NORMAN v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY [2022] NZCA 30

NORMAN v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY [2022] NZCA 30 [3 March 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA21/2021[2022] NZCA 30BETWEEN AVERIL ROSEMARY NORMAN ANDWARWICK BRUCE NORMANAppellantsAND TŪPUNA MAUNGA O TĀMAKIMAKAURAU AUTHORITYFirst RespondentAND AUCKLAND COUNCILSecond RespondentHearing: 20 and 21 July 2021Court: Cooper, Courtney and Goddard JJCounsel: R J Hollyman QC, J W H Little and J K Grimmer for AppellantsP T Beverley and C A Easter for First RespondentP M S McNamara and S J Mitchell for Second RespondentJudgment: 3 March 2022 at 2.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B The decision of the first respondent to fell and remove the exotic trees onŌwairaka is set aside.C The decision of the second respondent to grant resource consent for thefelling and removal of the exotic trees is set aside.D The first and second respondents must pay the appellants costs for a complexappeal on a band A basis, plus usual disbursements. We certify for secondcounsel.E The High Court costs order is set aside. Costs in the High Court are to bedetermined by that Court in light of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara No.Introduction [1]The proposed revegetation [10]Matters of context [16]The importance of the maunga [16]The Collective Redress Act [21]The Reserves Act [52]The Integrated Management Plan [64]The significance of indigenous planting [93]The decision to remove the trees [98]Opposition to the removal of the trees [110]The application for review [121]The grounds of appeal [124]First ground of appeal — breach of the Reserves Act [124]Discussion [144]The second ground of appeal — duty to consult [172]Discussion [196]The third ground of appeal — notification [214]Discussion [246]Temporary adverse effects [262]Heritage and historical significance [274]Costs [281]Result [283]Introduction[1] This judgment concerns a proposal by the Tūpuna Maunga o Tāmaki MakaurauAuthority (the Tūpuna Maunga Authority) to make significant changes to thevegetation on the slopes of Ōwairaka. Ōwairaka is one of the maunga administeredby the Tūpuna Maunga Authority in accordance with Ngā Mana Whenua o TāmakiMakaurau Collective Redress Act 2014 (the Collective Redress Act).[2] The Collective Redress Act calls the maunga Mt Albert,1 the name conferredon it by settlers from Britain in the 19th Century. In addition to the Māori name ofŌwairaka, some mana whenua refer to it as Te Ahi-kā-a-Rakataura. For simplicity,we follow the lead of counsel for the Tūpuna Maunga Authority and refer to themaunga as Ōwairaka.[3] The purpose of the Collective Redress Act is to give effect to provisions of adeed negotiated between the Crown and a collective of iwi and hapū, known asNgā Mana Whenua o Tāmaki Makaurau, to settle claims based on historical breachesof the Treaty of Waitangi by the Crown.2 The legislation implements the agreementrecorded in the deed by providing, amongst other things, for the vesting in a trustee of14 maunga in Tāmaki Makaurau, including Ōwairaka. Generally, the maunga(including Ōwairaka) were vested in the trustee by a process involving the revocationof their status as reserves under the Reserves Act 1977 followed by vesting the feesimple in the trustee, declaring the maunga to be reserves with a classification underthe Reserves Act and providing that the Tūpuna Maunga Authority was to be theadministering body of the reserves. Once vested, the maunga are held by the trustee"for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the otherpeople of Auckland".3[4] In addition to conferring on the Tūpuna Maunga Authority the obligations ofan administering body under the Reserves Act, the Collective Redress Act requires theAuthority to prepare and approve an Integrated Management Plan (IMP) relating toall of the maunga.4 Such an IMP was prepared and approved by the Tūpuna MaungaAuthority on 23 June 2016. The issues on appeal include the extent to which theTūpuna Maunga Authority complied with its statutory obligations in relation tothe IMP.1 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 [Collective Redress Act],s 22.2 Section 3. Ngā Mana Whenua o Tāmaki Makaurau are listed in s 9 as comprising Ngāi Tai kiTāmaki; Ngāti Maru; Ngāti Pāoa; Ngāti Tamaoho; Ngāti Tamaterā; Ngāti Te Ata; NgātiWhanaunga; Ngāti Whātua o Kaipara; Ngāti Whātua Ōrākei; Te Ākitai Waiohua; Te Kawerau āMaki; Te Patukirikiri and hapū of Ngāti Whātua (other than Ngāti Whātua o Kaipara and NgātiWhātua Ōrākei) whose members are beneficiaries of Te Rūnanga o Ngāti Whātua, includingTe Taoū not descended from Tuperiri.3 Section 41(2).4 Section 58(1).[5] In the exercise of its functions and powers as the administering body ofŌwairaka, the Tūpuna Maunga Authority decided to carry out what its counselMr Beverley described as an "ecological restoration project" involving the retentionof all existing indigenous trees and the planting of 13,000 further indigenous trees andplants. Part of the proposal involved the removal of the 345 exotic trees presentlygrowing on the maunga. That proved controversial, and the proposed removal of thosetrees has given rise to the present litigation.[6] The appellants sought judicial review of the Tūpuna Maunga Authority'sdecision to remove the exotic trees. They are among local residents who frequentlywalk on Ōwairaka and feel a close connection to it and the vegetation currentlygrowing there. There is also affidavit evidence from a number of persons living in thesuburb of Mt Albert establishing the various personal and historical connections theyhave with the maunga. We will return to that evidence later in this judgment.[7] The application for review also sought relief against the Auckland Council(the Council). Under s 61 of the Collective Redress Act the Council is responsible for"routine management" of the maunga, under the direction of the Tūpuna MaungaAuthority and in accordance with an annual operational plan and any standardoperating procedures agreed between the Tūpuna Maunga Authority and the Council.The High Court held that in practical terms, Council officers undertake the work ofthe Tūpuna Maunga Authority since the Authority does not employ its own staff.5However, the main claim against the Council is as the consent authority under theResource Management Act 1991 (the RMA). The Council applied to itself forresource consent to carry out the tree felling and planting work and decided that theapplication could be determined without being publicly notified or subject to limitednotification under the relevant provisions of the RMA.[8] The High Court rejected the application for review and this appeal hasfollowed. For reasons we address below we have concluded that the decision to felland remove the exotic trees was made by the Tūpuna Maunga Authority withoutcomplying with its statutory obligations in respect of public consultation, essentially5 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2020] NZHC 3425 [High Courtjudgment], at n 10.because the intention to remove all the exotic trees was significant and never madeexplicit. We also hold that the Council should not have granted resource consent on anon-notified basis. On these bases we have concluded that the appeal should beallowed, and the decisions of the Tūpuna Maunga Authority and the Council set aside.[9] Before turning to the substantive issues that arise on the appeal, we give asummary of the work the Tūpuna Maunga Authority proposes to carry out, and addresssome further matters of context.The proposed revegetation[10] The Tūpuna Maunga Authority has adopted the stance in this litigation that thedecision to remove the 345 exotic trees on Ōwairaka was part of a decision makingprocess which included adoption of the IMP; provision for the project in theAnnual Operational Plan; and steps subsequently taken by its Tūpuna MaungaManager, Mr Nicholas Turoa, to implement the "directions" flowing from the IMP andthe Annual Operational Plan. Consistently with that, there is no decision by theTūpuna Maunga Authority itself to which reference may be made for a description ofwhat the project actually involves.[11] But in order to implement the project, it was necessary for resource consent tobe obtained. The application for resource consent and the documents whichaccompanied it are the best source of the detail of what is proposed. The applicationwas submitted by Mr Antony Yates, a planning consultant, as agent for the Council inwhose name the application was made. Mr Yates swore an affidavit giving the detailsof the resource consent application documents. These documents included acomprehensive assessment of environmental effects and assessments by variousexperts engaged for the purposes of the application.[12] The executive summary given in the assessment of environmental effectscontained the following:1.1.1 The Auckland Council are seeking consent for exotic vegetationremoval and rehabilitation planting on Ōwairaka/Te Ahi-Kā-a-Rakataura/Mt Albert (Ōwairaka) on behalf of the Tūpuna MaungaAuthority, [which] is a statutory authority that has ownership andgovernance of 14 Tūpuna Maunga in the Auckland region.1.1.2 This proposal to remove exotic trees and undertake rehabilitation tofacilitate the restoration of the natural, spiritual and indigenouslandscape of the Maunga and to help restore and enhance [the] mauriand wairua of their Tūpuna Maunga, represents another step towardthe Tūpuna Maunga Authority [giving] effect to their IntegratedManagement Plan (IMP) since the return of Ngā Tūpuna Maunga oTāmaki Makaurau (Auckland's ancestral mountains) to 13 iwi andhapū of Auckland.1.1.3 In summary, the proposal will include:• The removal of approximately 345 exotic trees from the Maunga;• The restoration of the central and historic quarry faces withindigenous plantings to create a WF7 Pūriri broadleaf forestecosystem.• Mound planting is proposed for on a small area of the southeastern face.[13] The assessment of environmental effects referred to the IMP and the TūpunaMaunga Authority Annual Operational Plan 2018/2019. It attached expert technicalreports on the intended tree removal methodology and assessments of heritageimpacts, ecological effects, noise effects and herpetology. Among the specialistreports attached was a landscape and visual assessment by Ms Sally Peake, a registeredlandscape architect, who gave the following description of the existing landscape:Ōwairaka is [a] large scoria cone overlying obscured tuft ring remnants withextensive lava flows in three quadrants to the west, north and east. It rises to140m above sea level and approximately 80m above the underlying ridge ofEast Coast Bays Formation.It has been modified since about 1867 when the first scoria pit was opened.Subsequent to this, ballast pits and quarrying occurred on the northern slopes,in the crater, on the eastern side and on the southern side of the maunga.The existing form reflects the former quarrying and contains two flat areasused for archery and playing fields as well as the platforms of formerreservoirs. In addition, a driveway forms a circuitous route around the cone,terminating at a carpark with changing sheds and toilets. A trig stationoccupies the highest point. A mix of exotic and native vegetation coversthe slopes of the maunga, with the highest concentration on the slope betweenthe main platform areas (site of the former quarry).Generally, there is a healthy mix of native species across the site(predominantly consisting of Pohutukawa, Totara, and Puriri) accounting for442 trees in the survey area, and a total of 345 other trees (including131 Cherry and 97 Eucalyptus). Conspicuous amongst these are three verybig Holm Oaks, some large Monterey Cypress and Eucalypts as well asPohutukawa.Surrounding the cone is residential development — up to approx 110mcontours adjacent to the reservoir area to the southwest (outside the projectarea). Although it was settled from the 1870s, the suburban residential areaswere largely developed from the early 1900s to the 40s and large areas(including all around the maunga) are occupied by single house lots coveredby a 'Special Character' overlay.The mountain is a distinctive landscape feature within the residential contextand is widely visible, especially from the west. Multiple regionally significantviews have been identified to the mountain and the cone's profile is quite welldefined, although housing on its flanks limits the extent of visibility from localroads and public spaces.(Footnote omitted.)[14] A detailed description of the proposal was given by Mr Yates in pt 6 of theassessment of environmental effects. He noted:6.1.1 Consent is required for exotic vegetation removal on Ōwairaka, as theapplicant seeks to restore the natural, spiritual and indigenouslandscape of the Maunga. The consent will restore the integrity of theMaunga through the removal of exotic species and native restorationplantings.[15] This was followed by a table listing the species of tree to be removed and theirnumbers. The most numerous were 131 flowering cherry, 97 eucalyptus, 26 banksiaand 17 olive. There were also oaks of various varieties, as well as less numerous otherspecies. An aerial map was given showing the tree locations and there was adescription of the various areas of work and locations of "restoration planting".Matters of contextThe importance of the maunga[16] The importance of the maunga generally, including Ōwairaka, to mana whenuawas addressed in affidavit evidence by Mr Paul Majurey, who is the Chair of theTūpuna Maunga Authority. In his affidavit, Mr Majurey said:The Tūpuna Maunga are sacred to Mana Whenua as taonga tuku iho (treasureshanded down the generations). They are fundamental to our mana andidentity.The following statement from the Waitangi Tribunal captures the world viewsof the Mana Whenua with the Tūpuna Maunga:6... maunga are iconic landscape features for Māori. They areiconic not because of their scenic attributes, but because theyrepresent an enduring symbolic connection between tangatawhenua groups and distinctive land forms. Sometimes, theseland forms are the physical embodiment of tūpuna. Thus,associations with maunga are imbued with mana and wairuathat occupy the spiritual as well as the terrestrial realm.Maunga express a group's mana and identity. This connectionand expression is an integral part of Māori culture. [Footnoteomitted]To the Mana Whenua of Tāmaki, the Tūpuna Maunga are the embodiment ofour Tūpuna (ancestors). That is why the return of the Tūpuna Maunga to usthrough the Tāmaki Collective Treaty settlement is so significant — itrepresents the reconnection with our land and ancestors. That is also why theTreaty settlement arrangements for the governance and management of theTūpuna Maunga, through the Tūpuna Maunga Authority, are significant.As discussed below, the ability for Mana Whenua to exercise our kaitiakiresponsibilities over the Tūpuna Maunga, alongside Auckland Council in thespirit of the Treaty principle of partnership, is of immense culturalsignificance.[17] With particular reference to Ōwairaka, Mr Majurey noted that the 13 iwi/hapūof Ngā Mana Whenua o Tāmaki Makaurau have varying histories and traditions,which is in part reflected by the dual Māori names for the maunga. He furtherobserved that, following generations of Crown Treaty breaches and harm to theTūpuna Maunga and mana whenua themselves, the return of the maunga was"immensely significant in that we were able to reconnect with our ancestors".It marked "the start of a journey of tangibly and meaningfully reconnecting with theTūpuna Maunga and directing providing for their care and wellbeing". He observed:The Tūpuna Maunga Authority arrangements allow Mana Whenua,through a unique co-governance arrangement with Auckland Council, to be atthe forefront of the process of caring for and restoring the wellbeing of theTūpuna Maunga.[18] Mr Majurey was also the author of the introductory section to the IMP, towhich we have referred above. In te reo Māori, his introduction included thefollowing:6 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 95.This is the Waitangi Tribunal report on Treaty settlement processes in Tāmaki Makaurau. Manyof the Mana Whenua tribes of Tāmaki participated in the inquiry process, including the MarutūāhuIwi. The scope of the inquiry included the Tūpuna Maunga of Auckland.Kei te iho o tā te Māori titiro, ko tēnei mea te whanaungatanga.Ko ngā hononga i waenga i te iwi, ko te whānuitanga hoki o ngā taura here ite tangata ki te ao tūroa me to ao wairua kua whiria katoatia mā te whakapapa.He mea āta tuitui hoki ngā muka o te mauri o te tangata ki ērā o te mauri o tetaiao mā ngā hononga ki ngā tūpuna.Koirā te take e mihi nei te Māori ki ngā Maunga me ngā tohu whenua pēnei itana mihi ki te tangata, ā, koirā hoki te take e taunga nei ngā kaumātua ki tekōrero hāngai atu ki aua wāhi rā.He mea nui ngā Tūpuna Maunga o Tāmaki Makaurau ki te tuakiritanga o teMana Whenua, otirā, kei te iho hoki o te tuakiritanga ā-rohe, ā-motu hoki oTāmaki Makaurau. Nā ngā ingoa me te horanuku o aua wāhi ka pupū ake ngāmaharatanga ki ngā tūpuna me ngā tūāhuatanga ā-iwi e tāpua ana. Mā ēneitaonga tuku iho e pūmau ai tā tātou noho hei tangata ki te whenua.[19] This was translated into English in the IMP as follows:Whanaungatanga (kinship) is at the heart of the Māori world view.The connections between people, and the broad web of human relationshipswith the natural and spiritual worlds are all bound together through whakapapa(genealogy).The mauri (life force) of people is intimately linked to the mauri of theenvironment through ancestral connections.This is why Māori refer to mountains and other iconic landscape features inthe same way they refer to humans, and why elders feel comfortable speakingdirectly to them.The Tūpuna Maunga (ancestral mountains) of Tāmaki Makaurau arefundamental to the identity of Mana Whenua and are at the heart of Auckland'slocal and international identity. Their names and landscapes invoke thememory of the ancestors and significant tribal events. These taonga tuku iho(treasures handed down the generations) anchor us as people to the land.[20] It is clear that the return of the maunga to mana whenua in the manner achievedby the Collective Redress Act was an event of very great significance.The Collective Redress Act[21] The genesis of the Collective Redress Act is reflected in the Act's preamble,which records:Preamble(1) 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:(2) Settlement of these claims is progressing through negotiationsbetween the Crown and each individual iwi and hapū:(3) At the same time, the Crown has been negotiating other redress withNgā Mana Whenua o Tāmaki Makaurau—(a) that relates to certain maunga, motu, and lands of TāmakiMakaurau; and(b) in respect of which all the iwi and hapū have interests; and(c) in respect of which all the iwi and hapū will share:(4) The maunga and motu are taonga in relation to which the iwi and hapūhave always—(a) maintained a unique relationship; and(b) honoured their intergenerational role as kaitiaki:(5) The negotiations between the Crown and Ngā Mana Whenua oTāmaki Makaurau began in July 2009:(6) On 12 February 2010, the Crown and Ngā Mana Whenua o TāmakiMakaurau signed a Framework Agreement:(7) On 5 November 2011, the Crown and Ngā Mana Whenua o TāmakiMakaurau signed a Record of Agreement:(8) 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:(9) On 8 September 2012, representatives of the Crown and Ngā ManaWhenua o Tāmaki Makaurau signed the deed:(10) To implement the deed, legislation is required:[22] Part 1 of the Act sets out what are described as "preliminary provisions",including the important statement of the Act's purpose in s 3. That section providesas follows: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.[23] Section 7 provides as follows:7 Interpretation of Act generallyIt is the intention of Parliament that this Act is interpreted in a mannerthat best furthers the agreements expressed in the collective deed.[24] The expression "collective deed" is one of the important terms defined in s 8(1)of the Collective Redress Act. The importance of the deed is reflected in the provisionsof s 16 of the Act which obliges the Chief Executive of the Ministry of Justice to makecopies of the deed available for inspection free of charge, and for purchase at areasonable price, at the head office of the Ministry of Justice in Wellington. The ChiefExecutive is also required to make a copy of the collective deed available free ofcharge on an internet site maintained by or on behalf of the Ministry.[25] The primacy and importance of the settlement implemented by the CollectiveRedress Act is reflected in other provisions of pt 1 which, amongst other things,provide that:(a) no court, tribunal or other judicial body has jurisdiction in respect ofany matter that arises from the application of the Te Ture WhenuaMāori Act 1993 if the matter relates, amongst other things, to any oneor more of the maunga;7 and7 Collective Redress Act, s 12(1).(b) a number of listed enactments, including ss 8A to 8HJ of the Treaty ofWaitangi Act 1975 and ss 27A to 27C of the State-Owned EnterprisesAct 1986, do not apply to the maunga.8[26] In summary, it is the Collective Redress Act which, in accordance with itsterms, represents the settlement negotiated between the Crown and Ngā Mana Whenuao Tāmaki Makaurau, where necessary to the exclusion of other legislation to whichresort might be made for the settlement of Treaty claims.[27] Part 2 of the Collective Redress Act deals with cultural redress. Sub-part 1provides for the vesting of the maunga (other than Maungauika andRarotonga/Mt Smart). Particular sections in sub-pt 2 deal with what is to happen withrespect to the individual maunga. Most relevant for present purposes is s 22, whichprovides as follows:22 Mount Albert(1) The reservation of Mount Albert as a recreation reserve subject to theReserves Act 1977 is revoked.(2) The fee simple estate in Mount Albert then vests in the trustee.(3) Mount Albert is then declared a reserve and classified as a recreationreserve subject to section 17 of the Reserves Act 1977.(4) The Maunga Authority is the administering body of Mount Albert forthe purposes of the Reserves Act 1977, and that Act applies as ifMount Albert were a reserve vested in the administering body.(5) Subsections (1) to (4) do not take effect until the trustee has providedWatercare Services Limited with a registrable easement in gross onthe terms and conditions set out in part 6 of the documents schedule.(6) The easement—(a) is enforceable in accordance with its terms despite—(i) the provisions of the Reserves Act 1977, the PropertyLaw Act 2007, or any other enactment; or(ii) any rule of law; and(b) is to be treated as having been granted in accordance with theReserves Act 1977.8 Section 13.[28] The sections dealing with the individual maunga to a certain extent reflect theirparticular history in terms of the legal arrangements to which they have previouslybeen subject.9[29] All sections however have in common the revocation of the existing reservestatus of the maunga, followed by vesting in the trustee and a new declaration asreserve with a stated reserve classification. Particular provision is also made for theongoing use of parts of the maunga for the purposes of Watercare Services Ltd.10[30] Section 8(1) of the Collective Redress Act defines the term "trustee" asmeaning "the Tūpuna Taonga o Tāmaki Makaurau Trust Limited, acting in its capacityas trustee of the Tūpuna Taonga o Tāmaki Makaurau Trust".[31] Sub-part 4 of pt 2 contains certain general provisions applying to all of themaunga. One of the central provisions in this part is s 41, which defines the positionthat applies once each maunga is vested in the trustee. The section provides as follows:41 Maunga must remain as reserves vested in trustee(1) This section applies to each maunga once the maunga is—(a) vested in the trustee under subpart 1, 2, or 3 of this Part; and(b) declared a reserve under any of sections 18 to 29, 33, and 39.(2) The maunga is held by the trustee for the common benefit ofNgā Mana Whenua o Tāmaki Makaurau and the other people ofAuckland.(3) The trustee must not—(a) transfer the fee simple estate in the maunga to any otherperson; or(b) mortgage, or give a security interest in, the maunga.(4) The reserve status of the maunga must not be revoked, but may bereclassified in accordance with the Reserves Act 1977.(5) Subsection (2) does not of itself create any right on which a cause ofaction may be founded.9 For example, after vesting the fee simple estates in the trustee, Matukutūruru (s 18(3)) and certainparts of Maungawhau/Mt Eden (s 21(4)) and Ōhuiarangi/Pigeon Mountain (s 26(5)) are declaredreserves and returned to their previous classification as historic reserves.10 With the exception of Mt St John (s 24).(6) Subsection (2) does not affect the application of section 16(8) of theReserves Act 1977.(7) Despite subsection (3), the trustee may transfer the fee simple estatein the maunga if—(a) the transfer is to give effect to an exchange of any part of themaunga in accordance with section 15 of the Reserves Act1977; and(b) the instrument to transfer the land in the maunga isaccompanied by a certificate given by the trustee, or itssolicitor, verifying that paragraph (a) applies.(8) The prohibition in subsection (4) does not apply to any part of themaunga transferred in accordance with subsection (7).[32] We discuss this provision further below, in the context of addressing therelationship between the Collective Redress Act and the Reserves Act, but we drawattention at this stage to subs (2) which provides that the maunga is held by the trusteefor the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the otherpeople of Auckland and the statement in subs (6), that subs (2) does not affect theapplication of s 16(8) of the Reserves Act. Section 16(8) of the Reserves Act providesfor each reserve classified under s 16 of that Act to be held and administered "for thepurpose or purposes for which it is classified and for no other purpose".[33] Section 42 of the Collective Redress Act vests each maunga in the trusteesubject to or together with any interests listed for the maunga in sch 1. This means, inthe case of Ōwairaka, that the vesting is subject to the easement in gross in favour ofWatercare Services Ltd referred to in s 22(5).[34] Section 43 is a machinery provision relating to the vesting. Subsection (2)provides for the Registrar-General to register the trustee as the proprietor of the feesimple estate of the land and record anything on the register and do anything elsenecessary to give effect to pt 2 and the collective deed. The Registrar-General is alsorequired to create a computer freehold register where the land is not already containedin such a register.1111 Section 43(3) to (5).[35] Section 44(1) obliges the Registrar-General to record on any computer freeholdregister for each maunga that the iwi and hapū identified in the collective deed havespiritual, ancestral, cultural, customary and historical interests in the particularmaunga. Sub-pt 6 of pt 2 of the Collective Redress Act contains provisions relating tothe care, management and maintenance of the maunga. Section 58 obliges the TūpunaMaunga Authority to prepare and approve an IMP. It provides as follows: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(iii) the administered lands;12 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),—(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.12 Section 8(1) defines the "administered lands" by reference to the "Maungakiekie / One Tree Hillnorthern land" and Māngere Mountain.[36] The continuing status of the maunga as reserves after the vesting in the TūpunaMaunga Authority is reflected in the application of s 41 of the Reserves Act to the IMPby subs (3). This is underlined by the provisions of subs (4).[37] Section 59 contemplates that the IMP will contain provisions enablingNgā Mana Whenua to carry out activities for cultural and spiritual purposes on themaunga and recognising members' traditional and/or ancestral ties to the lands. This isconsistent with later provisions in sub-pt 7, including a Crown acknowledgement ofthe importance of cultural activities on and traditional uses of the maunga,13 examplesof which are given in s 66. That section defines an "authorised cultural activity" asmeaning:(a) the erection of pou or flags:(b) an instructional or educational hīkoi:(c) a wānanga, hui, or pōwhiri:(d) an event that celebrates the maunga and volcanic activity asdistinguishing and land-shaping features of Tāmaki Makaurau:(e) an event that marks or celebrates the history of Aotearoa, WaitangiDay, or Matariki:(f) an event that celebrates the ancestral association, or exercises themana, of Ngā Mana Whenua o Tāmaki Makaurau with or over themaunga:(g) an event that celebrates Ngā Mana Whenua o Tāmaki Makaurau in itscollective capacity:(h) an event that celebrates an iwi or a hapū of Ngā Mana Whenua oTāmaki Makaurau:(i) any other activity in relation to which provisions are included in theintegrated management plan in accordance with section 59(4) to (7).[38] Section 60 requires the Tūpuna Maunga Authority and the Council to agree toan annual operational plan providing a framework in which the Council will carry outits functions for the financial year.14 The annual operational plan is required to includeinformation relating to matters set out in subs (4), indicative information for thosematters for the following two financial years and relevant financial information13 Section 65.14 Section 60(1).derived from the Council's long-term plan for all activities and functions relating tothe maunga.15 The matters that must be provided for are:16(a) funding:(b) restoration work:(c) capital projects:(d) strategic, policy, and planning projects:(e) maintenance and operational projects:(f) levels of service to be provided by the Council:(g) contracts for management or maintenance activities on the maungaand the administered lands:(h) facilitation of authorised cultural activities:(i) educational programmes:(j) Ngā Mana Whenua o Tāmaki Makaurau programmes, including iwior hapū programmes:(k) opportunities for members of Ngā Mana Whenua o Tāmaki Makaurauto carry out or participate in any of the activities described inparagraphs (b) to (i).[39] Section 61(1) provides that the Council is responsible for the routinemanagement of the maunga. Subsection (2) then provides:(2) The Council must carry out this responsibility—(a) under the direction of the Maunga Authority; and(b) in accordance with—(i) the current annual operational plan; and(ii) any standard operating procedures agreed betweenthe Maunga Authority and the Council; and(iii) any delegations made to the Council undersection 113.[40] Subsection (4) enacts:15 Section 60(3).16 Section 60(4).(4) For the purposes of carrying out its responsibilities under this section,the Reserves Act 1977 applies—(a) as if the Council were the administering body of the maungaand the administered lands; and(b) with any necessary modification; but(c) subject to subsection (2).[41] Subsection (5) provides that s 61 is subject to s 62. Under the latter section,the Council is responsible for the costs which it incurs in carrying out its functionsunder the Act, and those which are incurred by the Tūpuna Maunga Authority incarrying out its functions "under this Act or the Reserves Act".17[42] Section 63 contains provisions relating to financial management, financialreporting and operational accountability. The Council is required to report quarterlyto the Tūpuna Maunga Authority on the costs, funding and revenue of the maunga forthat quarter,18 and to provide the Tūpuna Maunga Authority with an annual financialreport and an annual operational report.19[43] Section 64 obliges the Council and Ngā Mana Whenua o Tāmaki Makaurau tomeet annually to discuss matters relating to the maunga including the performance ofthe Tūpuna Maunga Authority during the year and its proposed activities in thefollowing year.20[44] We have already referred in general terms to the provisions of sub-pt 7 of pt 2of the Collective Redress Act dealing with cultural activities in relation to themaunga.21 It is not necessary for present purposes to say anything more on thatsubject.[45] Part 3 of the Collective Redress Act deals with the Tūpuna Maunga Authority.The Authority is established under s 106. Section 107 describes its membership, andprovides as follows:17 Section 62(1)(b).18 Section 63(3)(a).19 Section 63(3)(b) and 63(4).20 Section 64(1).21 Above at [37].107 Membership(1) The Maunga Authority comprises—(a) 2 members appointed by the Marutūāhu rōpū entity; and(b) 2 members appointed by the Ngāti Whātua rōpū entity; and(c) 2 members appointed by the Waiohua Tāmaki rōpū entity; and(d) 6 members appointed by the Auckland Council; and(e) 1 non-voting member appointed by the Minister for Arts,Culture and Heritage—(i) for the first 3 years of the Maunga Authority'sexistence; and(ii) for any longer period agreed between the Minister, thetrustee, and the Auckland Council.[46] Those members appointed by the rōpū entities must appoint the Chairpersonof the Tūpuna Maunga Authority from among its members.22 The members appointedby the Council must appoint the Deputy Chairperson of the Tūpuna Maunga Authorityfrom among its members.23[47] Section 109(1) provides that the Tūpuna Maunga Authority has the powers andfunctions conferred on it under the Collective Redress Act or any other enactment.Subsection (2) is in the following terms:(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).[48] The reference to s 41(2) underlines 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. The effect of s 109(2)(b) is that the Tūpuna Maunga22 Section 108(1).23 Section 108(2).Authority must have regard to the fact that the trustee holds the land for the commonbenefit of both. In effect, the Tūpuna Maunga Authority has the same responsibilitiesas the trustee in this respect.[49] Under s 111(1) the Tūpuna Maunga Authority may exercise or perform, inrelation to the maunga, any power or function that the Minister of Conservation hasdelegated to all local authorities under s 10 of the Reserves Act that is relevant to themaunga. The delegation is said to apply to the Tūpuna Maunga Authority with allnecessary modifications.24[50] Section 112 then puts the Tūpuna Maunga Authority in the position of a localauthority under the Reserves Act. Thus the Authority may exercise or perform, inrelation to the maunga, any power or function that a local authority is authorised toexercise or perform under the Reserves Act which is relevant to the maunga.25The Reserves Act applies "with all necessary modifications".26 Under s 113(1), theTūpuna Maunga Authority may delegate to the Council a power or function to whichss 111 or 112 applies and any one or more of its general functions, duties and powersas the administering body of the maunga under the Reserves Act for the purposes ofenabling the Council to exercise its routine management responsibility under s 61.The Council also is given power to delegate any of the functions delegated to it by theTūpuna Maunga Authority to another person, subject to any conditions, limitations orprohibitions imposed on the Council by the Tūpuna Maunga Authority when makingthe original delegation.27 These delegations do not relieve either the Tūpuna MaungaAuthority or the Council "of the liability or legal responsibility to perform or to ensurethe performance of any function or duty".28[51] The Council is obliged by s 114(1) to provide the Tūpuna Maunga Authoritywith the administrative support necessary for the Authority to carry out its functionsand exercise its powers under the Collective Redress Act.24 Section 111(2).25 Section 112(1).26 Section 112(2).27 Section 113(2).28 Section 113(4).The Reserves Act[52] It will be apparent from the preceding summary that there are importantintersections between the provisions of the Collective Redress Act and theReserves Act.[53] It is significant for the purposes of the appeal that the mechanism adopted toimplement the collective deed involves revocation of the existing status of thereserves, vesting of the fee simple estate, and a further declaration of reserves andclassification as reserves subject to the relevant provision in the Reserves Act.[54] In the case of Ōwairaka, the result is that the land comprising the maunga isvested in the trustee, classified as a recreation reserve subject to s 17 of theReserves Act and administered by the Tūpuna Maunga Authority. As we have seen,the Collective Redress Act provides the reserve status of the maunga must not berevoked, although reclassification is possible "in accordance with the Reserves Act".29And the legislation specifically preserves the effect of s 16(8) of the Reserves Act, towhich we have referred.30[55] Section 17 of the Reserves Act provides as follows: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 be29 Collective Redress Act, s 41(4).30 Above at [32].necessary 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 indigenous flora or fauna orwildlife are present on the reserve, those features or that floraor fauna or wildlife shall be managed and protected to theextent compatible 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 anyreserve that would contravene any provision of theHeritage New Zealand 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.[56] The functions of administering bodies are set out in s 40(1), which provides:40 Functions of administering body(1) The administering body shall be charged with the duty ofadministering, managing, and controlling the reserve under its controland management in accordance with the appropriate provisions of thisAct and in terms of its appointment and the means at its disposal, soas to ensure the use, enjoyment, development, maintenance,protection, and preservation, as the case may require, of the reservefor the purpose for which it is classified.[57] In preparing and approving an IMP under s 58 of the Collective Redress Act,the Tūpuna Maunga Authority must apply s 41 of the Reserves Act. That is because,as we have noted, s 58(3) provides that s 41 of the Reserves Act applies to a planprepared under s 58. Section 58(3) speaks of s 41 applying "with any necessarymodifications" and "subject to this section". In order to understand that section, it isnecessary first to see what s 41 of the Reserves Act provides. We now set it out:41 Management plans(1) The administering body shall, within 5 years after the date of itsappointment or within 5 years after the commencement of this Act,whichever is the later, prepare and submit to the Minister for his orher approval a management plan for the reserve under its control,management, or administration.(2) The Minister may extend the time within which an administering bodyis required to submit its management plan to him or her for approval,where he or she is satisfied with the progress the administering bodyhas made with the preparation of its management plan.(3) The management plan shall provide for and ensure the use, enjoyment,maintenance, protection, and preservation, as the case may require,and, to the extent that the administering body's resources permit, thedevelopment, as appropriate, of the reserve for the purposes for whichit is classified, and shall incorporate and ensure compliance with theprinciples set out in section 17, section 18, section 19, section 20,section 21, section 22, or section 23, as the case may be, for a reserveof that classification.(4) The administering body of any reserve shall keep its management planunder continuous review, so that, subject to subsection (3), the plan isadapted to changing circumstances or in accordance with increasedknowledge; and the Minister may from time to time require theadministering body to review its management plan, whether or not theplan requires the approval of the Minister under this section.(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 consideration toany 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.(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.(7) Where under subsection (4) the Minister requires an administeringbody to review its management plan, he or she may direct that theadministering body follow the procedure specified in subsections (5)and (6), and the administering body shall follow that procedureaccordingly as if the review were the preparation of a managementplan.(8) Where in terms of its responsibilities under this Act the administeringbody of any reserve resolves to undertake a comprehensive review ofits management plan, the administering body shall follow theprocedure specified in subsections (5) and (6) as if the review werethe preparation of a management plan.(9) Where under subsection (4) the administering body considers anychange not involving a comprehensive review to its management planis required, it may, if it thinks fit, follow the procedure specified insubsections (5) and (6).(10) The administering body or committee or person before which orwhom any person appears at any hearing in support of any objectionor comments shall determine its or his or her own procedure at thehearing.(11) The administering body shall in the exercise of its functions complywith the management plan for the reserve and any amendment thereof,being, in the case of a plan or an amendment that requires the approvalof the Minister, a plan or an amendment so approved.(12) No approval by the Minister for the purposes of this section shalloperate as an approval or a consent for any other purpose of this Act.(13) Where a recreation reserve is vested in a local authority or a localauthority is appointed to control and manage a recreation reserve, thelocal authority shall not be required to submit its management plan tothe Minister for approval, unless the terms of vesting or ofappointment to control and manage the reserve so require:provided that the local authority shall make its management planavailable for inspection by or on behalf of the Minister whenever sorequired.(14) The Minister may, by notice to them, require the administering bodiesof reserves in any locality to consult with each other in the preparationof their management plans so that the management plans areintegrated for the benefit of the locality.(15) Where under this Act the approval or consent of the Minister isrequired to any action by an administering body, the Minister may, athis or her discretion, refuse to grant his or her approval or consentunless and until the administering body has submitted its managementplan for approval (whether or not the plan otherwise requires theapproval of the Minister under this section) and the plan has beenapproved by him or her.(16) This section shall not apply in respect of any government purposereserve or local purpose reserve unless the reserve is vested in anadministering body or an administering body is appointed to controland manage the reserve, and the Minister in the notice of vesting ornotice to control and manage directs that this section is to apply inrespect of the reserve.[58] When s 58(3) of the Collective Redress Act refers to s 41 of the Reserves Actapplying to the IMP "with any necessary modifications", we consider the "necessarymodifications" must be such modifications as are necessary having regard to otherprovisions of the Collective Redress Act, and the fact it is the Tūpuna MaungaAuthority that approves the IMP, not the Minister. As we have noted above, theTūpuna Maunga Authority is the administering body of each of the maunga for thepurpose of the Reserves Act: in the case of Ōwairaka, s 22(4) of the Collective RedressAct provides:31(4) The Maunga Authority is the administering body of Mount Albert forthe purposes of the Reserves Act 1977, and that Act applies as ifMount Albert were a reserve vested in the administering body.[59] The language applying the Reserves Act with the "necessary modifications"effectively adopts and adapts the Reserves Act provisions concerning managementplans to the IMP. The approach has the advantage of drafting simplicity and avoidingthe need to provide tailored provisions in the Collective Redress Act itself. But as wedemonstrate, that approach masks a degree of complexity when it comes to workingout the way in which s 41 of the Reserves Act in fact applies. The fact that s 41 applies"subject to" s 58 of the Collective Redress Act itself adds a further layer ofcomplication.[60] We consider the way in which s 41 of the Reserves Act applies to the IMP,having regard to s 58(3) of the Collective Redress Act, may be summarised as follows:(a) Section 41(1) applies to the preparation of the IMP, but without therequirement to submit the IMP to the Minister of Conservation forapproval.(b) Section 41(2) does not apply, because there is no requirement forministerial approval.(c) Section 41(3) applies, with a requirement that the IMP incorporate andensure compliance with the principles set out in the relevant provisionof the Reserves Act correlating to the classification of a reserve. In thecase of Ōwairaka, this follows from its classification as a recreationreserve under s 17 of the Reserves Act,32 and the application of that Act31 In the case of the other maunga, the individual sections of the Collective Redress Act that pertainto them make similar provisions. These sections are s 18(4) (Matukutūruru), s 19(4)(Maungakiekie / One Tree Hill), s 20(6) (Maungarei / Mount Wellington), s 21(6) (Maungawhau/ Mount Eden), s 23(4) (Mount Roskill), s 24(4) (Mount St John), s 25(4) Ōhinerau / MountHobson), s 26(8) (Ōhuiarangi / Pigeon Mountain), s 27(4) (Ōtāhuhu / Mount Richmond), s 28(8)(Takarunga / Mount Victoria) and s 29(4) (Te Tātua-a-Riukiuta).32 Collective Redress Act, s 22(3).as if Ōwairaka were a reserve vested in the Tūpuna Maunga Authorityas the administering body.33 However, the requirement that the IMP"provide for and ensure the use, enjoyment, maintenance, protection,and preservation"34 of Ōwairaka as a reserve incorporating andensuring compliance with the principles set out in s 17 must be subjectto s 58 of the Collective Redress Act, including the requirement that theIMP must comply with s 59.35 In other words, and in general terms, theTūpuna Maunga Authority must consider including provisions in theIMP enabling members of Ngā Mana Whenua o Tāmaki Makaurau tocarry out the activities set out in s 59(5)(a) to (i), subject to any termsand conditions included in the IMP under s 59(6).36(d) The obligation in s 41(4) to keep a management plan under continuousreview applies to the IMP and the ability of the Minister to requirereview is specifically preserved by s 58(4) of the Collective RedressAct.(e) Section 41(5) applies, requiring the Tūpuna Maunga Authority to givepublic notice of an intention to prepare the IMP, invite persons andorganisations interested to send written suggestions on the proposedplan and to give full consideration to any comments received.(f) Section 41(5A) would authorise the Tūpuna Maunga Authority todetermine, by resolution, that written suggestions on a proposed IMPwould not materially assist in its preparation. We are not aware of anypurported exercise of that power in the present case.(g) Section 41(6) applies, so as to require the Tūpuna Maunga Authority toprepare the IMP in draft form and proceed with the public noticeprocedure prescribed by the paragraphs within the subsection.33 Section 22(4).34 Reserves Act, s 41(3).35 Collective Redress Act, s 58(1)(b).36 We have referred here to Ōwairaka, but the same observations will apply to each of the maunga.The provisions concerning forwarding the plan to the Minister forapproval do not apply.(h) Section 41(7) applies in the event that the Minister requires theTūpuna Maunga Authority to review the IMP.(i) Section 41(8) applies, with the effect that where the Tūpuna MaungaAuthority resolves to undertake a comprehensive review of the IMP, itmust follow the procedures specified in subss (5) and (6) as if thereview were the preparation of an IMP.(j) Section 41(9) applies, enabling the Tūpuna Maunga Authority tofollow, if it thinks fit, the procedures specified in subss (5) and (6)where the Authority considers any change to the IMP not requiring acomprehensive review is necessary.(k) Section 41(10) applies, enabling the Tūpuna Maunga Authority todetermine the procedure to be followed at the hearing of objections.(l) Section 41(11) applies, obliging the Tūpuna Maunga Authority tocomply with the IMP in the exercise of its functions. The reference toa plan or amendment requiring the approval of the Minister does notapply.(m) Section 41(12), which pertains to ministerial approvals, does not apply.(n) Section 41(13) does not apply because the Reserves Act applies as ifthe reserves were vested in the administering body. The maunga arenot reserves vested in a local authority, nor is the Tūpuna MaungaAuthority a local authority which has been appointed to control andmanage a recreation reserve. But this does not mean that the IMP mustbe referred to the Minister for approval, because s 41(13) of theReserves Act is subject to s 58(1) of the Collective Redress Act whichprovides that the Tūpuna Maunga Authority must prepare "andapprove" the IMP. Section 41(13) of the Reserves Act appears in thecircumstances to be an example of necessary modifications being madeto s 41, with the result that it does not apply, and is also an illustrationof the way in which s 58(3)(b) of the Collective Redress Act works.(o) Section 41(14) will not apply because of the nature of the IMP. It isnecessarily integrated and there would be no purpose or indeed scopefor a ministerial direction under this subsection.(p) Section 41(15) clearly does not apply.(q) Section 41(16) again does not apply.[61] We mention also s 42 of the Reserves Act, which contains provisions dealingwith the "cutting or destruction" of the trees or bush on reserves. Clearly this sectionmust be complied with by the Tūpuna Maunga Authority because it is theadministering body of reserves. Subsection (2) provides that the trees or bush on anyrecreation reserve shall not be cut or destroyed: unless the administering body of the reserve is satisfied that the cutting ordestruction is necessary for the proper management or maintenance of thereserve, or for the management or preservation of other trees or bush, or in theinterests of the safety of persons on or near the reserve or of the safety ofproperty adjoining the reserve, or that the cutting is necessary to harvest treesplanted for revenue producing purposes.[62] Section 42(3) provides that where such cutting or destruction is to take place,the administering body shall not carry it out: except in a manner which will have a minimal impact on the reserve anduntil, as circumstances warrant, provision is made for replacement, planting,or restoration; and the administering body shall not proceed to authorise thecutting or destruction, except subject to conditions as to the method of cuttingor destruction and extraction which will have minimal impact on the reserveand, as circumstances warrant, replacement, planting, or restoration; and anyother conditions which the administering body considers to be appropriate inthe circumstances.[63] For completeness we also note s 53 of the Reserves Act, which sets out thepowers of administering bodies in relation to recreation reserves. The powers listedare discretionary powers able to be used in the exercise of the administering body'sfunctions under s 40 and "to the extent necessary to give effect to the principles setout in section 17".37 Section 53(1)(o) confers a broad power to "do such other thingsas may be considered desirable or necessary for the proper and beneficial management,administration, and control of the reserve".The Integrated Management Plan[64] The IMP was developed in a process that began in early 2015.On 22 June 2015, the Tūpuna Maunga Authority gave public notice of its intention toprepare an IMP for the Tūpuna Maunga o Tāmaki Makaurau. It invited interestedpersons or groups to send written suggestions on the proposed IMP to inform thepreparation of it. In addition to public notification in The New Zealand Herald andsuburban papers, notice was given on the Council's website advising the public of theopportunity to make submissions. Letters inviting comment were sent directly to theTūpuna Taonga Trust, the 13 iwi/hapū of Ngā Mana Whenua o Tāmaki Makaurau andthe Council's local boards. Other potentially interested parties were also contacted,including lessees; Heritage New Zealand; the Geological Society of New Zealand; theVolcanic Cones Protection Society; the New Zealand Archaeological Society; a groupcalled Friends of Maungawhau; Auckland Transport; Watercare Services Ltd;Auckland Tourism, Events and Economic Development; Screen New Zealand; touroperators; and sports field users. In response to the public notice, 44 individuals and16 organisations provided written submissions.[65] A draft IMP was then put together in the period September to November 2015.The draft was considered by the Tūpuna Maunga Authority at a hui on 7 December2015. The Authority approved the release of an informal draft for further publicresponse. A similar process of public notification was carried out, with the draft IMPpublicly notified on 12 December 2015 and submissions called for by 22 January2016. Five individuals and 15 groups submitted feedback.[66] On 22 February 2016, the Tūpuna Maunga Authority approved a proposed IMPinformed by the submissions that had been received on the draft and resolved tocommence the statutory public notification process. The proposed IMP was publicly37 Reserves Act, s 53(1).notified on 27 February 2016, with submissions to be provided by 29 April 2016.One hundred and twelve submissions were received (92 from individuals and 20 fromgroups), five of which addressed the issue of vegetation management.[67] Submitters were advised of the opportunity to make oral submissions, and on7 June 2016 a Tūpuna Maunga Authority hearing panel convened at the AucklandTown Hall for that purpose.[68] Having considered the submissions, the hearing panel made a series ofrecommendations on the proposed IMP.[69] At a hui on 23 June 2016, the Tūpuna Maunga Authority approved therecommendations of the hearing panel and then approved the IMP.38[70] The IMP, as required by the Collective Redress Act,39 applies to all of themaunga. Paragraph 1.11 in the introduction records that the IMP:40a. outlines the Tūpuna Maunga Authority's long-term vision forthe Tūpuna Maunga.b. sets the direction for the protection, restoration, enhancementand appropriate use of the Tūpuna Maunga.c. replaces the former separate legacy reserve managementplans for the Tūpuna Maunga.d. has been developed in accordance with Section 41 of theReserves Act to provide for and ensure the use, enjoyment,maintenance, protection, preservation, and development asappropriate for the reserve purposes for which each of theTūpuna Maunga is classified.[71] As stated in paragraph 1.16, the IMP sets out Values and Pathways to achieve"the integrated outcomes" for all of the maunga. It is said that:38 The approved IMP was forwarded to the Minister of Conservation for approval in respect of itsprovisions concerning Maungauika (which at the time was administered by the Department ofConservation), as contemplated by s 58(2)(a) of the Collective Redress Act as it then stood. TheMinister's approval of the IMP in respect of Maungauika was given by letter dated 11 October2016.39 Collective Redress Act, s 58(1)(a)(i).40 Tūpuna Maunga o Tāmaki Makaurau Authority Tūpuna Maunga o Tāmaki Makaurau IntegratedManagement Plan (approved 23 June 2016) [Integrated Management Plan].a. The Values provide the tika (correct) framework for the care andprotection of the Tūpuna Maunga.b. The Pathways elaborate and give tangible expression to the Values.They are guiding principles and objectives that set the direction forthe Tūpuna Maunga Authority to protect and care for theTūpuna Maunga and provide a crucial framework for decision-making.c. The Values and Pathways will be delivered through the methods setout in section 10.[72] The values are listed in paragraph 1.17 as follows:Wairuatanga / SpiritualMana Aotūroa / Cultural and HeritageTakotoranga Whenua / LandscapeMauri Pūnaha Hauropi / Ecology and BiodiversityMana Hononga Tangata / Living ConnectionWhai Rawa Whakauka / Economic and CommercialMana Whai a Rēhia / Recreational[73] Paragraph 1.18 states that the IMP will be implemented in a phased manner,which will include "the preparation of overarching guidelines and strategies for allTūpuna Maunga".[74] Paragraph 1.19 then states that there will be individual Tūpuna Maunga Plansdetailing the "care and management of each Tūpuna Maunga" and reflecting theValues and Pathways, overarching guidelines and strategies for each of the maunga.[75] Paragraphs 1.20 to 1.21 then provide:1.20 The Tūpuna Maunga Authority will confirm the public engagementprocesses for development of the strategies, guidelines andTūpuna Maunga Plans and they will form part of the IMP as adoptedby the Tūpuna Maunga Authority.1.21 This IMP and the subsequent companion strategies, guidelines andTūpuna Maunga Plans will be implemented through the annualTūpuna Maunga Operational Plan.[76] After sections dealing with the origins of Tāmaki Makaurau,41 and humanoccupation over the last one thousand years,42 the plan then sets out specific provisionsfor each of the maunga. It represents by aerial photographs the current state of each,describes current activities and lists the iwi/hapū who have interests in the particularmaunga.[77] Following paragraphs deal with the concept of co-governance and the IMP'sintegrated management framework, including references to ss 58 and 59 of theCollective Redress Act. It is said that the IMP is "being developed" in accordancewith the relevant provisions of the Collective Redress Act and the Reserves Act,43 andit is acknowledged that existing reserve management or conservation plans madeunder the Reserves Act will continue to apply until the IMP takes effect.44 Paragraph7.9 provides:7.9 The IMP is an enabling plan that sets the strategic direction andestablishes the future decision making framework for the TūpunaMaunga as taonga and connected landscapes. The direction sets thescene to enable the preparation of overarching strategies andguidelines for the protection, restoration, enhancement, open accessand appropriate activities on each Tūpuna Maunga.[78] Paragraph 7.10 refers to the 14 individual Tūpuna Maunga Plans which will beprovided so as to reflect the Values, Pathways, overarching strategies and guidelinesin the specific context of each maunga.[79] Paragraph 7.11 states:7.11 The Tūpuna Maunga Authority will confirm the public engagementprocess for preparation of the strategies, guidelines and TūpunaMaunga Plans and they will form part of the IMP once adopted by theAuthority.[80] Part 8 contains the IMP's provisions for Values and Pathways. Each "Value"is followed by several "Pathways" which provide the tangible expression for each41 At [2.1]–[2.5].42 At [3.1]–[3.6].43 At [7.4].44 At [7.5].Value.45 It is not necessary to address these in detail, but some provisions mayappropriately be mentioned.[81] The first Value expressed is "Wairuatanga/Spiritual Value", which reflects thesacred nature of the maunga to mana whenua.46 One of the related Pathways aims torestore and recognise the relationship between the maunga and its people. One of themeans of doing this is to reconnect mana whenua to their "stories, traditions andhistory on the maunga" so that "the importance of the maunga as sites of cultural andspiritual significance to mana whenua is recognised and the relationship between thetangata and the whenua is restored". Another provision references establishing "anauthentic Māori presence" and removing "impediments to mana whenua exercisingtheir kaitiakitanga". A third provision refers to recognising the "sense of identity andaffinity that all people of Tāmaki Makaurau and Aotearoa draw from these speciallandscapes, both now and into the future". Another provision refers to envisaging the"Tūpuna Maunga as places for people of all cultures to come together and sharecommon aspirations for the protection and restoration of these important landscapes".[82] Another Value dealt with in the IMP is what is referred to as"Mana Aotūroa/Cultural and Heritage Value".47 The Pathways set out for that Valueinclude enabling mana whenua's role as kaitiaki over the maunga, restoring customarypractices and associated knowledge and encouraging "culturally safe access". AnotherPathway is to recognise European and other histories and interaction with the maunga.The provisions in respect of that Pathway include reflecting "European and otherhistories alongside mana whenua history on the Tūpuna Maunga" and honouring"the multiple narratives, cultural meaning and connections felt and expressed amongall people of Tāmaki Makaurau over the Tūpuna Maunga".[83] The next Value dealt with in the IMP is "Takotoranga Whenua/LandscapeValue".48 One of the Pathways for this Value is active restoration and enhancement ofthe natural features of the maunga. Here, the IMP refers to increasing:45 At [8.2].46 At [8.5].47 At [8.6].48 At [8.7]. the biodiversity, structural diversity and native habitat values of theTūpuna Maunga and their hinterland by enhancing plant health, soil health,native food resources and habitat connectivity through the development andimplementation of an Ecological Restoration Strategy.The plan seeks to "[e]nsure planting and other landscape features are compatible withthe protection of the natural and cultural features of the maunga."[84] Another Pathway is to preserve the visual and physical authenticity andintegrity of the maunga as landmarks of Tāmaki. It is sought to maintain significantviews to the maunga from across Tāmaki Makaurau and to identify and protectsignificant views on and between the maunga and from the maunga to the motu.[85] The next Value referred to in the IMP is "Mauri Pūnaha Hauropi/Ecology andBiodiversity Value".49 A Pathway set out for this Value seeks to "[r]ekindle manawhenua connections, such as planting of traditionally used plants, with the ecologicaland biodiversity values of the Tūpuna Maunga", in addition to enabling mana whenuato fulfil their role as kaitiaki. Of particular relevance, another Pathway speaks ofprotecting and restoring the biodiversity of the Tūpuna Maunga, including restoringsuitable areas of the maunga with indigenous ecosystems. Decisions on location, plantchoice and staging would draw on traditional and scientific knowledge. There is alsoreference to the reintroduction or attraction of indigenous species to the maunga,phasing out stock grazing, removing invasive plant and animal pests and a phasedreduction in the use of herbicides and pesticides.[86] Part 9 of the IMP is about delivering the Values and Pathways. It refers toguidelines and strategies to be prepared to give effect to the Values and Pathways.The guidelines and strategies once prepared "will form part of the IMP".50[87] A Design Guideline and Recreation Strategy is to be prepared and implementedfor all of the maunga which must, among other things, address:51Ensuring any new buildings and structures, services, areas of planting andfacilities are appropriately located, designed (culturally based) and49 At [8.8].50 At [1.20] and [9.11].51 At [9.13.5] and [9.15.11].constructed to complement the landform, nature of the surroundings, andreduce visual distractions;[88] An integrated Biodiversity Strategy is also to be prepared and implemented.Relevantly it must "as a minimum" address:521. Protection and enhancement of indigenous species includingthreatened plant and animal species already present on theTūpuna Maunga;2. Replanting and restoring the indigenous biodiversity of theTūpuna Maunga, connections between the Tūpuna Maunga and thewider volcanic landscape;3. Replanting and restoring traditional indigenous mana whenua floraand fauna;6. A planting regime with plant choice based on use of appropriate andrepresentative species;9. Explore native grassland establishment where appropriate.[89] Other strategies to be prepared for the maunga include an integrated PestManagement and Biosecurity Strategy;53 integrated Education, Communication andSignage Strategy;54 and an integrated Commercial Strategy.55[90] Consultation on the draft integrated management strategies ran from 6 July to16 August 2019, approximately five months after the consent for the Ōwairakaproposal was granted by the Council on 2 February 2019.[91] Paragraph 9.24 of the IMP then states that the individual Tūpuna Maunga Plansto which we have referred will be prepared following the preparation of the guidelinesand strategies,56 and will "give effect to" those guidelines and strategies in addition tothe Values and Pathways.57 Concurrently with the preparation of the Tūpuna MaungaPlans, a review of the current reserves classification for each maunga is contemplated,52 At [9.19].53 At [9.16]–[9.17].54 At [9.20]–[9.21].55 At [9.22]–[9.23].56 At [9.24].57 At [9.24].assessing the appropriateness of that classification and any replacementclassifications.58 Paragraph 9.26 in this section of the IMP sets out an extensive listof matters that the Tūpuna Maunga Plans must address "as a minimum". Included inthe list are "[r]especting the sacredness of the tihi" and, importantly for this case:22. Native planting and ecological restoration and enhancement;23. Proactively manage plant pests and inappropriate exotic vegetation;[92] It is appropriate to emphasise that the individual Tūpuna Maunga Plans,including such a plan for Ōwairaka, do not yet exist.The significance of indigenous planting[93] Although the focus of the argument in the High Court was on the removal of345 exotic trees, Gwyn J considered that the removal of those trees was properly to beviewed in the context which included replacement planting of some 13,000 indigenoustrees and plants.59[94] It will be apparent from our discussion of the IMP that the planting ofindigenous flora was consistent with, and in fact would implement, many of thepolicies reflected in the IMP. Both the proposed planting and the supportive policyframework contained in the IMP reflect a central aspect of the relationship betweenmana whenua and the maunga. In his affidavit filed in the High Court, Mr Majureydiscussed the importance of indigenous planting in the following terms:For 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) andMatukutūruru (in reference to the native owl) are a few examples. Returningthe Tūpuna Maunga to a state of indigenous vegetation reflects the Māoriworldview that the vegetation that originally cloaked these significant Maungashould be restored. That is fundamental to our identity.58 At [9.25].59 High Court judgment, above n 5, at [28].[95] There was also evidence from Mr David Taipari, Chair of the IndependentMāori Statutory Board established by the Local Government (Auckland Council)Amendment Act 2010 in the context of the creation of the new Auckland Council.Mr Taipari said in his affidavit:The Authority's proposals for ecological restoration at Ōwairaka/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 [are] significant to our cultural well[be]ing and there-connection between Mana Whenua and the Tūpuna Maunga. The culturallandscapes and the protection of the views to and from the Tūpuna Maungaare also of fundamental importance to Mana Whenua.[96] There was also evidence from Mr Turoa,60 who said that his role was to managethe overall operational programme of work including the ecological restorationprogramme on behalf of the Council. In his affidavit, Mr Turoa wrote:The Ōwairaka/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 IMP. This includes opening up viewshafts and defensive site lines fromMaunga to Maunga while also opening up the terracing and other importantarchaeological features of the Maunga. The protection and restoration of thesearchaeological values is a very important element of this project.[97] As noted by the Judge, removal and restoration planting programmes havetaken place on other maunga, namely Maungarei/Mt Wellington, Māngere Mountainand Ōhuiarangi/Pigeon Mountain.61 The Judge referred to plans of the TūpunaMaunga Authority to plant approximately 74,000 native trees across the maunga by2021, 8,260 of which had already been planted according to the evidence before theHigh Court.62The decision to remove the trees[98] There is no written record of the decision to remove the 345 exotic trees fromŌwairaka, nor to do so over a short period of time. The Judge found that the decisionwas made at some time in the period of 9 August to 11 October 2018, and was made60 As we have noted at [10], Mr Turoa is the Tūpuna Maunga Manager at the Tūpuna MaungaAuthority.61 High Court judgment, above n 5, at [33].62 At [33].by Mr Turoa on behalf of the Tūpuna Maunga Authority.63 The finding that thedecision to remove the exotic trees was made during that period was based on theevidence of Mr Turoa, who did not provide any more precise date.[99] Mr Turoa described a process whereby the IMP is implemented through theAnnual Operational Plan required by s 60 of the Collective Redress Act. He describedthat once the strategic direction is set by the IMP, strategies are subsequentlydeveloped and then implemented through the Annual Operational Plan agreed betweenthe Tūpuna Maunga Authority and the Council. Mr Turoa stated that the Ōwairakaproject was based on the "strategic direction" set through the IMP and AnnualOperational Plan, which was then "convert[ed] into a project for implementation".He explained that after conducting site visits to Ōwairaka, an individual assessment ofall trees in the area of the maunga administered by the Tūpuna Maunga Authority andthe commissioning of expert assessments, he "decided that the 345 exotic trees on thearea of Ōwairaka/Te Ahi-kā-a-Rakataura administered by the Authority should beremoved in the one process". Mr Turoa stated that the decision was: considered to be an appropriate and responsible operational response to theparticular circumstances on Ōwairaka/Te Ahi-kā-a-Rakataura and thedirection provided through the IMP, annual operational plan and the TūpunaMaunga Strategies.[100] Mr Majurey also provided evidence about the process referring to what hedescribed as the "Ōwairaka/Te Ahi-kā-a-Rakataura project" which he said had beendealt with as a "capital project" in the Annual Operational Plan. He said that asummary of the draft Annual Operational Plan for 2018/2019 had been included aspart of the Council's annual plan and subject to public consultation in that process.He noted that the draft Annual Operational Plan had included the indigenousrevegetation projects for the maunga, noted in the "Work Programme Overview"under the heading "Healing". He highlighted the following statement under thatheading:Restoration of indigenous native eco-systems; reintroducing native plants andattracting native animal species; removing inappropriate exotic trees andweeds63 At [20].[101] Mr Majurey also noted a table, in which the following statement appeared:Biodiversity programme: restore the indigenous biodiversity of theTūpuna Maunga through the ongoing management of existing threatenedplants, replanting of suitable areas with indigenous ecosystems and thereintroduction or attraction of indigenous species such as microorganisms,invertebrates, lizards and birds.[102] Mr Majurey then referred to other parts of the draft Annual Operational Planidentifying activities to be undertaken for each maunga, including Ōwairaka. He drewattention to the project for Ōwairaka titled the "Protection and restoration of integrityof the Tūpuna Maunga" which was described as a "Network-wide programme toremove vegetation and revegetate — actions and staging to be confirmed". It wasrecorded that the project "is part of a network-programme which will be assignedto individual maunga through project plans that are still to be finalised/developed".In a later section of the draft Operational Plan dealing with such "Network-wideProgrammes" it is recorded:There are a number of programmes that require further project planning todetermine how they will be applied to each maunga. Once this has occurred,the individual maunga sections will be updated at the next availableopportunity.[103] The Annual Operational Plan 2018/2019 was adopted by the Tūpuna MaungaAuthority on 28 May 2018 and by the Tira Kāwana/Governing Body of the Councilon 28 June 2018.[104] At a hui on 3 December 2018, a quarterly update was provided to theTūpuna Maunga Authority in relation to work programmes on the maunga. This madereference to a "[d]eveloped planting plan and tree removal methodology and impactassessments" for Ōwairaka to inform the resource consent application then incontemplation. Subsequently on 4 March 2019, at another hui, the next quarterlyupdate was provided to the Tūpuna Maunga Authority in which it was said that therehad been "significant progress" in the planning for the Ōwairaka project amongstothers. Another quarterly update followed on 6 May 2019.[105] The Ōwairaka project was then progressed by the Council as an operationalmatter in accordance with the Annual Operational Plan.[106] It was Mr Majurey's evidence that the project was fully discussed by theTūpuna Maunga Authority at various workshops and meetings, including as part ofthe quarterly updates to which he referred. He stated that as a result of the updatesand formal and informal discussions the Tūpuna Maunga Authority developed a clearunderstanding of the operational approach being taken to the ecological restorationproject by the Council. According to Mr Majurey, the Tūpuna Maunga Authority bothunderstood and agreed with what he referred to as "the Council's approach to thetiming and scope of the restoration work".[107] Mr Majurey's evidence can be contrasted with that of Mr ChristopherParkinson, who was a member of the Tūpuna Maunga Authority from its inception tothe end of 2019. Mr Parkinson at the relevant time was a board member of theNgāti Whātua Ōrākei Reserves Board. He was appointed by the Council as arepresentative on the Tūpuna Maunga Authority for two three-year terms. In hisaffidavit, he noted that while the Tūpuna Maunga Authority had agreed theAnnual Operational Plan, the documents comprising that plan did not contain anydetail of the proposed removal of the trees. He said that he had attended all of the huiand prior workshops held by the Tūpuna Maunga Authority, aside from "a fewabsences" both during the formation of the IMP and after that. He said that to the bestof his knowledge, there had been no discussion of the removal of all of the exotic treeson Ōwairaka at any of the hui or workshops in which he took part.[108] Mr Beverley referred to the matters mentioned by Mr Majurey, emphasisingthat a summary of the Annual Operational Plan had been included in the Council'sdraft and final annual plan, which was subject to public consultation. That summaryhad expressly referred to "[r]estoration of indigenous native ecosystems; reintroducingnative plants and attracting native animal species; removing inappropriate exotic treesand weeds".[109] We have considered the various references to the Ōwairaka project to whichMr Beverley refers, and agree that the project included both the planting of indigenousspecies and the removal of exotic species. But we have not been able to find in thematerial any clear statement that all exotic trees on the maunga would be removed,and in a short timeframe. Such a conclusion could be reached only by treating thereferences to "removing inappropriate exotic trees and weeds" as connoting a decisionto remove all 345 exotic trees. We do not consider that intention was made plain inany of the documents of the Tūpuna Maunga Authority to which Mr Majurey referred.Opposition to the removal of the trees[110] In the High Court, the appellants relied on various affidavits in support of theapplication for review. One such affidavit was sworn by the first-named appellantMs Averil Norman, who recorded her concerns about the plan to fell so many maturetrees in one event, what she described as the "sudden and drastic impact" on themaunga and its use and enjoyment as a reserve and the decision making processesadopted by the Tūpuna Maunga Authority and the Council. She described having beena visitor to the maunga since her childhood and said it had been a "constant source ofrefuge and place of tranquillity throughout [her] life". She described the "wonderfulmature trees growing throughout", and continued:The mature trees turn the mountain into a refuge from the City. As you driveup Summit Drive, and then walk around the drive to the summit, you feelengulfed by those trees and an immediate demarcation from, anddisassociation with, the City.That to me is a large part of the beauty of the mountain — a beauty that wouldbe irreparably lost if the Authority and Auckland Council fell all these trees atonce.[111] Ms Norman also gave evidence about the history of some of the trees in thefollowing passage:Some of the trees on Mt Albert have an important historical connection.That tangible history will be immediately lost if the Authority and AucklandCouncil proceed as planned.There is a grove of olives on the mountain that were planted by Jack Turner.I knew Mr Turner when I was growing up and walked around the mountainwith him numerous times.Mr Turner served during World War 2, during which time he was a prisonerof war. During the war years he visited Palestine and from there, sent olivetree seeds back home. These trees have grown from those seeds.While Mr Turner has passed, his legacy that remains in that olive grove —providing a place of solace for others — will be felled by the Authority andAuckland Council.Mr Turner's mother, Lady Ethel Turner, planted the cherry blossom trees thatare on the mountain in memory of her brother Edgar who died in World War 1,aged 18. They too are planned to be felled by the Authority and AucklandCouncil. The spirituality and historical significance of the planting that I havementioned here is incalculable.[112] Other parts of her affidavit referred to the amenity afforded by bird song, shadeand sun protection and visual amenity. She feared it would take generations for treesto grow back to the height and maturity of the trees that currently exist. In that timefeatures of the mountain that she values would be lost.[113] In another part of her affidavit she expressed her view that neither theTūpuna Maunga Authority nor the Council had conducted "meaningful consultation"before making the decision to fell the trees. She said she was aware that theTūpuna Maunga Authority might have been granted a resource consent, but said thatas far as she was aware the Authority had "not disclosed publicly what that resourceconsent is for — and when it first made the decision to apply for it". She referred towhat was then the draft Annual Operational Plan for 2019/2020, noting that there was"only passing reference" in the capital expenditure programme for what was describedas a "network-wide programme to remove vegetation and reinstate and/orrevegetate — actions and staging to be confirmed". She complained that there waslittle or no detail about what was proposed, and no statement of the intention to fell somany mature trees in one process. She said that she had not been aware of what wasproposed until contacted by a friend in November 2019, and that there had been noadvertisements by the Tūpuna Maunga Authority in newspapers or other mediaadvising what the plans involved or inviting submissions. Despite many visits to themaunga she had not seen any signs indicating what was intended.[114] An affidavit was also provided by Ms Mary Inomata, the President of theMount Albert Historical Society Inc, a society of persons currently and formerlyresiding in Mt Albert with an interest in the history of the area. The society had amembership of 127 when Ms Inomata swore her affidavit on 13 February 2020.Ms Inomata noted that the society had been consulted in respect of other resourceconsent applications raising potential heritage issues in the area. She expressedsurprise and disappointment that no opportunity to comment was given in the case ofthe present project. Had the society been consulted, Ms Inomata said that informationcould have been provided on the heritage value of the trees intended to be removed.She gave the following examples:(a) The olive grove planted with seeds sent home by Jack Turner fromPalestine during World War II. Jack's family planted the grove inhonour and memory of him, not then knowing whether he lived(he was a prisoner of war);(b) The so-called "penny trees", being the grove of gum (eucalyptus) treesplanted by Mt Albert Borough Council, using seeds purchased for apenny a piece.(c) The large macrocarpa on the far side of the reserve. It was planted byone of Mt Albert's earliest settlers, William Sadgrove (he appeared onthe first electoral roll of 1853 with a Mt Albert address) and isprobably the oldest tree on the mountain. Sadgrove Terrace, the roadnext to the mountain, was named after him.(d) The cherry trees planted by Ethel Penman in memory of her brotherEdgar, who died in the Great War at Gallipoli aged 18.(e) The woodland grove of mixed native and non-native trees next to thearchery field, planted by pupils from Mt Albert Primary School in the1950s.[115] Ms Inomata acknowledged that some of the trees to be removed would havelittle heritage value. Others however were likely to have such value which the societythought should at least be taken into account before the decision was made to removethem.[116] Another affidavit was provided by Sir Harold Marshall, a long-term residentand founder born, in his words, "in the shadow of Mount Albert", and having lived inthe area all his life. He is a Professor Emeritus at the University of Auckland Schoolof Architecture and his affidavit described his use of the maunga over his life. He saidhe has walked up, down and around the maunga hundreds of times over his lifetimeand has a "profound emotional and spiritual connection" with it. Although he praisedthe Tūpuna Maunga Authority's vision of the renewal of an ecological network ofnative forest centred on the 14 maunga in Auckland, he continued:I have seen the felling of trees that has already been carried out on MāngereMountain and Pigeon Mountain. The devastation I saw on Māngere Mountainand Pigeon Mountain from that felling leaves me speechless. It does suchviolence to the physical, emotional and spiritual realities of these places thata better way must be found.I only became aware of the Authority's plans for extensive felling onMount Albert last month. I was not aware of any prior consultation orcommunity engagement having been carried out before the decision for fellingwas made.I would have expected detailed consultation to have occurred. The mountainmeans so much to so many people.It is the lack of consultation and extensive felling in one event that reallyconcerns me. I worry about the dramatic impact on the mountain and its useand enjoyment and the ecology it sustains. I would have thought that theAuthority could have consulted prior to its decision and undertaken phasingof the work to a forest regeneration timeline of years — rather than a shortnumber of weeks. A chainsaw is the most unforgiving of places to start.I hope I have said enough to this point to demonstrate the profoundconnection, physically and emotionally and spiritually, that I have withMt Albert and its trees. Most have grown up with me. I support the Authoritybut not the method it came to this decision in or manner it plans to carry it out.[117] Another affidavit was sworn by Ms Mary Tallon. Ms Tallon's great grandfathercame to the Mt Albert area and his son, Ms Tallon's grandfather, Mr Harvey Turnerbuilt a home on the slopes of the maunga close to the entrance of what is now thereserve. In turn, her father was born and lived in that house until he died in 2005.Ms Tallon herself was born and lived on the maunga until she married and other familymembers still live in the family home. Ms Tallon described some strong connectionswith trees on the mountain, including "a cherry walk on the northern slope of thecrater" which was planted to memorialise a relative who died at Gallipoli which is stillthere. She described her father having sent back olive seeds obtained while on servicein the Middle East during World War II, planted in his absence overseas as a soldierand eventual prisoner of war and remaining on the maunga to this day.[118] Another affidavit was sworn by Ms Anna Radford. Ms Radford is also aresident of Mt Albert, occupying a house on the slopes of the maunga. She also spokeof the existing environment, and why she values it during her regular walks on it.She is particularly attracted by the cherry grove and the blossoms in spring time, aswell as the mature pohutukawa trees that are scattered over the maunga (which wouldbe retained). She said that she found out about the planned removal of the trees on29 October 2019 when she received a notification in her letterbox that the removal ofthe trees would take place from Monday 11 November 2019 till mid-December 2019.She spoke to a journalist at the New Zealand Herald, organised a meeting andsubsequently formed a group calling itself "Honour the Maunga". The group set up aFacebook page and organised an occupation of the maunga in opposition to theproposed removal of the trees.[119] Ms Radford too confirmed her support for the Tūpuna Maunga Authority'slong-term ecological vision for the maunga but she is concerned about the removal ofthe trees leaving the mountain "barren and uninviting". She is concerned that a largeproportion of the trees to be removed are on the perimeter road along which people onthe maunga walk. The lush nature of the landscape, and the "shady glades" that shefinds particularly attractive will disappear and she worries that it will "take decadesfor it all to regrow".[120] The affidavits on which the appellants rely describe a real and deeply-feltconnection to the maunga.The application for review[121] The application for judicial review proceeded on four grounds in theHigh Court. The first alleged that the decision to remove the 345 exotic trees onŌwairaka breached the Tūpuna Maunga Authority's obligations under ss 17 and 42 ofthe Reserves Act. The second claimed that the Tūpuna Maunga Authority was obligedto consult regarding the decision to remove the exotic trees and failed to do so.The third alleged against the Council that it could not lawfully implement a directionfrom the Tūpuna Maunga Authority to fell the trees, because the Authority's decisionwas unlawful in terms of either the first or second ground of review.[122] The final ground of review was based upon a breach of the RMA provisions asto notification by the Council. It was claimed that the Council erred by deciding notto require notification of the resource consent application either to the public generally,or on a limited basis to users of the reserve.[123] The Judge rejected all grounds of review. We deal with her reasons for doingso in addressing the arguments now presented on appeal.The grounds of appealFirst ground of appeal — breach of the Reserves Act[124] The basis of the first ground of appeal is that the decision to remove the exotictrees put the Tūpuna Maunga Authority in breach of its obligations under ss 17 and 42of the Reserves Act. Counsel for the appellants Mr Hollyman QC submits that theTūpuna Maunga Authority as the administering body of Ōwairaka is obliged tocomply with both sections.[125] Obligations that flow from s 17(1) identify that the provisions of the Actrelating to recreation reserves are to have effect for "the protection of the naturalenvironment and beauty of the countryside". Then under s 17(2)(c), the recreationreserve must be "so administered that those qualities of the reserve whichcontribute to the pleasantness, harmony, and cohesion of the natural environment andto the better use and enjoyment of the reserve shall be conserved". Mr Hollymansubmits that the Tūpuna Maunga Authority's decision to remove all non-native treesfalls outside the powers and permitted purposes of the recreation reserve.[126] He argues that the statutory purposes set out in s 17 do not include theeradication of attractive, healthy, exotic trees. He draws a contrast to ss 19(scenic reserves), 20 (nature reserves) and 21 (scientific reserves). In each of thosecases, the Reserves Act specifically contemplates preservation of "indigenous floraand fauna" and extermination so far as possible of "exotic flora and fauna".64Mr Hollyman submits that s 17(2)(c) places a substantive obligation on administeringbodies to exercise the relevant powers under the Act (in ss 40, 42 and 53) so as topreserve the qualities listed. He argues that the references to "protection" (s 17(1))and "shall be conserved" (s 17(2)(c)) confirm that it is the existing qualities of arecreation reserve that contribute to its pleasantness, harmony, cohesion and better useand enjoyment which must be preserved. He contends it is self-evident that removalof almost half of the mature, attractive trees on Ōwairaka would be the antithesis ofconserving the qualities sought to be protected. He emphasises the urban location ofthe reserve, and its role as a park where people walk, picnic and engage in recreation.64 Reserves Act, ss 19(2)(a), 20(2)(b) and 21(2)(a).He emphasises the affidavit evidence provided in support of the application for reviewas to the contribution made by the non-native trees to the pleasantness of the naturalenvironment and the better use and enjoyment of the reserve, as well as the evidenceabout the heritage value of some of the trees to be removed.[127] The Judge held that the appellants' analysis of the relevant statutory provisionsfundamentally misconstrued the overall statutory framework.65 She accepted thesubmission of the respondents that the Reserves Act had to be read in the context ofthe Collective Redress Act which itself gave effect to the settlement of, and providedredress for, historical Treaty breaches. It did so by establishing a clear regime for theTūpuna Maunga Authority to govern the maunga, including the exercise of manawhenua and kaitiakitanga.[128] She noted that under s 47(3) of the Collective Redress Act, the Reserves Actapplies to the maunga subject to the provisions of the Collective Redress Act and thats 5(2) of the Reserves Act states that in its application to any reserve, the Reserves Actis to be read subject to "any Act making any special provision with respect to thatreserve".66 Further, s 109(2) of the Collective Redress Act directs the Tūpuna MaungaAuthority, in exercising its powers and carrying out its functions, to have regard to the"spiritual, ancestral, cultural, customary, and historical significance of the maunga toNgā Mana Whenua o Tāmaki Makaurau", and the fact that the trustee holds themaunga for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and theother people of Auckland.67[129] The Judge considered that that statutory framework was fundamental tounderstanding the statutory mandate of the Tūpuna Maunga Authority and the mannerand purpose of the exercise of its powers and compliance with its obligations underthe Reserves Act.68 She recorded her agreement with Mr McNamara, who submittedfor the Council, that s 17 of the Reserves Act contains "high level" principles whichcannot be read as absolute requirements of law.69 The language of the principles was65 High Court judgment, above n 5, at [68].66 At [69(e)].67 At [69(f)].68 At [70].69 At [71]."aspirational and incompatible with objective measurement".70 On this basis, she didnot accept that those principles imposed absolute standards, breach of which would bea legally reviewable error of law. The Judge also noted that while s 17(2)(b) of theReserves Act specifically identifies indigenous flora present on the reserve to bemanaged and protected, no similar provision is made for exotic plants. She alsoaccepted the argument put to her by Mr Beverley for the Tūpuna Maunga Authoritythat management and protection in accordance with s 17(2)(b) would includeenhancement as proposed by the Ōwairaka project.71 She applied by analogy thedefinition of "protection" in s 2 of the Conservation Act 1987, as embracing bothmaintenance and "restoration to some former state" and "augmentation, enhancement,or expansion".72[130] The Judge accepted the submission advanced by Mr McNamara that thequalities that contribute to the "pleasantness, harmony and cohesion of the naturalenvironment and to the better use and enjoyment" of a reserve under s 17(2)(c) of theReserves Act are subjective concepts that must first be identified by the authoriseddecision maker, followed by an assessment of the trees' "contribution" to thosequalities.73 The assessment required was therefore "inherently subjective".74[131] The essence of the Judge's reasoning was encapsulated in the followingpassage of the judgment:[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 fellingwould be in breach of s 17. The Collective Redress Act acknowledges thatthe Maunga are taonga and that iwi and hapū have a unique relationship withthe Maunga. The Maunga Authority, as the administering body, had to reachits own view as to which of the s 17(2)(c) qualities contribute to the"pleasantness, harmony and cohesion of the natural environment" and shouldbe conserved. In doing so the Authority must have regard to the "spiritual,ancestral, cultural, customary, and historical significance of the Maunga toNgā Mana Whenua o Tāmaki Makaurau" as well as the fact that the Maungais held on trust for the common benefit of Ngā Mana Whenua and the otherpeople of Auckland (a further subjective assessment). I am satisfied that iswhat the Maunga Authority did. Applying those requirements, and in light ofthe purposes in s 3 of the Collective Redress Act, it was plainly open to the70 At [71].71 At [72].72 At [72]–[73].73 At [74].74 At [74].Maunga Authority to reach a different view from the applicants as to whatqualities of the reserve should be conserved or protected (including, asMr Beverley submitted, being restored to its former, native state).(Footnote omitted.)[132] Mr Hollyman attacks the Judge's reasoning. He argues that she should haveapplied the ordinary meaning of "protect" and "conserve" as reflected in thedefinitions of those words in the Oxford English Dictionary instead of lifting anexpanded definition of "protection" from the Conservation Act. Mr Hollymancriticises the Judge's description of the matters listed in s 17 of the Reserves Act as"aspirational" and not absolute requirements of law, breach of which could result in alegally reviewable error. He is also critical of the Judge's reliance on s 109 of theCollective Redress Act to effectively modify the way in which s 17 of the ReservesAct was to be applied. He submits that section and the other provisions of theCollective Redress Act simply add matters to which the Tūpuna Maunga Authoritymust have regard, without expanding the range or application of s 17.[133] As to the claim of breach of s 42(2) of the Reserves Act, the Judge acceptedthe submissions made by the respondents that the Reserves Act did not require aparticular documented decision to be made under s 42(2) confirming that the fellingof trees was necessary.75 She identified the powers being exercised as being thoseunder ss 40, which we have set out above, and 53(1)(o). The latter section providesthat an administering body of a recreation reserve may from time to time, in theexercise of its functions under s 40 and to the extent necessary to give effect to theprinciples in s 17, "do such other things as may be considered desirable or necessaryfor the proper and beneficial management, administration, and control of the reserve".[134] The Judge also thought that since no trees had been felled, the prohibition ins 42(2) had not been engaged and it was sufficient if, as he did in his affidavit,Mr Majurey could demonstrate that the Tūpuna Maunga Authority was properly awareof its obligations under s 42(2) and considered the proposed tree removals to benecessary for the proper management and maintenance of the reserve.76 The Judgeconsidered that in context, the word "necessary" used in s 42(2) should be construed75 At [79].76 At [80] and [90].as meaning "expedient or desirable",77 and that s 109(2) of the Collective Redress Actshould inform what amounts to "proper management" of the reserve under s 42 of theReserves Act.78 Importantly, she considered that:79The proper management of Ōwairaka and the other Maunga subject to theCollective Redress Act involves a broader range of matters than is the case forrecreation reserves subject only to the Reserves Act.[135] Essentially, the Judge accepted the evidence given by Mr Majurey andMr Turoa that the Ōwairaka project would recognise and protect the spiritual,ancestral, cultural, customary and historical significance of Ōwairaka and thatremoval of the trees was necessary to "open up volcanic sightlines, remove destructionof archaeological sites and restore cultural landscapes".80 The Judge emphasised thatthe issue for determination was whether there was a reasonable and legitimate basisupon which the Tūpuna Maunga Authority could legitimately make its decision on theinformation available to it.81[136] She concluded that there was sufficient basis for the Tūpuna Maunga Authorityto reach a conclusion that the felling of the trees was necessary for the propermanagement of the reserve.82 A decision to return the maunga to a state of nativevegetation was not inconsistent with the maunga being held on trust "for the commonbenefit of Ngā Mana Whenua o Tāmaki Makaurau and the other people ofAuckland".83 Taking a long-term view of the needs of the reserve, including whenmaking decisions about planting which would have long-term effects, could beconsistent with the proper management and maintenance of the reserve.84 The Judgeconsidered it inherent in s 109 of the Collective Redress Act that the Tūpuna MaungaAuthority should take a long-term view.[137] In arguing that s 42(2) had been breached, Mr Hollyman emphasises theobligation of the administering body to be satisfied that cutting or destroying trees on77 At [81].78 At [82].79 At [82].80 At [83]–[84].81 At [88].82 At [93].83 At [93].84 At [94].any recreation reserve is "necessary" for one of the limited purposes specified in thatsection, namely the proper management or maintenance of the reserve, themanagement or preservation of other trees or bush, the safety of persons or propertyor the harvesting of trees planted for revenue producing purposes. He submits thisstrict language is consistent with the substantial weight placed on conservation andpreservation in the Reserves Act, particularly in relation to recreation reserves.He relies on this Court's judgment in Environmental Defence Society Inc v MangonuiCounty Council and the decision of the Full Court of the High Court in Brown v MāoriAppellate Court.85[138] From Environmental Defence Society Inc, Mr Hollyman draws attention toobservations of Cooke P about the use of the word "unnecessary" in s 3(1) of theTown and Country Planning Act 1977, declaring, as one of the matters of nationalimportance to be recognised and provided for, the protection of the coastalenvironment and the margins of lakes and rivers from "unnecessary development".86 Cooke P considered that "[i]n that context, as in many others,necessary is a fairly strong word falling between expedient or desirable on the onehand and essential on the other."87[139] In Brown, the High Court had to construe a provision in Te Ture Whenua MāoriAct 1993 controlling the partition of land, including a requirement that the Māori LandCourt or Māori Appellate Court be satisfied that the partition is "necessary to facilitatethe effective operation, development, and utilisation of the land".88 The High Courtobserved:89[51] "Necessary" is properly to be construed as "reasonably necessary"(Commissioner of Stamp Duties v International Packers Ltd and Delsintco Ltd[1954] NZLR 25 at p 54 per North J). We do not accept the contrarysuggestion by Judge Spencer in the Māori Appellate Court, where at p 3 of hisjudgment he expresses the view that, in context, an order is not necessaryunless "there is no other way". The Court is not required to conclude in anabsolute sense that there is no other way. But the test is not a light one.Necessity is a strong concept. What may be considered reasonably necessary85 Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA); andBrown v Māori Appellate Court [2001] 1 NZLR 87 (HC).86 Town and Country Planning Act 1977, s 3(1)(c).87 Environmental Defence Society Inc v Mangonui County Council, above n 85, at 260.88 Te Ture Whenua Māori Act 1993, s 288(4)(a).89 Brown v Māori Appellate Court, above n 85.is closer to that which is essential than that which is simply desirable orexpedient (Environmental Defence Society Inc v Mangonui County Council[1989] 3 NZLR 257 at p 260 per Cooke P).[140] Mr Hollyman points out that s 40(1) of the Reserves Act imposes a duty on theadministering body to manage a reserve under its control in accordance with theappropriate provisions of the Act so as to ensure it is managed for the purpose forwhich it is classified. On this basis, he argues that the purposes and constraints in s 17are relevant in interpreting the phrase "the proper management or maintenance of thereserve, or for the management or preservation of other trees or bush" in s 42(2).In this case however, Mr Hollyman argues the Tūpuna Maunga Authority had notconsidered whether the destruction of any of the non-native trees, let alone all of them,was necessary for the purposes of s 42(2). He notes that although Mr Turoa had saidthat he was aware of the relevant Reserves Act provisions, he did not claim to haveconsidered whether the cutting down of the trees was necessary for the propermanagement or maintenance of the reserve, or for the management or preservation ofother trees or bush in terms of s 42(2). Nor had Mr Turoa referred to any of thepurposes of recreation reserves under s 17 or had any regard to the fact that Ōwairakais a recreation reserve when making the decision to fell the trees. Mr Hollyman alsopoints to Mr Parkinson's evidence that no consideration was given to Ōwairaka'sstatus as a recreation reserve in the drafting of the IMP, and his claim that the removalof the trees on Ōwairaka had not been discussed at relevant hui.[141] In all the circumstances, Mr Hollyman submits that the TūpunaMaunga Authority did not turn its mind to the statutory prohibition in s 42(2), let alonedo what would have been necessary to be "satisfied" as to the necessity of removingthe trees.[142] Mr Hollyman also submits that the decision under s 42(2) was unreasonableand made for an improper purpose. He criticises the evidence given by Mr Turoa andMr Majurey that some of the trees to be removed are pest plants, pose a risk to healthand safety, pose a risk to archaeological features or have an adverse effect onviewshafts. Mr Hollyman criticises these explanations as having the air ofretrospective justification and, in any event, for being incapable of justifying theremoval of only exotic trees. He also notes that the resource consent application didnot proffer these matters as justification for the tree removal. Rather, Mr Hollymansubmits the actual purpose of felling the trees was to return Ōwairaka to a state ofindigenous vegetation. This was, according to Mr Majurey's evidence, to give effectto the Māori worldview that the vegetation that originally grew on the maunga shouldbe restored. Mr Hollyman submits that such a purpose is not found in s 17 of theReserves Act and its effects on the existing state of Ōwairaka make the purposeinconsistent with that section.[143] Finally, Mr Hollyman argues there is no evidence that the Tūpuna MaungaAuthority took into account the fact that the reserve is also held for the common benefitof the other people of Auckland, a mandatory relevant consideration under s 109(2) ofthe Collective Redress Act.DiscussionSection 17[144] Section 17 of the Reserves Act sets out obligations which must be compliedwith by the administering bodies of recreation reserves. Since the Tūpuna MaungaAuthority is the administering body of Ōwairaka which is classified as a recreationreserve, it must comply with those obligations. We consider that it would be wrong tocharacterise s 17 as not setting out matters of legal requirement. The language usedby Parliament is not compatible with such a conclusion.[145] Section 17(1) provides that the appropriate provisions of the Reserves Act"shall have effect" in relation to recreation reserves for the stated purpose whichfollows in the subsection. Similarly, in subs (2) the instruction that "every recreationreserve shall be so administered under the appropriate provisions of this Act" to securethe outcomes set out in the following paragraphs is a clear direction by Parliament thatthose outcomes must be achieved. Within the paragraphs, the language used issimilarly couched in terms of obligation: in (a) it is said that "the public shall havefreedom of entry and access to the reserve", in (b) the identified features which arepresent "shall be managed and protected to the extent compatible with the principal orprimary purpose of the reserve" and in (c) it is directed that the qualities of the reservewhich contribute to the pleasantness, harmony, and cohesion of the naturalenvironment and to the better use and enjoyment of the reserve "shall be conserved".Finally, in (d) the reserve's value as a soil, water and forest conservation area "shallbe maintained".[146] It must be accepted of course that the purposes set out in s 17(1) and (2) areexpressed in broad language, which will necessarily leave to the administering body alarge area of discretion as to the policies it adopts and the steps it takes to meet itsobligations under the section. But that does not mean that the administering body canplease itself as to the steps it takes; the statutory objectives must be achieved even ifthere is broad discretion as to how that is done.[147] In the present case, the issue at the forefront of the appellants' argumentconcerns s 17(2)(c), which requires the qualities of the reserve set out in thatsubsection to be conserved. The appellants place great emphasis on the contributionmade to those qualities by the existing mature trees growing on Ōwairaka. In summaryterms, it is said that removal of all the exotic trees cannot take place in accordancewith the obligation to conserve set out in s 17(2)(c).[148] There appear to be two ideas inherent in that proposition. The first is that theexisting vegetation on the reserve must be maintained in a state similar to that whichcurrently exists. As Mr Hollyman put it, the statute does not allow the felling ofhealthy exotic trees. The second seems to be that if there is to be a change, it shouldnot be so comprehensive and immediate as what the Tūpuna Maunga Authorityintends, because the qualities of the reserve cannot be conserved unless a much moregradual approach is adopted in which the existing trees are allowed to remain untilthey need to be replaced by reason of age or disease.[149] These are arguments that can be advanced based purely on the language usedin s 17 of the Reserves Act. They involve adopting for the word "conserved" severalof the meanings given to that verb in the Oxford English Dictionary: to preserve orkeep, to preserve intact or maintain an existing state and to preserve unimpaired.90 Wedoubt that adopting the definition of "protection" in the Conservation Act is a90 Oxford University Press Oxford English Dictionary (online ed), definition of "conserve".legitimate way of disposing of the argument based on plain meaning of the ordinarywords used in the Reserves Act, but that was only part of the Judge's reasoning.[150] It will however be clear from our earlier discussion of the relevant provisionsof the Collective Redress Act that the Tūpuna Maunga Authority's obligations underthe Reserves Act cannot be construed by reference to that Act alone and as if theCollective Redress Act had not been enacted. That would self-evidently be contraryto the legislative purpose behind the enactment of the Collective Redress Act and theparticular linkages it has with the Reserves Act. And it would be contrary to the plainstatement in s 47(3) of the Collective Redress Act that "the Reserves Act 1977 appliesto the maunga subject to the provisions of this Act".[151] As to purpose, we have earlier set out s 3 of the Collective Redress Act.The purposes set out in paras (a) and (b) are particularly relevant in the present context.[152] The provisions of the Reserves Act applicable to the maunga include, asMr Hollyman emphasises, s 16(8) which is specifically adopted in s 41(6) of theCollective Redress Act. As we have explained,91 s 16(8) of the Reserves Act is astatement about the purpose for which a reserve is held, and is therefore linked tos 17(1) of that Act in the case of recreation reserves. This means, for example, thatŌwairaka is to be held for the purposes of providing areas for recreation, sportingactivities and the physical welfare and enjoyment of the public, and for the protectionof the natural environment and beauty of the countryside with emphasis on theretention of open spaces and outdoor recreational activity. Those purposes ofthemselves do not require the retention of the existing vegetation on the maunga.[153] That conclusion is supported by the nature of the IMP which the TūpunaMaunga Authority is obliged to prepare under s 58 of the Collective Redress Act.The section has a number of important implications. First, the obligation is to approvean integrated plan that applies to all of the maunga. The idea is that there should bean integrated plan of broad reach and a common approach applicable to themanagement of the maunga generally. It seems self-evident that the IMP must be oneof the principal means by which mana whenua and kaitiakitanga can be exercised in91 Above at [32].respect of the maunga in accordance with the statutory purpose set out in s 3(b) of theCollective Redress Act.[154] As noted earlier, s 41 of the Reserves Act concerning management plansapplies, with any necessary modifications and subject to s 58 of the Collective RedressAct. We have already given a detailed analysis of what that means for the subsectionsin s 41.92 For present purposes, one of the most important provisions that must bemodified is subs (3). That is one of the key provisions of the Reserves Act, because itprovides the mechanism by which the statutory obligations in s 17 (and the sectionsrelating to other kinds of reserve) are reflected in the management plans required tobe adopted under the Reserves Act. Looking at the interplay between s 58(3) of theCollective Redress Act and s 41(3) of the Reserves Act, it is plain that theTūpuna Maunga Authority, in preparing and approving the IMP, must comply withs 59(1), (4) and (5) of the Collective Redress Act. The consequence of that, as wehave earlier said, is that the IMP must contain provisions enabling Ngā Mana Whenuao Tāmaki Makaurau to carry out the activities set out in s 59(5)(a) to (i) of that Act.93[155] But more than that, the Tūpuna Maunga Authority must consider including(and therefore must be empowered to include) provisions that recognise the members'traditional or ancestral ties to the maunga.94 This must inevitably allow the Authorityto include in the IMP provisions that contemplate the extensive planting of indigenousvegetation on the maunga for all of the reasons that have in fact been comprehensivelyaddressed in the IMP, as discussed above. And if that is true for the content of theIMP, it must be the case that s 17(2)(c) of the Reserves Act should be read and appliedin a manner that authorises that approach, thereby reflecting the legislative intent as tothe interrelationship between the two statutes. Putting that another way, it would bewrong to construe s 17(2)(c) so as to require a disconnect between the legitimate andevidently intended subject matter of the IMP prepared and approved under s 58 of theCollective Redress Act, and the Reserves Act.92 Above at [60].93 Collective Redress Act, s 59(4)(a).94 Section 59(4)(b).[156] It is also important to bring s 109 of the Collective Redress Act into theequation. Under s 109(2)(a), which we have set out above,95 the Tūpuna MaungaAuthority must have regard to the spiritual, ancestral, cultural, customary andhistorical significance of the maunga to Ngā Mana Whenua o Tāmaki Makaurau.We earlier referred to evidence given by Mr Majurey about the importance ofindigenous vegetation to the connection of mana whenua with the Tūpuna Maunga.The substantial planting of indigenous vegetation must therefore be seen as inaccordance with s 109(2)(a). The statutory direction in that section of course appliesnot only to the preparation and approval of the IMP, but also to the exercise of anyother powers of the Tūpuna Maunga Authority in relation to the maunga. That wouldinclude the powers it exercises under s 17 of the Reserves Act and other relevantprovisions of that Act and, in this case, the decision to remove the exotic trees onŌwairaka.[157] In saying this, we do not overlook s 109(2)(b) of the Collective Redress Act,which requires the Tūpuna Maunga Authority to have regard to s 41(2) of that Act.That of course is to acknowledge the fact that the maunga are held for the commonbenefit of Ngā Mana Whenua o Tāmaki Makaurau and the other people of Auckland.There may be an implication in some of the arguments addressed in support of theappeal that the broader interests of the people of Auckland require maintenance of theexisting range of planting and/or species on the maunga. However, we are notpersuaded it can have been Parliament's intention that s 41(2) of the CollectiveRedress Act should be applied so as to require the maintenance of exotic trees on themaunga. We can see nothing in that Act justifying such an approach, which wouldcertainly derive no support from the statement of legislative purpose in s 3. And weconsider it can properly be said that there is a common benefit in achieving the purposeof the Act, as well as a particular benefit to mana whenua. Everyone benefits from theimplementation of legislative measures designed to provide redress for historicalbreaches of the Treaty.[158] It must also be remembered that the constitution of the Tūpuna MaungaAuthority is such as to effectively create a partnership of interests which together95 Above at [47].oversees the way in which the maunga are managed. Membership of theTūpuna Maunga Authority includes six members appointed by the Council as well asthe six mana whenua representatives.96 It can be assumed that in this way the commonbenefit embraced by s 41(2) of the Collective Redress Act will be achieved in theabsence of evidence to the contrary.[159] In our view, the interrelationship between the two Acts is such that it cannottenably be claimed that s 17(2)(c) of the Reserves Act requires preservation of theexisting nature of the vegetation on the maunga. The fact that change is so clearlycontemplated means that the approach to the "qualities of the reserve" referred to ins 17(2)(c) cannot be tethered to the existing state and nature of the vegetation on themaunga and must be able to embrace revegetation which itself contributes to apleasant, harmonious and cohesive natural environment. In this way the qualities ofthe reserve can be conserved and equally contribute to the better use and enjoymentof the reserve.[160] These conclusions also have implications for what we identified as the secondproposition inherent in the appellants' argument that carrying out the revegetationprogramme by removing all the exotic trees at the outset and not in a gradual processwould be contrary to s 17(2)(c), at least in the short or medium term. At first glance,that argument has some merit because it is inevitable that for a period while therevegetation programme takes effect, there will be a loss of amenity on the reserve.[161] However, once it is accepted that the overall objectives sought to be achievedby the Tūpuna Maunga Authority are in accordance with the statutory regime underwhich it operates, we are not persuaded that the timing of the steps the Authority takescan render the project unlawful. The reality is that the Tūpuna Maunga Authority'sobjectives as recorded in the IMP will not be able to be achieved without revegetationat some stage. We are unable to conclude that the timing of the implementation of theobjectives should render unlawful under the Reserves Act something that would belawful if achieved over a more extended time period.96 Collective Redress Act, s 107(1).[162] We note at this point that of course the administering body must, in exercisingits powers, act reasonably and in accordance with the law. If its actions cannot be socharacterised it will have acted unlawfully. This can be illustrated in a straightforwardway by reference to the obligation under s 17(2)(a) to administer recreation reservesso that the public has freedom of entry and access to the reserve, subject to variousqualifications. If, for example, the public were denied access for no objectivelyjustified reason, whether to a reserve generally or to parts of it, the administering bodywould have acted irrationally and therefore unlawfully.[163] But for the reasons we have explained, we are not satisfied that the decision toremove the exotic trees on Ōwairaka was unlawful by reason of non-compliance withs 17 of the Reserves Act.Section 42(2)[164] Much of the reasoning set out above in relation to the argument under s 17 ofthe Reserves Act applies to the arguments made by Mr Hollyman concerning s 42(2)of the Reserves Act. In assessing whether the tree removal is "necessary for the propermanagement or maintenance of the reserve", as required by s 42(2), the starting pointmust evidently be that the Tūpuna Maunga Authority considers implementation of theŌwairaka project necessary for what it considers to be the proper management of thereserve. That means simply that existing exotic vegetation should be removed andreplaced with indigenous flora. That is plainly the Tūpuna Maunga Authority's visionfor the maunga. We accept the criticism that at the time the decision to remove thetrees was made, the fact that all exotic trees were to be removed had not been madeplain. But that is not the point for present purposes. The simple fact is that in orderto achieve the Authority's objectives for vegetation on the maunga, the exotic trees areto be removed. The Ōwairaka project apparently represents the Tūpuna MaungaAuthority's view of what "proper management" of the reserve entails.[165] We add that although there was evidence from Mr Parkinson that removal ofthe exotic trees had not been discussed by the Authority itself, the trees remain in placeand notionally the Tūpuna Maunga Authority could at any time decide they should notbe removed. The decision to remove, evidently made by Mr Turoa (because heconsidered it was the implicit outcome of policies already adopted by theTūpuna Maunga Authority) is not the kind of decision that, once made, cannot berevisited. Given that the Tūpuna Maunga Authority has defended the decision in theHigh Court and again on this appeal it would be artificial to conclude the absence of aformal resolution means it does not wish the trees to be removed.[166] The reasons for the revegetation of the maunga are those articulated byMr Majurey and Mr Turoa, to which we have already referred. We do not need to goover the same ground again. We think it is sufficient to say at this point that the project,including removal of the exotic trees, is a legitimate response to the objectives soughtto be achieved by the Collective Redress Act. Cases decided in other statutory settingssuch as those relied on by Mr Hollyman do not lead to a different conclusion. Inparticular, we think it can be said that in this context, the removal of the exotic treescould be considered reasonably necessary when the Tūpuna Maunga Authority'sobjectives are borne in mind.[167] Nor do we consider it can seriously be argued that the Tūpuna MaungaAuthority has acted for an improper purpose. Resting that claim on the fact that theAuthority's objective was to give effect to the Māori worldview that the vegetationthat originally grew on the maunga should be restored is untenable having regard tothe legislative purpose already discussed.[168] The argument that the decision to remove the exotic trees was made withouthaving regard to the mandatory consideration of common benefit under s 42(2) of theCollective Redress Act also cannot be sustained for reasons already addressed.[169] For these reasons we reject the first ground of appeal against the High Courtjudgment.[170] We add that we have not found it necessary to deal with another argumentraised by Mr Beverley based on s 4 of the Conservation Act. That section requires theConservation Act to be "interpreted and administered as to give effect to the principlesof the Treaty of Waitangi". Mr Beverley contends that the provision "adds furtherweight and support to the Tūpuna Maunga Authority's approach to the Ōwairakaproject", noting that for mana whenua the project is a tangible expression of the Treatyprinciples in action. The Tūpuna Maunga Authority sought to support the High Courtjudgment on this alternative ground, which the Judge considered would not addanything to the position she had reached by interpreting the Reserves Act in the contextof the Collective Redress Act.97[171] As Mr Hollyman points out, the primary focus of s 4 of the Conservation Actis the interpretation and administration of that Act. While the Reserves Act appears inthe list of enactments administered by the Department of Conservation,98 it is not clearhow that could have the consequence of applying s 4 to decisions of an independentstatutory body such as those at issue in this case. Nor is it clear what would be addedby the application of s 4 given the express and detailed statutory provisions in theCollective Redress Act which have been enacted to give effect to the settlement ofimportant Treaty claims. In agreement with the Judge, we do not consider it necessaryto resolve these issues here. While we acknowledge the Supreme Court's statementsin Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation as to the powerful effectof s 4 of the Conservation Act in the context of decisions made by the Department ofConservation,99 we consider it preferable to leave questions concerning the potentialapplication of s 4 to decision makers not acting under that Act to cases where it isnecessary to resolve them.The second ground of appeal — duty to consult[172] The second ground of appeal is based on a pleading that the Tūpuna MaungaAuthority was required to consult interested members of the Auckland public,including those in the position of the appellants, prior to making the decision to fellthe exotic trees.[173] The Judge noted that a duty to consult can arise explicitly or implicitly from astatute, through a legitimate expectation of consultation arising from a promise or past97 High Court judgment, above n 5, at [102]–[103].98 Conservation Act 1987, s 6 and sch 1.99 Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR368 at [48]–[53].practice or as a common law incident of fairness.100 The Judge further accepted thatwhere a duty to consult exists, those entitled to be consulted must be sufficientlyinformed about the proposal to know what it is, and they must be consulted at a pointwhere their input could still have some effect.101 She found that there had been no"direct" consultation on the decision to remove the exotic trees.102 She also acceptedthat there was a duty to consult on the IMP in accordance with s 41(5) of the ReservesAct. However, she held that the Tūpuna Maunga Authority had complied with itsobligation under that section. She also noted that the draft Annual Operational Planfor 2018/2019 had also been the subject of consultation, and it had included referencesto the restoration of native ecosystems, reintroducing native plants and "removinginappropriate exotic trees and weeds".103[174] The Judge rejected an argument that a statutory obligation to consult beforefelling the trees in question arose by implication from ss 41(2) and 109 of theCollective Redress Act. She accepted Mr McNamara's submission that thoseprovisions were neutral on the issue of consultation.104 In summary she held there wasno express statutory duty to consult beyond that in relation to the draft IMP and thedraft Annual Operational Plan, which had been met.105[175] The Judge also rejected an argument that there was a legitimate expectation ofconsultation deriving from either a promise, past practice or a combination of the two.She considered the Tūpuna Maunga Authority, as a new administering body, did nothave any relevant past practice to refer to, and the approach previously taken by theCouncil could not be relied upon for that purpose.106 In any event, she thought it wassufficient that the Tūpuna Maunga Authority had consulted on the IMP and sheaccepted as relevant evidence given by Mr Mace Ward, the General Manager of Parks,Sports and Recreation within the Customer and Community Services Division of theCouncil, about the broad discretion claimed and exercised by administering bodies100 High Court judgment, above n 5, at [106], citing Nicholls v Health and Disability Commissioner[1997] NZAR 351 (HC) at 370 per Tipping J.101 At [106], citing Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA)at 676.102 At [149].103 At [147].104 At [151].105 At [152].106 At [157].under the Reserves Act concerning particular management decisions.107 In thatsetting, the Judge accepted the submission made to her by Mr Beverley that "readingin" a further consultation requirement in the statutory scheme would create significantadministrative uncertainties.108[176] The Judge did not accept that there was a legitimate expectation based onrepresentations made by the Tūpuna Maunga Authority through the IMP process. Itwas argued that the IMP had created an expectation that the Authority would consultfurther before taking any specific action as significant as removing all exotic treesfrom Ōwairaka and replanting native plants. The Judge noted that:109 the IMP stated that individual plans "must" address the management ofvegetation to protect cultural features, native planting, ecological restorationand enhancement, and the management of pest plants and inappropriate exoticvegetation (amongst other issues). They would do so in order to "give effectto the Values, Pathways, guidelines and strategies".[177] The Judge said:[167] I agree that readers of the IMP might reasonably have inferred fromthe material pointed to by the applicants that an individual Ōwairaka TūpunaMaunga Plan would 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 alegitimate expectation requiring remedy through judicial review.[178] She explained this reasoning on the basis that there was no statutory obligationon the Tūpuna Maunga Authority to produce individual maunga plans, no specific timeframe within which it was to do so and in fact no statutory obligation to consult onsuch plans. In addition, the IMP did not go so far as to say that "those matters"(presumably, the removal of the exotic trees), if subsequently included in an individualTūpuna Maunga Plan, would be the subject of consultation.110 She considered theIMP did not contain a commitment to consult sufficiently clear to justify reliance onit.111 She noted also that there had been no suggestion of "detrimental reliance" on thepart of the appellants, or any witnesses who had sworn affidavits in support of the107 At [158]–[161].108 At [161].109 At [164].110 At [169].111 At [174]–[176].claim.112 This was fatal to a claim alleging breach of a legitimate expectation ofconsultation.[179] In any event, the Judge noted that although the draft Operational Plan2018/2019 did not refer specifically to the felling of the trees, it was clear that theremoval of exotic plants and weeds, replanting native trees and restoring indigenousecosystems was a priority for the Tūpuna Maunga Authority. She considered that ifthe Authority had made a commitment to consult, that had been fulfilled throughsubsequent consultation on the draft Operational Plan.113[180] Finally, the Judge rejected an argument that the importance of the reserve andthe significance of the decision to fell the trees created an obligation on the TūpunaMaunga Authority to consult. We note that in this part of her reasoning, the Judgeacknowledged evidence that had been called by the appellants about the significanceof the decision to fell the trees for them and other users of the reserve. She referred,for example, to evidence given by Mr Andrew Barrell, an arborist with 35 years ofexperience and the director of a company providing consultancy and tree managementservices, who said, in the context of the resource consent application, that in his viewit would have been "one of the most significant, if not the most significant, from anarboricultural perspective received by the Council in recent years". However, theJudge contrasted this by reference to the report prepared on the resource consentapplication for the Council by Mr Brooke Dales and statements by Mr Barry Kaye (theindependent Commissioner who decided the consent should be granted) who rejectedthe idea that the resource consent application gave rise to "special circumstances" forthe purposes of public notification. In the result, the Judge concluded this was not a"truly exceptional" case where a common law duty to consult could run concurrentlywith the various statutory obligations.114[181] In this Court, Mr Hollyman repeats the arguments that the public importanceof the reserve and the significance of the decision gave rise to a duty to consult and heargues that the Tūpuna Maunga Authority's public representations during the IMP112 At [177]–[178].113 At [180].114 At [187].process and in the IMP itself, as well as the past practice of consultation regardingreserve management plans, gave rise to a duty to consult.[182] As to the importance of the reserve, Mr Hollyman emphasises high public useof Ōwairaka and the value placed on it by the local community. He submits theseconsiderations provide strong indicators that decisions affecting the reserve ought tobe the subject of consultation. And he submits the decision itself is deeply significantfor the reserve because of the immediate, radical and permanent change that it wouldengender, noting the Tūpuna Maunga Authority's own evidence that the decision ishighly significant and would transform the reserve.[183] As to the processes adopted by the Tūpuna Maunga Authority, Mr Hollymandescribes the IMP as a high level document, expressed in broad principles, andcontaining no specifics as to how individual maunga would be managed or theprinciples in the IMP applied. Moreover, the IMP states that individual managementplans for each maunga would be prepared following a further public engagementprocess. He emphasises the statement in the foreword of the IMP that:Future individual maunga plans will provide an opportunity for us to workclosely with the Local Boards and diverse communities to produce plans thatcapture and enhance the unique qualities of each maunga.[184] He also notes the statement in the IMP that individual maunga plans "must"address matters including "[p]roactively" managing "plant pests and inappropriateexotic vegetation", "[n]ative planting and ecological restoration and enhancement"and the management of "vegetation to protect cultural features and visitor safety".115He argues this is clear recognition that individual maunga have a unique quality towhich the existing trees contribute. He submits that the approach adopted by theTūpuna Maunga Authority had apparently been to defer for the individual plansmatters relating to each particular reserve: these individual plans were yet to beproduced or consulted upon but were intended to later form part of the IMP.[185] Mr Hollyman points out that the statement in the IMP that matters to beaddressed in individual plans would include management of "plant pests and115 Integrated Management Plan, above n 40, at [9.26].inappropriate exotic vegetation" had been explained during the IMP consultationprocess. At that stage, the Friends of Maungawhau had pointed out that the use of theterms "appropriate" and "inappropriate" was too general. They asked that "exoticspecies be considered and not all treated as pests" and stated that "many exotic treesare of heritage significance". This drew a response from the authors of a report in theTūpuna Maunga Authority hui workshop agenda for 22 February 2016 that: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 individual Tūpuna Maunga Plans. An amendment to thelist of individual Tūpuna Maunga Plan actions and specifically the bullet pointdealing with the management of exotic vegetation and plant pests isrecommended.[186] The authors also explained that "[t]he suggestion to use more directivelanguage in certain situations will be more appropriate, and will be considered, in thedetailed provisions developed for the individual Tūpuna Maunga Plans."[187] Mr Hollyman claims that in the absence of individual maunga plans, includingfor Ōwairaka, the Tūpuna Maunga Authority has never engaged with the communityas to the meaning of "inappropriate" exotic species and the heritage significance oftrees on the reserve.[188] Mr Hollyman submits that, when taken together, the Tūpuna MaungaAuthority's public statements regarding the individual maunga plans and exotic trees,as well as past practice in relation to maunga reserve plans, clearly indicated that morecommunity consultation was going to occur before further steps such as the decisionto fell the trees were taken. The consultation never occurred. Mr Hollyman submitsthe Judge was wrong to conclude that any duty to consult would have been met by thesteps taken in relation to the Annual Operational Plan 2018/2019. That plan had usedgeneralised language, referring to "inappropriate exotic trees" and gave no morecertainty as to what was proposed than the IMP. He draws attention to the fact that, inrelation to Ōwairaka, the Operational Plan had made a vague reference to a"[n]etwork-wide programme to remove vegetation and re-vegetate — actions andstaging to be confirmed". That would have given no reasonable reader any indicationthat a decision to remove the trees would be made.[189] For the Tūpuna Maunga Authority, Mr Beverley submits the Judge hadcorrectly found there was no failure to consult, and further consultation was notrequired beyond what had been carried out. He submits that the Collective RedressAct and the Reserves Act are both clear and specific as to when consultation is requiredand when it is not. Under the Collective Redress Act, the Tūpuna Maunga Authoritywas required to consult the public on the IMP and extensive consultation wasundertaken. That Act also requires consultation on the Annual Operational Plan,which occurred as part of the Council's annual plan process. Mr Beverley submitsthat no further consultation is required for the implementation of "operationalprojects".[190] Similarly, in terms of the Reserves Act Mr Beverley submits the Judge hadidentified the specific instances in the Act when consultation is required. For example,the consultation requirement applies in respect of classifying and changing theclassification of reserves, vesting of reserves, adopting and amending a managementplan and granting certain rights in respect of the use of reserves. There is however noexpress obligation to consult, as the Judge correctly held, before exercising any of thegeneral powers relating to recreation reserves such as those provided for in s 53 of theAct.[191] Mr Beverley submits that in this clear legislative setting, it is neither necessarynor appropriate to read in common law or other consultation obligations for"operational projects" such as the Ōwairaka project. That is particularly so whererecent Treaty settlement legislation has deliberately addressed the consultationrequirements under the two Acts. Mr Beverley argues the Judge rightly pointed to thepractical difficulties that might arise if a further non-statutory consultationrequirement were grafted on to the Reserves Act provisions in respect of a wide rangeof operational decisions made for many parks and reserves in the Auckland region andmore generally. Mr Beverley submits the significance of a reserve and a decisionmade in respect of it could not justify reading in a non-statutory consultationobligation.[192] Mr Beverley submits the Judge was right to conclude that the appellants couldnot claim a legitimate expectation of consultation on the basis of a promise containedin the IMP. He notes the IMP was designed to replace 12 existing reserve managementplans, and submits that it would not be feasible to identify within it every project acrossall of the Tūpuna Maunga. If such projects were required to be included in the IMP,it would be necessary to wait for a review of that plan to include a project that mayhave been omitted.[193] Another consideration was that, based on the evidence of Mr Ward, reservemanagement plans were not generally specific about particular management decisionswhich may be proposed. It was Mr Ward's evidence that he would not expect a reservemanagement plan to identify that particular trees were proposed to be removed evenif they were relatively large in number. Mr Beverley suggests that the evidence calledfor the appellants from Mr Christopher Howden, an expert in the management ofpublic parks, about what should be included in a reserve management plan did notreflect the "bespoke approach" contemplated by the Collective Redress Act, theinherent flexibility in the Reserves Act and what Mr Beverley called "contemporaryreserve management practice". Although the IMP refers to the provision of individualmanagement plans for the Tūpuna Maunga, Mr Beverley submits the plan contains nounambiguous promise that could give rise to a legitimate expectation of furtherconsultation. Nor was there any evidence that the appellants had in fact seen or reliedon the statements in the IMP.[194] He also submits the Judge had correctly dealt with the arguments claiming alegitimate expectation based on past practice. To the extent that past practice for theTūpuna Maunga Authority exists, Mr Beverley submits that practice tells against anyfurther duty to consult.[195] For the Council, Mr McNamara also submits that the Judge had correctly dealtwith this ground of review. In a succinct submission he argues that there is no expressstatutory obligation to consult on the decision to remove the trees, the statutory contextleaves no room for imposition of a common law obligation to consult and theconsultation required by the Collective Redress Act had taken place in the context ofthe IMP (under s 58(3)) and the Annual Operational Plan (under s 60(2)). He furtherargues the draft Operational Plan for 2018/2019 made it clear that removing exotictrees and replanting native ones was a priority for the Tūpuna Maunga Authority, andthat there could be no legitimate expectation of consultation on the decision to removethe exotic trees based on the Authority's past practice (because none existed) nor aclear and unambiguous representation that there would be such consultation.Discussion[196] We consider the key issue to be resolved is whether the decision to fell the treeswas one which should be characterised as sufficiently important to have been thesubject of consultation by inclusion in the IMP, having regard to the statutory settingin which the decision was made.[197] By referring to the statutory setting we mean more than the individual sectionsof the Reserves Act on which the Tūpuna Maunga Authority and the Council wouldrely to perform the work. The Judge considered ss 40 and 53(1)(o) contained thenecessary powers,116 and there has been no suggestion she was incorrect. It isnecessary, rather, to look at the broader context represented by the Collective RedressAct and the Reserves Act. For present purposes we think the main considerations arethe following.[198] As noted, the Collective Redress Act requires the Tūpuna Maunga Authorityto prepare an IMP applicable to all of the maunga.117 An integrated plan and thespecial provisions of the Collective Redress Act providing for such a plan may fairlybe said to be a unique approach to the preparation of reserve management plans,reflecting the most appropriate way in which the statutory purpose of restoringownership to Ngā Mana Whenua o Tāmaki Makaurau and providing mechanisms bywhich they can exercise mana whenua and kaitiakitanga over the maunga as set out ins 3(a) and (b) of the Act might be achieved.[199] The requirement to consult arises from the processes required in preparing andapproving the IMP and undergoing the Annual Operational Plan process by a furtherround of consultation in accordance with the Council's own obligations under the116 High Court judgment, above n 5, at [79].117 Collective Redress Act, s 58(1).Local Government Act 2002 in relation to its annual plan.118 We consider the Judgewas correct to find no warrant in this legislative setting for a requirement forconsultation outside these two statutory processes.[200] We also accept that the Judge correctly found that this is not an appropriatecase for relief to be granted on the basis of a breach of legitimate expectation. As wasobserved in Comptroller of Customs v Terminals (NZ) Ltd:119[123] Establishing a legitimate expectation in administrative law is notdependent on the existence of a legal right to the benefit or relief sought.The expectation might be engendered by promises that a particular authoritywill act in a certain way or by the adoption of a settled practice or policy whichthe claimant 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.[201] As we have recorded, the Judge accepted that the IMP itself stated thatindividual maunga plans would address the management of vegetation including"inappropriate exotic vegetation".120 She considered readers of the IMP mightreasonably have inferred from the material in the IMP that an individual ŌwairakaTūpuna Maunga Plan would canvass the matters referred to in the IMP, includingmanagement of inappropriate exotic vegetation in more detail.121 But she found thatfell short of a commitment to undertake further consultation in relation to thoseplans,122 and in the circumstances there was no clear promise that the Tūpuna MaungaAuthority would consult before the decision to remove the exotic trees was made.123[202] We agree.118 Local Government Act 2002, ss 82 and 95. See also s 60(5)(c) of the Collective Redress Act whichprovides that the Tūpuna Maunga Authority and the Council must "jointly consider" submissionsrelating to the part of the Council's draft annual plan relating to the summary of the draft AnnualOperational Plan.119 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 (footnotesomitted).120 High Court judgment, above n 5, at [164].121 At [167].122 At [168].123 At [174] and [176].[203] We consider the Judge was also correct to find that there was no evidence ofthe kind of reliance that would be necessary to found a claim of breach of a legitimateexpectation.124 However, that is not the end of the matter.[204] We have, earlier in this judgment, given the detail of what the IMP says aboutthe development of individual Tūpuna Maunga Plans.125 The IMP does state (atparagraph 7.10) that individual Tūpuna Maunga Plans would be provided so as toreflect the Values, Pathways, overarching strategies and guidelines in the specificcontext of each of the maunga. It also envisages (at paragraph 7.11) that the TūpunaMaunga Authority will engage with the public in the preparation of the strategies,guidelines and the individual Tūpuna Maunga Plans, which would form part of theIMP once adopted by the Authority. Similarly, the IMP envisages that an integratedBiodiversity Strategy for all the maunga will be prepared and implemented.126 Thatstrategy must include, amongst other things, replanting and restoring the indigenousbiodiversity of the maunga, "[r]eplanting and restoring traditional indigenous manawhenua flora and fauna", "[a] planting regime with plant choice based on use ofappropriate and representative species" and exploring "native grassland establishmentwhere appropriate".127 As we have also noted, paragraph 9.26 of the IMP states thatTūpuna Maunga Plans must address "as a minimum" native planting and ecologicalrestoration and enhancement.128[205] Even if, as the Judge found and we accept, these provisions do not amount toa firm commitment to consult on the content of the individual Tūpuna Maunga Plans,it does seem that the Tūpuna Maunga Authority contemplated that such plans wouldbe prepared, and in due course form part of the IMP. The only way that would occurwould be in the process of continuous review pursuant to the requirements of s 41(4)of the Reserves Act.[206] An alternative might have been to rely upon the notification process for theAnnual Operational Plan as contemplated by s 60 of the Collective Redress Act. But124 At [177]–[178].125 Above at [74], [78]–[79] and [91].126 Integrated Management Plan, above n 40, at [9.18].127 At [9.19].128 At [9.26(22)].on the face of it, that would not be in accordance with what the IMP says about theincorporation of details in respect of the individual Tūpuna Maunga Plans into theIMP. In any event, as we have explained, the development and provisions of theAnnual Operational Plan 2018/2019 did not make the Tūpuna Maunga Authority'sintentions plain. Relevantly, there was reference in that plan to removing"inappropriate exotic trees and weeds" and the "replanting of suitable areas withindigenous ecosystems and the reintroduction or attraction of indigenous species".There was also mention of a "network-wide programme to remove vegetation andrevegetate — actions and staging to be confirmed". And, as set out above, there wasreference to how the network-wide programme would be carried out on individualmaunga through project plans that were still to be finalised and developed.[207] However, none of the material in the Annual Operational Plan contained anystatement that all or even a substantial number of the exotic trees on the maunga wouldbe removed. The contrary conclusion would require reading the references to theremoval of inappropriate exotic trees and weeds as connoting the removal of all exotictrees. In our view, that intention was not made plain in either the Annual OperationalPlan or the IMP. And as we have earlier mentioned, we have been referred to nodecision of the Tūpuna Maunga Authority itself which formally made that decision.[208] The absence of consultation meant that the bases for opposition to the treeremoval described in the affidavits relied on by the appellants and summarised abovewere not brought to the Tūpuna Maunga Authority's attention. It is hard to escape theconclusion that had the intended comprehensive tree removal been made plain in thedraft IMP, the issues now raised would have been addressed in submissions providedin the statutory consultation process.[209] It is in this context that we return to the question posed at the outset of thisdiscussion as to whether the decision to fell the exotic trees was one which should becharacterised as sufficiently important to have been the subject of consultation byinclusion in the IMP. It seems to us that the decision, at least insofar as Ōwairaka isconcerned, was of considerable significance. It was a decision to removeapproximately half the mature trees on the maunga. And the statutory setting clearlyenvisages that there will be consultation on important aspects of the IMP affecting thefuture use, management and maintenance of the reserves constituting the maunga.129As we have seen, s 41(3) of the Reserves Act expressly requires the management planto incorporate and ensure compliance with the principles set out in s 17.[210] Mr Beverley's argument that the decision was "operational" in nature seemspredicated on an assumption that an operational decision is one that does not need tobe the subject of public consultation under the Reserves Act, and can simply beundertaken as part of routine management. Carried to its logical conclusion that wouldmean that a decision to remove trees could never be the subject of a requirement toconsult, a proposition which we do not accept.[211] We accept Mr Beverley's submission that it would not have been feasible toset out detailed plans for each of the maunga, including the intended tree removal onŌwairaka, in the IMP when it was first prepared and approved. However, that doesnot mean that the public could not have been advised what the intention was in thedraft IMP. All that was required was a straightforward statement explaining it was theintention to remove all of the exotic trees; it is difficult to see how this could havegiven rise to any practical difficulty. Instead, words were used referring, for example,to the management of "inappropriate" exotic vegetation. This implied that some exotictrees, perhaps a significant number, would remain. Further, "revegetation" by plantingindigenous flora is not the equivalent of, and does not necessarily embrace, theremoval of exotic trees. An alternative would have been to wait until the individualmanagement plans were prepared for each of the maunga, and in that way inform thepublic of what was proposed before implementing the proposal.[212] In summary, the proposed removal of all exotic trees on Ōwairaka, andrevegetation with indigenous fauna, was a proposal of such significance that it neededto be provided for in the IMP. That would ensure appropriate, informed, publicconsultation about the proposal. The proposal to remove the trees was not made plainin the initial IMP, and no individual management plan for Ōwairaka setting out theproposal had yet been prepared. As a result, the public consultation that took placedid not properly inform the public about what was intended. As we have explained,129 Collective Redress Act, s 58(3); and Reserves Act, s 41.the proposal to remove the trees was never made plain in any document on which thepublic could make submissions. That is a necessary requirement for fulfilment of astatutory obligation to consult. Where the decision maker is considering a particularproposal, the obligation is to inform, listen and consider; it involves telling thoseconsulted what is proposed, and giving them a fair opportunity to express theirviews.130 It also involves providing sufficient information to enable those consultedto be adequately informed so as to be able to make intelligent and useful responses.131[213] We have concluded that the failure to state that the Tūpuna Maunga Authorityintended to remove all of the exotic trees on Ōwairaka meant that the Authority didnot comply with its consultation obligations under s 41 of the Reserves Act as appliedby s 58(3) of the Collective Redress Act in respect of the IMP. We therefore concludethat this ground of appeal should succeed. In the circumstances, we consider itinevitable that the decision to fell and remove the trees must be set aside.The third ground of appeal — notification[214] The appellants argued in the High Court that the Council had unlawfullygranted resource consent without requiring the application to be publicly notified or,alternatively, without requiring limited notification to the users of the reserve.[215] The application was for a land use consent, and the general description givenon the application form referred to "Exotic Tree removal Ōwairaka (Mount Albert)".The application stated that the Council was itself the applicant. We have set out abovean extract from the executive summary given in the accompanying assessment ofenvironmental effects describing what was proposed.132[216] Mr Dales processed the application for the Council, and in doing socommissioned independent peer reviews on the technical assessments appended to theassessment of environmental effects. He prepared a report which dealt with both thequestion of whether the application should be publicly notified and whether or not130 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries[2013] NZSC 154, [2014] 1 NZLR 477 at [168].131 Wellington International Airport Ltd v Air New Zealand, above n 101, at 676, cited with approvalin Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98, [2020] 3 NZLR 247 at [280].132 Above at [12].consent should be granted. He recommended that the application should be grantedwithout either public or limited notification.[217] His conclusion that public notification was not required was based upon hisviews 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.[218] Similarly, Mr Dales considered the limited notification was not requiredbecause no persons would be adversely affected. He gave the following reasons:• 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 Iwi 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.[219] Mr Dales also concluded that there were no special circumstances warrantingany person being given limited notification of the application.[220] Mr Barry Kaye, an experienced planning consultant, was appointed by theCouncil to make the notification decision under delegated authority. Mr Kaye hasacted as an independent hearings commissioner for the Council since 2006.He determined that the application could proceed without public notification becausethe activity would have, or was likely to have, adverse effects on the environment thatwere no more than minor. He also concluded there were no special circumstanceswarranting public notification because there was "nothing exceptional or unusualabout the application" and the proposal had "nothing out of the ordinary run of thingsto suggest that public notification should occur". In addition, Mr Kaye decided thatlimited notification was not required because there were "no adversely affectedpersons". He was also of the view that there were no special circumstances thatwarranted limited notification.[221] Mr Kaye said in an affidavit that he considered all of the material comprisedin the application and accompanying reports as well as Mr Dales' report and the expertpeer reviews he had commissioned. He downloaded the IMP from the internet.He then worked through a "draft decision report template" provided by Mr Dales andconsidered the various steps required under s 95A of the RMA. As to his agreementwith Mr Dales' view that the application would have, or was likely to have, adverseeffects on the environment that were no more than minor, Mr Kaye explained:That followed from obtaining an understanding of the different effects (as setout in various expert reports from the Authority's experts as well as in thepeer reviews by their Council equivalents) that could be identified as beingrelevant to the proposal and included the following:(a) In the context of the landscape and visual values of the Maunga, andfollowing from the expert assessments including the Council'speer review, I found that any adverse landscape and visual effects ofthe proposal would be short term in nature and were effectivelymitigated (albeit over time) by the proposed restoration and replantingsuch that those effects could be considered to be less than minor(noting the project implements part of the approved IMP requiredunder section 58 of the Ngā Mana Whenua o Tāmaki MakaurauCollective Redress Act 2014 (Redress Act));(b) Based on the ecological reporting I found that any adverse ecologicaleffects could be appropriately managed as part of the proposed worksprogramme and accordingly would ensure that any adverse effectswere less than minor;(c) Given the nature and particular detail of the proposals, any adverseeffects on public access and recreation activities (noting that theestimated duration of total vegetation removal works was 50 workingdays — including 20 days when helicopter work was also to occur)would be short term in nature and thus could be considered to be lessthan minor. A communications plan was to be used to keep the publicinformed;(d) As concluded in the specialist assessments, the proposed works hadbeen designed to be sympathetic to the heritage values of the Maunga,and could be managed to ensure that such effects are less than minor;(e) The proposed tree removal methodologies described in the proposalwere consistent with best arboricultural practice and whenimplemented would mean any adverse effects would be less thanminor; and(f) Any adverse effects associated with land disturbance and stabilitywere to be appropriately managed to ensure that any adverse effectswere less than minor.[222] Mr Kaye then proceeded to grant consent to the application.[223] The application for review challenged the decision that public notification wasnot required on the basis that:(a) inadequate information was provided;(b) the decision involved an unlawful balancing of positive and negativeeffects;(c) the Commissioner had applied an incorrect definition of "effect" bydismissing effects perceived as "short term"; and(d) the decision was unreasonable.[224] The Judge concluded that the Council had sufficient relevant informationbefore it in order to make the notification decision on an informed basis.133 She wasinfluenced by the fact that the assessment of environmental effects submitted with theapplication had been accompanied by specialist technical reports and the Council haditself sought independent peer reviews of each of those reports.134 Therecommendation made by Mr Dales had been peer reviewed by the Council's principalspecialist planner. All of this information was in turn available to Mr Kaye who alsohad a copy of the IMP which he had specifically sought. As with Mr Dales, Mr Kayeundertook a site visit and had expressed himself satisfied that he had sufficientinformation to consider the matters required by the RMA.135[225] The Judge took "confidence in the breadth and depth of the expertise andinformation" which was available to the Council for the purposes of the notificationdecision.136 She considered the appellants had not pointed to any further relevantinformation without which the Council could not understand the nature and scope ofthe proposed activity, assess the magnitude of any adverse effect on the environmentand identify persons who might be more directly affected. She addressed issues of theheritage value of the trees to be removed in the following brief paragraph:[266] On the specific question of the heritage value of the 345 exotic trees,I am satisfied that there was no such information in the AUP Schedule ofHistoric Heritage or the AUP Notable Trees schedule, the sources ofinformation which the Council would look to in the normal course. Nor wasany information drawn to their attention. The appellants have not pointed toa serious failure on the part of the Council to be sufficiently and relevantlyinformed as to any heritage issues.133 High Court judgment, above n 5, at [260].134 At [262].135 At [264].136 At [265].[226] The Judge rejected the argument that the Council had unlawfully balancedpositive and negative effects.137 She considered the removal of exotic trees was to beseen in the context of the proposed planting of native trees and shrubs. Both were partof the "cultural, spiritual and ecological restoration of Ōwairaka".138 It was wrong toanalyse the position by focussing solely on the removal of the exotic trees, since bothwere part of the same project. The Judge noted this Court's judgment in AucklandRegional Council v Rodney District Council, in which it was said "[t]he activity iswhat the applicant wishes to do as expressed in its application."139 Here theapplication made it plain that the proposal involved not only the removal of exoticvegetation but also undertaking restoration planting on Ōwairaka.140 Both elementswere comprised in the application and Mr Kaye was entitled to take into accountprospective mitigating conditions inherent in the application when considering thepotential adverse effects. The Judge also expressed the view that removal of the treesshould not be regarded as an adverse effect of the activity. This reasoning wasexpressed as follows:[290] But this is not a case where the cutting down of the exotic trees is anecessary, but unfortunate and "bad" effect of the activity for which consentis sought. It is an integral and essential part of the activity. While some of thereplanting will have a mitigatory effect, the removal of the exotic trees in itselfachieves a desired and positive effect. As I have already noted, the project asa whole is intended to facilitate the restoration of the "natural, spiritual andnative landscape". It will open up viewshafts and defensive sight lines fromMaunga to Maunga across Tāmaki Makaurau, open up terracing and otherimportant archaeological features of the Maunga.[227] In all the circumstances, the Judge considered that it was clearly open toMr Kaye to conclude that the adverse effects were no more than minor.141[228] The Judge dealt next with the appellants' contention that Mr Kaye haddiscounted or ignored adverse visual effects because they would be temporary innature. This argument was based on the broad definition of "effect" in s 3 of the RMA:under s 3(b), "effect" includes "any temporary or permanent effect". The Judge held137 At [278].138 At [281].139 At [284], citing Auckland Regional Council v Rodney District Council [2009] NZCA 99, [2009]NZRMA 453 at [55].140 At [285].141 At [297].that the Council had not applied an incorrect definition of "effect".142 She acceptedthat a temporary effect might be a relevant adverse effect,143 but found that Mr Kayehad considered the duration of any adverse landscape and visual effect based on theextensive material before him and weighed that factor in his overall assessment of theeffects. The weight given to temporary effects was a matter for him.144[229] Finally, the Judge determined that the decision not to notify could not bedescribed as unreasonable.145[230] In addressing this ground of appeal, Mr Little submits, as the appellants haddone in the High Court, that the non-notification decision was based on inadequateinformation, applied the incorrect test by taking into account positive prospectiveeffects of the proposed planting project and was unreasonable.[231] As to the adequacy of information, Mr Little submits that Mr Kaye hadinadequate information as to the heritage value of the trees to be felled. Mr Kaye hadno information on that issue, other than the fact that none of the trees was listed underthe Auckland Unitary Plan. Mr Little refers to Ms Inomata's evidence, which we notedearlier, that the Mount Albert Historical Society had not been approached by either theTūpuna Maunga Authority or the Council in respect of any historical or heritage valueof the trees. Mr Little argues that it was not reasonable for Mr Kaye to treat theabsence of listed trees under the Unitary Plan as decisive on the question of heritagevalue. That was especially so given the large number of mature trees which were tobe felled in a popular and historic urban recreation reserve. He submits further thatthe consideration given to the amenity effects on visitors to the reserve of the removalof the trees was inadequate, describing Ms Peake's assessment as cursory. In addition,Mr Little contends that Mr Kaye had inadequate information as to the arboriculturaleffects of felling the trees. He claims that the only relevant report before Mr Kayeaddressed how the trees should best be removed, not whether they should be removedor the effects of removal. The consent application had, unusually, not been referred to142 At [303].143 At [304].144 At [306].145 At [320].the Council's in-house arboriculture team, contrary to Mr Barrell's evidence that wasstandard practice.[232] As to the improper consideration of positive effects, Mr Little relies on thisCourt's judgment in Bayley v Manukau City Council,146 in which it had been saidthat:147 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.[233] Here, Mr Little submits that Mr Kaye had concluded that the "adverse effects"on the environment were no more than minor because, amongst other things:In the context of the landscape and visual values of the Maunga, any adverselandscape and visual effects of the proposal are considered to be short term innature and effectively mitigated by the proposed restoration and replantingsuch that they can be considered to be less than minor;[234] Mr Little submits that this amounted to using the positive effects of theproposed planting to offset or justify the possibility of adverse landscape and visualeffects consequent upon removal of the trees. This would not be to exclude oreliminate adverse effects, as contemplated by Bayley; the adverse effects wouldhappen nevertheless. He develops this argument by reference to the decision of theHigh Court in Trilane Industries Ltd v Queenstown Lakes District Council, concerningthe need to take into account short-term adverse effects for the purposes of thenotification decision, where there would be a delay in any mitigation taking effect.148[235] Mr Little advances a further submission that any long-term positive effects ofplanting trees and shrubs in certain parts of the reserve were not in any event effectsof the "activity" for which consent was sought (removing the exotic trees). In thisrespect, Mr Kaye had wrongly conflated the "activity" with the "proposal" describedby the Tūpuna Maunga Authority.146 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA).147 At 580.148 Trilane Industries Ltd v Queenstown Lakes District Council [2020] NZHC 1647, (2020) 21ELRNZ 956.[236] The same grounds are also relied on to submit that the decision not to notifywas unreasonable. Mr Little emphasises in this context the magnitude of the proposedtree removal (comprising almost half of the mature trees in the reserve), and the factthat all of the trees could be removed at once. Further the trees are situated in a popularurban public space classified as a recreation reserve, on land identified as a"Significant Ecological Area" and zoned "open space" in the Auckland Unitary plan.[237] Although pointing out that the adequacy of information is not itself a separateground of judicial review, Mr McNamara accepts that a notification decision must bemade on the basis of adequate and reliable information, and that a Council must decidethe level of effects based on a "sufficiently and relevantly informed understanding ofthose effects".149 However, he submits that given the extensive information that wasbefore Mr Kaye when he made the decision not to notify, the Judge had rightlyconcluded the decision was based on sufficient information.[238] On the particular issue of the heritage value of the trees, Mr McNamara submitsit was reasonable for Mr Kaye to have regard to the fact that none of the trees to beremoved was listed as having heritage value under the Auckland Unitary Plan. As theJudge found, the Unitary Plan provisions were the relevant source of information thatthe Council would normally take into account in deciding whether an application forresource consent should be publicly notified. In addition, Mr McNamara submitsthere was no other information "in the public domain" to indicate that the exotic treesto be removed had heritage value. In this context, he refers to evidence given byMr Dales that on a site visit he had not observed any signage, plaques or otherindication of when any particular trees or groups of trees on Ōwairaka were planted,who planted them or the circumstances in which they were planted. Further, Mr Yateshad given evidence that when he undertook his planning assessment in September2018, he found no record of the perceived heritage value of the trees in statutorydocuments or other historical evidence publicly available.[239] Mr McNamara also challenges Mr Little's claim that the consideration givento the amenity effects of the tree removal on visitors was "cursory" and lacking in149 Citing Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 at[65].specificity. Ms Peake, in her landscape and visual assessment, had identified andconsidered visual effects on three viewing audiences: visitors, users of the open spacenetwork on the maunga and residents/users of the surrounding street network.The assessment was sufficiently detailed. Mr McNamara also refers to informationbefore Mr Kaye as to a number of different aspects of amenity that warrantedconsideration given the RMA's definition of "amenity values". These included effectson public access and recreational amenity, ecological effects, noise effects, heritageeffects and effects on cultural and spiritual values.[240] Mr McNamara also submits that the appellants were wrong to claim that therewas inadequate information as to the "arboricultural effects" of the tree removal andthat no arboricultural assessment had been provided to Mr Kaye. In this context,Mr McNamara relies on evidence given by Mr Dales that arboricultural effects wereconsidered in terms of the effects of the tree removal work on the native trees beingretained. Mr Kaye had given explicit consideration to those effects. Mr Dalesconsidered that it was not necessary to seek further input from an in-house Councilspecialist because the proposed tree removal methodologies were consistent with thosealready confirmed as appropriate by the Council's specialist in relation to otherresource consent applications by the Tūpuna Maunga Authority in respect of treeremoval proposed for Māngere Mountain and Maungarei (Mt Wellington).Mr McNamara also refers to a report prepared by Ms Sarah Budd, an ecologistappointed to review the application for the Council, who had identified temporary lossof vegetation cover and habitat for indigenous fauna as one of three primary adverseecological effects to be considered.150[241] Mr McNamara submits that Mr Kaye had not sought to balance "good andbad" effects. Rather, he had taken into account conditions of consent that wereinherent in the application as mitigating its effects. This was permissible. Not toproceed in that way would involve ignoring the practical reality of what the adverseeffects on the environment would be. Mr McNamara submits that the applicationconstituted a single proposal involving both vegetation removal and restorationplanting, with both aspects requiring multiple resource consents. Mr Kaye's decision150 The others were disturbance and potential harm to indigenous lizards, and disturbance toindigenous birds.had properly recorded the proposal as comprising both of those aspects, and he hadproperly reached a conclusion as to the overall level of effects of the application.Mr McNamara argues that this did not involve improper "balancing" of positive andnegative effects, but rather a proper appreciation of what the Tūpuna MaungaAuthority's proposal actually involved.[242] Mr McNamara further submits that the Judge had correctly rejected theappellant's approach of considering vegetation removal per se as having adverseeffects: in fact, the removal of the exotic trees achieved a desired and positive effect,by facilitating the restoration of the indigenous landscape of the maunga. He says theappellants' argument ignores the potential for the visual effects of the tree removal tobe viewed in a positive light.[243] Mr McNamara submits that Mr Kaye had not ignored adverse landscape andvisual effects of the application on the basis that they were "short term". Rather, hehad permissibly taken into account the duration of any adverse landscape and visualeffects as well as the mitigation proposed, as part of his assessment of the overall levelof adverse landscape and visual effects. The weight given to temporary adverselandscape or visual effects was a matter for Mr Kaye as the decision maker.[244] Further, Mr McNamara submits that the unreasonableness challenge to thenotification decision cannot be sustained. The Judge had rightly held it was notenough that another decision maker might have reached a different conclusion.Mr McNamara submits that Mr Kaye's decision was not unreasonable or irrational inthe sense required.[245] Finally, Mr McNamara submits there were no special circumstances justifyingpublic notification.Discussion[246] In determining whether to publicly notify the application for resource consent,the council was obliged to consider whether it met the criteria set out in s 95A(8) ofthe RMA. In this case that meant deciding whether the activity would have or be likelyto have "adverse effects on the environment that are more than minor".151[247] It is clear from the statutory language that the focus of this consideration is theapplication as a whole. In this respect we consider the Judge was correct to hold thisembraced everything that the application involved,152 including those aspects of it thatrequired resource consent, and any that did not. We have already described the termsof the application. Under the terms of the Auckland Unitary Plan consents wererequired for the tree removal, modification of existing features of the maunga,conservation planting and earthworks. There was also an anticipated non-compliancewith the construction noise limits in the Unitary Plan.[248] According to the detailed description of the proposal given by Mr Yates in theassessment of environmental effects, both discretionary activity and restricteddiscretionary activity consents were required in respect of the removal of the trees.The consents were required under different parts of the Unitary Plan including thoserelating to vegetation management and heritage. One of the discretionary activityconsents required, pursuant to rule D17.4.2 (A23), was for what was described as"conservation planting" within a "Category A Extent of Place". Thus both the plantingand the tree removal required resource consent and formed part of the overallapplication, the effects of which fell to be considered as part of the notificationassessment. It is unnecessary here to undertake a more fine-grained analysis of theextent to which the Council restricted the exercise of its discretion, and we note thatthe application proceeded and was dealt with on the basis that, overall, discretionaryactivity consent was required.[249] This Court in Bayley accepted an argument that in assessing the effects of theactivity for which consent is sought the consent authority should not take into account151 Resource Management Act 1991, s 95A(8)(b). Nothing in this case turns on the more particulardirections set out in s 95D.152 High Court judgment, above n 5, at [281].activities able to be undertaken without resource consent.153 But here both the plantingand tree removal required resource consent and positive effects referable to the newplanting proposed were legitimately able to be considered. The Judge's reference tothis Court's statement in Auckland Regional Council v Rodney District Council thatthe activity is what the applicant wishes to do as expressed in its application was apt.154[250] Mr Little seeks to emphasise that in Bayley, addressing the then applicableprovisions of the RMA relevant to notification, this Court held that it was notappropriate to balance positive and adverse effects.155[251] The Court's comments in that case, to which we have referred, were made inrelation to s 94(2)(a) of the RMA, which authorised non-notification in the case ofapplications for consent for discretionary and non-complying activities incircumstances where the consent authority was satisfied that the adverse effect on theenvironment of the activity for which consent was sought would be "minor".There have been a number of changes to the relevant statutory provisions since Bayleywas decided. The key provision for present purposes, s 95A(8)(b), now states whenpublic notification is required (as opposed to when it is not required), and theapplication must be publicly notified if it will have or be likely to have adverse effectson the environment that are more than minor. But these changes do not affect thereasoning on this point in Bayley. It remains the case that the focus must be on theadverse effects on the environment of the activity for which consent is sought.[252] However, it would be wrong to proceed on the basis that in making thenecessary assessment it is appropriate to consider only those aspects of the applicationthat may be thought adverse in environmental terms, and leave out of account thosewhich may be said to be positive in a relevant way. That is inherent in the Court's153 Bayley v Manukau City Council, above n 146, at 577. This gave rise to the series of casesaddressing what became known as the "permitted baseline": see Arrigato Investments Ltd vAuckland Regional Council [2002] 1 NZLR 323 (CA); Dye v Auckland Regional Council [2002]1 NZLR 337 (CA); and Queenstown Lakes District Council v Hawthorn Estate Ltd [2006]NZRMA 424 (CA). This is not a case involving consideration of the permitted baseline but thereasoning in those cases can be seen as emphasising that the aspects of a proposal that requireresource consent must be taken into account.154 High Court judgment, above n 5, at [284], citing Auckland Regional Council v Rodney DistrictCouncil, above n 139, at [55].155 Bayley v Manukau City Council, above n 146, at 580.reference in Bayley to countervailing factors. The example given was to noisegenerated but excluded by soundproofing.156 In the present case, the keycountervailing consideration to the tree removal is the replacement planting inherentin the application, and for which resource consent was sought. There is a direct andsufficient linkage between the two that would make it artificial to leave the plantingout of account in assessing whether the adverse effects on the environment would bemore than minor. We do not think it matters that the proposed planting would not bein precisely the same location on the maunga as the trees to be removed and wouldconsist of different kinds of plants.[253] Putting this conclusion more simply, the statutory task under s 95A(8) of theRMA is to assess the adverse effects on the environment of implementing the consent.That cannot be done by ignoring some aspects of the proposal which will be highlyrelevant to the nature and quality of the adverse effects thought to arise.As Mr McNamara puts it, the contrary approach would ignore the reality of what theactual adverse effects of the activity would be.[254] We also accept the force of the Judge's reasoning concerning the indirectbenefit of removal of the exotic vegetation, to the extent that may be seen asfacilitating restoration of the indigenous landscape of the maunga.157 In the contextof the Tūpuna Maunga Authority's intended approach across all of the maunga, thereis merit in the proposition that a comprehensive programme of the planting ofindigenous flora would be positive in environmental terms.[255] For these reasons we do not consider that the Judge erred in her conclusion thatMr Kaye had not unlawfully balanced positive and negative effects in making thenotification decision.[256] We have however concluded that in two respects the decision not to notify wasflawed. The first is in relation to the manner in which the Council dealt with the issueof the temporary effects of the very extensive tree removal proposed. The secondconcerns the heritage and historical significance of some of the trees.156 At 580.157 High Court judgment, above n 5, at [290].[257] In this part of the case, Mr Little relies on the decision of the Supreme Courtin Discount Brands Ltd v Westfield (New Zealand) Ltd, which discussed the statutoryprovisions as they stood before the RMA was amended to assume its current form.158Blanchard J summarised the information required before a decision could be made onwhether an application for resource consent should be publicly notified in thefollowing passage:[114] So, in summary to this point, the information in the possession of theconsent authority must be adequate for it: (a) to understand the nature andscope of the proposed activity as it relates to the district plan; (b) to assess themagnitude of any adverse effect on the environment; and (c) to identify thepersons who may be more directly affected. The statutory requirement is thatthe information before the consent authority be adequate. It is not required tobe all-embracing but it must be sufficiently comprehensive to enable theconsent authority to consider these matters on an informed basis.[116] Because the consequence of a decision not to notify an application isto shut out from participation in the process those who might have sought tooppose it, the Court will upon a judicial review application carefully scrutinisethe material on which the consent authority's non-notification decision wasbased in order to determine whether the authority could reasonably have beensatisfied that in the circumstances the information was adequate in the variousrespects discussed above.(Emphasis added.)[258] Blanchard J had earlier said that the information before the consentauthority:159 can be supplied by the applicant, gathered by the authority itself or derivedfrom the general experience and specialist knowledge of its officers anddecision makers concerning the district and the district plan. But in aggregatethe information must be adequate both for the decision about notification and,if the application is not to be notified, for the substantive decision whichfollows to be taken properly — for the decisions to be informed, and thereforeof better quality.[259] Amendments to the RMA in 2009 changed the statutory provisions, and inCoro Mainstreet (Inc) v Thames-Coromandel District Council this Court observed thatthe amendments to the statute since Discount Brands were substantial and had been158 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.159 At [107].directed at "providing greater facility for non-notification".160 The Court held out thepossibility that the law articulated in Discount Brands might need further evaluationin the revised statutory setting.161 But it was unnecessary to carry out such furtherevaluation in that case and the Court did not do so.[260] The issue was again discussed in Auckland Council v Wendco, where theSupreme Court referred to what had been said in both Discount Brands andCoro Mainstreet and noted the possibility that subsequent changes to the RMA meantthat a less exacting approach to non-notification should be taken, but held it was notnecessary to decide the issue for the purposes of the judgment.162[261] In this case also there is no need to revisit the standard set out inDiscount Brands, as no party has sought to argue that a less exacting standard isappropriate. We also note that in NZ Southern Rivers Society Inc v Gore DistrictCouncil (in absence of submissions to the contrary) this Court did not disturb theHigh Court's decision in that case that Discount Brands remained good law as to therequirement that a consent authority must be in possession of sufficient information atthe notification stage to decide the issue of whether the adverse effects of a proposalwill be more than minor.163 We consider any different approach in this case would bevery difficult to sustain.Temporary adverse effects[262] As to temporary adverse effects, it is clear that there would be a period forwhich the current amenity of Ōwairaka would be adversely affected by the removal ofthe trees. The maunga clearly operates as a very important public recreation reserve.It seems axiomatic that the process of removing so many trees from it in one processwill have an adverse effect for whatever period must elapse before the new plantingbecomes established.160 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA73 at [34].161 At [41].162 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [46]–[47].163 NZ Southern Rivers Society Inc v Gore District Council [2021] NZCA 296, (2021) 22 ELRNZ 880at [28].[263] As has been seen, the Judge's approach was to note that Mr Kaye hadproceeded on the basis that there would be an adverse landscape and visual effect, andtaken that into account in his overall assessment of the effects. She considered thatthe weight to be afforded that consideration was properly a matter for him, and not theCourt.164 We think it better to focus on the statutory test: Mr Kaye had to decidewhether or not the effects of the activity would be more than minor. And in order tomake that decision, he had to have adequate information.[264] Mr Kaye's reasoning is encapsulated in the extract of his affidavit which wehave set out at [221] above. In summary, he was persuaded that any adverse landscapeand visual effects of the proposal would be short-term and were: effectively mitigated (albeit over time) by the proposed restoration andreplanting such that those effects could be considered to be less than minor(noting the project implements part of the approved IMP approved under s 58of the [Collective Redress Act]).[265] It is not clear to us why the claim that the project would implement the IMPwas relevant to the factual question of the adverse effects of the proposal, unless thatwas a shorthand reference to perceived benefits of the proposed planting. If the latter,it would not obviously be related to the short-term effects of the tree removal, forhowever long those effects might last.[266] Mr Kaye's decision gave no further detail about the reasoning behind this partof his decision, but it may safely be inferred that it was influenced by the reportprovided by Mr Dales and the other reports provided by the experts in support of theapplication and those retained to peer review those reports. So far as Mr Dales isconcerned, he made it plain in his affidavit that, based on the specialist advice he hadreceived, he was satisfied that the tree removal works proposed could be undertakenin a manner that was consistent with best arboricultural management. In respect oflandscape and visual effects however, it appears that he relied on the report providedby Ms Peake. His affidavit did not deal specifically with the question of short-termeffects of the tree removal.164 High Court judgment, above n 5, at [306].[267] The focus of Ms Peake's report was on the result that would be achieved byimplementation of the replanting. She briefly reported about temporary effects notingthat "the method of tree removal is also likely to create temporary short term effects",and after referring to the proposed methodologies prepared by the firm Treescape, sheexpressed the view that that there would be "only low adverse visual effects for alimited time frame".165[268] We do not consider that the evidence before Mr Kaye enabled him to form anyproper conclusions as to the nature and duration of the adverse effects which wouldbe the consequence of the intended tree removal, pending the implementation andestablishment of the replacement planting. There was of course an ability to controlboth aspects by the imposition of conditions on the grant of consent, but the applicationitself did not give the detail about what was proposed in these key respects.Significantly, the resource consent, when granted, did not require any particular timescale to be met, simply stating as one of the conditions that timeframes for key stagesof the works authorised by the consent and finalised tree protection methodologieswere required to be submitted prior to commencement of each stage of the treeremovals. The fact that Mr Kaye evidently felt able to form the view that anyshort-term effects would be minor and effectively mitigated over time should notprotect that conclusion from review if it was based on inadequate information.[269] More than that, while the temporary effects of the tree removal were identifiedas adverse, it is difficult to see how they were taken into account in any meaningfulway. While Mr Kaye's conclusion that the adverse effects would be effectivelymitigated over time could be a legitimate basis for granting consent to the applicationin accordance with the approach discussed in Bayley, we are not convinced thatapproach can be justified at the notification stage. It would effectively mean that theadverse effects of cutting down such a substantial number of trees on the maunga couldbe characterised as minor on the basis that those effects will not continue in the longerterm. That is difficult to reconcile with the fact that s 3(b) of the RMA specificallyrefers to "any temporary effect".165 The Treescape report, which was produced in evidence in the High Court, dealt mainly with theprocess of tree removal and how that would be carried out, rather than the visual effects of doingso or how long the replacement planting might take to offset any adverse effects.[270] In this context, we see merit in the approach taken in Trilane Industries Ltdv Queenstown Lakes District Council, the authority on which Mr Little relies.166In that case resource consent was sought to remove an existing residential buildingand replace it with a more substantial building and an accessory building on landfronting Lake Wānaka. Although it would be much larger, the new building wasdesigned to be more sympathetic it to its setting, and approximately 68 per cent of theproposed built form would be below ground level and thus integrated with the land.Extensive earthworks were required. Resource consent was granted on a non-notifiedbasis following a peer review of the proposal by a registered landscape architectengaged by the Council, Ms Helen Mellsop. She concluded that the completeddevelopment would have more substantial visual effects than those of the building itwould replace. Although the earthworks would adversely affect the natural characterand integrity of the landscape to a moderate extent, she considered the effects wouldbe "adequately mitigated by the retention of the schist outcrops and by remediation offinished cut and fill slopes through re-grassing and revegetation with grey shrublandspecies". Given the mitigation proposed, she considered that five to seven years afterconstruction these effects would be "low".[271] Trilane Industries Ltd made an application for review of the decision to dealwith the application on a non-notified basis and to grant resource consent.Dunningham J granted the application, declaring both decisions invalid and settingthem aside.167 Her reasoning included the following:[58] Although the Council repeatedly points to Ms Mellsop's conclusionthat effects would be able to be mitigated and would then be low, that is thesituation that would be reached over time. A consent authority cannot ignoretemporary effects in undertaking its notification assessment. It also cannotaverage out effects over time to say that a temporary moderate adverse effectwhich will, in due course, reduce to a low or extremely low effect is thereforea minor or less than minor effect. While the Council says that the assessmentmust necessarily consider the broad range of effects and how they mightchange over time, that does not justify ignoring a temporary adverse effect, onthe grounds it will be ameliorated in a relatively short timeframe having regardto the life span of the proposed activity. That may, of course, be appropriatein deciding whether to grant the resource consent, but it is not appropriatewhen making a notification decision, which is intended to allow the public aright of audience if any adverse effects, whether temporary or permanent, willbe more than minor.166 Trilane Industries Ltd v Queenstown Lakes District Council, above n 148.167 At [74].[60] Here, the Council appears to have taken a global view of the effectson landscape and visual amenity, including over time, to reach the view thateffects on landscape and amenity are minor. That is not the correct approach.It would be the equivalent of saying that temporary construction noise effectscould be ignored, simply because, once built, the noise effects of the activitywould be negligible.[272] We do not understand Mr McNamara to argue that this reasoning is incorrect.Rather, he submits that Trilane Industries is distinguishable on the facts.Mr McNamara's proposition is that Mr Kaye had not ignored any adverse landscapeand visual effects of the application because they were "short term"; he had simplytaken into account the duration of adverse landscape and visual effects and themitigation proposed as part of the application in assessing the overall level of adverselandscape and visual effects.[273] For the reasons we have given, we are not able to accept that approach.Heritage and historical significance[274] On this issue, Mr Little submits that Mr Kaye had inadequate information asto the heritage value of the trees to be felled and indeed had no information on thatissue other than the fact that none of the trees were listed under the Auckland UnitaryPlan.[275] The Judge, as we have seen, dealt with the issue of the possible heritage valueof the trees to be removed in a brief passage, noting that there was no information onthat subject in the Unitary Plan's schedule of historic heritage or the notable treesschedule, to which the Council would normally look when considering such anissue.168 She added that such information had not been drawn to the Council'sattention. In the circumstances, the Judge considered that the appellants had notpointed to any serious failure on the part of the Council to be sufficiently informed asto relevant heritage issues.169168 High Court judgment, above n 5, at [266].169 At [266].[276] We assume the Judge's reference to relevant information not being drawn tothe Council's attention must relate to the fact that those advising the Tūpuna MaungaAuthority and the Council itself had not drawn such matters to the attention ofMr Kaye. It can hardly have been directed at the appellants or other members of thepublic because there was no occasion for them to do so given that the application wasdealt with on a non-notified basis. In fact, one of the justifications for publicnotification is the relevant information that might be elicited as a consequence of thatprocess. As Elias J wrote in Murray v Whakatane District Council, referring to s 94of the RMA as it then stood:170The requirements of notice and the wide rights of public participationconferred as a result are based upon a statutory judgment that decisions aboutresource management are best made if informed by a participative process inwhich matters of legitimate concern under the Act can be ventilated.[277] The approach taken in this case by the proponents of the application andMr Kaye reflected an assumption, endorsed by the Judge, that if there was any valuein the trees to be removed it would have been reflected in the provisions of theAuckland Unitary Plan. But the evidence on which the appellants rely and which wehave summarised earlier in this judgment shows that assumption was not able to bemade. We do not need to repeat the summary here. For present purposes it is sufficientto mention the summary given by Ms Inomata. These are matters which shouldlegitimately have been taken into account in relation to the notification issue but werenot before the decision maker. As a result, in respect of the heritage value of the treesto be removed the material relied on by the Council when making the decision onnotification was inadequate in terms of the standard articulated in Discount Brands.[278] We accept that the matters raised in relation to some of the trees to be removedmay not seem significant judged from the overall perspective of the Tūpuna MaungaAuthority's intentions for Ōwairaka and the other maunga now subject to its control.But that does not mean the removal cannot have adverse effects on the environmentwhich could be considered more than minor, and which might, for example, be able tobe mitigated by suitable conditions concerning the timing of the removal.170 Murray v Whakatane District Council [1999] 3 NZLR 276 (HC) at 309–310.Such possibilities could not be explored in the absence of the issues being drawn tothe attention of the decision maker; the inevitable consequence of non-notification.[279] For these reasons we have concluded that the application should have beenpublicly notified under s 95A of the RMA. In the circumstances the resource consentgranted by the Council must be set aside.[280] That conclusion makes it unnecessary to decide the question of whether, shortof public notification, limited notification would have been appropriate. It is alsounnecessary for us to express any view on the issue of whether there were specialcircumstances justifying notification pursuant to s 95B(10).Costs[281] In the High Court, the Judge awarded costs to the Tūpuna Maunga Authorityand the Council on a 2B basis, subject to a discount of 15 per cent to reflect the publicinterest nature of the claim.171 The appellants challenge this on appeal.[282] Given the outcome in this Court, the costs order made by the High Court mustbe set aside. Any issue as to costs in that Court should be determined by that Court inlight of this judgment.Result[283] The appeal is allowed.[284] The decision of the first respondent to fell and remove the exotic trees onŌwairaka is set aside.[285] The decision of the second respondent to grant resource consent for the fellingand removal of the exotic trees is set aside.[286] The first and second respondents must pay the appellants costs for a complexappeal on a band A basis, plus usual disbursements. We certify for second counsel.171 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2021] NZHC 944 at [27]–[28].[287] The High Court costs order is set aside. Any issue as to costs in the High Courtis to be determined by that Court in light of this judgment.Solicitors:Duncan King Law, Auckland for AppellantsBuddle Findlay, Wellington for First RespondentSimpson Grierson, Auckland for Second Respondent