REWETI WHANAU TRUST V AUCKLAND REGIONAL COUNCIL HC AK CIV-2005-404-356

REWETI WHANAU TRUST V AUCKLAND REGIONAL COUNCIL HC AK CIV-2005-404-356 9 December 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-404-356BETWEEN FREDA PENE REWETI WHANAU TRUST Appellant AND AUCKLAND REGIONAL COUNCIL Respondent Hearing: 13 July 2005 Appearances: K A Palmer for Appellant S Fraser & R Enright for Respondent J Brabant & R Brabant for Auckland Yacht & Boating Association and the Port Fitzroy Protection Society A Hopkinson for Maritime Safety Authority Judgment: 9 December 2005 at 3:55 pmRESERVED JUDGMENT OF COURTNEY JSolicitors: John Burns, Private Bag 92-012, Auckland Fax: (09) 366-2147 – S Fraser / R Enright Bell Gully, P O Box 4199, Auckland Fax: (09) 916-8801 Izard Weston, P O Box 5348, Wellington Fax: (04) 473-4457 – A HopkinsonCounsel: K A Palmer, P O Box 92-019, Auckland Fax: (09) 373-7440 R & J Brabant, P O Box 106-215, Auckland Fax: (09) 353-7801Table of Contents Para No. Introduction [1]Approach to Appeal [3]Relevant Statutory Provisions / Planning Instruments [7]First, Second and Third Grounds – Wrong legal test for discretionary activity / Inappropriate weight given to PARPC [9]Fourth Ground – Too much weight given to New Zealand Coastal Policy Statement [31]Fifth Ground – Hauraki Gulf Marine Park [35]Sixth Ground – Amendment to application to include mooring planError in dealing with application [39]Possible bias [46]Failure to consider trade competition [50]Seventh Ground – Use of Stony BayMr Anderson's evidence [54]Marine Safety Authority guidelines [59]Construction of proposed moorings [60]Eighth Ground – Definition of environment [61]Ninth Ground – Priority wrongly given to s 6(a) and (b) over s 6(e) [70]Section 6(a) – Preservation of the natural character of the coastal environment [72]Section 6(b) – Landscape issues [76]Tenth Ground – Giving s 6(e) matters lower priority [80]Eleventh Ground – Waitangi Tribunal report [86]Twelfth Ground – Procedural unfairness [93]Thirteenth Ground – Relationship of Maori with their environment [94]Fourteenth Ground – Failure to take into account the principles of the Treaty of Waitangi [101]Fifteenth Ground – Incorrect application of case law [105]Result [113]Introduction[1] In July 2001 the appellant (the Trust) applied to the respondent (the ARC) for a coastal permit to allow a marine farm in Stony Bay within Port Fitzroy on the western coast of Great Barrier Island. The ARC refused the application. The Trust appealed unsuccessfully to the Environment Court. [2] The Trust now appeals pursuant to s 299 Resource Management Act (RMA) which permits an appeal from the Environment Court on a point of law only.Approach to Appeal[3] It is well established (Countdown Properties (Northlands) Limited v Dunedin City Council [1994] NZRMA 145 at 153) that this Court will only interfere in the decision of the Environment Court where it: a) Applied a wrong legal test; or b) Came to a conclusion either without evidence to do so or to which, on the evidence, it could not reasonably have come; or c) Took into account matters it should not have taken into account; or d) Failed to take into account matters that it should have taken into account. [4] Further, even where there has been an error of law, the error must materially affect the outcome of the Environment Court's decision before this Court would interfere. [5] In New Zealand Suncern Construction Ltd v Auckland City Council (1997) NZRMA 419 at 426, Fisher J referred to the decision in Countdown and commented further that:It follows that the Court should resist attempts by litigants disappointed before the Planning Tribunal/Environment Court to use appeals to this Court as an occasion for revisiting resource management merits under the guise of questions of law.This includes attempts to re-examine the mere weight which the Tribunal gave to various conflicting considerations before it.[6] The Trust relies on 16 specific grounds of appeal. The ARC and the other opposing parties, Auckland Yacht & Boating (Inc) (AYBI), the Port Fitzroy Protection Society (PFPS) and the Maritime Safety Authority (MSA) assert that not all of these grounds are justiciable errors of law. I deal with this question in relation to each ground of appeal as I come to it.Relevant Statutory Provisions / Planning Instruments[7] The relevant statutory provision is the Resource Management Act 1991 (RMA) as it stood prior to the Resource Management Amendment Act 2003. Of particular significance are:• Section 5: the purpose of the RMA, namely sustainable management of natural and physical resources• Section 6: matters of national importance to be recognised and provided for, especially s 6(a) - preservation of the natural character of the coastal environment, 6(b) - protection of outstanding natural features and landscapes and 6(e) - relationship of Maori with their ancestral lands• Section 7: other matters to which particular regard must be had, especially s 7(a) - kaitiakitanga• Section 8: principles of the Treaty of Waitangi to be taken into account [8] Also relevant is Section 10 Hauraki Gulf Marine Park Act 2000 (HGMPA). By virtue of s 10 of that Act ss 7 and 8 constitute a New Zealand coastal policy statement under the RMA. By virtue of s 9(4) the ARC was obliged, when considering an application for resource consent in the Hauraki Gulf to have regard to ss 7 and 8 in addition to the matters provided for in the RMA. Section 7 provides for recognition of the national significance of the Hauraki Gulf. Of relevance in this case is s 7(2) which states that the life-supporting capacity of the Gulf and its islandsincludes the capacity for the social, economic and cultural wellbeing of people and communities [9] The following planning instruments are relevant:• The New Zealand Coastal Policy Statement prepared under s 57 RMA and gazetted 5 May 1994• The Auckland Regional Policy Statement (ARPS), which has been in place since 1999 and establishes policies for the integrated management of natural and physical resources in the Auckland region.• The Auckland Regional Plan: Coastal (ARPC) which, at the relevant time, was the proposed Auckland Regional Plan: Coastal (PARPC). Proposed variations to the PARPC were publicly notified in October 2002.First, Second and Third Grounds – Wrong legal test for discretionary activity/ Inappropriate weight given to PARPC[10] The first three grounds overlap and I propose to deal with them together. They are: a) The Environment Court applied the wrong legal test for considering a discretionary activity and, as such, the activity was not solely assessed as a discretionary activity; and b) Greater weight should have been given to the PARPC as it stood prior to the proposed variations; and c) Less weight should have been given to the Aquaculture Management Area provisions of the proposed variations. [11] Under the PARPC as it stood in July 2001 aquaculture was a discretionary activity by virtue of Rule 22.5.2. Section 88A(1A) RMA provides that any application made must be considered and decided as an application for the type of activity that it was for at the time the application was first lodged. The EnvironmentCourt explicitly recognised this and stated at [18] that it would treat the application as one for a discretionary activity. [12] The thrust of the Trust's argument arose out of the application of s 88A(2) RMA which, in its pre-2003 form, provided that:Notwithstanding subsection (1), any plan or proposed plan which exists when the application is considered must be had regard to in accordance with s 104[13] Section 104 RMA (in its pre-2003 form) relevantly provided that:Subject to Part II, when considering an application for resource consent and any submissions received, the consent authority shall have regard to: (f) Any relevant regional plan or proposed regional plan, where the application was made in accordance with a district plan. (emphasis added)[14] The first issue is whether the Environment Court should have treated the proposed plan to which regard was to be had for the purposes of s 104 as being the PARPC as it stood before the variations were notified or afterwards. The proposed variations to the PARPC provided for aquaculture management areas (AMAs). Under Variation 2 (Rule 22.5.12) aquaculture activities outside the AMAs would be prohibited. Variation 5 proposed AMAs for the waters around Great Barrier Island but only in respect of existing marine farms. So the Trust's proposed marine farm would be a prohibited activity under Variation 2. [15] I understood the Trust's main complaint to be that, although the Court said it was treating the application as one for a discretionary activity, the weight it gave to the proposed variations effectively meant that it was not so treated. The Trust submitted that as categorisation of an activity must take place under the unvaried proposed plan and the activity therefore assessed as discretionary, less consideration, if any, should have been given to the proposed variation. [16] It seems clear that, as a matter of law, it was the PARPC in its varied form to which regard was to be had under s 104 RMA. Clause 16B(1) and (2) first schedule RMA provides:Merger with proposed policy statement or plan(1) Every variation initiated under clause 16A shall be merged in and become part of the proposed policy statement or plan as soon as the variation and the proposed policy statement or plan are both at the same procedural stage; but where the variation includes a provision to be substituted for a provision in the proposed policy statement or plan against which a submission or an appeal has been lodged, that submission or appeal shall be deemed to be a submission or appeal against the variation. (2) From the date of public notification of a variation, the proposed policy statement or proposed plan shall have effect as if it had been so varied.[17] These clauses disclose an apparent conflict. Under cl 16B(1) the variations would become part of the proposed plan once they had both reached the same procedural stage. In comparison, the effect of cl 16B(2) would be to treat the plan as having been varied upon notification of the variation, regardless of what procedural stage had been reached. [18] This conflict was considered by the Environment Court in Awly Investments Ltd v Christchurch City Council (EC. C103/2002, 29 August 2002, Judge Allin) which concluded that:• Clause 16B(1) and (2) could be reconciled by limiting cl 16B(1) to the procedural aspects of the passage of a proposed plan and variation through notification, submission, decision and reference date. This would allow changes or even the withdrawal of a variation without affecting the status of the proposed plan; and• The effect of cl 16B(2) is that from notification of a variation in the resource consent process, regard is to be had to the proposed district plan as if it had been altered so that it is not necessary to have regard to the proposed district plan as it was before the variation. This allows the procedural aspects provided for in cl 16B(1) to continue. [19] Although the Environment Court in the present case expressed concern about this conclusion because there was no reference to s 88A RMA, it did not actually criticise or disagree with it. The Court then referred to s 20A RMA (inserted by s 5Resource Management (Aquaculture Moratorium) Amendment Act 2002) under which:(1) A regional council may, before publicly notifying a proposed regional coastal plan, resolve that any rule in the plan relating to aquaculture activities does not have effect until the plan becomes operative[20] The ARC had not made a resolution of the type provided for in s 20A RMA. The Court attempted to reconcile the position under these provisions as follows:[21] In the present case that approach [in Awly] might seem to be mirrored by the new s 20A noted above, but a glaring inconsistency emerges regarding the status of the proposed activity, because while the ARC has expressly refrained from resolving that the rules proposed in Variation 2 should not have effect until they become operative, the scheme of legislation concerning prohibited activities, as previously discussed, cannot be ignored. The issue carries as its consequence that either the activity remain a discretionary activity, or it becomes some sort of innominate activity. We consider that the apparent impasse is capable of being resolved in either of two ways: either by having regard to s 5 of the Interpretation Act 1999, and ascertaining the meaning of the enactment not only from its text but also in the light of its purpose; or by having regard to the doctrine of implied repeal and regarding clause 16B, the earlier and more general enactment (1993) as impliedly partially repealed by the later express enactment (in 1997) of the wording in the definition of the term "prohibited activity". (emphasis in original)[21] There are difficulties with this paragraph. First, the suggestion that the activity could become some sort of innominate activity cannot be right. It is clear that the application was to be treated as one for a discretionary activity. The proposed variations could not change that. The possibility of "some sort of innominate activity" is not contemplated by the RMA. [22] Secondly, having referred to s 5 Interpretation Act 1999, the Court failed to actually consider how this might affect the interpretation of cl 16B or to suggest an interpretation. Finally, there is no indication as to how the Court considered cl 16B should be impliedly repealed by the definition of "probihited activity". That phrase was amended in 1997, but not in any way that could affect the issues in this case. [23] However, I do not consider that these various unsatisfactory statements had any material effect on the outcome because they were overtaken by the conclusion that:[22] As to other provisions of the Aquaculture Chapter in the ARCP, the findings of the Court in Awly, supported by the approach apparently taken by the ARC under s 20A RMA, might mean that we should have regard to the Chapter 22 aquaculture provisions as altered by the variations, and not have regard to the (then) proposed plan as it was before the variations, but in case that is not the proper approach, we record that we have considered not only the provisions amended and added by the variations but also the provisions of Chapter 22 as they previously stood. Happily, our conclusions overall under both regimes are the same.[24] Notwithstanding the rather tentative words "might mean", I infer that the Court did, in fact, opt for the approach in Awly i.e. that it must have regard to the Chapter 22 aquaculture provisions as if it were altered by the variations rather than having regard to the proposed plan as it had been prior to the variations and ignoring the variations. This is indicated by the fact that it then refers (in comparison) to having regard to the provisions of Chapter 22 as it stood before the variations. [25] The Trust submitted because of the introduction of s 20A RMA Parliament could not have intended that the proposed variations would have effect if a resolution under s 20A RMA had not been made, particularly when the PARPC was still open to public submissions. [26] However, if the Awly approach is applied, (which I consider it should be) the proposed plan to which the Environment Court was to have regard under s 88A must be the plan as varied by the publicly notified variations in Chapter 22. Awly was, of course, decided before s 20A RMA was enacted. However, if Parliament had intended s 20A to affect the operation of cl 16B there would have been some indication of that. I do not consider that s 20A RMA was intended to have or has any effect on cl 16B. There is no basis on which the Trust could argue that the Environment Court was not entitled to have regard to the proposed variation in Chapter 22. [27] This brings me to the next aspect of these grounds of the appeal, namely that the Environment Court gave an inappropriate amount of weight to the PARPC in its varied form. The thrust of the Trust's submission was that the Court erred in according greater weight to the PARPC in its varied form than the words "have regard to" entitled it to do. The Trust acknowledged the statement in Murphy v Rodney District Council [2004] 3 NZLR 421 at [11] that the Environment Court is the sole decision maker of the balance among the s 104 factors, including the weightto be given to successive plans. However, it asserts that because of the factors it identifies dominant weight should have been given to the plan in the form that existed at the time of the application and little weight to the variations. These factors included:• At the time of the application the activity was discretionary• The ARPC did not become operative until October 2004, over three years after the application was made in July 2001• The provisions of the ARPC are still open to public submission and the Trust is itself a party to those submissions• Legislative direction from the Maori Commercial Aquaculture Claims Settlement Act 2004, the purpose of which is to allocate to Maori 20% of new space in aquaculture areas• The jurisprudence behind the Maori Commerical Aquaculture Claims Settlement Act 2004 acknowledging the nature and extent of Maori rights within the marine environment• At the time of the application AMAs had not been proposed• Location of the AMAs and prohibited activity outside them might yet change. [28] The Trust submitted that the Court was not entitled to embark on a weighting exercise between outgoing and incoming plans and variations. It relied for this submission on the decision of the Court of Appeal in Body Corporate 97010 v Auckland City Council & Anor [2000] NZRMA 529 at [79]. However, that decision actually recognises the exact opposite of the Trust's submission, noting that under s 104(1) it might, in fact, be appropriate to give decreasing weight to the outgoing plan as the process advances towards the time when a proposed plan will become operative. Clearly, not only was the Environment Court entitled to take account of proposed variations but it was also entitled to engage in a weighting exercise between that plan and the plan in its previous form.[29] The learned Judge in Murphy v Rodney District Council made it clear that the weight to be accorded to the various factors identified under s 104 was a matter for the judgment of the Environment Court. The Environment Court was entitled to take into account the variations to the PARPC. The weighting it then gave to those various factors was a matter entirely for it and one in which this Court will not interfere. [30] The only issue under these grounds can be whether the Court treated the application as one for a discretionary activity and took into account only those things it was entitled to. I am satisfied that it did. It properly directed itself on the manner on which it was to approach the application under s 88A. The weight it gave to the various factors cannot give rise to an error of law.Fourth Ground – Too much weight given to New Zealand Coastal Policy Statement[31] The fourth ground is that the Environment Court gave too much weight to the New Zealand Coastal Policy Statement 1994, given that it is over ten years old and now generally accepted as being outdated. In particular, it did not recognise a number of the factors that arise in this case, including the growth of marine farming, the need to establish AMAs, the Aquaculture Reform Act 2004 and the Maori Commerical Aquaculture Claims Settlement Act 2004. The Trust says that the Coastal Policy Statement should not have been relied on at all because of its emphasis on conservation as opposed to aquaculture. [32] Reference to the Coastal Policy Statement in the decision is very limited; it was referred to as being relevant and in the context of s 6(a) and (b) RMA, as being a matter to which regard was to be had under s 104(1)(c) RMA. However, it was not referred to in the Court's statement of its conclusions. [33] Mr Palmer acknowledged that because the Environment Court did not refer to the Coastal Policy Statement in stating its conclusion it was difficult to say exactly how much weight had been given to it. However, he says that because the Court, in the body of its judgment, focused on the natural landscape aspect of the Coastal Policy Statement and failed to recognise that it had been produced at a time beforeaquaculture was well developed, this must have formed at least part of the background of the case. [34] The Coastal Policy Statement was clearly something the Environment Court was entitled to take into account. The weight accorded to it (and it seems to have been slight) was a matter entirely for the Court and cannot amount to an error of law.Fifth Ground – Hauraki Gulf Marine Park[35] The fifth ground is that the Environment Court failed to recognise the provisions of s 7(2)(a)(ii) HGMPA, which recognises that the life supporting capacity of the Hauraki Gulf includes the social and economic wellbeing of people. Further, since the term "economic" is defined in s 4 as including "marine commerce", the Act clearly intended to recognise the commercial needs of the Hauraki Gulf as well as the "natural character reserve" objectives. [36] Failure to take the social and economic wellbeing of people into account could amount to an error of law. However, I do not think that the Court fell into error in this way. It referred to s 7(2)(a)(ii) as a relevant statutory provision. In addition, it referred to s 5 RMA, which also speaks of the social and economic wellbeing of people and communities. Mr Palmer accepted that there was nothing under s 7(2) HGMPA Act that did not also arise under s 5(2) RMA. [37] At [64] to [66] the Environment Court considered the competing evidence about the economic benefits from mussel farming, concluding that:[66]While we agree with [Mr Brabant on behalf of the parties opposing the appeal] that the employment benefits likely to be derived from establishment of this particular marine farm would be miniscule, we do not overlook that there might be some (unquantified) financial benefit from the sale of mussels or the granting of a lease to others.[38] It is clear that the Environment Court was alert to the relevance of the social and economic wellbeing of those represented by the Trust and did take it into account. The fact that it did not specify that it was doing so under s 7(2)(a)(ii) could have made no difference to the final result. I therefore consider that there was no error of law of the type asserted. Further, even if there had been such an error, it would not have materially affected the outcome.Sixth Ground – Amendment to application to include mooring planError in dealing with application[39] Prior to the hearing before the Environment Court the ARC, the MSA and AYBA provided evidence in support of their objections showing that the Trust's proposed marine farm would result in the loss of safe moorings in Stony Bay. In response the Trust sought to amend its proposal prior to the hearing to include the placement of six swing moorings within the bay, though not connected to the marine farm. The Environment Court elected to hear the evidence relating to all issues before making a decision on the application. As part of its substantive decision it refused to allow the amendment because it did not satisfy the jurisdictional requirements. [40] Both parties were agreed that the test to be applied was whether the change was fairly and reasonably within the scope of the original application and whether, plausibly, it could have resulted in more objections. Counsel referred to the earlier decision of the Environment Court in Zakara v Rodney District Council (EC Auckland, A118/2004, 2 September 2004, Judge Whiting), citing Darroch v The Whangarei District Council (Planning Tribunal, A018/93, 1 March 1993):In appropriate cases, where consistent with fairness, amendments to design and other details of an application may be made up to the close of a hearing. However they are only permissible if they are within the scope defined by the original application. If they go beyond the scope by increasing the scale or intensity of the activity or proposed building or by significantly altering the character or effect of the proposal they cannot be permitted as an amendment of the original application. A fresh application would be required.and South British Auckland Property Co Ltd v Auckland City Council 12 NZTPA 94:The question arises as to whether persons other than the parties to the proceedings might have intervened if the changed or amended plans had been the basis of the public notification The answer to that question requires an assessment of whether buildings constructed in accordance with the new plan are likely to affect the public generally or any individuals in a manner different from or to any degree greater than buildings constructed in accordance with the original plans[41] The Court held, first, that the mooring plan was not within the scope of the original application because the definitions of the two types of infrastructure in the ARPC indicate that they were quite different in concept and the proposed moorings were not to be fastened in any way to the infrastructure of the marine farm. The Trust says that this was an error of law because the mooring plan was within the proposed site and would have resulted in a slight scaling down of the proposed farm with slightly fewer lines and less growing space. Therefore, it could not be said to increase the scale or intensity of the activity or significantly alter the character or effect of the proposed activity to such an extent that the public generally or any individual would be affected. [42] The contents page of the ARPC shows that moorings are specifically provided for in Chapter 24. In comparison, Chapter 22, which deals with aquaculture, does not refer to moorings at all. So it seems likely that a separate application would have been required even if part of an overall proposal. I therefore find that there was no error of law in relation to this ground. [43] Secondly, the Court held that opposing parties had raised significant doubts about the efficacy and safety of the use of the swing moorings and it was plausible that others might also have sought to comment on the application had the moorings been applied for and publicly notified. The Trust says that because the basis for the opposition to the application was the farm itself rather than to moorings offered to enhance safety it could not be said that the change would have resulted in more objections. [44] This submission does not actually deal with the point being made by the Environment Court, namely that a proposal for new swing moorings in the bay might, in itself, have attracted more objections beyond those who responded to the original application. I do not consider that the Court erred in its approach to the application. [45] In any event, it is clear that the Court's ultimate decision would not have been altered even if the amendment had been allowed; the Environment Court went on to consider, hypothetically, what impact the six swing moorings might have had on the application. It referred to evidence that boaties might be reluctant to use themand of the possible safety issues in high wind conditions which was when the bay would be most used for anchoring. As a result of these problems, the Court considered that the proposed swing moorings would not adequately replace the anchoring spaces lost to the marine farm.Possible bias[46] The Environment Court had postponed dealing with the application until it had heard the substantive evidence. In its decision at [131] it recorded the position as follows:On being asked to rule on a jurisdictional point, we conferred amongst ourselves and announced that we preferred to hear the substantive evidence in its totality before making a final ruling, but had misgivings about it.[47] The Trust submitted that this statement showed that the Court was opposed to the application even before it had heard any evidence. It referred to Turner v Allison[1971] NZLR 833, submitting that the Court had erred in not allowing the application, presumably on the ground of bias. [48] Bias was not indicated as a ground of appeal in the Notice of Appeal and the limited scope of the submissions were not adequate to deal with such a serious assertion. I therefore decline to deal with this submission. In any event, I would not consider the Court's comments that it had misgivings as being indicative of bias. There is nothing in the decision and counsel did not refer to any evidence or fact which would satisfy the test propounded in Turner v Allison.[49] This is an appropriate point to mention a submission Mr Palmer made at the outset of the hearing. He said that the experience of the Environment Court was of yachting and that the judgment exhibited a tendency against aquaculture. He considered that the decision disclosed a theme that protection of the water for yachting purposes was more important than aquaculture. I specifically asked Mr Palmer whether he was advancing this argument as one of bias on the part of the Environment Court but he said that he was not. There was no other legal framework by which to deal with such a submission and I have therefore not attributed any weight to it in my consideration of the issues.Failure to consider trade competition[50] The Trust made a final submission that issues of safety and moorings were allowed to be coloured by self-interested demands of boat operators of recreational tours and this could introduce an element of trade competition, which is not discussed by the Environment Court. The Trust relied on s 104(8) RMA which provides that:When considering an application for resource consent, a consent authority must not have regard to trade competition[51] This ground was not signalled in the Notice of Appeal. In submissions the Trust asserted that the Court had failed to take account of the interest of AYBA witness, Mr Bouzaid, who was referred to at [123] of the decision as the proprietor of a guesthouse in Port Fitzroy from where he undertakes eco-tourism ventures. The Trust submitted that the Environment Court had erred in law by not assessing and then disregarding this trade competition element. [52] The issue of trade competition does not seem to have been raised by any of the parties before the Environment Court. I was not referred to any evidence of trade competition issues that the Court could or should have taken account of and there is no indication that the Court turned its mind to s 104(8) RMA. However, the Trust's real complaint does not seem to be the failure to observe s 104(8) RMA so much as accepting Mr Bouzaid's evidence without recognising that he may have had a vested interest in the outcome. I note, though, that this possibility did not seem to have been put to the witness nor any submission made at the hearing. [53] Even if Mr Bouzaid did have an interest in the outcome, I am satisfied that the outcome would have been no different. Mr Bouzaid was one of five witnesses called by the opposing parties. Their evidence was consistent and was preferred to that of the Trust's witness. On the information before me I do not consider that there was any error of law, much less one that would have affected the outcome.Seventh Ground – Use of Stony BayMr Anderson's evidence[54] The Trust submits that the Environment Court came to a decision regarding the nature and use of Stony Bay and the proposed moorings which it could not reasonably have reached on the evidence and by inappropriately disregarding evidence. [55] This ground focuses on the evidence of Mr Anderson, the Trust's witness. As already noted, the Environment Court preferred the evidence of the various witnesses called by the respondent and objectors to that of Mr Anderson. Mr Palmer indicated that the Trust accepted the Environment Court's findings on the various pieces of evidence and witnesses but says that on the face of the decision the Court erred in not giving greater weight to Mr Anderson's evidence. [56] The Court spent some time reviewing the evidence of the respective witnesses and referred to their experience and qualifications. It then concluded at [128] that:We found that not only was Mr Anderson's evidence in chief, brief and assertive, but his answers in cross-examination tended to be dismissive and to downplay the opinions of others. It is true that he has been a resident of Port Fitzroy, and he has a view across to Stony Bay from where he moors his yacht in Kaiarara Bay. Comparing his evidence to that of the other five witnesses, we have come to the view that their evidence is to be preferred because of their extensive personal experience of using the anchorages, their knowledge and abilities as mariners, and the fact that their testimony was ultimately unshaken. By contrast, Mr Anderson, because he lives in Port Fitzroy, has spent less time on his boat in the various recreational anchorages. Furthermore it was established to our satisfaction that the several cruising guides to the area either denote Stony Bay as a good anchorage by symbols on charts, or succinctly and positively describe its qualities in the manner fully confirmed for us by the five witnesses for the opposing parties.[57] The Trust challenges the conclusion that Mr Anderson had spent less time on his boat in the various recreational anchorages than the other witnesses. They say that, having accepted that Mr Anderson was a long-standing resident of Port Fitzroy with unimpeded views across Stony Bay and also moors his boat in Kaiarara Bay, the Environment Court could not reasonably have come to this conclusion. [58] It seems clear to me, however, that the Environment Court did not reject Mr Anderson's knowledge and experience of the area but merely compared it in certain respects with the five witnesses called for the opposing parties. Although the factsreferred to by the Court do indicate that Mr Anderson had substantial knowledge and experience of the area, the other witnesses referred to also demonstrated a wide knowledge and experience of the area. The Court was entitled to prefer the evidence of some witnesses over others. There is nothing on the face of the decision to suggest that the Court could not reasonably have come to the conclusion that it did on the evidence it referred to.Maritime Safety Authority guidelines[59] At [44] of its decision the Environment Court referred to the Maritime Safety Authority guidelines. The Trust made the point that these were only guidelines and should be given appropriate weight as such. But it did not go on to identify any aspect of the decision which it says shows that undue weight was given to the guidelines. Nor could it have done; the guidelines were merely mentioned. There is no indication as to what weight (if any) they were given. No error of law arises from this aspect.Construction of proposed moorings[60] The Trust submitted that at [133] the Environment Court expressed the view that the proposed safety moorings would not be properly constructed. However, [133] does not make any such finding or assumption. It refers to the likelihood of competent boaties being suspicious of an unknown mooring and therefore being hesitant to use it. This does not reflect at all on the actual construction of the mooring but the perception of it by potential users. The Court also identified possible safety issues arising from the proximity of the moorings to one another and to the anchor ropes of the marine farm. Again, this did not indicate any assumption as to the quality of the moorings themselves. No error of law arises in relation to this part of the decision.Eighth Ground – Definition of environment[61] As already discussed, s 6(a) RMA required the Court to recognise and provide for the natural character of the coastal environment area and the protection of it from inappropriate development. The Trust contends that the Environment Court applied the wrong legal test for the definition of "environment" because it tookinto account some likely future changes to the area while not taking into account others. [62] The Court examined the competing evidence between the witnesses. The ARC's witness (Mr Goodwin) had expressed a view that the Port Fitzroy area would score at the high end of a natural character spectrum, even allowing for existing development such as the marine farms and airstrip. The Trust's witness (Ms Buckland) focused on areas of exotic vegetation, a house and jetty, airstrip, campsites and headquarters for DOC, describing the area as having a "quite modified" appearance. [63] After a lengthy review of the evidence of these witnesses the Environment Court preferred Mr Goodwin's evidence. It was entitled to do so. It then concluded at [85] that "those parts of Kaikoura Island in the vicinity of Stony Bay, the waters of Stony Bay and most of the wider Port Fitzroy area, exhibit high natural character and qualify for the protection offered by subsections (a) and (b) of s 6 RMA". The Trust submits that the Environment Court erroneously took into consideration the likely future changes that would result from the gazetting of Kaikoura Island as a scenic reserve:[87] We consider that it is relevant for us to take into account, likely future improvements to the level of natural character on the adjacent part of Kaikoura Island, deriving from its acquisition by the Crown and the virtual certainty that it will be gazetted as a scenic reserve.[64] In concluding that it was entitled to take account of likely future changes to the Environment, the Court relied on the decision of the High Court in Wilson v Selwyn District Council & Canterbury Regional Council [2005] NZRMA 76 in which future changes to neighbouring land were taken into account considering s 104 RMA factors. [65] The Trust resisted the relevance of Wilson on the basis that it was distinguishable on the facts. Wilson involved an application to enlarge a chicken farm, which was opposed by a neighbour on the ground that such development would adversely affect the potential to subdivide the neighbouring property. The Trust submitted that because its application relates to a passive submerged activity, with minimal visual impact and no effect on land-based activities, Wilson should nothave been applied. The Trust did not submit that Fogarty J's analysis in Wilson was incorrect. It merely pointed to the factual differences. The Environment Court was entitled to refer to and rely on Wilson in concluding that, as a matter of law, it could take account of the probable acquisition of Kaikoura Island by the Crown. This submission therefore fails. [66] The Trust went on to develop the second limb of its submission; accepting the threshold testadopted by Fogarty J in Wilson of "not fanciful" the Trust claimed that various other probable changes should also have been taken into account. Mr Palmer said that the Environment Court gave too much weight to future environmental considerations and not enough weight to the existing environment and in particular that it took an idealistic view of what might happen in the future. Although the Trust says that other factors should have been taken into account, it did not make submissions on the likelihood of those events occurring so as to satisfy the threshold in Wilson. I deal with each below:• The impending Treaty of Waitangi claim. The ARC says (and I accept) that the impending Treaty of Waitangi claim is a matter for negotiation between the Crown and the claimant, not an aspect arising under s 104 RMA. In any event, whatever the outcome of the Treaty claim, it is not a matter that one could say with any certainty would result in a particular change to the environment.• Existing objections from Ngati Wai on the classification of Kaikoura Island: these objections have been overtaken by the actual gazetting. So it could not be said that the view of the Court as to the likelihood of that happening was unjustified or was an error that could have materially altered the outcome of the hearing.• Recognition of the nature and extent of Maori rights which have been directly reflected in the Maori Commercial Aquaculture Claims Settlement Act 2004 in the form of 20% allocation of sea space to Maori: again this enactment does not, in itself, provide any basis on which to predict probable future change to the environment to the threshold propounded in Wilson.• The airstrip on top of Kaikoura Island: this was referred to at [76].• Six identical marine farms within close proximity: these were referred to at [76].• Existing resource consent for a mooring within Stony Bay. This is not referred to in the decision and I was not referred to any evidence of it, apart from a reference in an unrelated Environment Court decision, so it is not clear whether it was actually raised in the Environment Court. But I do not consider that failure to refer to it could amount to an error of law that would have materially affected the outcome.• Development in the island area and the fact that under s 19 Reserves Act 1977 a scenic reserve allows for public access and with consent, camping grounds, amenities, caretakers building and leases where compatible. Again, there is no evidence that this was a matter to which the Court's attention was drawn. But I would not consider it an error to fail to refer to it. In any event, the mere fact that there could be development, with consent, is insufficient without some indication that such an event might occur, to satisfy the Wilson threshold. The likelihood of any such development must be considered in the context of Kaikoura Island being a scenic reserve, which was a probability at the time of the hearing and a reality now.• The nature of the environment not being pristine, including wilding pines: this was referred to at [76] and [79]. [67] In relation to these various factors, they were either taken into account or were not of such significance in terms of Wilson that a failure to take them into account could amount to an error of law that would have materially affected the outcome.Ninth Ground – Priority wrongly given to s 6(a) and (b) over s 6(e)[68] Sections 6 (a), (b) and (e) RMA provide that:In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: (a) The preservation of the natural character of the coastal environment (including the coastal marine area); wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development; (b) The protection of outstanding natural features and landscapes from inappropriate subdivision use and development: (e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga.[69] The Trust asserts that the Environment Court wrongly gave priority to s 6(a) and (b) over s 6(e).Section 6(a) – Preservation of the natural character of the coastal environment[70] I have already referred to the Environment Court's finding that those parts of Kaikoura Island in the vicinity of Stony Bay, the waters of Stony Bay and most of the wider Port Fitzroy area exhibited high natural character and qualified for protection under s 6(a) and (b) RMA. I did not understand the Trust to challenge this finding. However, it submitted that much of the evidence of the natural character of the coastal environment rested upon an assumption that the coastal sea area was a de facto public reserve and should not be used for productive farming purposes. It complained that there appeared to have been an assumption by the Environment Court that commercial tour boat operators and recreational users have an entrenched entitlement to unrestricted use of the seacape and that this assumption may have given rise to an unjustified and erroneous presumption against commercial use. [71] I took the submission to be that the Environment Court had treated the preservation of the natural character of the area as a matter to be achieved in preference to those matters provided for in s 6(e). The Trust relied heavily on Greig J's decision in New Zealand Rail Limited v Marlborough District Council[1994] NZRMA 70 for the proposition that there is no priority between the various subsections in s 6. The interface between various factors identified in s 6, whichrequires all of them to be recognised and provided for as matters of national importance, was considered at some length in that case:The recognition and provision for the preservation of the natural character of the coastal environment in the words of s 6(a) is to achieve the purpose of the Act, that is to say to promote the sustainable management of natural and physical resources. That means that the preservation of natural character is subordinate to the primary purpose of the promotion of sustainable management. It is not an end or an objective on its own but is accessory to the primary purpose. "The protection of them", in its terms means and refers to the coastal environment, wetlands, lakes, rivers and their margins, the items listed, but the protection is as part of the preservation of the natural character. It is not the protection of the things in themselves but in so far as they have a natural character. The national importance of preserving or protecting these things is to achieve and promote sustainable managementIt is, however, only one of the matters of national importance, and indeed other matters have to be taken into account. It is certainly not the case that preservation of the natural character is to be achieved at all costs. The achievement which is to be promoted is sustainable management and questions of national importance, national value and benefit, and national needs, must all play their part in the overall consideration and decision. This Part of the Act expresses in ordinary words of wide meaning the overall purpose and principles of the Act. It is not, I think, a part of the Act which should be subjected to strict rules and principles of statutory construction which aim to extract a precise and unique meaning from the words used. There is a deliberate openness about the language, its meaning and its connotations which I think is intended to allow the application of policy in a general and broad way. Indeed, it is for that purpose that the Planning Tribunal, with special expertise and skill, is established and appointed to oversee and promote the objectives and the policies and the principles under the Act. In the end I believe that the tenor of the appellant's submissions was to restrict the application of this principle of national importance, to put the absolute preservation of the natural character of a particular environment at the forefront and, if necessary, at the expense of everything except where it was necessary or essential to depart from it. That is not the wording of the Act or its intention. I do not think that the Tribunal erred as a matter of law. In the end it correctly applied the principles of the Act and had regard to the various matters to which it is directed. It is the Tribunal which is entrusted to construe and to apply those principles, giving the weight that it thinks appropriate.[72] Although the Trust relied on this decision to support its submission that the Environment Court had placed too much weight on the preservation of the natural character of the coastal environment under s 6(a) RMA, the approach it describes is to be applied generally to the various factors under s 6, not just s 6(a). The effect of Greig J's decision is to show that, while all s 6 factors must be recognised andprovided for, this exercise is not an end in itself but is an accessory to the primary purpose of the Act, namely sustainable management of this country's natural and physical resources. It is for the specialist tribunal to accord the weight to the various factors that it considers appropriate. [73] It is true that the Environment Court considered the natural character of the coastal environment at some length. But it considered the s 6(e) issues at length as well. The fact that it then embarked on a weighting exercise between the s 6 factors is evident from [144] – [146] and [148]. In essence, it found that, although some important aspects of s 6 were met by the proposal they were outweighed by the aspects of s 6 which were not met. This is quite plainly a conclusion to which the Environment Court came after considering the relevant factors and deciding on the weight to be given to each factor. There has been no error of law which would entitle this Court to interfere.Section 6(b) – Landscape issues[74] The Trust's submissions in relation to s 6(b) were essentially that:• The proposed site is adjacent to an area of land identified by the ARC as a "Regionally Significant Landscape", the definition of which refers to the focus being on integration and marriage of new use and development rather than preservation. This definition, it says, provides a window which should allow for development in the coastal environment.• That five of the existing marine farms in this area are adjacent to an area classified by the ARC as an "Outstanding Landscape", the definition of which includes reference to the focus being on the protection of the status quo. [75] The Trust submits that given the existence of the other marine farms in the area (particularly those adjacent to a landscape with a higher classification than the proposed site) and the fact that the activity does not require any further land-based development (thereby limiting the visual effect of the marine farm), the EnvironmentCourt could not reasonably have come to the conclusion that the proposed marine farm would be inappropriate for the purposes of s 6(b). [76] The Trust's submission really comes down to a complaint that its proposed marine farm should not be regarded as an inappropriate development because other marine farms already exist in the area. It is clear from the decision that the Environment Court was considerably influenced by the evidence of Mr Goodwin (called by the opposing parties) and the concessions made by the Trust's witness, Ms Buckland, about the visual effect of the proposed mussel farm. These included an acceptance that people travelling along the recreational route to Port Fitzroy and the DOC headquarters could experience a "significant adverse visual effect from the mussel farm" and the fact that people on boats proceeding from Man-of-War passage, rounding Kaikoura Island and into Stony Bay would be viewing the farm substantially against the higher rated backdrop in the northern portion of the bay. [77] The conclusion that the Environment Court reached about the effect on the landscape by the proposed marine farm was quite plainly one that it was entitled to reach on the evidence before it. The Environment Court considered the s 6(b) factor at some length. It subsequently considered the s 6(e) factors at some length and, after weighing them all up, reached the conclusion to which I have already referred. It properly directed itself and followed the appropriate process in reaching its conclusion. There is no error of law.Tenth Ground – Giving s 6(e) matters lower priority[78] The Trust says that the matters of relationship with hapu under s 6(e) RMA were given lower priority than they should have been because the Environment Court wrongly came to the conclusion that the benefits that might flow from establishing the marine farm could still accrue as a result of the whanau's extensive interest in the area. [79] At [145] the Court held that:aspects of part II that the proposal would satisfy, are not location- dependent, in the sense that because the rohe of the whanau is so extensive, the benefits of establishing the marine farm could accrue in places within it,to the same extent as they would accrue in the precise location proposed in the application.[80] The Trust says that this finding was reached in error. First, it says that the Environment Court failed to take into account the fact that the PARPC does not recognise any new sites as suitable for AMAs. Secondly, it says that the Environment Court proceeded in the erroneous belief that the Trust had interests in the existing marine farms in the area. It is the second ground which is central to the submission. [81] At [65] of the decision the Court said that:What the evidence did establish was that the whanau already has interests in at least two of the six existing mussel farms in the locality, as have some other related Maori entities on Aotea.[82] The Trust did not seem to be challenging this finding and I take its submission to be that the Trust itself, which is the appellant in this proceeding, has no interest in the existing marine farms, although the whanau which is the beneficiary of the Trust does have such interests. I find the submission somewhat disengenuous. Later in its submissions the applicant was referred to as "Ngati Rehua whanau". The submissions made in respect of s 6(e) matters were directed towards this whanau generally, not the strict legal entity that is the Trust. [83] It is clear that the case before the Environment Court was put on the wider basis; at [46] the Court refers to the appellant as a "Maori whanau", a description that is not challenged. At [60] and [61] the Court referred to the evidence of one of the trustees who talked about the rohe of her whanau and the old traditions of her whanau. Against this evidence I consider that it was reasonable for the Court to have taken into account that this whanau did have interests in some of the other mussel farms, even if the Trust itself does not. [84] The Court did refer to the fact that there were submissions by related Maori interests seeking to expand AMAs around Great Barrier Island. It is clear from what I have just discussed that this whanau does have access to other possible sites. I do not see why the Court should have been precluded from taking that factor into account in weighing up the various s 6 factors. I do not consider there is any error of law in the Court's approach to this issue.Eleventh Ground – Waitangi Tribunal report[85] The Trust claims that the Environment Court incorrectly minimised the relevance of the Waitangi report, whilst accepting recommendations from the Board of Enquiry on the New Zealand Coastal Statement, which has no more status than a Waitangi Tribunal report. [86] I do not think that the submission fairly reflects the approach of the Environment Court to the report of the (Waitangi Tribunal Ahu Moana –Aquaculture and Marine Farming: WAI Y953 (1991)), which I simply refer to as the Waitangi Tribunal report. At [55] – [58] the Court recorded submissions from the Trust's counsel to the effect that the granting of the application would demonstrate that the Court had taken into account the principles of the Treaty of Waitangi as required by s 8 RMA. The decision further records Mr Turley's submission that the Court should place "extremely great weight" on the duty of active protection identified by s 8 RMA (though conceding that the weighting given to s 8 matters must be in the context of the relative weighting to be applied to all Part II matters). The Court then said:[59] We have a concern about the use of Waitangi Tribunal Reports in the way that Mr Turley seemed to be submitting. They are not decisions of Courts and they do not have legislative quality. They are recommendations to Government. While their contents should be accorded respect, and while they may be helpful in gaining an understanding of issues, they should be used with care.[87] The Trust acknowledged in submissions that the decisions and reports of the Waitangi Tribunal were not binding on the Environment Court. Its submission was that where a report acts as a precursor for subsequent legislation such as the Maori Commercial Aquaculture Act 2004, the Environment Court's approach resulted in it incorrectly minimising its relevance. [88] However, it is unclear what weight the Trust asserts should have been placed on the Waitangi Tribunal report, given that the Maori Commercial Aquaculture Act 2004 had not come into force at the time of the hearing. I cannot see anything objectionable to the approach taken by the Court to the submissions made in respect of the Waitangi Tribunal report and there is certainly nothing that could support aground of appeal. The weight to be placed on this report, as on any other evidence, was a matter entirely for the Court. [89] Nor does the submission that the Environment Court accepted recommendations from the Board of Enquiry on the New Zealand Coastal Statement, fairly reflect the Environment Court's decision. At [54] the Environment Court records Mr Turley's submission in which he referred to the High Court decision inTakamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496. The Environment Court noted the fact that the Takamore case had (unknown to counsel) been referred back to the Environment Court and that there had been a subsequent further appeal to the High Court resulting in McKenzie J's decision in Waikanae Christian Holiday Park & Ors v Kapiti Coast District Council (HC WN CIV-2003- 485-1764, 1774 and 1805, 27 October 2004, MacKenzie J). [90] MacKenzie J cited from the report and recommendations of the Board of Enquiry on the concept of kaitiakitanga. After a brief description of that part of the judgment the Court in this case simply said:[54] Rather than set out the full passage, we commend the reader to consider the passage, as we have.[91] This falls well short of accepting the recommendations of the Board of Enquiry. Indeed, on my reading that report would have been accorded less weight than the Waitangi Tribunal report.Twelfth Ground – Procedural unfairness[92] This ground of appeal was abandoned at the hearing and I do not need to consider it.Thirteenth Ground – Relationship of Maori with their environment[93] The Trust says that the Environment Court failed to recognise and provide for the relationship of Maori and their culture and traditions with ancestral lands, water, sites, wahi tapu and other taonga as required by s 6(e) RMA. In particular, it is said that the Court failed to take into account matters it should have, including but not limited to:• The history of the area: the Trust referred to its claimed exclusive ownership, mana whenua and mana moana, over Aotea (Great Barrier Island), based on conquest, marriage, tikanga (knowledge and customary practices passed down from Te Puna prior to the conquest of the island), wahi tapu (knowledge and guardianship of traditional resources), mahinga (uninterrupted harvesting of traditional resources) and ahi ka roa (maintenance of the exclusive occupation of the island). There was reference to these factors having been recognised in other cases. I do not know what evidence was before the Environment Court; there was no objection from the respondent to these facts and I have therefore proceeded on the assumption that these facts were before the Environment Court.• Existing man-made structures: the Trust asserts that, contrary to the references to the area as being pristine and devoid of man-made structures, in fact there were a number of man-made structures on the island. The Trust points to a wharf which is used for the transport of freight, logging and passengers. It refers to the fact that the Department of Conservation has an office on Kaiarara Bay with a commercial garage. It also refers to existing resource consents for at least six wharves and the fact that in Stony Bay there is a resource consent for a mooring. Again, it was unclear to me whether all of this evidence was before the Environment Court but, in the absence of any objection to these references from the opposing parties, I have proceeded on the assumption that it was.• Maori perception of the environment: the Trust submitted that from the Maori perspective a mussel farm is a beautiful object as it means food, and further, for this Trust it also means employment and an opportunity to return home and restore mauri to the whanau. Taking these considerations into account and looking at them against the strong relationship the whanau has with the site and the existence of other man-made structures nearby it could not really be said that thedevelopment of this area as a marine farm would compromise the landscape. From a Maori perspective it would in fact enhance them.• The decision in John da Silva v Aotea Maori Committee & Hauraki Maori Trust Board, (MLC, 25 Tai Tokerau MB212, 23 February 1998, Judge Spencer).• Foreshore and Seabed Act 2004, Aquaculture Reform Act 2004, Resource Management Amendment Act (No 2) 2004, Resource Management ( Foreshore & Seabed) Amendment Act 2004, Maori Commercial Aquaculture Claims Settlement Act 2004 before Parliament at the time of the Environment Court hearing. [94] The only issue for this Court can be whether the Environment Court properly took into account the various matters under s 6, including those under s 6(e). After referring to the decision of the Privy Council in McGuire v Hastings District Council[2002] 2 NZLR 577 at 594 the Court commented that:[48] In our view it is important to note the reference in that passage to the Act having a single broad purpose, a theme to which we will return when undertaking the weighing exercise that is required under the Act. We simply signal that now because ultimately our task is to weigh the matters strenuously urged upon us by the appellant, and others strenuously urged upon us by parties opposing the appeal.[95] The Court went on to consider various issues relevant to Maori under ss 6, 7 and 8 culminating in a review of evidence adduced on behalf of the Trust. This included evidence by a trustee, Ms Toki, about her whanau's connection with and use of the area. There was also evidence from an unrelated whanau on the east coast of the Coromandel Peninsula about the financial and employment benefits from the kind of business that the Trust wishes to establish. It appeared that, ultimately, the Trust's witnesses accepted that the establishment of the proposed mussel farm would only provide very minor employment. Notwithstanding this fact the Court thought that there could nevertheless be some unquantified financial benefit from either the sale of mussels or granting of a lease to others. [96] The Court reached the following conclusion on ss 5, 6 and 7 issues relevant to Maori:[69] In conclusion on Maori cultural issues and social and economic benefits, we are left with the situation on the evidence that there may be some very minor employment benefit, and an unquantified economic benefit (meeting to a small degree some elements of s 5(2)); there would be the prospect of fostering cultural wellbeing (an aspect of s 5(2)) but that does not have to be in the precise proposed location in order to occur; s 6(e) matters have been firmly established and indeed not questioned by other parties (but again are not location-dependent); elements in relation to s 7(a) are also established; but s 8 elements are of limited relevance. A common theme running through these matters is that there is nothing special about this site as opposed to any other area of water around Great Barrier Island, from which cultural, social and economic benefits could be derived.[97] It is clear from this part of the judgment that the Environment Court heard and accepted evidence about the s 6(e) factors. However, it then went on (as I have discussed) to consider in some detail the s 6(a) and (b) issues as well. [98] In oral submissions Mr Palmer said that the Environment Court had effectively viewed mooring and landscape issues as more important than the Maori issues. He says that the ARC is the agent of the Crown and obliged to observe the Treaty, though he accepted that this factor was not absolute in the context of an RMA application; he could only go so far as to say that Maori were in a stronger position than non-Maori. [99] It is not for this Court to review the weight attached to the s 6(e) issues by the Environment Court. I am satisfied that the Court properly directed itself to the relevant issues. It recognised the significance of the s 6(e) issues and, indeed, accepted that the proposed development would have satisfied s 6(e). However, in its weighing up of the other s 6 factors it clearly considered that the proposed development would not meet those provided for in s 6(a) and (b). It is not a question of law as to whether, in that exercise, greater weight should have been accorded to s 6(e). That is the very exercise entrusted to the Environment Court and in which this Court will not interfere.Fourteenth Ground – Failure to take into account the principles of the Treaty of Waitangi[100] In this ground the Trust asserts that in refusing to grant consent the Environment Court failed to take into account the principles of the Treaty of Waitangi under s 8 RMA. It identified particular ways in which Treaty of Waitangiprinciples could have been taken account of. It drew my attention to Chapter 2 of the NZCPS and to the principle of the right to development as it was discussed inNgai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553. Section 8 provides:In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (tiritio Waitangi).[101] Clearly, a failure to take into account the principles of the Treaty of Waitangi would constitute an error of law. However, it does not follow that simply because s 8 would be satisfied by the granting of consent, the failure to grant consent must amount to an error of law. [102] There is specific reference to s 8 in that part of the judgment dealing specifically with Maori issues. It is clear from [148] that the Environment Court not only had regard to s 8 but perceived that the proposal would meet the requirements of s 8. It is true that, having referred to the matters provided for in ss 5(2), 6(e) and 7(a) the Court did comment that "s 8 elements are of limited relevance". However, the factors provided for in ss 6, 7 and 8 are subordinate to s 5 and of descending significance as between one another. The weight to be given to each is to be determined by the Environment Court and this Court will not interfere in that exercise in the absence of an error of law. [103] The only question open for consideration is whether the Environment Court took account of s 8. I am satisfied that it did. Once that point has been reached it must be a matter entirely for the Environment Court as to whether, having considered and weighed up all of those factors, consent should be granted or not.Fifteenth Ground – Incorrect application of Waikanae Christian Holiday Park v Kapiti Coast District Council[104] The Trust submitted that the Environment Court wrongly applied McKenzie J's decision in Waikanae Christian Holiday Park v Kapiti Coast District Council. The Environment Court referred to this decision at [54] in response to a submission from the Trust's counsel that the High Court in Takamore Trustees v Kapiti Coast District Council had interpreted s 7(a) as requiring the decision maker to haveparticular regard to Maori views regarding the way in which land is to be used. In response, the Court referred to MacKenzie J's decision in Waikanae Christian Holiday Park, which was a sequel to Takamore, and specifically to MacKenzie J's discussion of the concept of kaitiakitanga. [105] The ground of appeal is that the Environment Court was wrong to apply MacKenzie J's decision because it was made in the context of opposition to a road designation and factually unrelated to the current application. It says that the earlier decision in Takamore correctly states the matters of principle on admission of oral evidence of kaumatua.[106] I do not accept this submission. First, it would be overstating the position to suggest that the Court actually applied McKenzie J's decision; it referred to it in response to the Trust's submission in relation to kaitiakitanga under s7(a), and noted that the High Court in Takamore had interpreted s7(a) as requiring the decision- maker to have particular regard to Maori views regarding the way in which land is to be used. But there was no suggestion that the Court was applying MacKenzie J's decision in preference to that in Takamore. Nor, indeed that there was any need to choose between them; there is no indication in the decision of any issue as whether the oral evidence from the Trust should be accepted. It was referred to at length and quite clearly accepted. [107] Secondly, the decision in Takamore was also made in the context of opposition to a road designation; it was, in fact, part of the same litigation. Mr Palmer did not submit that MacKenzie J's approach was wrong. Nor did he suggest that applying Takamore rather than Waikanae Christian Holiday Park could have made any difference to the outcome of the case.Sixteenth Ground – Error in distinguishing Buchanan v Northland Regional Council[108] The Trust submitted that the Court should not have distinguished the decision in Buchanan v Northland Regional Council (EC AK A66/2002, 22 March 2002, Judge Newhook) from the present case. Buchanan involved an application for a coastal permit for the construction of a mussel farm near the mouth of the WhangapeHarbour. The permit had been granted by the Northland Regional Council and that grant was the subject of an appeal by a local resident on the grounds that the proposal was contrary to the purpose and principles of the RMA, the NZCPS and the relevant coastal plan and Regional Policy Statement. In that case the granting of the coastal permit was confirmed; in doing so the Environment Court traversed in detail many issues similar to those arising in this case. Ultimately it concluded that the positive benefits to the local community in terms of economic and social wellbeing outweighed the adverse effects on the natural character of the coastal environment, which the Court considered would be no more than minor. [109] The Trust pointed to factors its application had in common with that in theBuchanan case namely:• The application was one for a marine-based activity incorporating the cultivation of mussels;• Had the positive benefit of enabling local people to provide for their economic and social wellbeing;• Had some flow-on economic and social benefits;• Could have some effects on the natural character of the coastal environment in terms of visual effects however these were no more than minor;• Adjacent landscape comprised wilding pines with regenerating bush;• Adjacent landscape not classified as outstanding;• Consistent with the policies in the NZCPS;• Manages relevant resources so as to enable people and the community to provide for their social, economic and cultural wellbeing while meeting the requirements of sub-section (a), (b) and (c);• The applicant was tangata whenua.[110] It is self-evident that the each decision of the Environment Court must be viewed in relation to its own factual situation. The common features relied on by the Trust are insufficient for the Court to overcome the many significant differences between the cases. I consider that the Environment Court's distinction of Buchananwas correct. The Court said:[148] We might observe in passing that this case represents almost the reverse of the situation found to prevail on the fact by this Court in a decision cited to us by Mr Turley, Buchanan & Anor v Northland Regional Council where iwi interests had applied for consent to a small mussel spat collection farm in a remote harbour with few navigation and safety issues as against a land backdrop that was somewhat modified and accordingly not of high natural character.[111] On the reading of the two decisions it is plain that the facts on which the Court based its decision in this case were significantly different from those as described in the Buchanan decision. The Court has specifically identified the fact that in Buchanan the proposed site held few navigation and safety issues. In the present case navigation and safety issues assumed considerable importance in the Court's assessment of the application. The Court also noted that Buchanan was decided in relation to a land backdrop that was modified and therefore not of high natural character. In comparison the Environment Court in this case specifically preferred the evidence of the ARC's witnesses as to the high character of the location. There was no error of law in relation to this issue.Result[112] The appeal fails. The issue of costs is reserved. Counsel may file memoranda on this issue as follows: a) The ARC by 23 January 2006 b) The Trust in reply by 7 February 2006 ___________________ P Courtney J