Maunga Authority necessarily brings to its role not just the conventional"reserves management" expertise on which the applicants focus, but also itsunderstanding of and expertise in the spiritual, ancestral, cultural, customary andhistorical significance of the Maunga, including Ōwairaka, for mana whenua.[84] The evidence of both Mr Turoa and Mr Majurey addresses the spiritual,ancestral, cultural, customary and historical significance of the Maunga and thecontribution of the proposed ecological restoration programme to the recognition andprotection of those values.47 That evidence provides support for the MaungaAuthority's position that removal of the trees is necessary in order to open up volcanicsightlines, remove destruction of archaeological sites and restore cultural landscapes.48This evidence also addresses the spiritual, ancestral, cultural, customary and historicalsignificance of these objectives to Mana Whenua. Other considerations are alsoaddressed, such as pest status, health and safety and practical considerations aroundundertaking the removal project in one swoop and in a manner that causes minimaldisturbance to the Maunga.[85] Mr Turoa's summary was underpinned by the expert advice he received from,amongst others, tree removal methodology experts, ecology experts, an expert inlandscape architecture, an expert archaeologist and an expert resource managementplanner.[86] The Maunga Authority further submits that a project to remove exoticvegetation and restore native vegetation on a recreation reserve is consistent with thereserve's status as a recreation under the Reserves Act and the purposes of that Act.The Maunga Authority and the Council are entitled to take a long-term view of whatis appropriate for Ōwairaka.49 Indeed, the Maunga Authority says, that approach is atthe heart of the Māori world view, underscored by the Treaty settlement context.47 This is consistent with s 109(2)(a) of the Collective Redress Act.48 See Affidavit of Nicholas Henry Turoa, 31 January 2020 at [47].49 Evans Appeal, above n 26, at [41].[87] The applicants dispute the basis on which the Maunga Authority's decision toremove the 345 exotic trees, and to do so in one operation, was made. The applicants'expert witnesses canvas:(a) arguments that the high-level nature of the IMP does not fulfil therequirements of a management plan under the Reserves Act;50(b) arguments that removal of almost half the mature trees on the reserveis a significant policy decision that should be part of a managementplan; it is not an operational matter;51(c) the negative arboricultural effects of the tree felling;52 and(d) the negative amenity effects of the tree felling on users of the reserve,lack of consideration of the heritage value of the trees to be removed;the significant negative visual impact of removing all 345 trees at thesame time, the likely loss in birdlife and the short to medium term lossin character and seclusion.53[88] I reiterate my comments at the beginning of this judgment regarding the roleof the Court on review. I am focussed on whether there was a reasonable andlegitimate basis on which the Maunga Authority could legitimately make its decisionon the information available to it. It is not my role to second-guess the MaungaAuthority's justifiable conclusions on a range of evidence before it.54[89] Mr Hollyman suggested that s 42 required the Maunga Authority to considereach tree individually in making a decision as to whether felling was necessary. Thereis nothing on the face of s 42(2) to suggest that is a requirement and no specificauthority was cited for the proposition. I do not accept that is a requirement but, inany event, the evidence of Mr Turoa and Bradley Beach (an arboricultural projectmanager whose company provided a report on tree removal methodology to the50 Reply Affidavit of Christopher (Kit) Hoyles Howden, 18 February 2020.51 Reply Affidavit of Christopher (Kit) Hoyles Howden, 18 February 2020.52 Unsworn Affidavit of Andrew Francis Barrell, filed 21 April 2020.53 Affidavit of Philip Ronald Blakely, 17 February 2020.54 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [191].Maunga Authority) is that the latter made an individual assessment and report of all787 trees on the Maunga, covering their height, age, condition, likelihood andconsequences of failure, impacts on viewshafts and pest status.55[90] The Maunga Authority had to be satisfied that cutting down the trees wasnecessary for the proper management or maintenance of the reserve, as a recreationreserve, having regard to the principles in s 17 of the Reserves Act. I have alreadyfound that s 17 sets out principles and that the factors listed in s 17(2)(c) are notsusceptible to any one, objective and "correct" answer. Both on the terms of s 17 itself,and having regard to the requirements to interpret it in light of ss 3, 7 and 109(2) ofthe Collective Redress Act, the Maunga Authority was entitled under s 42 to make itsassessment as to what was necessary regarding those factors.[91] I bear in mind the Court of Appeal's decision in Evans:56While the Council did not use the word "necessary" we are satisfied that theydecided in effect that destruction of the trees was necessary for the propermanagement and maintenance of the reserve for essentially the same reasonsnoted at [22] above. Their primary reason was recorded in the minutes – thatthe trees were inappropriate for the location and should be replaced withplantings that will not grow too large and are in keeping with the structure ofother plantings in the reserve. These are "proper management andmaintenance" considerations.[92] I consider the decision is applicable, insofar as it confirms that "propermanagement and maintenance considerations" is not bounded so narrowly as theapplicants would have me find.[93] I conclude that there was a sufficient basis for the Maunga Authority to reachthe conclusion that the felling of the trees was necessary for the proper managementof the reserve. The decision to return the Maunga to a state of native vegetation, inorder to reflect the traditional relationship between Mana Whenua and the Maunga, toprotect historical and archaeological features of the Maunga and to open up viewshaftsand defensive site lines from Maunga to Maunga, was consistent with having regardto the spiritual, ancestral, cultural, customary, and historical significance of the55 Affidavit of Bradley William Beach, 31 January 2020.56 Evans Appeal [2020] NZCA 5 at [40].Maunga to Ngā Mana Whenua and the expert advice that Mr Turoa received andconsidered. I also do not consider it was inconsistent with the Maunga being held bythe Maunga Authority on trust "for the common benefit of Ngā Mana Whenua oTāmaki Makaurau and the other people of Auckland".[94] Further, I consider that taking "a long-term view" of the needs of the Reserve,including when making decisions about long-term planting decisions, can beconsistent with proper management and maintenance of a reserve.57 In this case, it isinherent in s 109 of the Collective Redress Act that the Maunga Authority should takea long term view.(d) Whether the felling of almost half of the trees on the reserve at the same timewill not have a "minimal impact" in terms of s 42(3)[95] Section 42(3) of the Reserves Act relevantly requires that the removal oftrees shall not proceed "except in a manner which will have a minimal impact onthe reserve and until, as circumstances warrant, provision is made for replacement,planting, or restoration", as well as that the method of removal be one "which willhave minimal impact on the reserve".[96] I agree with Mr McNamara that s 42(3) is not directed at minimal impact onthe trees being removed themselves and does not require that the final result, afterremoval of the trees, will be minimal impact on the reserve. "In a manner" meanswhat it says – it focuses on the impacts of the manner or method of removal.[97] In any event, the expert evidence received by Mr Turoa from Mr Beach (as totree removal methodology) and Brent Druskovich (as to preservation of thearchaeology and cultural landscape) is that the trees will be removed in anarboriculturally sound and proper way with minimal impact on the reserve.[98] If, as the applicants contend, s 42(3) requires that there be no more thanminimal impact on the reserve as a whole, the evidence is that provision has been made57 Evans Appeal, above n 26, at [41].for replacement, planting or restoration (and indeed, consent was sought and grantedfor a large-scale restoration programme).[99] For these reasons, I am satisfied that the decision does not fall afoul of s 42(3).Other matters relevant to the first ground of review[100] Mr Beverley for the Maunga Authority urged me to apply s 4 of theConservation Act 1987, and thus the principles of the Treaty, to the interpretation ofthe Reserves Act. He cites the Supreme Court's decision in Ngāi Tai ki Tāmaki vMinister of Conservation in which the Court confirmed the powerful effect of theTreaty principles and s 4 in the context of Reserves Act decisions. 58[101] Section 4 applies to the Conservation Act and to Acts listed in Schedule 1,including the Reserves Act. It provides:4 Act to give effect to Treaty of WaitangiThis Act shall be so interpreted and administered as to give effect to theprinciples of the Treaty of Waitangi.[102] I have not found it necessary to consider the specific application of s 4 in thiscontext, given that, as I have found, the Reserves Act cannot be interpreted in isolationfrom the Collective Redress Act. As Mr Majurey notes in his evidence, the CollectiveRedress Act, and the Collective Redress Deed it gives effect to, reflect the Treatyprinciples of redress, active protection of Mana Whenua interests and, in the co-governance structure of the Maunga Authority, partnership. The Collective RedressAct also reflects a Māori world view, including recognition of the intergenerationalresponsibility of Mana Whenua as kaitiaki. Inherent in that is a long-term view ofwhat is required in the management of the Maunga.59[103] My initial view therefore is that the effect of s 4 of the Conservation Act, asMr Beverley argues for it, is in substance the position arrived at by an analysis of theReserves Act, read in the context of the Collective Redress Act. While it is possible58 Ngāi Tai ki Tāmaki v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368.59 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 109.that s 4 of the Conservation Act could have greater relevance to a future case, I do notconsider I need to resolve its application in this instance.Second ground of review: failure to consultThe applicants' submissions[104] The applicants say there was an obligation on the Maunga Authority to consultregarding the decision to fell the 345 exotic trees and that the Maunga Authority failedto do so.[105] The duty is framed in the statement of claim as a requirement to consult withinterested members of the Auckland public, including those in the position of theapplicants, and prior to taking the Decision.[106] A duty to consult can arise explicitly or implicitly from a statute, through alegitimate expectation of consultation arising from a promise or past practice, or as acommon law incident of fairness.60 Where such a duty arises, the parties who areentitled to be consulted must be sufficiently apprised of the proposal in order to knowwhat it is – and they must be consulted at a point when their input could still havesome effect.61[107] In particular, the duty here is said to have arisen from:(a) the statutory context;(b) the Maunga Authority's public representations through the IMP(including that there would be individual management plans for eachreserve);(c) the past practice of consultation by administering bodies of reserves;(d) the public importance of the reserve; and60 Nicholls v Health and Disability Commissioner [1997] NZAR 351 (HC) at 370, per Tipping J.61 Wellington International Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR 671 (CA) at 676.(e) the significance of the decision.[108] I summarise their submissions on each head.The statutory context[109] First, regarding the statutory context, the applicants say that both the CollectiveRedress Act and the Reserves Act support an obligation to consult. They referparticularly to the Collective Redress Act's statement that the reserve is held on trust"for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the otherpeople of Auckland", to which the Maunga Authority must have regard whenexercising its powers and carrying out its functions.62 The applicants emphasise thereference to the "other people of Auckland" alongside named iwi and hapū, the factthat the land is held on trust (which the applicants say imports "a significant depth ofpolitical meaning") and that it is held on trust for their common benefit.[110] Regarding the IMP, the applicants point to the requirement in the CollectiveRedress Act that the Maunga Authority prepare an IMP applicable to the reserve.63That plan is subject to s 41 of the Reserves Act,64 which contains consultationrequirements, most relevantly:(5) Before preparing a management plan for any 1 or more reserves underits control, the administering body shall—(a) give public notice of its intention to do so; and(b) in that notice, invite persons and organisations interested tosend to the administering body at its office writtensuggestions on the proposed plan within a time specified inthe notice; and(c) in preparing that management plan, give full considerationto any such comments received.(5A) Nothing in subsection (5) shall apply in any case where theadministering body has, by resolution, determined that writtensuggestions on the proposed plan would not materially assist in itspreparation.62 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, ss 41(2) and 109(2)(b).63 Section 58(1) states that the Maunga Authority must prepare and approve an IMP applicable to thereserve.64 Section 58(3) explicitly states that s 41 of the Reserves Act applies to an IMP, with any necessarymodifications, but subject to that section.(6) Every management plan shall be prepared by the administering bodyin draft form in the first place, and the administering body shall—(a) give public notice complying with section 119 stating that thedraft plan is available for inspection at a place and at timesspecified in the notice, and calling upon persons ororganisations interested to lodge with the administering bodywritten objections to or suggestions on the draft plan before aspecified date, being not less than 2 months after the date ofpublication of the notice; and(aa) on giving notice in accordance with paragraph (a), send acopy of the draft plan to the Commissioner; and(b) give notice in writing, as far as practicable, to all persons andorganisations who or which made suggestions to theadministering body under subsection (5) stating that the draftplan has been prepared and is available for inspection at theplace and during the times specified in the notice, andrequiring any such person or organisation who or whichdesires to object to or comment on the draft plan to lodge withthe administering body a written objection or writtencomments before a specified date, being not less than 2months after the date of giving of the notice; and(c) make the draft management plan available for inspection, freeof charge, to all interested persons during ordinary officehours at the office of the administering body; and(d) before approving the management plan, or, as the case mayrequire, recommending the management plan to the Ministerfor his or her approval, give every person or organisation whoor which, in lodging any objection or making any commentsunder paragraph (a) or paragraph (b), asked to be heard insupport of his or her or its objection or comments, areasonable opportunity of appearing before the administeringbody or a committee thereof or a person nominated by theadministering body in support of his or her or its objection orcomments; and(e) where the management plan requires the approval of theMinister, attach to the plan submitted to him or her forapproval a summary of the objections and comments receivedand a statement as to the extent to which they have beenallowed or accepted or disallowed or not accepted.[111] The IMP produced by the Maunga Authority left the individual managementplans for each reserve for another day. Each of those plans, the applicants say, willhave to comply with the Reserves Act's "exhaustive" requirements as to publicconsultation, per the process set out above, and regarding the content of the plans:6565 Reserves Act 1977, s 41(3).(3) The management plan shall provide for and ensure the use,enjoyment, maintenance, protection, and preservation, as the casemay require, and, to the extent that the administering body's resourcespermit, the development, as appropriate, of the reserve for thepurposes for which it is classified, and shall incorporate and ensurecompliance with the principles set out in section 17 [112] Counsel for the applicants submit these provisions reflect a Parliamentaryintent that the Maunga Authority consult with the public on how it proposes to managethe reserve.Representations by the Maunga Authority and in the IMP[113] Second, the applicants rely on the purported representation by the MaungaAuthority that it would consult on how it would manage appropriate exotic vegetationof each reserve. They point to various provisions within the IMP, including:(a) In the foreword:Future individual maunga plans will provide an opportunity for us towork closely with the Local Boards and diverse communities toproduce plans that capture and enhance the unique qualities of eachmaunga.(b) Under the heading "Introduction":1.19 In addition, there will be individual Tūpuna Maunga Plans reflectingthe Values and Pathways, overarching guidelines and strategies foreach of the Tūpuna Maunga. These plans will detail the care andmanagement of each Tūpuna Maunga. (c) Under the heading "Individual Tūpuna Maunga Plans":9.24 Following the preparation of the above guidelines and strategies,individual Tūpuna Maunga Plans will be prepared. These Plans willgive effect to the Values, Pathways, guidelines and strategies.9.26 The Tūpuna Maunga Plans must, as a minimum, address:10. Manage vegetation to protect cultural features and visitorsafety;22. Native planting and ecological restoration and enhancement;23. Proactively manage plant pests and inappropriateexotic vegetation;[114] They also refer to comments in the Authority's response to a submission madeon behalf of the Friends of Maungawhau (FOM) expressing concern with the draftIMP (specifically its use of general language like "appropriate" and "inappropriate" inreferring to trees, noting that some exotic trees have heritage significance and seekingconfirmation that some examples of exotic trees would be kept):It is acknowledged that not all exotic species are necessarily pests and manyhave heritage significance. This assessment will occur as part of thedevelopment of the Tūpuna Maunga plans. An amendment to the list ofindividual Tūpuna Maunga plan actions and specifically the bullet pointdealing with the management of exotic vegetation and plant pests isrecommended.The suggestion to use more directive language in certain situations will bemore appropriate, and will be considered, in the detail provisions developedfor the individual Tūpuna Maunga Plans.[115] The applicants further point to evidence of Christopher Parkinson, a memberof the Maunga Authority until late 2019, who says based on his experiences at theAuthority that the Authority always intended individual management plans for eachreserve to be developed, and that he believes there would have been consultation onmatters including the management of exotic vegetation.66Past practice of consultation[116] Third, the applicants rely on the alleged past practice of consultation byadministering bodies. They cite the evidence of Kit Howden, who sets out hisextensive experience in the management of public spaces such as reserves, and hisexperience of drafting management plans.67 Mr Howden also discusses what, in hisview, management plans are expected to look like, in terms of level of detail. Counselsays Mr Howden's experience is applicable in assessing decision-making by theMaunga Authority.66 Reply Affidavit of Christopher Connell Parkinson, 13 February 2020 at [14]–[23].67 Reply Affidavit of Christopher (Kit) Hoyles Howden, 18 February 2020.Public importance of the reserve[117] Fourth, the applicants point to the public importance of the reserve. Theapplicants refer to the tens of thousands of Aucklanders who visit and enjoy theŌwairaka reserve every year and the specific experience of those local people whohave given evidence about the value of their connection with Ōwairaka and the valuethey place on it.Significance of the decision[118] Fifth, the applicants note that the felling of the trees is an extremely significantdecision in the context of Ōwairaka, which will result in "immediate radical andpermanent change.The respondents' submissions[119] The Maunga Authority and the Council refute any obligation to consult. Theirsubmissions are in two categories – first disputing any statutory obligation to consultregarding the decision under review (or any parallel common law duty), and secondoutlining the extent of the consultation which occurred.The statutory context[120] Both the Maunga Authority and the Council contend that the statutoryframework points away from the duty asserted by the applicants. Both the ReservesAct and the Collective Redress Act specifically provide for consultation before certaindecisions affecting a reserve are made. These include:(a) preparing the IMP and Annual Operational Plan for the TūpunaMaunga;68(b) preparing motu plans;69(c) declaring a reserve to be a national reserve;7068 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, ss 58(3) and 60(5).69 Sections 89–101.70 Reserves Act 1997 s 13.(d) classifying and changing the classification of reserves;71(e) vesting reserves;72(f) adopting and amending a management plan;73(g) revoking a conservation management plan;74(h) setting aside a wilderness area;75(i) granting a right of way or easement over a reserve (in somecircumstances);76(j) granting a licence for a communications station;77(k) granting certain permits, leases and licences over a reserve;78 and(l) commencing or contracting for the afforestation of a reserve.79[121] By contrast, there is no express obligation to consult before exercising any ofthe general powers relating to recreation reserves in s 53 or before making a decisionto which s 42 applies.[122] Both the Maunga Authority and the Council submit that these examples reflecta conscious Parliamentary distinction in the Reserves Act between situations whenpublic consultation is required and when it is not. Against that background, theMaunga Authority submits that it neither necessary nor appropriate to read in commonlaw or other consultation obligations in relation to the Ōwairaka project.71 Sections 24 and 16(4).72 Section 24.73 Section 41.74 Section 40A(4).75 Section 47.76 Section 48.77 Section 48A.78 Sections 54, 56, 57, 58A, 59, 73 and 74.79 Section 75[123] Counsel further points to the difficulty of establishing a common law dutyagainst that statutory context, by analogy to Wellington City Council v MinotaurCustodians Ltd:80Because the clear intention of Part 6 is to give Councils a wide discretion inthis field, it will always be difficult to establish a concurrent common law dutyto consult except in truly exceptional cases such as Pascoe.[124] Minotaur was decided under the Local Government Act 2002, with Minotaurcontending that a duty to consult arose at common law, notwithstanding the absenceof a specific statutory duty to consult under that Act. The Court of Appeal cautionedagainst finding a similar duty to the one found to exist in Pascoe on the basis that:81In our view, that case is best understood as one founded in legitimateexpectation arising from [its] unique facts. We do not consider it is authorityfor the proposition that directly affected landowners will always be entitled tobe consulted in council decision-making. Such proposition contradicts theplain terms of ss 78, 79 and 82 (3) of the LGA.[125] The Maunga Authority notes the IMP is the management plan required by s 58of the Collective Redress Act, which provides:58 Integrated management plan(1) The Maunga Authority must prepare and approve an integratedmanagement plan—(a) that applies to the following land:(i) the maunga; and(ii) [Repealed](iii) the administered lands; and(iv) any land for which any other enactment requires theMaunga Authority to be the administering body; and(b) that complies with the requirements of section 59(2) Despite subsection (1),—(a) [Repealed]80 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at[48]; cited in Evans Appeal, above n 26, at [34]–[35].81 At [46]; referring to Pascoe Properties Limited v Nelson City Council [2012] NZRMA 232 (HC).(b) the Maunga Authority must make the entire plan available forinspection by the Minister of Conservation whenever theMinister requires.(3) Section 41 of the Reserves Act 1977 applies to a plan prepared underthis section—(a) with any necessary modifications; but(b) subject to this section.(4) To avoid doubt, the Minister of Conservation may still require theMaunga Authority to—(a) review the plan under section 41(4) of the Reserves Act 1977;or(b) consult another administering body under section 41(14) ofthat Act.[126] There is a statutory requirement for public consultation for both the IMP andthe Annual Operational Plan and counsel points to evidence showing extensiveconsultation in relation to both. While those plans did not refer specifically to theremoval of the 345 exotic trees, the documents informed the operational decision toremove the trees.[127] The Council submits that the requirements of a reserve management plan aredeliberately set at a very high level under s 41(3) of the Reserves Act,82 leaving theadministering body to determine, in its discretion and subject to the consultationprocess, what the plan says including the level of detail.[128] The Reserves Act itself contemplates the possibility of different approaches tomanagement plans. The example the Council gives is whether or not consultation isrequired for a proposed lease of a recreation reserve.83 This depends on whether thelease is "in conformity with and contemplated by the approved management plan forthe reserve".84 Inherent in that is that management plans may or may not contain thelevel of detail to "contemplate" such a lease. Mr Ward's evidence for the Council isthat different administering bodies take different approaches to the question of how toapproach a management plan, depending on the particular body and the particular82 Set out above at [110].83 Reserves Act 1977, s 54.84 Section 54(2A)(a).reserve. He notes that a management plan would not normally identify the particulartrees proposed for removal, even a relatively large number of trees.[129] The Council says that the applicants do not directly challenge the IMP asfailing to comply with s 58 of the Collective Redress Act or s 41 of the Reserves Act.Clearly, it must be open to the Maunga Authority to adopt an IMP that articulates thestrategic vision based on "values" and "pathways," rather than a prescriptive approach.Nor is there any claim that the decision to fell the trees is contrary to the IMP: thedecision is in accordance with the values and pathways in the IMP, which refer(amongst other things) to restoring native biodiversity, restoring traditional nativeflora and proactively managing inappropriate exotic vegetation.[130] Further, the Council submits that the fact that the Maunga Authority proposesadopting additional management plans for each Maunga does not affect or precludemanagement decisions in the meantime. Those prospective individual plans are notthe management plan required by s 58 of the Collective Redress Act, which must bean integrated plan. The individual plans are voluntary and cannot affect the operationof the statutory documents or the management decisions under the IMP in themeantime.[131] The Council says the fact that the Reserves Act requires consultation on amanagement plan but does not require that management plan to contain proposedmanagement decisions such as tree removal supports the conclusion that consultationis not required in that situation. The applicants' reliance on the statutory provisionsrelating to management plans does not support the contextual argument for commonlaw consultation. The Council contends those provisions have the reverse effect.The extent of consultation[132] The Maunga Authority's submissions and evidence canvass, in detail, theextent of the consultation undertaken in the adoption of both the IMP and the2018/2019 Annual Operational Plan.Integrated Management Plan[133] On 23 June 2016 the Maunga Authority approved the IMP. The process thatled to the approval and adoption of the IMP is covered primarily in the affidavitevidence of Janine Bell and Mr Turoa.[134] Ms Bell is a planner, partner and director at Boffa Miskell Ltd (BML). InAugust 2015 BML was engaged to assist the Maunga Authority to develop an IMP inaccordance with the requirements of s 58 of the Collective Redress Act (set out above,at [125]).[135] Ms Bell was also involved in developing the Tūpuna Maunga Strategies. Shedescribes the IMP and Strategies development process in detail.85 In summary, thekey points of that process were:(a) The IMP had to cover all 14 of the Tūpuna Maunga;86(b) Section 59 of the Collective Redress Act sets out mandatoryconsiderations to be covered in an IMP in relation to members of NgāMana Whenua carrying out authorised cultural activities;(c) The notification and consultation provisions of s 41 of the Reserves Actapplied to the process. In practice that included various steps:87(i) Public notice of the intention to prepare the IMP.88 The Noticeof Intention was given on 22 June 2015, with a closing date forfeedback on 31 July 2015. In addition to advertisements innewspapers, posting on the Auckland Council website, lettersinviting feedback were sent directly to, among others, all localboards and a number of stakeholder groups. In response, 60persons and organisations (including local boards) providedwritten suggestions. Four of the written suggestions explicitly85 Affidavit of Janine Anne Bell, 30 January 2020.86 Section 58(1) of the Collective Redress Act.87 See Affidavit of Janine Anne Bell, 30 January 2020 at [19].88 At [24]–[28].addressed exotic vegetation management. A further ten gavemore general comments on vegetation management.(ii) Preparation of a draft IMP.89 This occurred from September toNovember 2015. This process involved discussions by theMaunga Authority at various hui, hikoi and workshops,engaging with the Tūpuna Taonga Trust and with ManaWhenua, stock-taking of current activities being undertaken onthe Maunga, incorporation of the new policy directions adoptedby the Maunga Authority, consideration of the submissionsreceived to the Notice of Intent and contributions from localboard members. At its Hui 15 (7 December 2015) the MaungaAuthority approved the release of an informal (non-statutory)draft of the IMP for public feedback over the December 2015-January 2016 period.(iii) Public notice of the draft IMP.90 The informal draft IMP waspublicly notified on 12 December 2015 and was available forsubmission until 22 January 2016. The opportunity to makesubmissions was publicly advertised. The informal draft wasalso sent to a number of individuals and organisations, includingthose who had provided suggestions on the Notice of Intent.(iv) Feedback on the draft IMP.91 Feedback was received from fiveindividuals and 15 groups. Feedback from three individuals andfrom the FOM related to the proposed management ofvegetation.(v) Proposed incorporation of feedback.92 In response to theinformal feedback process, the Maunga Authority proposed aseries of amendments to the draft IMP. Ms Bell notes that those89 At [29]–[35].90 At [32]–[35].91 At [36]–[41].92 At [41] –[42].parts of the FOM submission relating to ecological values,biodiversity and weed control were carefully considered.(vi) Public notice of the proposed IMP and further submissions.93The draft and proposed amendments were made available forpublic inspection and the lodgement of written objections andsuggestions, public hearings to enable those who wished to beheard in support of their objection or comments to appear beforethe Maunga Authority.Annual Operational Plan[136] Mr Turoa's evidence is that the operational management of the TūpunaMaunga is not dependent on the Tūpuna Maunga strategies or the individual plans thatwere signalled as being developed for each Tūpuna Maunga.94 He notes that theMaunga Authority, the IMP and the Annual Operational Plan drive the operationalmanagement of the Tūpuna Maunga. He says that the strategies and individual plansare not a pre-condition to undertaking operational work, which has been underwaysince the establishment of the Maunga Authority in 2014.[137] Mr Turoa's evidence is that the IMP is implemented through the AnnualOperational Plan which is provided for in s 60 of the Collective Redress Act.95 Oncethis strategic direction is set through the IMP (and moving forward under the strategiesand eventually the Maunga plans), then the Annual Operational Plan is agreed betweenthe Maunga Authority and the Council. It is then the role of the Council to implementthat Annual Operational Plan.96[138] The 2018/2019 Annual Operational Plan was unanimously adopted by theMaunga Authority at its Hui 36 on 28 May 2018.97 The 2019/2020 Annual Operational93 At [43]–[48].94 Affidavit of Nicholas Henry Turoa, 31 January 2020 at [12].95 At [14].96 Pursuant to Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, ss 60 and 61.97 Affidavit of Nicholas Henry Turoa, 31 January 2020 at [16].Plan was unanimously adopted by the Maunga Authority at its Hui 47 on 2 June2019.98 Both plans were also unanimously adopted by Auckland Council.99[139] Mr Turoa's evidence is that both plans went through a public consultation andsubmissions process as part of Auckland Council's annual plan process. The2018/2019 Annual Operational Plan included work to protect the wairuatanga, orspiritual values, and the takatoranga, or landscape values, of the Maunga.100 This workincluded a network-wide programme to remove vegetation and revegetate the nativevegetation, including specifically for Ōwairaka.[140] The Draft Annual Operational Plan for 2018/19 was presented, inter alia, at theMaunga Authority's Hui 30 on 16 October 2017101 and to the Auckland CouncilFinance and Performance Committee at an open meeting on 31 May 2018 at whichMr Turoa confirmed that the Maunga Authority intended to remove all inappropriateexotic trees including those blocking viewshafts, hindering the cultural landscape,posing a risk to archaeological features or health and safety and pest species.102 TheMaunga Authority's Tūpuna Strategies were also available at each public event theMaunga Authority participated in.[141] The 2018/2019 Draft Annual Operational Plan, which formed the basis of theconsultation, included:(a) As part of the Work Programme Overview:Restoration of indigenous native ecosystems; reintroducing nativeplants and attracting native animal species; removing inappropriateexotic trees and weeds".(b) In the Tūpuna Maunga Work Programme 2018–28 (at Table 1), projectsto be carried out over the course of a decade (under various headings):- vegetation management – remove weed species, manage healthand safety risks and inappropriate exotics;98 At [17].99 At [17].100 At [19].101 Affidavit of Paul Francis Majurey, 5 February 2020 at [92].102 Affidavit of Nicholas Henry Turoa, 31 January 2020 at [124].- vegetation removal - weed species, health and safety risks, andinappropriate exotics;- Biodiversity programme: restore the native biodiversity otheTūpuna Maunga through the ongoing management of existingthreatened plants. Replanting of suitable areas with indigenousecosystems ";(c) As part of the Capital Expenditure Programme for Ōwairaka:Network-wide programme to remove vegetation and revegetate –actions and staging to be confirmed[142] The same items appear in the Draft Operational Plan for 2019/20 whichMr Turoa says was held out for consultation between 17 February and 17 March2019.103[143] Counsel for the respondents do not, in their written submissions, substantivelyaddress the indications in the IMP that further details would be determined throughthe individual Maunga plans, including regarding the proactive management ofinappropriate exotic vegetation, native planting and ecological restoration andenhancement. The applicants contend those indications promise by implication that afurther consultative process will occur before the making of any decision as significantas removing 345 trees.[144] The respondents accept that the decision to remove the 345 trees was notconsulted on. Implied in their submissions is that no promise to consult on such pointswas made – and the applicants' reading of the IMP, including the indication thatindividual Maunga plans would be developed does not accurately reflect the processby which the Maunga Authority makes decisions such as the one to remove the 345trees. Mr Turoa says that the Maunga Authority is not dependent on strategies orindividual plans in making operational management decisions.104 As such, nolegitimate expectation of consultation capable of grounding review could arise.103 At [126].104 At [12].Analysis[145] Given the Maunga Authority did not consult on the specific decision to remove345 trees that the applicants seek to challenge, the question I am to determine underthis head is whether it was obliged to do so.[146] The Maunga Authority prepared an IMP as it was required to under s 58 of theCollective Redress Act. To the extent the legislation is prescriptive of the content ofthe IMP, the Maunga Authority met those requirements, including those set out in s 59.The applicants say that the IMP was of a different nature than what other reserves'administering bodies might have produced, but they do not challenge the IMP asfailing to comply with s 58 of the Collective Redress Act or s 41 of the Reserves Act.[147] The Maunga Authority consulted on the IMP as it was required to do unders 41(5). It also consulted on the 2018/2019 Annual Operational Plan. The DraftAnnual Operational Plan included references to, for example, the "restoration of nativeecosystems", "reintroducing native plants", and "removing inappropriate exotic treesand weeds".105[148] The summary of the Draft Annual Operational Plan included:(a) in a summary of values to guide Maunga Authority decision-making (inthe category of Takotoronga/Landscape):preserve the visual and physical integrity of the maunga aslandmarks of Tāmakiactive restoration and enhancement of the natural features ofthe Maunga(b) amongst the "priority programs and projects" for the first three yearsidentified in the Work Programme Overview, under the heading"Healing":Restoration of indigenous native eco-systems; reintroducingnative plants and attracting native animal species; removinginappropriate exotic trees and weeds105 See [141] above.[149] The crux of the applicants' case is that the Maunga Authority signalled it wouldprepare individual Maunga plans, which would cover in more detail matters referredto in the IMP, but did not do so. That meant there was no opportunity for consultationbeyond the IMP with its more general statements, and the Annual Operational Plan.There was no direct consultation on the decision to remove the 345 exotic trees. Thisis particularly problematic if the applicants were reassured that their concerns to dowith exotic trees would be addressed through further consultation.Whether there was a statutory obligation to consult prior to the decision[150] The applicants say that a statutory obligation to consult on the decision to fellthe trees in question arises by implication from the terms of the Collective RedressAct, particularly those of ss 41(2) and 109.[151] I agree with Mr McNamara's submission for the Council that those provisionsunderlie the Maunga Authority's guardianship role but are neutral in terms ofconsultation. As Mr McNamara notes, all reserves are held in the form of a trust forthe benefit of New Zealanders.106 The provisions do not specify or imply a duty toconsult.[152] I agree with the respondents that there is a deliberate scheme in the ReservesAct in terms of specifying when consultation is required. There is no express statutoryduty to consult, beyond that in relation to the draft IMP and the Draft Operational Plan,which obligations were met. As in Nicholls, I find that "if anything the statutoryframework points against a duty of consultation in that such duties are expressly dealtwith when required and there is therefore little room for any implication".107Whether there was a legitimate expectation of consultation based on past practice[153] Legitimate expectation in administrative law reflects the principle thatgovernments and public authorities should act fairly and reasonably. The PrivyCouncil in Attorney-General of Hong Kong v Ng Yuen Shi considered that:108106 See Reserves Act 1977, s 3(1).107 Nicholls v Health & Disability Commissioner [1997] NZAR 351 (HC) at 370.108 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 351. when a public authority has promised to follow a certain procedure, it is inthe interests of good administration that it should act fairly and shouldimplement its promise, so long as it does not interfere with its statutory duty.[154] Beyond a statutory bar, a public authority can also depart from a legitimateexpectation it has fostered if there is a "satisfactory reason" for it to do so.109 TheCourt of Appeal in Comptroller of Customs v Terminals (NZ) Ltd set out the broadprinciples applicable to claims of legitimate expectation:110[123] Establishing a legitimate expectation in administrative law is notdependent on the existence of a legal right to the benefit or relief sought. Theexpectation might be engendered by promises that a particular authority willact in a certain way or by the adoption of a settled practice or policy which theclaimant can reasonably expect to continue. A promise of the kind allegedmay be express or implied.[124] Legitimate expectation is to be distinguished from a mere hope that acause of action will be pursued or a particular outcome gained. To amount toa legitimate expectation, it must, in the circumstances (including the nature ofthe decision-making power and of the affected interest) be reasonable for theaffected person to rely on the expectation.[125] Where legitimate expectation is raised, the inquiry generally has threesteps. The first is to establish the nature of the commitment made by the publicauthority whether by a promise or settled practice or policy. This is a questionof fact to be determined by reference to all the surrounding circumstances. Apromise or practice that is ambiguous in nature is unlikely to be treated asgiving rise to a legitimate expectation in administrative law terms.[126] The second is to determine whether the plaintiff's reliance on thepromise or practice in question is legitimate. This involves an inquiry as towhether any such reliance was reasonable in the context in which it was given.[127] The third, and often most difficult part of the inquiry, is to decide whatremedy, if any, should be provided if a legitimate expectation is established.[155] Legitimate expectations can be purely procedural in nature – such as that abody will consult before making a particular type of decision or taking a particularcourse of action.111 Regarding whether a legitimate expectation has been established,Harrison J for the Court of Appeal in Green v Racing Integrity Unit Ltd emphasisedthe high standard:112109 New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525.110 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 (footnotesomitted); confirmed in Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZRMA 1.111 New Zealand Association for Migration and Investment Inc v Attorney-General [2006] NZAR 45(HC) at [145].112 Green v Racing Integrity Unit Ltd, above n 110, at [14]. success at the first step — establishing the existence and content of theexpectation pleaded — might not come in the form of an explicit promise. Apromise can be implied from past practice or policy. But where theexpectation is in the form of a practice or policy, as alleged here, its existenceand content must equally be established to the level of a commitment orundertaking. The existence and content of such a practice or policy must beboth unambiguous, and settled in the sense that it is regular and wellestablished.[156] The Court in Green also stressed the importance of establishing reasonablereliance on the expectation.113 Factual reliance must be reasonable to differentiate alegitimate expectation from a mere expectation or hope of a particular process oroutcome.114[157] I turn to whether the applicants can claim a legitimate expectation derivingeither from a promise of consultation or past practice or some combination of the two.The applicants' submissions rely heavily on past practice by the Council as anadministering body of consulting on draft management plans as set out inMr Howden's evidence. However, the Maunga Authority is a new administering bodyand for this purpose has no relevant past practice to look to. The establishment of theMaunga Authority, as a new body, to give effect to administration of the Maunga in amanner which provides mechanisms by which iwi and hapū may exercise manawhenua and kaitiakitanga over the Maunga115 also tells against past practice beingrelevant.[158] In any event, the Maunga Authority did consult on the IMP. The heart of theissue is that the IMP is a different kind of plan than Mr Howden would have prepared.[159] Mace Ward is the General Manager Parks Sports & Recreation, CustomerServices Division of Auckland Council and gave evidence for the Council.116 His roleincludes responsibility for 4,000 local parks and sports fields and facilities, 27 regionalparks, 42 pools and leisure centres, cemeteries and the Council's delivery of sport andrecreation. He has responsibility for the operational side of the Council's role inrelation to co-governed land, including the Tūpuna Maunga. Mr Ward notes that in113 At [15].114 At [15].115 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 3.116 Affidavit of Mace Falconer Ward, 31 January 2020.his extensive experience, administering bodies of reserves regards themselves ashaving a broad discretion about how reserves are managed, subject to compliance withthe Reserves Act (and, in the case of the Maunga, compliance with the CollectiveRedress Act).117 Different administering bodies take different approaches. Heobserves that, except in certain areas, such as the leasing powers, the Reserves Actleaves a lot of leeway for the administering body to make its own decisions aboutmanagement and control, within the "envelope" of the reserves classification and thereserve management plan.118[160] Mr Ward also notes that, in his experience, reserve management plans candiffer significantly one from the other, in terms of the information presented.119Generally, reserve management plans are not specific about particular managementdecisions which may be proposed. The management plan is a policy document, settingout the framework for later decisions, rather than an enumeration of the decisionsthemselves.[161] I accept Mr Ward's evidence, and Mr Beverley's submission that reading in afurther consultation requirement in the statutory scheme would create significantadministrative uncertainty for managers of reserves such as Mr Ward.[162] The net impression I am given by the evidence is that there is no singleuniversally-practised approach to consultation between different bodies andindividuals charged with managing reserves. The Maunga Authority does not have ahistory of consultation to point to as grounding a legitimate expectation ofconsultation, and no legitimate expectation arises from the overwhelming generalpractice of reserve administrators. While the applicants may have expected greaterconsultation from the prior administrators of Ōwairaka, it seems clear that the adventof a new administrative body embodying a different set of values would mean changesin how the reserves it took responsibility for were to be managed. The applicants'claim fails at the first arm of the test.117 At [26].118 At [26].119 At [29].[163] I turn to whether there is a legitimate expectation of consultation deriving froma promise.Whether there was a legitimate expectation of consultation based on representationsmade by the Maunga Authority throughout the IMP process[164] The promise in question is said to arise from a representation by the MaungaAuthority throughout the IMP process and in the IMP itself that it will develop andconsult with the public and local communities on individual management plans foreach of the Maunga before deciding to carry out any major management ordevelopment project. Specifically, the IMP stated that individual plans "must" addressthe management of vegetation to protect cultural features, native planting, ecologicalrestoration and enhancement, and the management of pest plants and inappropriateexotic vegetation (amongst other issues). They would do so in order to "give effect tothe Values, Pathways, guidelines and strategies".[165] The applicants argue that the clear impression given by the IMP was that,although a broad direction was set by the IMP, the Maunga Authority would consultfurther before taking any specific action as significant as removing all exotic treesfrom Ōwairaka and replanting native plants. The IMP promised further plans, whichwould be consulted on.[166] Justice Wild in Air New Zealand Ltd v Wellington International Airport Ltd setout (in obiter comments) his view on legitimate expectations as to consultation:120• A legitimate expectation(s) can arise when a public body makes anexplicit representation to a person that it will not act unless it consults thatperson. That person then has a legitimate expectation of being consultedbefore action is taken. Any failure to consult is a reviewable error of law.• A legitimate expectation can also arise when a public body promises notto act in a certain way, but then sets about acting in just that way,significantly adversely affecting a person. An example is where a localbody promises that construction of a new road near a person's propertywill not affect that property. The public body then needs to reposition theroad, affecting the person's property. The public body has breached theperson's legitimate expectation.120 Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZAR 138 (HC) at [59].[167] I agree that readers of the IMP might reasonably have inferred from thematerial pointed to by the applicants that an individual Ōwairaka Tūpuna Maunga planwould canvass the matters referred to in the IMP in more detail.[168] However, I do not think that inference goes so far as to ground a legitimateexpectation requiring remedy through judicial review.[169] As I have already discussed, there was no statutory obligation on the MaungaAuthority to produce individual Maunga plans, no specific timeframe within which itwas to do so and no statutory obligation to consult on them. The IMP does not go sofar as to say that those matters, if subsequently included in an individual Maunga plan,would be consulted on. A close analysis of the IMP does not ultimately revealanything conclusive, either way.[170] On the one hand, the IMP says "Following the preparation of the aboveguidelines and strategies, individual Tūpuna Maunga Plans will be prepared. ThesePlans will give effect to the Values, Pathways, guidelines and strategies".121 Andfurther:122The first phase will be the preparation and implementation of the guidelines andstrategies. The second phase will be the preparation and implementation of theindividual Tūpuna Maunga Plans.[171] Part 9 of the IMP ("Delivering the Values and Pathways") provides:"The Values and Pathways will be delivered as follows:9.1 The Values and Pathways will be delivered as follows:• Plans and policies prepared by the Tūpuna Maunga Authority;• Decisions of the Tūpuna Maunga Authority;• Provision for Cultural Activities;• Annual Tūpuna Maunga Operational Plan;• Preparation of Tūpuna Maunga guidelines and strategies;121 Tūpuna Maunga o Tāmaki Makaurau Authority Tūpuna Maunga o Tāmaki Makaurau IntegratedManagement Plan (23 June 2016) at [9.24].122 At [9.32].• Preparation of individual Tūpuna Maunga Plans;• Advocacy to Auckland Council, central government, private sector,regarding policies, plans and bylaws (for example Auckland UnitaryPlan);• Advocacy supporting a World Heritage nomination; and• Other legislation.[172] The order in which those items are listed might suggest that plans and decisionsare intended to come ahead of individual Maunga plans.[173] I note too that the list of issues to be covered by the individual Maunga plansis a mixture of very general, high level activities and more concrete steps.123[174] Looked at as a whole, I do not think the references in the IMP to thedevelopment of individual Maunga plans can be interpreted as an express commitmentto consult. There was no clear promise, implied or otherwise, of consultationregarding the management of exotic trees.[175] In any event, the specific matters referred to were in fact included in the DraftAnnual Operational Plan,[176] As I have noted, the duty to consult is framed by the applicants as a generalduty to consult with interested members of the Auckland public, including those in theposition of the applicants. They do not allege a specific commitment or one that wascertain in its terms. As the Court of Appeal said in Comptroller of Customs v Terminals(NZ) Ltd a legitimate expectation must be more than a "mere hope";124 it must, in thecircumstances (including the nature of the decision-making power and the affectedinterest) be sufficiently clear to amount to a level of commitment or undertaking suchthat reliance on it was reasonable. That was not the case here.[177] As Wild J emphasised in Air New Zealand v Wellington International AirportLtd, detrimental reliance, or at least reliance simpliciter, is necessary to establish123 At [9.26].124 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [124].breach of legitimate expectation.125 Neither Ms Norman, nor any other of the laywitnesses who filed affidavit evidence in support of the applicants' claim, refer tohaving seen let alone relied on, the statement in the IMP.[178] Rather, Ms Norman for example, refers to a general expectation "for such animportant decision to be made without robust consultation is unacceptable".126Ms Norman does refer to the Maunga Authority's draft Annual Operational Plan for2019/20 but, again, does not give evidence that she saw the draft plan at the time itwas being consulted on, or relied on it as a promise of further consultation..[179] On balance, I do not think that the references in the IMP, noted at [170]-[173]above, gave rise to an implied commitment to consult before taking the decision to fellthe exotic trees. As Robertson J put it in Te Heu Heu v Attorney-General "What the[applicants] wanted never developed beyond a hope or expectation on their part." 127[180] If I am wrong in that, I think the subsequent consultation process in relation tothe Draft Annual Operational Plan (developed in October 2017, consulted on in March2018 and approved and adopted in May/June 2018) which, although it did not referspecifically to the felling of the trees, was clear that removing exotic and weeds,replanting native trees and restoration of indigenous eco-systems was a priority for theMaunga Authority, met any such obligations.[181] As such, this argument must also fail.The importance of the reserve and the significance of the decision[182] I address the last two arguments on this cause of action together.[183] The applicants rely on the importance of the reserve, and the significance ofthe decision to fell the trees, as pointing to an obligation on the Maunga Authority toconsult.125 Air New Zealand v Wellington International Airport Ltd [2009] NZAR 138 (HC), at [[63]-[67].126 Affidavit of Averil Rosemary Norman, 6 December 2019, at [34].127 Te Heu Heu v Attorney-General [1999] 1 NZLR 98 (HC) at 127.[184] I accept that the applicants and others, including those who have givenevidence in support of the application, see the decision to fell the trees as ofconsiderable significance to them and other users of the reserve. Some of theapplicants' expert witnesses comment on what they see as the scale and significanceof the decision. For example, Mr Barrell says (in the context of the Resource ConsentApplication) that "the application here will have been one of the most significant, ifnot the most significant, from an arboricultural perspective received by the Council inrecent years."128[185] On the other hand, in the context of preparing his report recommending thatthe resource consent application be granted without public or limited notificationunder the RMA, Brooke Dales did not consider the activity for which consent wassought as being out of the ordinary and giving rise to special circumstances.129[186] Barry Kaye, who was the decision-maker on the resource application, states inhis affidavit evidence:130While the proposal involves removal of a large number of exotic trees andreplacement plantings and requires consent for a range of reasons in relationto the Auckland Unitary Plan provisions that in itself did not, in my opinion,take the proposal into the realm of special circumstances that would warrantthe Application being publicly notified.[187] Overall, I do not think that these arguments, in themselves, take the applicants'submission any further. I conclude that this is not a "truly exceptional" case, such asPascoe131 where a common law duty to consult runs concurrently with the variousstatutory obligations to consult.Third ground of review: Council cannot follow an unlawful direction[188] This ground of review turns on grounds one and two; whether the decision wasunlawful in terms of ss 17 and/or 42 of the Reserves Act, and/or there was a failure tocomply with the duty to consult, in relation to the decision.128 Reply Affidavit of Andrew Francis Barrell, 14 February 2020 at [9].129 Unsworn Affidavit of Brooke James MacDonald Dales, filed 3 April 2020 at [68].130 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020 at [30].131 Pascoe Properties Limited v Nelson City Council [2012] NZRMA 232 (HC).[189] Given my conclusion above that the first and second grounds of review do notsucceed, this ground of review must fall away.Fourth ground of review: non-notification of resource consent application[190] The fourth ground of review challenges the Auckland Council's decisions torequire neither public nor limited notification of the application for resource consentfor the Ōwairaka restoration project under ss 95A - 95E of the RMA. Before turningto those provisions and the parties' submissions, I set out the application process, theNotification and Substantive Report supporting it and the Council's substantivedecision.The application process[191] In October 2018 the Maunga Authority and the Council jointly applied forresource consent "To remove exotic vegetation and undertake restoration planting onŌwairaka-Te Ahi-kā-a-rakataura/Mount Albert (Ōwairaka) at 27 Summit Drive MountAlbert" (the Application").[192] Antony Yates acted as the consultant planner for the Maunga Authority duringthe resource consent application process. Mr Yates' affidavit evidence discusses hisproject management and coordination and various specialist technical reportssupporting the Application and the production of the Assessment of EnvironmentalEffects (AEE) that accompanied the application documentation that was lodged withthe Council.[193] The Application sought consent for exotic vegetation removal andrehabilitation planting on Ōwairaka. The AEE noted:132In summary, the proposal will include:• The removal of approximately 345 exotic trees from the Maunga;132 Tūpuna Maunga o Tāmaki Makaurau Authority Ōwairaka/Te Ahi-kā-a-Rakataura/Mt AlbertVegetation restoration and exotic vegetation removal works: Assessment of Effects on theEnvironment and Statutory Assessment (October 2018) at [1.1.3].• The restoration of the central and historic quarry faces withindigenous plantings to create a WF7 Pūriri broadleaf forestecosystem.• Mound planting is proposed for on [sic] a small area of the southeastern face.[194] In his affidavit evidence Mr Yates discusses the primary premise underpinningthe Application which was:133 to achieve the cultural, spiritual and ecological restoration of Ōwairaka-teAhi-kā-a-Rakatarua, whilst avoiding adverse effects on in-situ archaeologyand the high landscape, geological and visual values of the Maunga.Important parts of the project are retaining the tihi in grass to restore andenhance the cultural and spiritual restoration of the Maunga, and the replantingof 13,000 mixed natives (2,700 of which have already been planted) tomitigate and enhance ecological values on the Maunga, in an area where insitu archaeology had been destroyed by historic quarrying.[195] The AEE appended the expert technical reports obtained by the MaungaAuthority. They covered such subjects as tree removal methodology (prepared byBradley Beach); heritage impact assessment (prepared by Brent Druskovich);landscape visual assessment (prepared by Sally Peake); ecological effects and plantingplan (prepared by Richard Mairs); noise effects assessment (prepared by Jon Styles);and an herpetology assessment (prepared by Trent Bell of EcoGecko Consultants Ltd).[196] The Application was lodged in October 2018 and, as described in the Council'sevidence, processed by Brooke Dales, a senior planner and consultant planner to theCouncil.134 Mr Dales and the Council's experts undertook site visits and the Councilissued a request for further information under s 92 of the RMA, regarding exotic treelocations, landscape and visual matters, and the potential impact on volcanicviewshafts. The Maunga Authority responded to the information request on17 December 2018.[197] The Council commissioned independent expert peer reviews of the technicalassessments appended to the AEE which were provided to Mr Dales.133 Affidavit of Antony Bernard Yates, 30 January 2020 at [17].134 Unsworn Affidavit of Brooke James Macdonald Dales, filed 3 April 2020.The RMA provisions[198] For clarity I summarise the RMA provisions relevant to the notification andconsent process here.[199] Section 95A governs the public notification of consent applications. Itprovides that the consent authority must consider and decide a number of questions,including whether:(a) the activity will have or is likely to have adverse effects on the environmentthat are more than minor;135 and/or(b) special circumstances exist in relation to the application that warrant theapplication being publicly notified.136[200] If the consent authority's answer to either of those questions is yes, theapplication must be publicly notified. Public notification requires publishing allrelevant information on a freely accessible internet site, and a short summary of thenotice in one or more local newspapers.137[201] Section 95B sets out a similar process for "limited notification" of anapplication to particular groups or persons. The consent authority must consider anddecide, among other questions, whether:(a) there are "affected persons".138 A person is an affected person "if theconsent authority decides that the activity's adverse effects on the personare minor or more than minor";139 and/or(b) special circumstances exist in relation to the application that warrantnotification of the application to any other persons not already determinedto be eligible for limited notification.140135 Resource Management Act 1991, s 95A(8)(b), determined in accordance with s 95D.136 Section 95A(9).137 Section 2AB.138 Sections 95B(7)–(9).139 Section 95E(1).140 Section 95B(10).[202] If the consent authority's answer to either of those questions is yes, theapplication must be notified to the relevant persons.The notification report and decision[203] Mr Dales was appointed by the Council as the reporting planner responsiblefor processing the Application.[204] Mr Dales prepared a notification and substantive report dated 11 February 2019(Notification and Substantive Report). In his affidavit evidence Mr Dales gives anoverview of his involvement with the Application.141 He noted that the resourceconsents required by the proposal overlapped and so, under his discretion, heconsidered them together.142 This approach is known as "bundling", which he says iscommon practice where multiple resource consents are required for a single proposal.[205] Mr Dale sets out his assessment of the notification provisions of the RMA, andhis recommendation that the Application should be granted without either public orlimited notification (Notification Recommendation).[206] The first part of this assessment, required under ss 95A, 95C and 95D of theRMA, is whether the application should be publicly notified. Mr Dales set out anassessment of the adverse effects of the Application, under the following headings:(a) Effects on Landscape Values and Visual Amenity;(b) Effects of construction – Noise, and Public Access and RecreationalAmenity;(c) Effects on Ecology;(d) Effects on heritage;(e) Effects on Arboriculture;141 Unsworn Affidavit of Brooke James Macdonald Dales, filed 3 April 2020.142 At [43].(f) Effects arising from Land Disturbance; and(g) Effects on the Stability of the site.[207] The Notification and Substantive Report concludes that the Application shouldbe processed without public notification for the reasons that:• In the context of the landscape and visual values of the Maunga, anyadverse landscape and visual effects of the proposal are considered tobe short term in nature and effectively mitigated by the proposedrestoration and replanting such that they can be considered to be lessthan minor;• Any adverse ecological effects arising from the proposal can beappropriately managed as part of the works programme to ensure thatany adverse effects are less than minor;• Any adverse effects on public access and recreation will be short termin nature and can be considered to be less than minor;• The proposed works have been designed to be sympathetic to theheritage values of the Maunga, and can be managed to ensure they areless than minor;• The tree removals methodologies are considered consistent with bestarboricultural practice, and any adverse effects are thereforeconsidered to be less than minor;• Any effects associated with land disturbance and stability can beappropriately managed to ensure they are less than minor; and• There are no special circumstances.[208] Mr Dales then made an assessment under ss 95B and 95E of the RMA as towhether to give limited notification of the application. In short, this requiresdetermining whether particular persons will be adversely affected in terms of thestatute. The Notification and Substantive Report concludes that no persons stand tobe adversely affected, giving reasons as follows:• adverse noise effects on people arising from the proposal are shortterm in nature and can be managed so that they are less than minor.• Although public access to the Maunga will be temporarily disrupted,this disruption will be short term in nature, and necessary for healthand safety reasons, and the applicant has proposed a communicationsplan to ensure that users of the reserve are aware of any restrictions.Overall, it is considered that any adverse effects on people accessingthe Maunga will be less than minor;• As outlined with respect to the tests of public notification, anylandscape and visual effects of the tree removals experienced bypeople with an outlook to or using the Maunga are likely to be shortterm in nature and it is considered that these effects are mitigated bythe proposed restoration planting, and in the context of the volcaniccone landform that will be exposed, any adverse effects are less thanminor;• Given the scale and nature of the works, any construction trafficassociated with the removal of the processed trees, and that associatedwith the necessary machinery, will be limited in volume, short termin nature, and occur only in the hours of work (7:30am–6pm Mondayto Friday with no work on weekends or public holidays), and as suchcan be considered to be less than minor; and• The applicant has engaged with local lwi groups and the generalpublic as part of the consultation process for the Tūpuna MaungaIntegrated Management Plan (IMP). Having reviewed the IMP, thisdocument makes clear the expectations with respect to exoticvegetation and cultural significance of the restoration of the Maunga,and the outcomes of this engagement have been incorporated in theapplication.[209] The Notification and Substantive Report sets out that there are no specialcircumstances warranting any persons being given limited notification of theApplication.[210] The Notification and Substantive Report's conclusions are that:(a) under s 95A the Application may be processed without publicnotification; and(b) under s 95B limited notification is not required.[211] Accordingly, Mr Dales recommended that the application be processednon-notified.Notification Decision[212] Barry Kaye was appointed by the Council to make the notification decision onthe Application (Notification Decision) under delegated authority. His evidence setsout his experience, noting that he regularly carries out s 95 notification assessmentsand has reviewed hundreds of s 95 assessments in resource consent applications thathe has dealt with as a Duty Commissioner.143 He has been an Independent HearingsCommissioner for Auckland Council since 2006.[213] Mr Kaye also made the decision to grant consent under ss 104 and 104B of theRMA (Substantive Decision). Mr Kaye's affidavit evidence sets out an overview ofhis involvement with the Application. He confirms in the Notification Decision thathe had read "the report and recommendations" on the Application, the Notificationand Substantive Report, and a range of other material including:(a) the Application and its supporting documents (including the AEE andsupporting expert reports and all correspondence);(b) the Maunga Authority's response to the Council's request for furtherinformation under s 92 of the RMA;(c) the specialist reports prepared on the Council's behalf;(d) the IMP; and(e) the draft decisions report template prepared by Mr Dales.[214] Mr Kaye made the Notification Decision on 20 February 2019. He decidedthat:(a) Under s 95A the Application should proceed without public notificationbecause "the activity will have or is likely to have adverse effects on theenvironment that are no more than minor", and "there are no specialcircumstances that warrant the Application being publicly notified, because"there is nothing exceptional or unusual about the application, and theproposal has nothing out of the ordinary run of things to suggest that publicnotification should occur".143 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020 at [3].(b) Under s 95B the Application should proceed without limited notificationbecause there are no adversely affected persons and no specialcircumstances that warrant the Application being limited notified to anypersons.[215] As a result, Mr Kaye decided that the Application should proceed on anon-notified basis. He also made the Substantive Decision granting consent. In hisaffidavit Mr Kaye states that:144The Substantive Decision confirmed my understanding of the proposal inrelation to making the Notification Decision in so far as embedding a numberof key aspects of the proposal into relevant consent conditions. Thoseconditions ensured that the identified effects [with potential to adversely affectpeople] would be mitigated/managed in the manner that I envisaged whenmaking the Notification Decision.[216] I note that the Substantive Decision has not been challenged by the applicants.The submissionsThe applicants' submissionsPublic notification – "adverse effects no more than minor"[217] The applicants challenge Mr Kaye's decision (for the Council) under s 95Athat public notification was not required because "the activity will have or is likely tohave adverse effects on the environment that are no more than minor". They say thedecision was flawed for four reasons:(a) it was based on inadequate information;(b) it reflected an unlawful balancing of positive and negative effects;(c) it applied an incorrect definition of "effect" by dismissing effects perceivedas "short term"; and(d) it was unreasonable.144 At [37].[218] I set out the submissions and my analysis on each of these issues in turn.(a) Inadequate information[219] Before setting out the submissions I briefly address the legal approach to theissue of inadequate information in the context of notifying a consent application underthe RMA.[220] In Mills v Far North District Council, Fitzgerald J reviewed the applicableprinciples when considering the adequacy of the information before a consentauthority making a decision as to whether or not to publicly notify an application forresource consent.145 She concluded:[142] while there is no separate ground for judicial review based on the(now repealed) statutory requirement for a consenting authority to be satisfiedas to the adequacy of the information, a decision to notify a resource consent,and to grant a consent itself, must nevertheless be reached on the basis ofadequate and reliable information. As Glazebrook and Arnold JJ observed inAuckland Council v Wendco (NZ) Ltd, "sound public administration permitsnothing less." (footnotes omitted)[221] Her Honour referred to Gabler v Queenstown Lakes District Council,146 inwhich Davidson J said:147[65] While a consent authority does not have to be "satisfied" of the"adequacy" of information, it still must decide the level of effects based on asufficiently and relevantly informed understanding of those effects. Irecognise there is room for debate whether the word "satisfy" as opposed to"decides" indicates a higher degree of certainty was required before theamendment, but a decision whether adverse effects are, for example, "less thanminor" could not be reached unless the decision maker was "satisfied" of that.I do not see how a Council could decide something unless it was satisfied thatit was sufficiently and relevantly informed and satisfied of the decision itmakes. A Council could not say it was "not satisfied" about those matters butnevertheless go on to make a decision which affects the rights of others.[66] In short, I agree with Wylie J that the obligation on the Council to be"satisfied" that it has adequate information is no longer a separate andreviewable element of its decision making process. I do not consider that thisin any way altered the need for a decision maker to be sufficiently andrelevantly informed. It does not alter the need for the decision maker to applyrelevant and not irrelevant considerations, and make a decision which standsup to the test of "reasonableness". Being sufficiently and relevantly informed145 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453.146 At [141].147 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 10 ELRNZ 76 at [65].does not ensure these elements of decision making will be lawfullyundertaken. In these respects Discount Brands in my view has undiminishedforce. It recognised a distinct step in the (repealed) legislation, but there mustalways be a secure foundation for such important decisions. Parliamentcannot have intended to remove that foundation. That is not to endorse acounsel of perfection, but of sufficiency and relevance, and that is how Iconclude the decision in this case should be judicially reviewed. It isfundamentally a test of the quality of the decision.[222] I turn now to the submissions.[223] The applicants say Mr Kaye had inadequate information, first, as to the effectsof cutting down the 345 trees on the use, enjoyment and amenity value for users ofand visitors to the reserve. That should have been central to his consideration giventhe classification of the reserve as a recreation reserve, with a focus on conserving therecreation value of the reserve to visitors. Second, the reserve is an "open space zone"under the Auckland Unitary Plan (AUP), which required Mr Kaye to consider "theloss of amenity values" resulting from the removal of the trees. Third, the long andextensive use of the reserve by the local community and others for recreation shouldhave been considered.[224] The applicants say the consideration in fact given to the amenity effects onvisitors was only cursory. Mr Blakely for the applicants says the assessment made byMs Peake, a landscape architect, which was provided to the Council was inadequate.148[225] The evidence of Mr Barrell for the applicants is that Mr Kaye also hadinadequate information as to the arboricultural effects of the felling.149 While therespondents produced a report for Mr Kaye from their tree removal contractors,Treescape, that addressed only how best to remove the trees, not whether they shouldbe removed or the effects of removal.150 No arboricultural assessment of those matterswas provided. Nor was the Application referred to the Council's arboricultural148 Affidavit of Philip Ronald Blakely, 17 February 2020. Mr Blakely has 35 years' experience as apractising landscape architect. A focus of his work has been the management and design of naturaland historic areas, both within the Conservation Estate and public reserves administered bycouncils.149 Affidavits of Andrew Francis Barrell, 6 December 2019, 18 December 2019, 14 February 2020and 21 April 2020. Mr Barrell has around 35 years' experience as an arborist and in the treemanagement and arboriculture industry.150 Further Affidavit of Andrew Francis Barrell, 18 December 2019 at [13]–[17]; and Reply Affidavitof Andrew Francis Barrell, 14 February 2020 at [10].specialists for advice.151 No consideration was given to the environmental benefitwhich the 345 mature trees provide for the remaining native trees.152 No considerationor weight was given to the effect on the 345 trees themselves, as part of the"environment". Finally, in relation to arboricultural effects, no reference is made tothe Council's Urban Forest (Ngahere) Strategy, which provides for the retention andprotection of mature, healthy trees, regardless of origin.153[226] The applicants also say that there was inadequate information before Mr Kayeas to the heritage value of the 345 trees.[227] Acting on inadequate information, the applicants say, also amounts to a failureby Mr Kaye to take into account relevant considerations.154The Council's submissions[228] The Council notes that "inadequate information" is no longer in itself a separateground of judicial review or jurisdictional threshold, but, accepts that a notificationdecision and substantive decision on a resource consent must "nevertheless be reachedon the basis of adequate and reliable information".155[229] The required threshold was clearly reached here, given the comprehensiveapplication submitted to, and expert peer reviews obtained by, the Council as consentauthority.156[230] In his affidavit, Mr Dales lists the information he had before him when makingthe Notification Recommendation.157 He also explains the process he undertook to151 Reply Affidavit of Andrew Francis Barrell, 14 February 2020 at [8].152 Affidavit of Andrew Francis Barrell, 6 December 2019 at [46]; and Further Affidavit of AndrewFrancis Barrell, 18 December 2019 at [15].153 Affidavit of Andrew Francis Barrell, 6 December 2019 at [30]; and Further Reply Affidavit ofAndrew Frances Barrell, 21 April 2020 at [16].154 See Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418 at [10].155 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA73 at [37]–[41]; Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2NZLR 597 at [114]; Classic Developments NZ Ltd v Tauranga City Council [2020] NZHC 945at [24].156 As required by Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453at [142]; and Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR597.157 Unsworn Affidavit of Brooke James Macdonald Dales, filed 3 April 2020.request further information from the Maunga Authority under s 92 of the RMA. Hethen confirms that in his opinion he had adequate information on which to base hisassessment. He says:158In assessing the Application, I had adequate and reliable information tounderstand the nature and scope of the proposed development, to assess themagnitude of any adverse effects on the environment associated with theApplication, and to identify the extent of effects it may have on people.[231] Mr Kaye confirmed in his affidavit evidence that he:159 read the Application, all supporting documents including correspondences,and the reports prepared on behalf of the Council including Mr Dales'Notification and Substantive report. I also confirm I undertook a site visit. Iwas satisfied that I had sufficient information to consider the matters requiredby the RMA and to make my decisions under delegated authority on theApplication.My view remains that the detailed and expert information that was providedto me was sufficient for me to make a proper and informed decision andaddressed all relevant matters adequately.[232] Mr McNamara's submission is that the information before the Council wassufficiently comprehensive to enable Mr Dales, as reporting planner, and Mr Kaye, asdecision-maker, to consider on an informed basis the nature and scope of the proposedactivity as it relates to the AUP, to assess the magnitude of any adverse effect on theenvironment, and to identify any persons who may be more directly affected.160 Assuch, they were legally competent to determine the Application should proceedwithout public or limited notification. The Council's submissions then address theindividual matters on which the applicants say the Council had inadequateinformation.Use, enjoyment and amenity value[233] As to the applicants' submission that the Council's consideration of theamenity effects on visitors was "cursory", the Council refers to evidence which it says158 At [76].159 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020 at [34]–[35].160 As required by Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2NZLR 597 at [114].shows that effects on reserve users, and key "amenity effects" (adverse effects on"amenity values" as defined in the RMA) were considered.[234] The information before the Council included Ms Peake's Landscape and VisualAssessment for Proposed Tree Removal Ōwairaka (Landscape and VisualAssessment). Ms Peake assessed the visual amenity effects of the Application and indoing so identified and considered visual effects on three viewing audiences – visitors,users of the open space network and residents/users of the surrounding street network.[235] In the part of the Landscape and Visual Assessment regarding the visual effectson visitors to Ōwairaka, Ms Peake:(a) considered the different types of routes that visitors would take and madegeneral observations about the extent of visual change on each route;(b) made general comments about the extent of visual change resulting fromthe vegetation removal;(c) commented that, generally, the removal of the exotic vegetation willreinstate the natural character of the volcanic feature and mountain, and hasthe opportunity to enhance the visitor experience;(d) acknowledged that the trees being removed may be perceived by someviewers as providing some amenity; and(e) concluded "that the visual effects of the vegetation removal on visitors will"range from positive through to low adverse".[236] The Landscape and Visual Assessment also separately considered the visualeffects of vegetation removal on users of the open space on the Maunga. Ms Peakeconcluded that for this group visual context was "a secondary and minor element sothat the removed trees would have low impacts". Ms Peake then considered in detaileffects on residents and users of the surrounding street network, providing assessmentsfrom a range of viewpoints. She noted there would be a range of visual changes, frompositive to moderate adverse, but that "from most viewpoints the removal ofvegetation, particularly from the crest of the tihi, will enhance the profile and legibilityof the volcanic feature", resulting in positive effects. She noted that some residentswould likely view the visual effects of removal of vegetation as positive, and some asnegative, depending on the nature of their view and whether they appreciated thedifference between native and exotic vegetation. The Landscape and VisualAssessment concludes the visual effects of the vegetation removal would "range frompositive through to low adverse, depending on the location of the viewer". It alsonotes that there will be some negative temporary effects associated with the variousmethods of tree removal, but these will be only for a limited time.[237] Mr Dales relied on this assessment in his Notification Recommendation,together with the peer review carried out by Peter Kensington, the Council'sConsultant Landscape Architect, in reaching the conclusion that any adverse visualeffects will be less than minor.161 Mr Dales' evidence is that, in his opinion, that wassufficient information and a more "fine-grained" assessment of effects within thereserve was not required for him to make his recommendation.[238] Those assessments were also before Mr Kaye when he made the NotificationRecommendation.[239] The Council says that Mr Dales and Mr Kaye also had information before themthat assessed the noise, public access and recreational amenity effects of the treeremoval as effects that would affect visitors' use or enjoyment of the reserve. TheAEE addressed recreational effects and public access, noting that the proposed workswould lead to "parts or all of the park being closed for temporary periods". Mr Dales,in the Notification Recommendation, included a separate section addressing theconstruction effects of the proposal (in terms of noise, public access and recreationalamenity). He concluded that effects on public access were "short term in nature andcan be considered less than minor".[240] Other sections of the Notification Recommendation addressed expertassessments of ecological effects, including effects on avifauna (referred to in some ofthe applicants' evidence of their experience visiting Ōwairaka) and effects on heritage.161 Unsworn Affidavit of Brooke James Macdonald Dales, filed 3 April 2020 at [64].The AEE also addressed potential effects on cultural and spiritual values. All theseaspects of amenity, which warranted consideration given the RMA definition of"amenity values", were considered and referred to by Mr Kaye in the NotificationDecision.Arboricultural effects[241] The Council says that the Notification Recommendation and Notification andSubstantive Report reflect that sufficient information as to the "arboricultural effects"of the tree removal was available to, and considered, by the Council. Counsel pointsto Mr Dales' evidence regarding his understanding of "arboriculture effects" – theeffects of the tree removal work (as detailed in the tree removal methodologiesprepared by Treescape) as it relates to the management of the effects of the removalprocess on the native trees being retained,162 and that he reviewed the ArboriculturalAssessment and Removal Methodology provided with the Application beforeconcluding he was "satisfied that the tree removal works can be undertaken in amanner that is consistent with best arboricultural management to ensure that anyadverse arboriculture effects on will be less than minor".163[242] The Council says that Mr Dales' decision not to seek input (such as a peerreview) from a Council arboricultural specialist does not mean that the Council didnot have adequate information about these effects, or that they were not adequatelyconsidered.164 Counsel points to the Notification Recommendation which notes thatthe proposed tree removal methodologies in the Arboricultural Assessment andRemoval Methodology, prepared by Treescape, are consistent with those confirmed asappropriate by the Council Arboriculture specialist in relation to recent resourceconsent applications by the Maunga Authority for tree removal on Māngere Mountainand Maungarei (Mt Wellington).[243] The Council says that Mr Kaye had this information before him when he madethe Notification Decision, and also gave explicit consideration to arboriculturaleffects. His decision records that "the tree removals methodologies are considered162 Unsworn Affidavit of Brooke James Macdonald Dales, filed 3 April 2020 at [53].163 At [50].164 At [52].consistent with best arboricultural practice, and any adverse effects are thereforeconsidered to be less than minor".[244] As to other matters that the applicants say should have been considered as partof the assessment of "arboricultural effects", beyond the effects of the removal processon the trees being retained, the Council responds that those matters were assessed bythe appropriate experts:(a) the landscape and visual effects of the removal of the trees were assessedby Ms Peake on behalf of the Maunga Authority, and peer reviewed byMr Kensington on behalf of the Council; and(b) the ecological effects of the removal of the trees, including the effects onthe flora and fauna of Ōwairaka, were assessed by Mr Mairs of Te Ngahere(2009) Ltd on behalf of the Maunga Authority165 and peer reviewed bySarah Budd of Wildlands Consultants Ltd on behalf of the Council.166[245] Mr Dales and Mr Kaye took those assessments into consideration when makingthe Notification Recommendation and Notification Decision respectively.[246] The Council also addresses the applicants' submission that no considerationwas given to the "environmental benefit which the 345 mature trees provide" for theremaining native plants and for the native plants yet to be planted. The Council saysthis is incorrect, as the assessment of the ecological effects prepared by Te Ngahereand included as part of the AEE clearly identified as a possible adverse effect"potential damage to existing large native trees such as pōhutukawa, pūriri, and tōtarathrough the removal process of the exotic trees".[247] Further, the Council peer reviewer Ms Budd identified as one of three primaryadverse ecological effects to be considered, "temporary loss of vegetation cover andhabitat for native fauna". Notwithstanding that this matter was considered, theCouncil submits that the tests under ss 95A and 95B required it to focus on "adverse165 Affidavit of Richard John Mairs, 31 January 2020.166 Ms Budd's review is affixed to the Affidavit of Antony Bernard Yates, 30 January 2020.effects" for the purposes of notification decision-making, rather than looking atpositive benefits provided by the trees which it was proposed to remove. Similarly,counsel says the Urban Forest (Ngahere) Strategy had limited relevance as consistencywith Council strategy documents is not a focus under the statute.[248] Finally, the Council submits that the effects on the 345 trees themselves wasclearly considered, in that they would be removed and this was not overlooked. TheCouncil points to Ms Budd's report which highlighted temporary loss of vegetationcover and habitat for native fauna. Counsel goes on to say that, equally, the Councilas consent authority considered the broader effects (on the environment, and onpeople) of the removal and restoration planting project.Heritage values[249] As to the heritage value of the trees to be removed, the Council notes that inthe Notification and Substantive Report and Notification Decision, Ōwairaka isscheduled as a Category A historic heritage place in the AUP.[250] In the peer review prepared by the Council's Historic Heritage SpecialistJoe Mills the historic heritage of Ōwairaka is described as follows:167Ōwairaka is one of the Auckland region's most significant historic heritageplaces with a rich history of pre-European Maori occupation resulting inhighly significant archaeological remains covering much of the maunga.Ōwairaka is scheduled as a Category A* Historic Heritage Place (01576) inthe Auckland Unitary Plan with archaeological controls. Large sections of themaunga have been historically quarried or otherwise excavated, resulting insections with less intact archaeological remains.[251] The Notification Recommendation includes a section entitled "Effects onheritage". This section refers to the Heritage Impact Assessment prepared byMr Druskovich and provided as part of the Application, and Mr Mills' peer review.After considering their assessments Mr Dales concluded in the NotificationRecommendation that he was satisfied that any adverse effects associated with theheritage values of the site can be managed so that they are less than minor.167 Mr Mills' review is affixed to the Affidavit of Antony Bernard Yates, 30 January 2020.[252] Mr Kaye similarly concluded in the Notification Decision that the proposedworks have been designed to be sympathetic to the heritage values of the Maunga andcan be managed to ensure they are less than minor.[253] The applicants have alleged that in addition to the consideration of effects onthe heritage value of the Maunga the Council should have had information before itaddressing the effects on the heritage values of the trees to be removed, and givenconsideration to those effects.[254] The Council's response is that none of the trees on the Maunga (whether exoticor native species) are ascribed heritage significance in the AUP:(a) the trees are not referred to at all in the Ōwairaka entry in the AUP'sSchedule 14.1 Schedule of Historic Heritage, and in particular are notreferred to in the description of the scheduled historic heritage place or listedas a "primary feature" of it; and(b) none of the trees that are proposed to be removed are scheduled in theSchedule 10 Notable Trees schedule in the AUP. This was noted in the AEE.Mr Dales notes in his affidavit that is the usual way that trees with heritagevalue would be recorded and protected.168[255] There was no information in the public domain to indicate the significance ofthe trees:(a) Mr Dales says he saw no signage, plaques or similar on the site whenhe undertook his site visit indicating when any particular trees or groupsof trees on Ōwairaka were planted, who planted them, or thecircumstances in which they were planted.169(b) Mr Yates' evidence is that when he undertook his planning assessmentin September 2018 there was no record of the trees' heritage value as168 Unsworn Affidavit of Brooke James Macdonald Dales, filed 3 April 2020 at [61].169 At [61]–[63].described by the applicants in statutory documents, and no otherhistorical evidence publicly available.170(c) Mr Druskovich's evidence is that he had not been able to find anyfurther information about who planted the trees and why.171[256] Dr Philip Mitchell, an experienced planner and hearings commissioner, gaveevidence for the Maunga Authority of undertaking a "notification peer review". Heconsiders the statements made in evidence on behalf of the applicants regarding"heritage trees" and concludes that the Council "could not have been expected toconsider this matter when such information was simply not available in any part of thepublic domain".172[257] Dr Mitchell's evidence canvases the opportunities available, but not taken, bywhich the trees could have been identified and recorded, including through the IMPprocess and the process for the AUP (the schedule of historic heritage relating toŌwairaka and the schedule of notable trees).173 Because those steps were not taken,the information was not available to the Maunga Authority when it made the decisionto fell the trees, or to Auckland Council when it was preparing the NotificationDecision. On that point, Mr Yates notes that the AUP also has a process for schedulingnotable trees.174[258] Mr Dales has confirmed that he remains satisfied that, notwithstanding that theApplication involves the removal of these and other exotic trees on Ōwairaka, theheritage effects of the Application would be less than minor.175[259] As to the alleged failure by Mr Kaye to take into account relevantconsiderations, the Council says the applicants give no further explanation or analysisas to how this ground of review is made out. The evidence establishes that the Councildid consider and take into account the matters identified by the applicants, with the170 Unsworn Further Affidavit of Antony Bernard Yates, filed 3 April 2020 at [7].171 Affidavit of Brent Dale Druskovich, 30 January 2020, at [54].172 Unsworn Affidavit of Dr Philip Hunter Mitchell, filed in April 2020 at [29].173 At [27].174 Unsworn Further Affidavit of Antony Bernard Yates, filed 3 April 2020 at [6].175 Affidavit of Brent Dale Druskovich, 30 January 2020, at [53].exception of the effects on the heritage values of the trees identified in the applicants'evidence, about which there was no information available.Analysis[260] I conclude that the Council did have sufficient relevant information before itin order to make the Notification Decision on an informed basis.[261] Mr Dales and Mr Kaye are both very experienced planners, as is Mr Yates whoprepared the AEE. Their experience in the notification of applications is set out above.[262] Mr Dales, who processed the Application and prepared the Notification andSubstantive Report that went to Mr Kaye, had comprehensive information before him.Various specialist technical reports supported the AEE and the Application, whichincluded analysis of the adverse effects. The Council sought independent peer reviewsof each of those specialist reports.176[263] Mr Dales undertook a site visit. He also made a further information request ofthe Maunga Authority under s 92 of the RMA. Mr Dales' NotificationRecommendation was peer reviewed by the Council's principal specialist planner.[264] Mr Kaye in turn had access to Mr Dales' Notification and Substantive Report,alongside the Application, the AEE, the supporting expert reports and the peer reviews.He also had the information received in response to the s 92 request and the Council'sspecialist reports. He had a copy of the IMP, which he specifically sought from theapplicant. He carried out a site visit. Mr Kaye then made the Notification Decisionand the Substantive Decision. He says in his evidence "I was satisfied that I hadsufficient information to consider the matters required by the RMA and to make mydecisions under the delegated authority on the Application."176 These were from Peter Kensington, the Council's Consultant Landscape Architect, who reviewedMs Peake's Landscape and Visual Assessment; Joe Mills, the Council's Specialist, HistoricHeritage, who reviewed the archaeological assessment provided by Mr Druskovich; Peter Runcie,a Consultant Accoustics specialist, who reviewed the noise effects assessment provided by StylesGroup; and Sarah Budd, consultant Senior Ecologist, Wildlands, who reviewed the Effects onEcology assessment.[265] I take confidence in the breadth and depth of the expertise and informationwhich the Council utilised in its notification process, including the making of theNotification Decision. I do not consider the applicants have pointed to any furtherrelevant information without which the Council could not:(a) understand the nature and scope of the proposed activity as it relates tothe District Plan;(b) assess the magnitude of any adverse effect on the environment; and(c) identify the persons who may be more directly affected.177[266] On the specific question of the heritage value of the 345 exotic trees, I amsatisfied that there was no such information in the AUP Schedule of Historic Heritageor the AUP Notable Trees schedule, the sources of information which the Councilwould look to in the normal course. Nor was any information drawn to their attention.The appellants have not pointed to a serious failure on the part of the Council to besufficiently and relevantly informed as to any heritage issues.(b) Unlawful balancing of positive and negative effects[267] The applicants say that Mr Kaye committed an error of law by balancingpositive and negative effects when considering whether to notify the Application.They refer to that part of the Notification Decision where Mr Kaye concluded that theadverse effects on the environment of the activity were minor because, among otherthings:In the context of the landscape and visual values of the Maunga, any adverselandscape and visual effects of the proposal are considered short term in natureand effectively mitigated by the proposed restoration and replanting, such thatthey can be considered to be less than minor.177 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597at [114]; Classic Developments NZ Ltd v Tauranga City Council [2020] NZHC 945 at [24].Applicants' submissions[268] The applicants say that while Mr Kaye used the language of "mitigation" inthe Notification Decision, that was wholly inapt to explain what he was actually doing:using the positive effects of "the proposed restoration and replanting" to offset orjustify the possibility of "adverse landscape and visual effects" resulting fromremoving the trees. In the applicants' submission the proposed planting did not"exclude" or "eliminate," in terms of Bayley v Manukau City Council, any of the "shortterm" adverse landscape and visual effects from removing the trees.[269] The applicants rely on the Court of Appeal's decision in Bayley where, inrelation to gauging the effects of an activity for the purposes of determining whetheran application should be notified, the Court said:178 whilst a balancing exercise of good and bad effects is entirely appropriatewhen a consent authority comes to make its substantive decision, it is not tobe undertaken when non-notification is being considered, save to the extentthat the possibility of an adverse effect can be excluded because the presenceof some countervailing factor eliminates any such concern, for example, extranoise being nullified by additional soundproofing.[270] The applicants also refer to Kawau Island Action Inc Soc v Auckland Council,in which a proposed condition did not result in the decision-maker being satisfied thatthe adverse effects would be "excluded" – merely that they would be reduced ineffect.179 Justice Gordon held the decision-maker was wrong to take them into accountat the notification stage.180The Council's submissions[271] The Council accepts that positive effects are not relevant to notificationdecisions and that it is not permissible for consent authorities to carry out a"balancing" exercise between positive and negative effects when determining the levelof adverse effects for the purposes of notification. However, it is permissible to takeinto account mitigation measures that form part of the proposal and reach a conclusionas to the overall level of adverse effects.178 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 580.179 Kawau Island Action Inc Soc v Auckland Council [2018] NZHC 3306, (2018) 20 ELRNZ 848.180 At [142].[272] The Council says Mr Kaye considered the restoration planting as providingmitigation for the adverse visual effects of the tree removal. He then, quite properly,reached a conclusion as to the overall level of effects. Counsel says the Bayley andKawau Island decisions are of very limited relevance here.181[273] The Council contends that in this case the proposed mitigating conditions areinherent in the Application, being prospective conditions of consent for the proposedactivity, and the case is more akin to Auckland Regional Council v Rodney DistrictCouncil.182 There the Court of Appeal considered the question of whether, on anotification decision, the consent authority can take into account prospectiveconditions of consent as mitigating the effects of the activity. It held that the answerwas yes, "in respect of conditions that are inherent in the application, and no, in respectof those which are not".183[274] The Court of Appeal referred to Montessori Pre-School Charitable Trust vWaikato District Council:184It would defy common sense if when making a s 93 decision the consentauthority could not have regard to the practical reality of what adverse effectson the environment would be. To determine that self-evidently requiresconsiderations of conditions that would affect such reality.[275] Here, the "Proposal" as described in the Notification Decision was "to removeexotic vegetation and undertake restoration planting on Ōwairaka". While a numberof separate land use consents were required because different rules under the AUPwere engaged, there was a single proposal involving both vegetation removal andrestoration planting.[276] Mr McNamara submits it would be artificial to consider the effects of thevegetation removal separately from the mitigation that has been proposed and isrequired by the conditions of consent. He says that, as noted by Blanchard J in Bayley,181 For completeness I note that since the hearing of this case Bayley has been applied by theHigh Court in Trilane Industries Ltd v Queenstown Lakes District Council v Nature PreservationTrustee Ltd [2020] NZHC 1647.182 Auckland Regional Council v Rodney District Council [2009] NZCA 99, [2009] NZRMA 453at [140]–[142].183 At [53].184 Montessori Pre-School Charitable Trust v Waikato District Council [2007] NZRMA 55 (HC)at [12]; quoted in Auckland Regional Council v Rodney District Council, above n 182, at [59].failing to consider a proposal involving multiple resource consents as a whole "wouldbe for the authority to fail to look at the proposal in the round, considering at the onetime all the matters which it ought to consider, and instead to split it artificially intopieces".185 I note that those comments deal with the reverse situation – an applicationwhich might appropriately be processed without notification in a vacuum, but mightrequire notification due to being part of a package of applications, the others of whichshould be notified.[277] In his Notification and Substantive Report Mr Dales said that the "resourceconsents required by the proposal overlap", and, as an orthodox exercise of discretionhe considered them together.186 Counsel says Mr Kaye's conclusion as to the overalllevel of effects of the Application, having regard to both the vegetation removal andthe restoration planting that comprised the proposal, was properly reached. There wasno impermissible balancing, rather an approach reflecting what the MaungaAuthority's proposal actually was.Analysis[278] I conclude that the Council did not unlawfully balance positive and negativeeffects, for the following reasons.[279] Mr Hollyman contends that the resource consent application was for twodifferent things:• removal of exotic trees from the Maunga; and• planting of native trees and shrubs.He says that the respondents were in error when they grouped those two activities asa single proposal.[280] As above in the context of the first three causes of action,187 I do not agree.185 Bayley v Manukau City Council [1998] NZRMA 513 (CA) at 580.186 Unsworn Affidavit of Brooke James Macdonald Dales, filed 3 April 2020, at [94].187 At [34].[281] As the Maunga Authority's evidence and the Application itself made plain, theremoval of the exotic trees was a part only of what the Maunga Authority referred toas a "cultural, spiritual and ecological restoration of Ōwairaka." The decision to fellthe trees cannot be carved off from the decision to undertake restoration replanting.They are both part of the same project.[282] The test under ss 95A and D of the RMA is whether "the activity is likely tohave adverse effects on the environment that are more than minor".[283] As the Court of Appeal said in Bayley:188 it is important in considering effects to identify the scope of the activity forwhich consent is sought.[284] The Court of Appeal in Auckland Regional Council v Rodney District Councilsaid "the activity is what the applicant wishes to do as expressed in its application" .189[285] The Application was "To remove exotic vegetation and undertake restorationplanting on Ōwairaka-Te Ahi-kā-a-rakataura/Mount Albert (Ōwairaka) at 27 SummitDrive, Mount Albert." There was a single proposal before the Council, involving bothexotic tree removal and planting of native trees and plants. Although a number ofseparate land use consents were required, what was sought was consent to undertakea single activity. The draft conditions as to planting annexed to the AEE were aninherent part of the proposal for which resource consent was sought and ultimatelyrequired by the conditions of the consent. The draft conditions included requirementsthat the planting be undertaken in accordance with the finalised Planting Plan (a draftof which was submitted with the Application) and maintained thereafter.[286] While the Council imposed the planting as a condition on the grant of theApplication, it is plain it is not and was never intended to be a limitation or anafterthought. The planting is an integral part of the Ōwairaka resoration project. AsMr Kaye noted in relation to his Substantive Decision the conditions "embedd[ed] anumber of key aspects of the proposal." 190188 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 576.189 Auckland Regional Council v Rodney District Council [2009] NZCA 999, at [55].190 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020, at [37].[287] I agree with the Council that it would be artificial to consider the effects of thevegetation removal separately from the planting that has been proposed and indeed isrequired by the conditions of the consent. This is a case, like Auckland RegionalCouncil, where it can properly be said that the condition was inherent in theApplication. It is clearly distinguishable from Bayley.[288] Mr Kaye was entitled to take into account prospective mitigating conditionsinherent in the Application when considering its potential adverse effects.191 He wasalso entitled to consider the practical reality of the Application as a whole.192[289] There is an additional factor in support of my conclusion. In Bayley the Courtof Appeal characterised the distinction as between "good" and "bad" effects.193 Theapplicants' insistence that the removal of exotic trees and the planting of native treesand shrubs should be viewed as two different things, invites an assessment in thoseterms, where removal of the exotic trees is "bad" and planting is "good".[290] But this is not a case where the cutting down of the exotic trees is a necessary,but unfortunate and "bad" effect of the activity for which consent is sought. It is anintegral and essential part of the activity. While some of the replanting will have amitigatory effect, the removal of the exotic trees in itself achieves a desired andpositive effect. As I have already noted, the project as a whole is intended to facilitatethe restoration of the "natural, spiritual and native landscape". It will open upviewshafts and defensive sight lines from Maunga to Maunga across TāmakiMakaurau, open up terracing and other important archaeological features of theMaunga.[291] Ms Peake notes that the overall aim of the project is to facilitate restoration ofthe natural, spiritual (cultural) and indigenous landscape of the Maunga. She alsonotes that there are positive visual effects derived from the enhanced profile andlegibility of the Maunga as an identified outstanding volcanic feature.191 Auckland Regional Council v Rodney District Council [2009] NZCA 99, [2009] NZRMA 453 at[53].192 Montessori Pre-School Charitable Trust v Waikato District Council [2007] NZRMA 55 (HC)at [12].193 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 580.[292] That categorisation does not reflect the reality of this case. As Ms Peake'sLandscape and Visual Assessment makes clear that is not the case. For example, shesays:• From most viewpoints, the removal of vegetation, particularly from the crestof the tihi, will enhance the profile and legibility of the volcanic feature. Thiswill result in positive visual effects.And• Generally, the visual effect of the removal of vegetation may be perceived aspositive by some and negative by others, depending on the nature of the viewand whether they appreciated the difference between native and exoticvegetation.[293] In her affidavit Ms Peake says:194The landscape strategy for the Tūpuna Maunga, and the conclusions of thelandscape and visual assessment are dependent on restoring and enhancing theauthenticity and visual integrity of the Maunga which includes making itscultural and natural features visually apparent.[294] I have already referred to Mr Turoa's evidence where he notes that a veryimportant element of the restoration project is opening up viewshafts and defensivesight lines from Maunga to Maunga while also opening up the terracing and otherimportant archaeological features of the Maunga.195[295] Mr Kaye had regard to Ms Peake's assessment (endorsed by Mr Kensington)and he too notes in his Notification Decision that there is potential for the visual effectsto be viewed positively or negatively. To my mind, that highlights that this caseinvolves the balancing of different qualities and different values.[296] In conclusion on this point, plainly Mr Kaye as decision-maker did turn hismind to the landscape and visual effects of the Application and the mitigation providedwithin the activity for which consent was sought. As Mr Kaye noted, the conditionson the consent simply embedded what were key elements of the Application.194 Affidavit of Sally Barbara Peake, dated 31 January 2020, at [30].195 Above at [31].[297] In the overall context of this case it was, in my view, clearly open to thedecision-maker to conclude that the adverse effects are no more than minor.(c) Failure to apply or take into account the correct definition of "effect"[298] The applicants say Mr Kaye discounted or ignored "any adverse visual effects"of the Application on the environment because they would, in his view, be temporary.That approach was wrong because it failed to apply or take into account the widedefinition of "effect" in the RMA, which includes "any temporary or permanent"effect.196[299] "Environment" is also defined widely, to include:197(a) ecosystems and their constituent parts, including people andcommunities; and(b) all natural and physical resources; and(c) amenity values; and(d) the social, economic, aesthetic, and cultural conditions which affectthe matters stated in paragraphs (a) to (c) or which are affected bythose mattersThe Council's submissions[300] The Council accepts that the definition of "adverse effects" in the RMAincludes "temporary effects" but says that Mr Kaye did not discount or ignore anyadverse landscape and visual effects of the Application because they were temporary.The conclusion he reached in the Notification Decision was that:Any adverse landscape and visual effects of the proposal are considered to beshort term in nature and effectively mitigated by the proposed restoration andreplanting such that they can be considered to be less than minor.[301] Mr Kaye took into account the duration of any adverse landscape and visualeffects that would arise, and the mitigation that was proposed as part of theApplication, as part of his assessment of the overall level of adverse landscape andvisual effects. This approach was lawful and correct in the context of this Application.196 Resource Management Act 1991, s 3(b).197 Section 2.[302] Mr McNamara says the weight Mr Kaye gave to adverse landscape or visualeffects, on account of those effects being temporary or for any other reason, is not ajusticiable matter.Analysis[303] I conclude that the Council did not apply an incorrect definition of "effect" bydismissing effects perceived as short term.[304] I accept that the fact that an effect will only be temporary in nature does not initself mean it cannot be adverse. In Kawau Island Action Incorporated Society thefact that a helicopter's flight path and noise levels were to be restricted, and flightswere to be limited to three flights during the day-time in any seven-day period, wereinsufficient to give the decision-maker confidence that the adverse noise effects wouldexcluded, such that the balancing exercise was impermissible.198[305] I reiterate my conclusion in relation to the applicants' submission that therewas an unlawful balancing of positive and negative effects.[306] Mr Kaye plainly did consider the duration of any adverse landscape and visualeffects, based on the extensive material before him, and weighed that factor in hisoverall assessment of those effects. The weight he gave to the likely duration of anysuch effect, and their mitigation, was properly a matter for him. As Panckhurst J saidin Just One Life Ltd v Queenstown Lakes District Council:199[79] A more fundamental issue is that it is not my function to re-examinethe merits of the various decisions reached. Rather I must determine whethersuch decisions involve reviewable error. That is whether the decision-makingprocess itself involved an erroneous approach in law, was deficient on accountof matters not considered or improperly considered, or produced an outcomewhich was plainly unreasonable. Errors of this ilk aside, the weighting to begiven to competing considerations and the merit-based decisions reached arenot justiciable in this forum.198 Kawau Island Action Inc Soc v Auckland Council [2018] NZHC 3306, (2018) 20 ELRNZ 848at [141].199 Just One Life Ltd v Queenstown Lakes District Council [2003] 2 NZLR 411 (HC), at [79]. Thatdecision was overturned on appeal, but these comments were not addressed.(d) The decision was unreasonable[307] In addition to the alleged inadequacy of information, unlawful balancing ofpositive and negative effects and incorrect definition of "effect", the applicants sayMr Kaye was aware of other factors, which meant that the decision not to notify mustbe considered unreasonable. These were that:(a) the Application was for consent to cut down 345 mature trees;(b) the trees comprised almost half of those in the reserve;(c) the respondents would be able to cut down the trees all at once; and(d) the trees were situated in a popular urban public space, classified as arecreation reserve, a Significant Ecological Area, and an "open spacezone".The Council's' submissions[308] The Council points to the high threshold to establish unreasonableness as aground of judicial review in this context. In Associated Churches of Christ ChurchExtension and Property Trust Board v Auckland Council Toogood J stated:200In my view, the principles to be applied to the plaintiff's contention that theCouncil's decision in this case was unreasonable are well-settled and followthe Wednesbury test. The Council's decision may be set aside if the decisionwas so irrational that no decision maker, acting reasonably, could have arrivedat that decision.[309] In Webster v Auckland Harbour Board Cooke P framed this as a decision"outside the limits of reason".201[310] Mr McNamara says there is nothing to suggest, based on the informationMr Kaye had before him, that his assessment of the level of adverse effects was soirrational that no decision-maker, acting reasonably, could have arrived at the200 Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council[2014] NZHC 3405, [2015] NZRMA 113 at [52] (footnotes omitted).201 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 131; cited in Mills v Far NorthDistrict Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [190].Notification Decision he did. The Council's decision that the adverse effects were nomore than minor was one that was reasonably open to it.[311] Mills v Far North District Council involved evidence filed by members of thecommunity in order to challenge the reasonableness of a council's conclusion that theenvironmental effects of a proposal were minor or less-than-minor.202 JusticeFitzgerald dismissed the relevance of those affidavits, stating:203Nor are the subjective and non-expert views of members of the community,expressed in several additional affidavits adduced by the applicants, relevantor persuasive for these purposes. While I accept those views are no doubtgenuinely and firmly held, many activities for which resource consent issought will be unpalatable to some members of the community. That does notmake them unreasonable.[312] Her Honour was not satisfied, on the available evidence, that the Council'snotification decision was a decision no reasonable consent authority could havereached.204[313] In the Council's submission the same conclusion must be reached here. TheCouncil's determination as to the level of adverse effects was not so irrational that nodecision-maker, acting reasonably, could have arrived at it. Nor was it outside thelimits of reason.Analysis[314] The applicants acknowledge that Mr Kaye was aware of the factors set out at[307] above. They say that having that knowledge it was unreasonable for him toreach the Notification Decision he arrived at.[315] An articulation of the reasonableness test in this context is contained inAssociated Churches of Christ Church Extension and Property Trust Board v AucklandCouncil:205202 Mills v Far North District Council [2018] NZRMA 113, at [52] (footnotes omitted).203 At [192].204 At [193].205 Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council[2014] NZHC 3405, [2015] NZRMA 113 at [52] (footnotes omitted).[52] In my view, the principles to be applied to the plaintiff's contention that theCouncil's decision in this case was unreasonable are well settled and follow theWednesbury test. The Council's decision may be set aside if the decision was soirrational that no decision maker, acting reasonably, could have arrived at thatdecision.[316] The evidence of the applicants' experts Mr Barrell and Mr Blakely providesthe basis for their view that the Council's decision not to notify the Application wasunreasonable.[317] On the other hand, the Maunga Authority has provided affidavit evidence fromDr Mitchell, who has extensive experience in the planning and resource managementarea. Dr Mitchell reviewed the information that was before Mr Kaye and commentson the process undertaken for the resource consent. He concludes:206"20. On the basis of those technical assessments, the conclusions reached inthe notification decision regarding adverse effects are, in my opinion, logicaland appropriate. I would add further that in light of the conclusions of thevarious technical specialists, I consider that it would have been inappropriatefor the notification decision to have reached a different conclusion.30. In my opinion, the Auckland Council followed a valid and appropriateprocess when determining that the subject resource consent application shouldbe processed without public notification."[318] In Mills, as in this case, the Court was faced with competing expert evidenceas to whether the effects on the environment would be more than minor. JusticeFitzgerald noted:207What that analysis invites, however, is no more than a "battle of experts". Ianticipate that in areas such as this, which involve value judgements andsubjective views, a range of experts could come to a range of conclusions.[319] As in Mills, the issues in dispute in this case involve judgements and subjectiveviews. A range of experts can come to a range of conclusions. Ms Norman, as anapplicant, and other members of the community, have filed affidavits in support of theapplication for review, setting out what are plainly genuine and strongly held views onthese questions. However, they are not relevant or persuasive for this purpose. Manyactivities for which resource consent are sought will be undesirable from the206 Unsworn Affidavit of Dr Philip Hunter Mitchell, filed April 2020.207 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [191].perspective of some members of the community. That does not make the Council'sdecision unreasonable.[320] On the evidence before me I am not satisfied that the Council's NotificationDecision was a decision that no reasonable consent authority could have reached. Ido not discern any error of approach or unreasonableness in the conclusion reached.It is not enough that others may have reached a different conclusion. The decision isnot unreasonable or irrational in the sense required.Public Notification: "special circumstances"[321] The applicants challenge Mr Kaye's decision (for the Council) under s 95Athat public notification was not required because there are no special circumstancesthat warrant public notification.208[322] The relevant passage from the Notification Decision reads:Under step 4, there are no special circumstances that warrant the applicationbeing publicly notified because there is nothing exceptional or unusual aboutthe application, and the proposal has nothing out of the ordinary run of thingsto suggest that public notification should occur. The proposal reflects thedirections and purposes set out in the approved Integrated Management Plan(IMP) administered by the Tūpuna Maunga o Tāmaki Makaurau Authority.[323] That was informed by the relevant passage of the Notification and SubstantiveReport, which read:Special circumstances are those that are:• exceptional or unusual, but something less than extraordinary;• outside of the common run of applications of this nature; or• circumstances which makes notification desirable, notwithstandingthe conclusion that the adverse effects will be no more than minor.In this instance I have turned my mind specifically to the existence of anyspecial circumstances and conclude that there is nothing exceptional orunusual about the application, and that the proposal has nothing out of theordinary run of things to suggest that public notification should occur as:208 Under the Resource Management Act 1991, s 95A(9).• The proposed tree removals and ancillary works (including managementtechniques), and the management of the open space zoned land isgenerally consistent with the direction of the AUP:OP as applied throughthe discretion of the relevant activities of the AUP:OP, with the range ofmatters relevant to the development provided for in the plan specificallyas either restricted discretionary or discretionary activities. Furthermore,the assessment above has not identified any aspect of the receivingenvironment or any other factor that would give rise to specialcircumstances. Therefore, I consider that making of an application for theactivity cannot be described as out of the ordinary and giving rise tospecial circumstances. Therefore in this instance I conclude there are nospecial circumstances.[324] The challenge is based on two submissions:(a) that the portion of the Notification Decision regarding specialcircumstances failed to take into account relevant considerations; and(b) it was unreasonable.Law[325] Special circumstances are not defined in the RMA. The parties agree that theCourt of Appeal's explanation of "special circumstances" in Far North DistrictCouncil v Te Rūnanga-ā-Iwi o Ngāti Kahu applies:209A "special circumstance" is something outside the common run of thingswhich is exceptional, abnormal or unusual but less than extraordinary orunique. A special circumstance would be one which makes notificationdesirable despite the general provisions excluding the need for notification.[326] There is limited scope for judicial review of a decision as to whether specialcircumstances exist. Justice Venning in Urban Auckland, Society for the Protection ofAuckland City and Waterfront v Auckland Council observed that such a decision:210 involves the exercise of discretion based on the Council's assessment ofthe factual position and use of its expertise and judgment.209 Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu [2013] NZCA 221 at [36] (footnotesomitted); citing White J's decision below in Te Rūnanga-ā-Iwi o Ngāti Kahu v Carrington FarmsLtd (2011) 16 ELRNZ 664 (HC) at [84], in which White J applied Peninsula Watchdog Group(Inc) v Minister of Energy [1996] 2 NZLR 529 at 536; and citing Murray v Whakatane DistrictCouncil [1999] 3 NZLR 276 (HC) at 310; affirmed [1999] 3 NZLR 325 (CA).210 Urban Auckland, Society for the Protection of Auckland City and Waterfront v Auckland Council[2015] NZHC 1382, [2015] NZRMA 235 at [137]; citing S&M Property Holdings Ltd v WellingtonCity Council [2003] NZRMA 193 (HC) at [48].[327] I also note also Simon France J's observation in the High Court judgment ofRoyal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast DistrictCouncil, that a Council's decision as to special circumstances is not immune fromreview, it "is an area where experience is an important component in assessing whetheran application gives rise to special circumstances" and any review "must recognise thefamiliarity a Council has with resource consent applications". 211[328] I turn to the applicants' submissions.Failure to take into account relevant considerations[329] The matters the Commissioner is said to have failed to take into account were,first, the absence of consultation with the public, including local residents and usersof the reserve. The applicants refer to the statement in the AEE and statutoryassessment provided to Mr Kaye where the Maunga Authority and the Council saidthat the Authority had engaged with the general public as part of the consultationprocess for the formation of the IMP, which has "clear expectations with respect toexotic vegetation and the cultural significance of the restoration of the Maunga"[330] The applicants say this is assertion rather than information.212 The actualcontent of the IMP did not reflect "clear expectations with respect to exoticvegetation." As a consequence, Mr Kaye evidently failed to consider the IMP andwhat was consulted on.[331] Second, Mr Kaye failed to take into account the actual content of the IMP. Theapplicants criticise the statement in his written decision that the proposal "reflectedthe directions and purposes" of the IMP, when it did not.[332] Third, Mr Kaye failed to take into account the inconsistency of the Applicationwith the directions set by the AUP. Mr Barrell, who gave expert evidence for the211 Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council HCWellington CIV-2007-485-636, 21 November 2007 at [131]. That case was upheld on appeal inRoyal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council[2009] NZCA 73, (2009) 15 ELRNZ 144.212 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [146]per Tipping J.applicants, states that the Application was inconsistent with the direction set by chapterE.16 of the AUP.213 That was a matter relevant to whether there were specialcircumstances warranting public notification.[333] Fourth, Mr Kaye failed to take into account the fact that there was almostcertain to be a strong public interest in the Application, given the substantial, historicand widespread use of the Maunga by the people of Auckland. The applicants rely byanalogy on the finding in Kawau Island Action that:214In particular, it is the location of the boatshed incorporating the helicopterlanding pad on a public beach which gives rise to special circumstances. Tothat extent, the proposal differs from the example [of a helipad elsewhere inHerne Bay] given by the Council in its decisionwhich is a more isolatedlocation away from a main beach.[334] The applicants submit that the felling of 345 mature trees in an urban publicspace clearly affects users, at least to the same degree as the construction of a helipadon a beach in Herne Bay, and therefore must constitute special circumstanceswarranting public notification.The decision was unreasonable[335] The applicants rely on their previous submissions and Mr Barrell's evidencethat, in his experience of dealing with hundreds of consent applications relating totrees, the Application was "clearly exceptional".215The Council's submissions[336] The Council emphasises the limited scope of review in this context and thatMr Dales and Mr Kaye are both very experienced resource management practitioners,with many years of experience in their respective roles as reporting planner andindependent commissioner. In particular, Mr Kaye has given evidence that he hasbeen the decision-maker on a large number of resource consent applications to removeand/or alter trees. Both are well placed to determine whether a resource consent213 Unsworn Further Reply Affidavit of Andrew Francis Barrell, filed 21 April 2020, at [8].214 Kawau Island Action Inc Soc v Auckland Council [2018] NZHC 3306, (2018) 20 ELRNZ 848at [168].215 Unsworn Further Reply Affidavit of Andrew Francis Barrell, filed 21 April 2020, at [5].application is outside the common run of things, exceptional, abnormal or unusual.Their determination was that the Application was not.[337] Whether there were "special circumstances" was considered in the NotificationRecommendation which was received and taken into account by Mr Kaye for theNotification Decision. Both the Notification and Substantive Report and theNotification Decision discuss "special circumstances" in language mirroring thedefinition in Far North District Council v Te Rūnanga-ā-Iwi O Ngāti Kahu,216assessing whether the Application featured anything "exceptional or unusual" andwhether the proposal featured anything "out of the ordinary run of things".[338] The Council submits this was sufficient. The decision-maker turned his mindto the statutory test and reached a clear conclusion, based on his assessment of thefactual position and use of his expertise and professional judgement. There is norequirement for a decision-maker to set out and dismiss a range of circumstances (suchas those listed in the Amended Statement of Claim or the applicants' writtensubmissions) that he or she has found not to meet the threshold of specialcircumstances.[339] The Council addresses the applicants' specific allegations regarding thedecision in the following terms.Failure to take into account relevant considerations[340] The Council says that the true ground for judicial review is a failure to takeinto account mandatory relevant considerations – those for which consideration isexplicitly or impliedly required by the statute in the context.217[341] For the applicants to be successful, it is not enough to show that aconsideration:218216 Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu [2013] NZCA 221 at [36], [38] and[39].217 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183.218 At 183.(a) was open to the Council to take into account (a permissible relevantconsideration); or(b) would have been sensible or desirable for the Council to take into account;or(c) is one which another person, including an expert, considers should havebeen taken into account; or(d) the Court would have taken into account if it were the primarydecision-maker.[342] Rather, the applicants must establish that Parliament, through the RMA, hasrequired the Council to take the matter into account. Given the limited statutoryguidance as to mandatory relevant considerations in this context, this is a very highthreshold to overcome.[343] Further, the RMA must be interpreted in a sensible and practical way. The2009 amendments to the RMA were intended "to provide greater certainty to councilsin relation to non-notification decisions and to facilitate the processing of resourceconsents on a non-notified basis".219 Counsel says that the Act's workability wouldbe undermined if decisions were vulnerable unless they addressed a long list ofconsiderations devised by those who wish to challenge their decisions.[344] Counsel submits that the Council is a specialist body empowered to make theNotification Decision by Parliament. The mandatory relevant considerations fornotification and substantive decisions on resource consent applications under the RMAare accordingly framed in reasonably broad terms to reflect that dynamic – such as"adverse effects on the environment". Through this broad expression, Parliamentintended to give consent authorities latitude to determine what matters are appropriateto take into account, and what weight to give them (subject to overall reasonableness).219 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA73 at [40].[345] As to the specific matters the applicants claim the Council failed to take intoaccount when determining there were no special circumstances warranting publicnotification, Mr McNamara makes the following submissions.Alleged absence of consultation[346] The Council submits there is nothing in the RMA, nor in the case law, thatsuggests that the nature or extent of consultation (whether under the RMA or any otherlegislation) that has been carried out is a mandatory relevant consideration whenconsidering whether special circumstances exist. In fact, the RMA specificallyprovides that a resource consent applicant has no duty under that Act to consult anyperson about an application.220 An argument that a lack of consultation is in itself aspecial circumstance warranting public notification is also difficult to support in lightof that provision.Actual content of the IMP[347] The Council notes that:(a) the Notification Decision records that Mr Kaye did review the IMP;(b) Mr Kaye's affidavit confirms that not only did he consider the IMP, heobtained a copy on his own initiative as a copy was not provided in thematerials provided to him by the Council,221 and he amended the draftdecision that had been provided to him by Mr Dales to include, whendetermining there were no special circumstances that warranted publicnotification, an additional statement confirming his opinion that "theproposal reflects the directions and purposes set out in the approved [IMP]administered by the [Maunga Authority]"; and(c) in any event the content of the IMP was not a mandatory consideration whendeciding whether there were special circumstances that warranted publicnotification.220 Resource Management Act 1991, s 36A.221 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020 at [27] and [33].Alleged inconsistency with the direction set by the AUP[348] The Council does not accept that the Application is inconsistent with thedirection of the AUP, and relies on the conclusions reached in the Substantive Decisionthat the proposal was considered to provide for an acceptable outcome in respect ofthe relevant statutory documents; consistent with the outcomes anticipated by the"Outstanding Natural Features" and "Heritage" overlay provisions of the AUP andwith the relevant matters for consideration under the AUP.[349] However, the Council says that even if the Application was inconsistent withthe direction of the AUP, it does not necessarily follow that this was a mandatoryconsideration the Council should have taken into account when determining if therewere special circumstances, or that the inconsistency itself was a special circumstance.In Mills Fitzgerald J considered whether inconsistency with the general policy of therelevant planning documents would give rise to special circumstances and held:222I do not consider the mere fact that construction of the sheds does not "fit"within the general policy of the District Plan means their construction isexceptional, abnormal or unusual, in the sense of giving rise to specialcircumstances.Public interest[350] The Council says the case law is clear that public interest or concern about anapplication does not of itself constitute a special circumstance.223[351] The Council submits that neither the likelihood of public interest, nor the factthat Ōwairaka is visited or used by large numbers of people, is sufficient to constitutea special circumstance, or are mandatory relevant considerations, nor specialcircumstances.[352] As to Kawau Island Action Inc Society, the Council says not only are the factsnot analogous, but the fact that one consent application has been considered by the222 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [179].223 Classic Developments NZ Ltd v Tauranga City Council [2020] NZHC 945 at [53];UrbanAuckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council[2015] NZHC 1382, [2015] NZRMA 235 at [137]; and Bayley v Manukau City Council [1999] 1NZLR 568 (CA) at 575.High Court to be unusual, exceptional or outside the ordinary run of things to warrantpublic notification provides no assistance and creates no precedent as to whether acompletely unrelated consent application might also.224Unreasonableness[353] In the Council's submission, the applicants have failed to meet the highthreshold to establish unreasonableness. The Notification Decision's conclusion thatthere were no special circumstances that warranted public notification was a decisionthat was open to Mr Kaye, in light of the factual circumstances, the information beforehim and on the basis of his experience. Notwithstanding the contrary opinion held byMr Barrell, Mr Kaye's decision (for the Council) was not so irrational that no decision-maker, acting reasonably, could have arrived at that decision.Analysis[354] The broadness of "special circumstances" in the RMA and the degree ofdiscretion afforded to a council making the determination limit the scope of judicialreview in this context. A report providing no elaboration for a conclusion that thereare no special circumstances leaves itself open to criticism.225 But "this is an areawhere experience is an important component in assessing whether an application givesrise to special circumstances: "any review must recognise the familiarity a council haswith a resource consent application".226[355] Both Mr Dales, in his Notification Recommendation, and Mr Kaye, in hisNotification Decision, specifically addressed whether there are special circumstances.They use the language of Far North District Council v Te Rūnanga-ā-Iwi o NgātiKahu. I am satisfied that this was more than formulaic. Mr Kaye confirms in hisaffidavit that he turned his mind to this question.227224 Kawau Island Action Inc Soc v Auckland Council [2018] NZHC 3306, (2018) 20 ELRNZ 848.225 Royal Forest & Bird Protection Society Inc v Kapiti Coast District Council HC WellingtonCIV-2007-485-636, 21 November 2007 at [131].226 At [131].227 Unsworn Affidavit of Barry Lloyd Kaye, filed 3 April 2020 at [30].[356] I address each of the applicants' specific grounds in turn. In relation to thesubmission that the Council failed to take into account relevant considerations, thestarting point is Cooke J's statement in CREEDNZ v Governor-General:228It is not enough that a consideration is one that may properly be taken intoaccount, nor even that it is one which many people, including the Court itself,would have taken into account if they had to make the decision[357] The specific concerns the applicants point to under this head are lack ofconsultation with the public, failure to have regard to the actual content of the IMP,inconsistency with the AUP and the strong public interest.[358] I accept the Council's submission that neither the RMA itself, nor relevant caselaw, requires that the decision-maker consider the nature and/or extent of any priorconsultation when considering whether special circumstances exist.[359] It is clear that Mr Kaye did review the IMP. He specifically sought a copy ofit and amended the draft decision prepared by Mr Dales to add a specific statementthat in his opinion "the proposal reflects the directions and purposes set out in theIMP]". What the submissions reveal is a difference of view as to what the IMPconveys, but there is nothing to suggest that I should go behind Mr Kaye's clearstatement which, on its face, reflects that he had read and considered the IMP.[360] I accept that, as in Mills, consistency with the directions set by a general policysuch as the AUP was not a mandatory consideration. While Mr Barrell was of theview that the Application was inconsistent with the direction of the AUP, that was notMr Dales' view. In his decision he concluded that the Application was generallyconsistent with the direction of the AUP. It is not the Court's function on judicialreview to substitute one expert opinion with another.229[361] The applicants say too that the strong public interest in the subject of theApplication was a relevant consideration for the Council decision-maker. However, it228 CREEDNZ v Governor-General [1981] 1 NZLR 172 (CA) at 183.229 Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453 at [113].is plain from the authorities that public interest in and of itself does not constitute aspecial circumstance:230Further, even major levels of public interest cannot of itself give rise to specialcircumstances. If that was so, every application where there was any concernexpressed by people claiming to be affected would have to be notified.[362] As to the unreasonableness argument, the applicants rely on the four factors setout at [307] above. I reject that argument for the reasons given at [314]–[320] above.[363] Finally, the applicants point to Mr Barrell's expert evidence where he says thatthe Application was "clearly exceptional". As above, I consider this an area where arange of experts could come to a range of conclusions.231 Mr Kaye's decision thatthere were no special circumstances warranting public notification was one that wasopen to him. It could not be said to be a decision "outside the limits of reason".[364] Overall, I am satisfied that, having regard to the extent and nature of thematerial that was before Mr Dales and Mr Kaye, and having regard to their expertise,it was open to Mr Kaye to conclude that there were no special circumstances for thepurposes of s 95A(4).Section 95B limited notification: adversely affected persons[365] Section 95B(8) provides, relevantly, that a consent authority must determinewhether "a person is an affected person in accordance with s 95E". Such persons mustbe notified under s 95B(9).[366] Section 95E(1) says:For the purpose of giving limited notification of an application for a resourceconsent for an activity to a person under section95B(4) and (9) (as applicable),a person is an affected person if the consent decides that the activity's adverseeffects on the person are minor or more than minor (but are not less thanminor).230 Classic Developments NZ Ltd v Tauranga City Council [2020] NZHC 945 at [53]; citing UrbanAuckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council[2015] NZHC 1382, [2015] NZRMA 235 at [137]; and Bayley v Manukau City Council [1999] 1NZLR 568 (CA) at 575231 At [319].[367] Mr Kaye decided, with respect to limited notification, that "there are noadversely affected persons." The applicants say that decision was flawed on fourbases, being that:(a) it was based on inadequate information;(b) there was a failure to take into account relevant considerations;(c) it reflected an unlawful balancing of positive and negative effects; and(d) it was unreasonable.[368] The applicants' submissions in relation to (a), (c) and (d) on this head mirrorthe submissions in relation to s 95A:(a) Mr Kaye as the Commissioner had inadequate information as to theeffects of the tree removal on the use, enjoyment and amenity value forusers of and visitors to the reserve.(b) Mr Kaye failed to take into account the actual content of the IMP andthe absence of consultation with the public, including users of thereserve.(c) Mr Kaye balanced the positive effects arising from the proposedrestoration planting against "any landscape and visual effects of thetrees removal experienced by people using the Maunga." That wasan error; the positive effects do not mitigate any negative effects onusers, as those effects are not "excluded" or "eliminated."(d) Mr Kaye's decision (for the Council) that cutting down what amountsto almost half the trees in the reserve would not even have a minoreffect on users of the reserve was unreasonable.[369] The applicants also say that Mr Kaye was aware that the proposal was to cutdown almost half of the mature trees on the reserve and that the positive effect of thenative planting plan would only be achieved in many years' time. In thosecircumstances, they submit any reasonable decision-maker would have concluded thatthe adverse effect on visitors would be at least "minor."Inadequate information[370] On this point the applicants allege that the Council had inadequate informationas to the effects of the tree removals on the use, enjoyment and amenity value for usersof/visitors to Ōwairaka and rely on the reasons given in relation to the allegation ofinadequate information in respect of the public notification decision.[371] In response, the Council repeats its submissions that Mr Dales and Mr Kayehad sufficient information on these effects to make the Notification Recommendationand Notification Decision.Failure to take into account relevant considerations[372] The applicants claim that the alleged absence of consultation with the public,and the content of the IMP, were relevant considerations that should have been takeninto account when deciding whether there were any adversely affected persons.[373] The Council repeats the submissions made in relation to s 95A and says neitherthe extent of public consultation, nor the content of the IMP, were mandatoryconsiderations that the Council was required to consider when making the decisionwhether there were any persons on whom the adverse effects of the Application wouldbe minor or more than minor.Unlawful balancing[374] When considering the landscape and visual effects of the tree removals thatwould be experienced by people with an outlook to, or using Ōwairaka, theNotification Decision includes a reference to "positive effects". The applicants allegethat Mr Kaye has carried out an unlawful balancing of positive and negative effects,and rely on the submissions made in respect of their similar claim regarding the publicnotification decision.[375] As noted above, the Council accepts that only the adverse effects of theApplication are relevant to notification under the RMA, but repeats its submission thatthe emphasis in the Notification and Substantive Report and Notification Decision wason the mitigation of the adverse visual effects, and the overall level of effects on peopleusing the Maunga. This approach, the Council says, was not unlawful.Unreasonableness[376] The applicants also challenge the Notification Decision's conclusion that therewere no adversely affected persons on the basis that it was unreasonable.[377] The Council repeats its submission that the very high threshold forunreasonableness is not met. While there may be members of the public who useŌwairaka for recreation and consider that the Application will have at least a minoradverse effect on them (including some of those that have given evidence on behalf ofthe applicants), this is not determinative of the reasonableness of the decision.[378] The Council's decision that there were no persons on whom the adverse effectswould be minor, or more than minor was not so irrational that no decision-maker,acting reasonably, could have arrived at that decision. Nor was it outside the limits ofreason.Analysis[379] "Minor" is at the lower end of major, moderate and minor effects, but must besomething more than de minimis.232 The assessment of whether an effect is "minor"is one of fact and degree, requiring an exercise of discretion by the decision-maker.As Priestly J said in Green v Auckland Council:233The statutory tests of "minor", "more than minor" and "less than minor" can only beinformed by context. One is dealing with degrees of smallness. Where the line mightbe drawn between the three categories might not be easily determined.232 King v Auckland City Council (1999) 11 ELRNZ 122; [2000] NZRMA 145 (HC), at [29](e).233 Green v Auckland Council [2013] NZHC 2364, [2014] NZRMA 1, at [126] (footnotes omitted).[380] I repeat the findings I reached in respect of the submissions advanced inrelation to public notification. I am not satisfied that the Notification Decision'sconclusion that there were no persons on whom the adverse effects would be minor,or more than minor, was a decision no reasonable consenting authority could havereached.Limited notification: "special circumstances"[381] The applicants' submissions as to the special circumstances test under s 95Bmirror those advanced in relation to s 95A. That is, Mr Kaye failed to take into accountrelevant considerations and made an unreasonable Notification Decision.Council's response[382] The Council relies on the submissions made in relation to the s 95A analysisas to whether there were no special circumstances that warranted public notificationand says there were no special circumstances requiring limited notification. This wasa decision that was open to Mr Kaye for the Council on the basis of the informationavailable to him and in light of his experience.Analysis[383] I repeat my findings on the same issues canvassed at [354] to [364] above. Iam not satisfied that the Council erred in reaching its decision that there were nospecial circumstances that required limited notification.Result[384] I decline to make any of the orders sought by the applicants against the firstand second respondents.Costs[385] I invite the parties to agree costs but, failing agreement, the respondents are tofile submissions on costs, each of no more than 10 pages in length within 14 workingdays of the date of this decision, with the applicants having 14 working days in whichto reply with submissions of no more than 10 pages.[386] Finally, and as I noted at the conclusion of the hearing, I am grateful to allcounsel for their comprehensive and helpful written and oral submissions.______________________Gwyn J