MINISTER FOR LAND INFORMATION v DROMGOOL [2021] NZCA 44

MINISTER FOR LAND INFORMATION v DROMGOOL [2021] NZCA 44 [5 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA364/2019[2021] NZCA 44BETWEEN MINISTER FOR LAND INFORMATIONAppellantAND SHANE DROMGOOL ANDDOROTHY DROMGOOLFirst RespondentsALAN DARVALL POULTON ANDJENNIFER POULTONSecond RespondentsNEWMAN FARMS LIMITEDThird RespondentsHearing: 7 and 8 July 2020Court: Cooper, Clifford and Goddard JJCounsel: A N Isac QC, M C McCarthy and E M Jamieson for AppellantD M Salmon and A W McDonald for RespondentsJudgment: 5 March 2021 at 3 pmJUDGMENT OF THE COURTA The appeal is allowed.B The decision of the High Court is set aside.C The report of the Environment Court is confirmed.D The matter is referred back to the Environment Court to finalise the termsof the easements.E There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara No.Introduction [1]Relevant facts [9]The Environment Court's report [16]The appeal to the High Court [19]The relevant statutory provisions [29]The RMA [30]The PWA [40]The interrelationship between the RMA and PWA [52]The appeal [55]Appellant's argument [55]Respondents' argument [60]Decision [70]The nature of the Minister's power under s 186 of the RMA [70]The role of the Minister [76]Other issues [108]Improper/irrelevant considerations and omissions [109]The OTS land [113]Notice of intention [123]Costs [127]Result [128]Introduction[1] This appeal raises an important issue concerning the role and obligations of theMinister for Land Information (the Minister) under s 186(1) of the ResourceManagement Act 1991 (the RMA).1[2] Section 186(1) of the RMA provides that a network utility operator that is arequiring authority may apply to the Minister to have land required for a project orwork acquired or taken under pt 2 of the Public Works Act 1981 (the PWA) "as if theproject or work were a government work within the meaning of that Act". Theprovision then states that the land may be taken or acquired "if the Minister agrees".1 Section 186 of the Resource Management Act 1991 refers to the Minister of Lands. Although thestatute has not been amended, there is now no Minister of Lands and the powers are exercisableby the Minister for Land Information.[3] Under pt 2 of the PWA land may be acquired by agreement, or compulsorily.In either case, there must be a period of negotiation in good faith in an attempt to reachan agreement for the acquisition of the land.2 If agreement cannot be reached, theMinister may proceed to take the land under the PWA.3[4] Every person having any estate or interest in the land may object to theEnvironment Court,4 which considers the objection in accordance with s 24 of thePWA. Section 24(7) states what the Environment Court is required to do. It mustascertain the Minister's objectives; enquire into the adequacy of the considerationgiven to alternative sites, routes or other methods of achieving those objectives; anddecide whether it would be "fair, sound, and reasonably necessary" for achieving theobjectives of the Minister for the land of the objector to be taken.5 It must then submita written report to the Minister setting out its findings.6 The Environment Court'sreport and findings are binding on the Minister.7[5] In this case, Top Energy Ltd (TEL), a requiring authority, sought to acquireeasements to enable construction of an electricity transmission line between Kaikoheand Kaitaia. It made requests to the Minister under s 186(1) of the RMA, in relationto land along the route. The Minister gave her agreement. There were objections tothe Environment Court from affected landowners.[6] In its report on the objections the Environment Court held that the Minister'sresponse to a request under s 186(1) was "fully discretionary".8 It rejected anargument advanced by counsel for the objectors that the Minister was obliged toconsider the matters that would be considered subsequently by the Environment Courtin dealing with, and reporting on, an objection under s 24 of the PWA.9 It found thatadequate consideration had been given to alternative sites, routes and methods to2 Public Works Act 1981, s 18(1)(d).3 Section 18(2).4 Section 23(3).5 Section 24(7)(a), (b) and (d).6 Section 24(7)(e) and (f).7 Section 24(10).8 Dromgool v Minister for Land Information [2018] NZEnvC108 [Environment Court report] at[40].9 At [44].achieve the objectives of the Minister and TEL.10 The Court concluded that the takingof the land would be fair, sound and reasonably necessary for achieving thoseobjectives, and furnished a written report to the Minister accordingly.11[7] The objectors appealed the Environment Court's report to the High Court.12Courtney J allowed the appeal and set aside the Environment Court's report.13 ThisCourt then granted leave for the present appeal,14 stating that the approved questionwas whether the High Court erred in law in allowing the appeal and setting aside theEnvironment Court's report.15 In granting leave, this Court also said:C Counsel should focus their submissions on:(a) the role and obligations of the Minister under s 186 of theResource Management Act 1991; and(b) whether the inquiry into the adequacy of consideration ofalternatives contemplated by s 24(7) of the Public Works Act1981 is an inquiry into the adequacy of consideration ofalternatives by the requiring authority, by the Minister, or byboth.[8] For the reasons we address, we allow the Minister's appeal and confirm theEnvironment Court's report. We hold that where the Minister's agreement is soughtunder s 186 of the RMA, the Minister needs to be satisfied that the project of thenetwork utility operator is capable of achieving a favourable report from theEnvironment Court under s 24(7) of the PWA. But the Minister need not personallyassess the merits of, and choose between, alternative means of achieving the objectivesof the network utility operator. We further hold that the Minister may withhold consentif the proposal is contrary to the purpose and principles of the RMA, or is undesirablefor other reasons that are consistent with the statutory framework. We consider thatwhere the Minister has agreed to the taking under s 186(1), it is likely that the main10 At [129].11 At [165] and [169].12 Section 299 of the Resource Management Act authorises an appeal against such a report to theHigh Court on a question of law.13 Minister for Land Information v Dromgool [2019] NZHC 1563 [High Court judgment].14 Section 308 of the Resource Management Act provides for further appeals to the Court of Appeal.Section 308(1) provides that sub-pt 8 of pt 6 of the Criminal Procedure Act 2011 applies as if thedecision of the High Court under s 299 of the Resource Management Act had been made unders 300 of the Criminal Procedure Act. This means a further appeal to the Court of Appeal is byleave, under s 303(1) of the Criminal Procedure Act.15 Minister for Land Information v Dromgool [2019] NZCA 508.consideration of alternatives will have been by the network utility operator (which canbe expected to have the institutional knowledge and expertise required for thatpurpose) and it is legitimate for the Environment Court to focus its enquiryaccordingly.Relevant facts[9] TEL owns and operates a 110kV transmission line which runs betweenKaikohe and Kaitaia. The Environment Court accepted evidence from TEL'sChief Executive Officer, establishing that:16(a) the line requires maintenance as it is around 60 years old, and requiresreplacement within the foreseeable future (around 2030);(b) maintenance works on poles and repairs of breakages have been anongoing and significant requirement since the takeover. In particular,around 6km of the line runs through the Mangamuku Gorge and isvulnerable to major events;(c) between 2013 and 2017 there were some nine outages of 47.7 hoursto substantial parts of the network. Measured in terms of the economicimpact of those outages, the cost to the Far North economy isestimated to be $13,368,956;(d) the Juken timber mill in Kaitaia is a major employer, and particularlysusceptible to outages. An unplanned outage can mean a cost to theproduction line through a restart of some $150,000 each time[;](e) the historic pattern of demand has changed from the urban centres ofKaikohe and Kaitaia, with increasing population on the easternseaboard area (Kerikeri Peninsula and the Bay of Islands);(f) it was considered that an alternative route to the eastern seaboardwould increase supply through the 11kV local network lines, andpermit some upgrading to 33kV (for example in Kaeo and Wiroa).Examples were given by Mr Shaw, including Mt Pokaka having tosupply their own power for a timber mill employing 100 people, andan 800 unit accommodation in Karikari Peninsula having no securesupply of power;(g) the existing GXP 110kW single circuit was on a route involving theMangaweka Gorge, and is susceptible to failure through naturalevents. Significant resilience would be achieved by creating a secondcircuit to Kaitaia.16 Environment Court report, above n 8, at [7].[10] TEL instructed Boffa Miskell, an environmental planning and designconsultancy, to investigate a potential new route to serve the eastern side of the regionby means of a proposed "ring circuit", incorporating the substations at Kaikohe andKaitaia which are used for the existing line. The infrastructure would be upgraded,and a second line installed closer to the new areas of demand. As part of the overallproject, TEL investigated a potential route linking a new substation in Wiroa nearKerikeri to a substation at Pamapuria near Kaitaia. That proposed route would affectabout 96 properties, over most of which TEL was able to secure easements. Theobjections heard by the Environment Court related to a route option for anapproximately 7-km stretch, known as the "Mangakaretu" section which would runbetween Wiroa and Kaeo, in respect of which agreement could not be reached.[11] Boffa Miskell's initial evaluation identified a route passing over land ownedby the Office of Treaty Settlements and land-banked for the purpose of claims forredress under the Treaty of Waitangi (the OTS land). In addition to crossing the OTSland, this route (the OTS route) ran through rural land referred to by the EnvironmentCourt as the Taylor property, the Poulton property and "Greenacres".17[12] Between 2012 and 2014, TEL pursued the OTS route as its preferred route.It entered into an agreement to grant easements with the owners of the Poulton andGreenacres properties, but could not secure agreement from the owners of the Taylorproperty or the Office of Treaty Settlements. By October 2014 it was clear thatagreement from those parties would not be forthcoming.[13] Between March and October 2014 TEL investigated alternative routes, whichincluded three that were described by the Environment Court as follows:18(a) the FGT/Sutcliffe Route, slightly to the west of the original route andtravelling through the length of the FGT and Sutcliffe properties,relying on the AGE with Poulton and the agreement of Greenacreseventually obtained. This route, of course, still involved crossing theTaylor property, who had already indicated they would not consent,and also further crossing of the FGT Farms Limited, Sutcliffe andCornelius properties;1917 At [12].18 At [14].19 "AGE" in this passage stands for an agreement to grant an easement.(b) the Objection Route, travelling through a different portion of thePoulton farm (for which there was no AGE), Newman Farms,Dromgool (the Objectors), Sutcliffe, Kearney and Corneliusproperties. This utilised a section of public road between NewmanFarms and the Jones property for around 1.5km. ; and(c) a route to the far west (Far Western Route), skirting the NorthStar Dairies Ltd land (on Crown land) and then utilising public roadto travel from the west to join up at the Greenacres property.It appears that route was discounted not only for length but impactvery early, and no party suggested that this was a reasonablealternative.[14] Various alignments between the three routes just described were alsoexamined, and discussions continued with a number of landowners in the area into2016. In the event, an agreement to grant an easement was reached with respect to theSutcliffe property along what the Environment Court called the Objection Route, andthe FGT/Sutcliffe Route was no longer being pursued.[15] It was not possible to reach agreement with the present respondents, and inMay 2016 TEL applied to the Minister under s 186(1) of the RMA to have easementsin respect of those properties acquired or taken. The Minister granted thoseapplications. The landowners objected to the taking of the easements, resulting in ahearing before the Environment Court.20The Environment Court's report[16] The Environment Court proceeded on the basis that s 186 of the RMA did notcontain an explicit requirement that the Minister take into account any particularmatters.21 Rather, the Minister's decision was "fully discretionary".22 Any failures inthe consideration of alternatives would be relevant to the report and findings of theEnvironment Court under s 24(7) of the PWA, but not at the stage of ministerialagreement under s 186 of the RMA.23 In reaching that conclusion, the EnvironmentCourt referred to and was guided by the decision of the Supreme Court in Seatonv Minister for Land Information.24 The Environment Court held:20 Public Works Act, s 24.21 Environment Court report, above n 8, at [37].22 At [40].23 At [43].24 At [45]–[53], citing Seaton v Minister for Land Information [2013] NZSC 42, [2013] 3 NZLR157.[53] Notwithstanding the repeated submissions of Mr Salmon as tothe necessity for the Minister to comply with s 24(7) when a decision unders 186 is made, we can find no reference in this or any other case to such arequirement. Mr Salmon's own submissions noted that references to theMinister in s 186 and s 24(7) (a) and (d) must be read as reference to [TEL],relying on Seaton, paragraph [83]. We agree. Thus, it is difficult to read intos 186 a requirement that the Minister, at the time they agree to proceed withPart 2 of the Public Works Act, has an obligation to ensure that the takingcomplies with s 24(7) of the Act.[17] The Environment Court concluded that there had been "extensiveconsideration of alternatives by both Boffa Miskell and TEL".25 While TEL wouldhave preferred the OTS route, the refusal of the Minister for Treaty of WaitangiNegotiations to provide an easement over the OTS land meant that route could notproceed because of the absence of power to compulsorily acquire Crown land.26[18] After discussing the various alternatives considered, the Environment Courtsaid:[125] We are satisfied that, at the time of the Minister's agreement unders 186, three takes were required on the Objection route and three takes (Taylor,FGT and Sutcliffe) would have been involved in the FGT/Sutcliffe route.[126] We are in no doubt that consideration had been given by TEL to theFGT/Sutcliffe route, and that this is demonstrated not only by the Sutcliffe'sagreement to an alternative route but by a consideration of the impact [of]the other route upon the Sutcliffe and FGT properties. It is likely thatthe impact upon the Taylor properties was considered by TEL to be acceptable,but concerns had been identified as to the impact on the FGT and Sutcliffeproperties.[127] We are satisfied that the Western Deviation of the [Mangakaretu]Alignment was developed in an iterative process, including consultation withlandowners. It is not for this Court to reach a conclusion as to which is the bestroute alternative. We are satisfied that alternatives have been considered on areasonable basis, and that the choice of route is reasonable in the Wednesburysense. Our finding is that there has been an adequate consideration of sitesand routes to achieve the objectives.The appeal to the High Court[19] On appeal to the High Court, the objectors alleged the Environment Court hadmade five errors of law.27 One alleged error focussed on the Environment Court's25 At [109].26 At [109]. The Minister for Treaty of Waitangi Negotiations is referred to as the "Minister of TreatySettlements" in the Environment Court report and the High Court judgment.27 High Court judgment, above n 13, at [2].conclusion that the Minister had an unfettered discretion in determining TEL'sapplications under s 186 of the RMA, and was not required to consider any specificfactors including those identified in s 24(7)(b) and (d) of the PWA. Those provisionsrefer respectively to the consideration given to alternative sites, routes or methods ofachieving the objectives of the Minister or local authority and whether the proposedtakings were "fair, sound, and reasonably necessary".[20] The Judge accepted the objectors' argument that the s 186 discretion is notunfettered. As she pointed out, a statutory power is subject to limits, even if conferredin unqualified terms, and Parliament must be taken to have intended that a broadlyframed discretion should always be exercised to promote the policy and objects of thelegislation.28 That raised the question of what the Minister was required to consider,and the significance of TEL's knowledge. The Judge saw it as significant that s 186of the RMA is not the source of the Minister's power to take or acquire land.29That power is in s 16 of the PWA, and s 186 of the RMA merely allows a networkutility operator to request the exercise of the power. The Judge considered that thismeant it was necessary for the Minister to consider any relevant matters. She held:[47] It follows that it must be the Minister alone who has the obligation toconsider any relevant factors. The exercise of the statutory power ofcompulsory acquisition process involved a recognised decision-makingprocess beginning with a formal application by the requiring authority unders 186 and the provision of the usual briefing material from Ministry officials.The statutory power and the decision-making process are the antithesis of anagent acting for a private entity. Such an approach could, as Mr Salmonpointed out, result in deficiencies and inaccuracies being attributed tothe Minister, with no apparent recourse by those affected. I therefore do notaccept that the Minister acts as TEL's agent in the true sense so thatthe Minister is impressed with TEL's knowledge for the purposes of making adecision to take land under the PWA.[21] The Judge did not consider that the Minister was required to consider all thefactors in s 24(7).30 But she held that it was "implicit and obvious from s 24(7)(b) thatthe Minister is required to consider alternative routes and methods".31 It followed thatthe Environment Court had erred in concluding that there was no obligation on the28 At [42], referring to Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008]1 NZLR 42 at [53].29 At [46].30 At [48]. See also [53].31 At [48].Minister to consider the relevant factors in s 24(7)(b) in making the decision tocompulsorily acquire easements over the subject land.32[22] A second alleged error challenged the Environment Court's decision that anydefects in the acquisition process could be cured at any point up to the date ofthe Environment Court hearing. This alleged error turned on the fact thatthe Environment Court found that the Minister had not considered alternative routes,and that in fact "no alternatives were ever before the Minister".33 This was becausethe s 186 applications were dealt with by staff at Land Information New Zealand(LINZ) who relied on the evaluations undertaken by TEL, and the briefing papersprovided to the Minister contained no details of alternative sites.[23] The Judge considered the Environment Court was entitled to take into accountinformation that became available following the making of the s 186 decision.34However, the Judge held that in finding that there had been adequate consideration ofalternatives, the Environment Court had wrongly relied on the consideration given toalternatives by TEL. This was wrong because the consideration given to alternativesby TEL was not relevant: the Environment Court was required to examine whatconsideration had been given to alternatives by the Minister.35[24] In respect of these two grounds of appeal the Judge concluded:[64] The Environment Court erred in holding that the Minister's discretionwas unfettered. It should have approached the question of consideration ofalternatives under s 24(7)(b) on the basis that this was a factor (among others)that the Minister was required to consider.[65] In examining the adequacy of the Minister's consideration ofalternative sites, the Environment Court found that there was no informationof alternative routes before the Minister. As TEL's knowledge cannot beattributed to the Minister, it is clear that the Minister's consideration of anyalternatives was inadequate. It follows that the Court's conclusion that,notwithstanding the lack of any consideration of alternatives by the Minister,there had been adequate consideration was an error. For the same reason,the Environment Court's iterative approach proceeded on the wrong premisethat there had been adequate consideration of alternatives.32 At [53].33 Environment Court report, above n 8, at [42].34 High Court judgment, above n 13, at [63].35 At [63].[25] To that extent, the appeal succeeded.36 The Judge rejected the other groundsof appeal. One of those grounds alleged that TEL's route selection had been based onimproper and irrelevant considerations, and that TEL had withheld materialinformation from the Minister. It was claimed that the Environment Court had erredin treating the Minister's decision as valid when it was defective for these reasons.The Judge considered that this ground of appeal did not raise an appealable questionof law. She considered the objectors were effectively trying to review the validity ofthe Minister's decision rather than advancing a relevant error of law inthe Environment Court's decision.37[26] A further ground of appeal alleged that the Environment Court had erred infailing to consider that, as a matter of law, the Crown could have granted easementsover the OTS land, thereby avoiding the need to acquire private land. There wasanother related complaint, that the Environment Court had not taken into account thefact TEL failed to challenge the Crown's decision not to grant an easement over theOTS land.[27] The Judge considered the Environment Court's approach was correct. In theabsence of a challenge by the objectors to the exercise of the discretion not to makethe OTS land available for construction of the lines, the Environment Court had beenentitled to proceed on the basis that the decision of the Minister for Treaty of WaitangiNegotiations not to grant consent was a valid one.38 Further, the Judge considered theCrown was correct in its contention that a requiring authority need not exhaust legalpathways in respect of each alternative prior to focussing on another route.39 Thequestion of whether the OTS route was objectively better than the route in fact chosenwas also a question of fact and not a question of law.40[28] The final ground of appeal concerned the failure of the Minister to providesufficient reasons for the taking of the easements over the objectors' land. This wasrejected by the Judge on the basis that errors in the Minister's own decision-making36 At [66].37 At [68].38 At [73].39 At [74].40 At [75].were properly within the ambit of judicial review, not an appeal from the EnvironmentCourt.41 Accordingly, that ground of appeal was also rejected.The relevant statutory provisions[29] Before dealing with the arguments on appeal to this Court, it will be helpful tosummarise the relevant statutory provisions. The most relevant for present purposesare s 186 of the RMA and s 24 of the PWA. However, the resolution of the issuesraised by the appeal requires those provisions to be read together, and in each case,having due regard to the role that each provision plays in the respective statutoryschemes.The RMA[30] We begin with the RMA. Part 8 of that Act provides for designations andheritage orders. Designations are defined as provisions made in district plans to giveeffect to a requirement made by a requiring authority under s 168, s 168A or cl 4 ofsch 1.42 Network utility operators may be approved as requiring authorities,43 and aregenerally companies or public authorities who undertake works of public utilities. Thestatute lists various kinds of utility, as well as allowing for regulations to define utilityoperations additional to those set out in the Act.44[31] A notice of requirement may be given to a territorial authority under s 168(1)for a public work, or in respect of any land, water, subsoil or airspace where arestriction is necessary for the safe or efficient functioning or operation of a publicwork. For similar purposes, a territorial authority may issue a notice of requirementfor a public work within its own district for which it has financial responsibility unders 168A. In each case, the notice of requirement is for a designation in a district plan.Designations inserted under the power given by cl 4 of sch 1 are in relation todesignations sought to be included in a new district plan or review of a district plan41 At [76].42 Resource Management Act, s 166, definition of "designation".43 Section 167.44 Section 166, definition of "network utility operator". In the present case, TEL was a networkutility operator because of its status as an "electricity operator" or "electricity distributor" asdefined in s 2 of the Electricity Act 1992 for the purpose of line function services as defined inthat section.under s 79. By contrast, ss 168(1) and 168A contain powers able to be exercised atany time.[32] Where what is proposed is not otherwise allowed by a district plan, adesignation will confer the necessary authority under the RMA for the work toproceed. That is because s 176(1)(a) provides that s 9(3), which prohibits the use ofland in a manner that contravenes a district rule, does not apply to a public workundertaken pursuant to a designation. Section 176(1)(b) further provides that noperson may, without the prior written consent of the requiring authority, do anythingin relation to land that is subject to a designation that would prevent or hinder thepublic work.[33] A designation is necessary only if a district plan does not provide that theproposed public work may be carried out without a resource consent. In the presentcase, for example, the relevant rural environment zone of the operative Far NorthDistrict Plan provided for "above ground utility services for supply of electricityincluding lines, structures, and support structures for the transformation, transmissionor distribution of electricity" as permitted activities. It appears from the EnvironmentCourt's report that TEL's project may require resource consent in respect of some partsof the line. However, the Environment Court recorded that TEL was evidentlyconfident of obtaining any necessary consent and had not served a notice ofrequirement on the Far North District Council.45[34] Section 185 is the first provision of pt 8 which addresses land ownership asopposed to land use. Under s 185(1), an owner of an estate or interest in land that issubject to a designation or requirement (including one who may have unsuccessfullyopposed the relevant designation) may apply at any time to the Environment Court foran order obliging the relevant requiring authority to acquire or lease all or part of theowner's estate or interest in the land under the PWA. The Environment Court isempowered to make such an order in the circumstances set out in s 185(3).That subsection provides:(3) The Environment Court may make an order applied for undersubsection (1) if it is satisfied that—45 Environment Court report, above n 8, at [10].(a) the owner has tried but been unable to enter into an agreementfor the sale of the estate or interest in the land subject to thedesignation or requirement at a price not less than the marketvalue that the land would have had if it had not been subjectto the designation or requirement; and(b) either—(i) the designation or requirement prevents reasonableuse of the owner's estate or interest in the land; or(ii) the applicant was the owner, or the spouse, civil unionpartner, or de facto partner of the owner, of the estateor interest in the land when the designation orrequirement was created.[35] Section 185(5) provides that if the Environment Court makes an order unders 185(3), the owner is deemed to have entered into an agreement with the requiringauthority responsible for the designation or requirement for the purposes of s 17 of thePWA.46 In addition, where s 185(5) applies in respect of a requiring authority whichis a network utility operator, s 185(6) provides that:(a) any agreement shall be deemed to have been entered into with theMinister of Lands on behalf of the network utility operator as if theland were required for a government work; and(b) all costs and expenses incurred by the Minister of Lands in respect ofthe acquisition of the land shall be recoverable from the networkutility operator as a debt due to the Crown.[36] It is relevant to note that the connection between s 185 and the relevant PWAprovisions in the case of designations or requirements of network utility operators ismade by deeming there to have been an agreement between the owner of the estate orinterest ordered to be taken, and the Minister. But the Minister is effectively deemedto have entered into an agreement to purchase the land or interest concerned "as if theland were required for a government work",47 without having formed any view as tothe appropriateness or otherwise of the work in question proceeding. The absence of46 Section 17 of the Public Works Act provides for acquisition by agreement.47 Section 2 of the Public Works Act provides that a "government work" means a work or an intendedwork that is to be constructed, undertaken, established, managed, operated or maintained by orunder the control of the Crown or any Minister of the Crown for any public purpose. It includesland held or to be acquired for the purposes of the Conservation Act 1987 or any of the Actsspecified in sch 1 of that Act (except the marine and coastal area), even where the purpose ofholding or acquiring the land is to ensure it remains in an undeveloped state.any such requirement reflects the role of s 185: it provides relief for an affectedlandowner from the consequences of a designation.[37] It is in that context that we now turn to s 186 itself. In a sense, this section isthe converse of s 185, setting out a process by which a requiring authority may beauthorised to take land it requires for a project or work it intends to undertake, whetheror not it also requires authority under the RMA to undertake that project or work. Thesection provides as follows:186 Compulsory acquisition powers(1) A network utility operator that is a requiring authority may apply tothe Minister of Lands to have land required for a project or workacquired or taken under Part 2 of the Public Works Act 1981 as ifthe project or work were a government work within the meaning ofthat Act and, if the Minister of Lands agrees, that land may be takenor acquired.(2) The effect of any Proclamation taking land for the purposes ofsubsection (1) shall be to vest the land in the network utility operatorinstead of the Crown.(3) Land which is subject to a heritage order shall not be taken withoutthe consent of the heritage protection authority.(4) Any land held under any enactment or in any other manner bythe Crown or a local authority may, with the consent of the Crown orthat authority and on such terms and conditions (including price) asmay be agreed, be set apart for a project or work of a network utilityoperator in the manner provided in sections 50 and 52 of the PublicWorks Act 1981 (with the necessary modifications), but the settingapart shall not be subject to sections 40 and 41 of that Act. Any landso set apart shall vest in the network utility operator.(5) Any claim for compensation under the Public Works Act 1981 inrespect of land acquired or taken in accordance with this section shallbe made against the Minister of Lands.(6) All costs and expenses incurred by the Minister of Lands in respect ofthe acquisition or taking of land in accordance with this section(including any compensation payable by the Minister) shall berecoverable from the network utility operator as a debt due tothe Crown.(7) Sections 40 and 41 of the Public Works Act 1981 shall apply to landacquired or taken in accordance with this section as if the networkutility operator concerned were the Crown.(7A) This section does not apply if—(a) the network utility operator is a responsible SPV; and(b) the land is protected Māori land.(8) For the purposes of this section, an interest in land, including aleasehold interest, may be acquired or taken as if references to landwere references to an interest in land.[38] As can be seen, s 186(1) authorises a network utility operator that is a requiringauthority to apply to the Minister for land which is required for a project or work tobe acquired or taken. The process takes place under pt 2 of the PWA "as if the projector work were a government work within the meaning of that Act".[39] Proclamations under s 26 of the PWA are the means by which land is formallytaken and vested in the Crown, or a local authority which has financial responsibilityfor the work. The drafting of s 186(2) reflects the fact that where the proclamation ismade to authorise the taking of land for the purposes of a project or work to beundertaken by a network utility operator, the land is vested in the network utilityoperator, not the Crown.The PWA[40] Before we consider s 24(7) of the PWA in detail, it is appropriate to explain thecontext in which it comes into effect. The relevant provisions begin at s 16. Bys 16(1), the Minister is empowered to acquire under the PWA any land required for agovernment work. By s 16(2), every local authority is empowered to acquire underthe Act any land required for a local work for which it has financial responsibility.Such acquisitions may be by agreement, or as the result of a compulsory process.[41] Where any land is required for a public work, s 18(1)(a) provides that theMinister or local authority must first serve a notice of the desire to acquire the land onevery person having a registered interest in it. The notice must also be lodged withthe Registrar-General of Land.48 This is followed by an invitation to the owner to sellthe land, with an estimate, after a valuation carried out by a registered valuer, of theamount of compensation to which the owner would be entitled.49 The Minister or local48 Public Works Act, s 18(1)(b).49 Section 18(1)(c).authority concerned is required to "make every endeavour to negotiate in good faithwith the owner in an attempt to reach an agreement for the acquisition of the land".50[42] If negotiations are successful, s 17(1) authorises the Minister or local authorityto enter into an agreement to purchase any land for any public work for which theMinister or local authority is responsible.51 Section 20(1) provides that if satisfied thatthe owner of the land has agreed to the land being acquired and that no private injurywill be done by the acquisition (or compensation is provided by the Act for any privateinjury resulting from the acquisition), the Minister may issue a declaration in writingthat the land is thereby acquired for the purpose for which it was authorised to beacquired. Section 20(2) provides that every declaration issued under subs (1) has theeffect of and is deemed to be a proclamation under s 26.[43] If there is no response to the invitation to sell, the owner refuses to negotiate,or an agreement for the sale and purchase of the land has not been made with the ownerafter a period of three months, the Minister or local authority is authorised by s 18(2)to proceed to take the land under the Act.[44] The principal provisions of the PWA dealing with the compulsory acquisitionof land are ss 23 and 24. Under s 23(1), when land, other than land owned by theCrown, is required to be taken for any public work, the Minister (in the case of agovernment work) or the local authority (in the case of a local work) must take anumber of steps. First, they must cause a survey to be made and a plan to be preparedand lodged with the Chief Surveyor showing the land required to be taken and thenames of its owners.52 Secondly, they must cause a notice to be published in theGazette and twice publicly notified. This notice must give a general description of theland required to be taken, a description of the purpose for which the land is to be used,the reasons why the taking of the land is considered reasonably necessary and a periodwithin which objections may be made.5350 Section 18(1)(d).51 Section 17(2) provides that an agreement to sell land to the Crown or a local authority underthe section may be implemented by a declaration under s 20 or by a transfer instrument underthe Land Transfer Act 2017 for the stated public work.52 Section 23(1)(a).53 Section 23(1)(b). The period within which objections must be made in this section does not applyto objections by persons served with a copy of a notice under s 23(1)(c).[45] The owners of the land, and persons with a registered interest in it, must beserved with a notice of intention to take the land in the form set out in sch 1.54 Thenotice contains, amongst other things, a description of the public work, the purposesfor which the land is to be used and the reasons why the Minister or local authorityconsiders it essential to take the interest in the land. It advises that the recipient has aright to object, and, if that right is to be exercised, that a written objection must be sentto the Registrar of the Environment Court within 20 working days after service of thenotice. It further advises that if the recipient makes an objection, a public hearing willbe held unless written notice is given to the Environment Court that the owner wishesthe hearing to be held in private. The notice also advises that the objector will havethe right to appear and be heard personally or be represented by a barrister and solicitoror any other person authorised. The notice concludes with advice about the right tofull compensation under the PWA if the interest in the land is taken. The recipient ofthe notice must be advised that if the amount of compensation cannot be agreed, it canbe determined in separate proceedings before the Land Valuation Tribunal.[46] Section 23(3) provides that every person having any estate or interest in theland intended to be taken may object to the taking of the land to the Environment Courtin accordance with the provisions of the notice. Under s 23(4) every notice of intentionto take land under s 23 ceases to have effect on the expiration of one year after the dateof publication in the Gazette unless, prior to the expiration of that period:(a) a proclamation taking the land has been published in the Gazette; or(b) the Minister or local authority has served a further notice confirmingthe intention to take the land; or(c) the intention to take is the subject of any inquiry by the EnvironmentCourt or an ombudsman, or of any application for judicial review.In such cases, the notice of intention remains valid for three monthsafter the date of the Environment Court's report, the date on whichthe Environment Court receives written notice of the withdrawal of54 Section 23(1)(c).the objection, the date of the completion of any inquiry by anombudsman, or the judicial decision, as the case may be.[47] Section 24 then provides for the processes which take place in the EnvironmentCourt after it receives a written objection under s 23(3). It relevantly provides:24 Objection to be heard by Environment Court(1) On receiving a written objection under section 23, the EnvironmentCourt shall, as soon as practicable, send a copy of the objection tothe Minister or local authority, as the case may require.(2) Within 1 month after receiving a copy of the objection or within suchfurther period as the Environment Court may allow, the Minister orlocal authority, as the case may require, shall send to the EnvironmentCourt and serve on the objector a reply to the objection containingthe following information:(a) the statutory or other authority under which it is proposed totake the land; and(b) the nature of the work to be constructed or the purpose forwhich the land is required; and(c) such other matters as may be appropriate having regard to theobjections made and to any practice directions issued bythe Environment Court.(3) The Environment Court shall inquire into the objection andthe intended taking and for that purpose shall conduct a hearing atsuch time and place as it may appoint.(6) At every such hearing the Minister or the local authority may berepresented by counsel or by an officer of the Minister's departmentor local authority, as the case may require, and the objector mayappear and act personally or by counsel or any duly authorisedrepresentative.(7) The Environment Court shall—(a) ascertain the objectives of the Minister or local authority, asthe case may require:(b) enquire into the adequacy of the consideration given toalternative sites, routes, or other methods of achieving thoseobjectives:(c) in its discretion, send the matter back to the Minister or localauthority for further consideration in the light of anydirections given by the court:(d) decide whether, in its opinion, it would be fair, sound, andreasonably necessary for achieving the objectives of theMinister or local authority, as the case may require, for theland of the objector to be taken:(e) prepare a written report on the objection and on the court'sfindings:(f) submit its report and findings to the Minister or localauthority, as the case may require.(9) At the same time as the Environment Court submits its report andfindings to the Minister or local authority, it shall send a copy of thereport and findings to the objector, and make copies of them availableto the public.(10) The report and findings of the Environment Court shall be binding onthe Minister or, as the case may be, the local authority.(11) Any objection filed under section 23 may be withdrawn by theobjector at any time before the court makes its report and findingsunder this section.(12) Where the objection is withdrawn by the objector pursuant tosubsection (11), the court shall not be obliged to make a report andfindings under this section.(13) The Environment Court may award such costs as it considers justeither in favour or against the objector, the Crown, or the localauthority.(14) Subject to sections 299 and 308 of the Resource Management Act1991, no appeal shall lie from any report or recommendation of theEnvironment Court under this section.[48] The important points to note about s 24 are as follows. First, consistently withthe other provisions of the PWA we have mentioned, the section reflects a dichotomybetween the Minister or local authority as the person or body responsible for the takingof the land on the one hand, and the objectors to the taking on the other. The Ministeror local authority, as the case may be, must carry out the required steps under s 23,including service of the necessary notice on the landowner and persons with aregistered interest in the land of the intention to take the land. But any objection is notconsidered by the Minister or local authority: they are simply served with a copy ofthe objection by the Environment Court.55 The Minister or local authority must thenfile and serve a reply to the objection giving the details required by s 24(2). They areessentially in the position of being a party to the hearing of the objection by theEnvironment Court, at which they will be the proponent of the taking of the land, andthe objectors will be the opponents of it. Both the proponents and the objectors areheard by the Environment Court and may be represented as set out in s 24(6).[49] Secondly, the role of the Environment Court is to submit a binding report onits findings to the Minister or local authority having carried out the steps required bys 24(7). While the Court, in its discretion, can send the matter back to the Minister orlocal authority for further consideration in the light of any directions which it gives,56it is clear that in such cases it is not sending the matter back for decision. It is onlywhere an objection is withdrawn by the objector that the Court is not obliged to makea report and findings under the section.57 Otherwise, it must proceed to decide whetherit would be "fair, sound, and reasonably necessary for achieving the objectives" it hasascertained for the land of the objector to be taken.58[50] Thirdly, the requirement of s 24(7)(a) to ascertain the objectives of the Ministeror local authority is plainly, in context, a reference to the nature of the work to beconstructed or the purpose for which the land is required. These are the matters towhich reference is made in s 24(2)(b), and in briefer language (but to similar effect)the requirement in s 23(1)(b)(ii) that the notice published in the Gazette state thepurpose for which the land is to be used. And the enquiry required by s 24(7)(b) intothe adequacy of the consideration given to alternatives is clearly into the alternativesexamined by the Minister who, or local authority which, will have financialresponsibility for the work.[51] In summary, the scheme for the compulsory acquisition of land under the PWAcontemplates that the Environment Court will decide whether a proposed compulsoryacquisition is fair, sound and reasonably necessary for achieving objectives whichthe Minister or local authority will have developed. While the Court must consider55 Section 24(1).56 Section 24(7)(c).57 Section 24(12).58 Section 24(7)(d).whether there has been adequate consideration given to alternative means of achievingthe objectives, it is not required or empowered to consider which option is preferable.The interrelationship between the RMA and PWA[52] It is clear from the discussion to this point that the PWA contemplates thecompulsory acquisition of land either by the Minister or by a local authority. It doesnot in terms provide for compulsory acquisition of land by a network utility operatorthat is a requiring authority.[53] It is s 186 of the RMA which makes that possible. It does so by the simpleexpedient of empowering the network utility operator to apply to the Minister to haveland required for a project or work acquired or taken under the PWA "as if the projector work were a government work within the meaning of that Act". The acquisition ortaking may occur "if the Minister of Lands agrees". In simple terms, s 186(1) has theeffect that pt 2 of the RMA applies to the proposed work of the network utility operatoras if it were a government work.[54] We return to s 186 of the RMA and its implications below.The appealAppellant's argument[55] In accordance with this Court's suggestion in granting leave to appeal,Mr Isac QC addressed the Minister's principal arguments on appeal under twoheadings: first, the role and obligations of the Minister under s 186 of the RMA andsecond, whether the focus of the enquiry required by s 24(7)(b) of the PWA should beon the consideration of alternatives by the Minister, by the requiring authority or byboth.[56] On the first issue, Mr Isac submitted that s 186 of the RMA contains a "consentpower", in respect of which it is for the Minister to determine what is relevant to themanner and intensity of the enquiry into any matter. The Minister's role is supervisoryand involves carrying out a check on the work carried out by the requiring authorityto ensure that it has made an analysis of alternatives sufficient to enable the process toproceed to the next statutory phase. To perform the Minister's function, and inaccordance with the LINZ Standard for the Acquisition of Land under the PWA(LINZS15005),59 the Minister receives details of the assessment of alternatives madeby the requiring authority, and decides to accept or decline the application under s 186after considering that assessment. It is not the Minter's role to consider the merits ofthe proposal beyond satisfying himself or herself that the proposal is one that iscapable of being confirmed by the Environment Court.[57] It is for the Court to decide whether the proposal should be accepted, applyings 24(7) of the PWA. Mr Isac submitted that in carrying out its functionthe Environment Court can consider any relevant information available as at the dateof the hearing, whether or not the information was before the Minister when he or sheexercised the power under s 186(1). In accordance with what Mr Isac described asthis "iterative approach", changes to the project might occur after the Minister hasmade a decision. For example, landowner consultation and negotiation might resultin changes to the final location of necessary infrastructure. In addition, given theinevitable time-lapse between consideration by the Minister and the hearing before theEnvironment Court, updated information might disclose errors in conclusions reliedon at an earlier stage. The High Court was therefore wrong to conclude that therelevant consideration of alternatives was completed when the Minister decided togive her agreement under s 186.[58] Mr Isac argued the High Court was wrong to conclude that the Minister hadnot considered alternatives, because no alternatives were ever before the Minister.60While it was correct that the Minister was not presented with alternatives to choosebetween, she had been adequately advised of the alternatives considered by TEL asthe requiring authority, and that was all that was required for the purposes of s 186. Italso followed that the High Court was wrong to conclude the Environment Court erredwhen it held that there had been adequate consideration of alternatives.59 Land Information New Zealand Standard for the Acquisition of Land under the Public Works Act1981: LINZS15005 (2 June 2017) [LINZS15005].60 High Court judgment, above n 13, at [59].[59] Mr Isac submitted that in carrying out its enquiry under s 24(7)(b) of the PWA,the Environment Court is not limited to any consideration by the Minister whenassessing an application under s 186 of the RMA. Rather, the Environment Court'sfocus is on the adequacy of all consideration of alternatives up to the date of itsenquiry, whether by the requiring authority, or the Minister, or both. Mr Isac arguedthat the statutory scheme, which involves steps by both the requiring authority and theMinister, as well as receipt by the Environment Court of all relevant information, doesnot support the High Court's conclusion that the Minister "alone" must consideralternatives.61Respondents' argument[60] For the respondents, Mr Salmon first submitted that the role of the Ministerwhen making a decision under s 186 of the RMA is to decide whether to exercisethe powers of acquisition under s 16 of the PWA. In making that decision, the Ministeris obliged to consider mandatory relevant factors, including alternative routes.Secondly, Mr Salmon submitted it is the adequacy of the Minister's consideration ofalternatives that is examined as part of the s 24(7)(b) enquiry.[61] In support of his first contention, Mr Salmon submitted that although theMinister's power in s 186 of the RMA is broadly framed, the Minister is obliged toconsider any mandatory relevant considerations when making his or her decision.Here, he submitted the mandatory considerations were as follows:(a) Alternative sites, routes or other methods of achieving the relevantobjectives. Mr Salmon submitted this was clear from the statutoryframework, and s 24(7)(b) of the PWA in particular.(b) The information required to be provided to the Minister in accordancewith LINZS15005.(c) The contents of the s 186 applications.61 At [47].[62] Mr Salmon contended it was misconceived to describe the Minister's roleunder s 186(1) as "supervisory". The plain words of s 186 provide that a privatenetwork utility operator may apply to the Minister to have land taken by the Crownthat will vest in the network utility operator at the time of proclamation. The processrequires the active use of the Minister's power to take private land. Mr Salmonsubmitted the Minister's role in the circumstances cannot be a passive one. Once thes 186 application has been made and granted, the applicant has no further role untilthe Governor-General issues a proclamation vesting the land in the applicant. Even ifthe landowner files an objection, the network utility operator is not a party to theproceedings in the Environment Court.[63] Mr Salmon submitted that at the s 186 stage, the Minister must decide whetherto exercise his or her powers of acquisition under the PWA. The Minister can proceedto take the land if he or she is unable to negotiate an outcome three months after theacquisition process has been initiated. It would not make sense if a private entity, anetwork utility operator, could initiate the Crown's coercive powers of acquisition onthe basis of a flawed, incorrect or misleading route-selection process with the onlycheck occurring when the matter comes before the Environment Court after anobjection has been filed. This would be to reduce the exercise of the Minister's powerto a rubber-stamping exercise. Such a conclusion would be inappropriate given thatcompulsory acquisition by its nature results in the "trammelling" of private propertyrights.[64] Mr Salmon submitted the High Court was right to uphold the EnvironmentCourt's conclusion that "no alternatives were ever before the Minister".62 On this issuethe High Court noted that the s 186 applications were dealt with by LINZ employeeswho relied on the evaluations undertaken by TEL.63 While the report provided by TELprovided some background information on how route selection was made, Mr Salmonsubmitted there was insufficient information on alternative routes to allow a properconsideration of alternatives by the Minister.62 At [47].63 At [59].[65] Mr Salmon also noted that LINZS15005 requires the s 186 applications toprovide an "analysis of requirement", including "details of the assessment of anyalternative sites, routes or methods of achieving the applicant's objectives".64Effectively then, the Crown's own application criteria required sufficient informationto allow alternative routes to be considered. Similarly, Mr Salmon argued that theMinister is obliged to consider the contents of the s 186 applications. He submitted itwas self-evident that an application needs to be considered before any decision canproperly be made to grant it.[66] In this case, Mr Salmon said the applications were inadequate because theycontained insufficient information as to alternatives, as the High Court held. TheMinister had taken a fundamentally passive approach, with the result that her decisionwas affected by substantive defects in TEL's own approach. In fact, TEL misled theMinister as to the necessity of the taking, by failing to advise that its board had not yetdecided whether to construct the transmission line, and by representing the objectionroute as the only economic and practicable route available when there were multiplepotential routes, two of which TEL regarded as preferable. The most preferred routewas in fact over the OTS land, but this was abandoned by TEL because the Ministerfor Treaty of Waitangi Negotiations refused to grant an easement. The secondpreferred route was abandoned on grounds that should have been regarded asobjectionable and disqualifying: specifically, it was claimed, because of politicalconnections of an affected landowner.[67] On the second issue, Mr Salmon submitted the High Court correctly held thatunder s 24(7)(b) of the PWA the Environment Court must enquire into the adequacyof the Minister's consideration of alternative sites and routes. This reflected the factthe decision to take private land pursuant to an application under s 186 is the Minister'sdecision to make, and involves exercise of the Minister's power. While it was correctto treat the relevant objectives to be considered under s 24(7)(a) as being those of therequiring authority, it would be an unjustified leap of logic to conclude this meant thatthe consideration of alternatives under s 24(7)(b) was limited to the considerationcarried out by the requiring authority.64 LINZS15005, above n 59, at 33.[68] Mr Salmon argued that would essentially contemplate the abdication ofdecision-making power by the Minister, and had that been the intention of thelegislature, it would have been set out expressly in the statute. Mr Salmon submittedthe High Court's approach was correct, and consistent with an earlier High Courtdecision, Kett v Minister for Land Information.65[69] Mr Salmon addressed various other arguments purportedly in support of theHigh Court judgment but in fact based on alleged errors in the Environment Court'sdecision. We deal separately with those issues later in this judgment.DecisionThe nature of the Minister's power under s 186 of the RMA[70] The words "if the Minister agrees" in s 186 of the RMA are couched in openlanguage consistent with the conferral of a broad discretion. But it is trite law thatthere is no such thing as an unfettered discretion. As was said by the Supreme Courtin Unison Networks Ltd v Commerce Commission:66[53] A statutory power is subject to limits even if it is conferred inunqualified terms. Parliament must have intended that a broadly frameddiscretion should always be exercised to promote the policy and objects ofthe Act. These are ascertained from reading the Act as a whole. The exerciseof the power will be invalid if the decision maker "so uses his discretion as tothwart or run counter to the policy and objects of the Act".67 A power grantedfor a particular purpose must be used for that purpose but the pursuit of otherpurposes does not necessarily invalidate the exercise of public power. Therewill not be invalidity if the statutory purpose is being pursued and the statutorypolicy is not compromised by the other purpose.68[71] The statutory context in which the Minister's power is to be exercisednecessarily establishes broad parameters for the exercise of the power. The purposeof s 186(1) is to authorise a network utility operator to apply for the Minister'sagreement to the proposed taking or acquisition of land required for a proposed projector work, and to give the Minister the power to decide whether or not to agree to the65 Kett v Minister for Land Information HC Auckland AP404/151/00, 28 June 2001.66 Unison Networks Ltd v Commerce Commission, above n 28.67 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL) at 1030 per Lord Reid.68 Attorney-General v Ireland [2002] 2 NZLR 220 (CA) at [42] and [43]; and Poananga v StateServices Commission [1985] 2 NZLR 385 (CA) at 393–394.taking of the land. Although the Minister's power in s 186(1) is exercised prior to thecommencement of the formal PWA processes, it is implicit, having regard to thestatutory scheme comprising the relevant provisions of the RMA and the PWA, thatthe power must be exercised on the basis that in the case of objection the issue ofwhether or not the land should be taken will be determined by the Environment Court.[72] We consider this means the Minister must be satisfied that the proposed takingis capable of meeting the statutory test in s 24(7)(d) that the Environment Court wouldapply if there was an objection: namely that it is fair, sound and reasonably necessaryfor achieving the objectives of the network utility operator that the land should betaken. That requires the Minister to have sufficient information to ascertain what theobjectives are, and also that there has been appropriate consideration of alternativesites, routes or other methods of achieving those objectives. But we do not considerit is the Minister's role to decide which of a number of alternatives should be pursued.Rather, it is for the Minister to decide whether the proposal which is the subject of thes 186 application can meet the statutory test.[73] The open language in which the power is conferred on the Minister, however,suggests that the Minister's decision might also properly be affected by policyconsiderations relevant to the proposed project or work. The Minister is being askedto lend the coercive powers of the state to the acquisition of land by another party. It isinappropriate in the circumstances to suggest that there can be no room for theapplication of government policy (provided that policy does not frustrate the purposeof the Act) and broad considerations of where the public interest lies. Putting thatanother way, given the nature of the Minister's power, we think it would be wrong tocharacterise taking into account broadly relevant government policy as using theMinister's discretion to run counter to the policy and objects of the legislation. Therelevant legislative policy and objects here are derived not just from considering thePWA, but also the RMA, which requires all decision-makers to take into account theprinciples of the Treaty of Waitangi.6969 Resource Management Act, s 8.[74] For example, a proposal that otherwise appeared meritorious might beconsidered inappropriate because of its implications for land of particular cultural orspiritual value to Māori. Similarly, the facts of the present case included considerationof a potential route (the apparently less costly OTS route) over land which wasland-banked for the provision of potential redress in the settlement of claims under theTreaty of Waitangi. We consider a decision made in good faith not to consent to theacquisition of such land under s 186(1) would be appropriate even if the project mightotherwise be considered suitable to meet the objectives of a network utility operator.It is also possible that projects might be advanced by network utility operators thatmight be contrary to central government policies relevant to climate change or thepreservation of natural landscapes of outstanding quality or other environmentalpolicies.70 Again, in such cases the Minister might lawfully withhold agreement unders 186(1).[75] These conclusions are supported by the more detailed reasoning that follows.The role of the Minister[76] Section 186 of the RMA was discussed in the judgments delivered in theSupreme Court in Seaton v Minister for Land Information.71 The question in that casewas whether the Minister had properly invoked the compulsory acquisition powersunder the PWA to acquire easements over land necessary to relocate supporting towersfor electricity lines owned by a network utility operator because of the widening of thecarriageway forming part of State Highway 1 on which the towers had been located.It was held by the majority that the easements were not reasonably required for thewidening of the road, but rather for the conveyance of electricity, the latter not beingundertaken by the Crown.72 The correct course for acquisition of the easements wouldhave been for the utility company to apply under s 186(1) of the RMA for the Ministerto agree to the compulsory acquisition of the easements.70 The matters of national importance set out in s 6 of the Resource Management Act must berecognised by all persons exercising functions and powers under the Act, so would extend to theMinister acting under s 186(1).71 Seaton v Minister for Land Information, above n 24.72 At [21]–[22] per Elias CJ and [67] per Chambers and Glazebrook JJ.[77] The issue in that case does not arise here. We note however that Elias CJobserved that whether land is taken under s 16(1) of the PWA for a government workor whether it is taken under s 186 of the RMA for a project or work of a network utilityoperator, the procedures are those contained in pt 2 of the PWA. She noted that"[i]n both cases the acquisition is conducted by the Minister of Lands either forhimself or for the network utility operator, as the case may be."73 She contrasted theposition of network utility operators and local authorities, pointing out that the latterare empowered to act directly in the case of local works for which they have financialresponsibility and "not through the Minister or under any deeming provision such asthat which treats applications on behalf of network operators as if their proposed workswere Government works".74[78] William Young J (writing for himself and McGrath J) explained that when thePWA was enacted in 1981, utilities were generally publicly owned and, where that wasnot the case, usually operated under and exercised statutory powers conferred inprivate Acts of Parliament.75 However, the corporatisation and privatisation of thefunctions of such utilities which subsequently occurred "significantly reduced thescale of central and local government utility activities and thus the potential scope forcompulsory acquisition".76 Section 186 was designed to address the "resultinglacuna".77[79] Later, in a passage which we think is directly relevant here, after setting outs 24(7) of the PWA William Young J wrote:[83] Where s 186(1) of the Resource Management Act has been invoked,the references to "Minister" in (a) and (d) must be read as a reference tothe network utility operator (because the proposed taking will be to give effectto its objectives, rather than those of the Minister). [80] We respectfully agree with that approach. It is similar to the reasoning ofChambers J (who also wrote for Glazebrook J), who emphasised the importance of theMinister following the correct procedure by referring to the effect on matters relevant73 At [5] (footnote omitted).74 At [5], n 6.75 At [76], n 52.76 At [76].77 At [77].to the Environment Court's inquiry under s 24(7).78 Thus, if s 186 were not invoked,the Environment Court's focus would be on the extent to which the easements wererequired for road widening purposes. On the other hand, if s 186 had been invoked:79 the focus would be on the utilities' need for these easements compared withother relocation measures that might be open to them. The difference is subtle,but there is a difference.[81] We think the discussion in Seaton implies that where s 186 of the RMA hasbeen relied on, the enquiry into the adequacy of the consideration of alternatives unders 24(7)(b) of the PWA must embrace the consideration of alternatives by the networkutility operator.[82] In this case, the Judge took a different view. Her essential reasoning was setout at [47] of the High Court judgment, which we have quoted above.80 While weagree that the Minister's particular statutory role is not captured by describing her asthe agent of the network utility operator, we consider the Judge's statement that "itmust be the Minister alone who has the obligation to consider any relevant factors" isincorrect.81 If by saying that the Judge intended to imply that the Minister mustpersonally consider alternatives additional to those that the network utility operatorhas considered, or decide which of the alternatives considered should be preferred, wedo not consider that would be in accordance with the statutory scheme. We accept thatthe Minister might reach the view, after considering an application, that furtheralternatives should be considered and decline the application for that reason. Thatwould be an available course given the openness of the statutory language. But thatis a different proposition from the Judge's conclusion that the Minister alone has theobligation to consider any relevant factors.[83] The proposal after all is that of the network utility operator, which willinevitably be much more familiar with the purpose of and need for the intended works.It will have developed the proposal having identified its objectives for the project orwork. As all the Judges seem to have accepted in Seaton, by the stage s 24(7)(a) and78 At [66].79 At [66].80 Above at [20].81 High Court judgment, above n 13, at [47].(d) of the PWA are reached it is the network utility operator's objectives that are beingconsidered.82 This seems to us inconsistent with the notion that the Minister has thecentral role contemplated by the High Court at the earlier stage of the process. It alsoseems inconsistent with the idea that in a case involving s 186 of the RMA, it is theadequacy of the Minister's consideration of alternatives that is to be assessed unders 24(7)(b) of the PWA.[84] The statutory scheme in fact assumes that the network utility operator will haveidentified its objectives, the means of achieving them and a preferred option prior tomaking an application to the Minister under s 186(1). The Minister is the Minister forLand Information, and could not be expected to have access to institutional knowledgeand expertise equivalent to that of the network utility operator, so far as assessment ofthe technical and economic feasibility of different alternatives is concerned. Nor isthere any indication in the statutory scheme that the Minister has the role of decidingthat the proposal is one that should be approved on the merits. That is an issuedeliberately left to the Environment Court where there is an objection.[85] We do not consider that in deciding whether or not to agree to a request unders 186(1) of the RMA the Minister is required to be satisfied that the proposal willdefinitely meet the requirements of s 24(7) of the PWA. It will be enough if theMinister is satisfied it is capable of doing so. The s 186(1) decision occurs prior to thematter being considered by the Environment Court. If the legislative intent was thatboth the Minister and the Environment Court were required to be satisfied of the samematters it would be surprising if the statutory regime specified the criteria to be appliedat the subsequent stage, but not the former. We think that if that was what wasintended, the legislature would have stipulated the considerations relevant to theMinister's decision, and then said they should also govern the Environment Court'sdecision. The Environment Court could then have been placed in a role analogous toits role in determining an appeal in exercise of its functions under the RMA, but thatis obviously not what s 24 of the PWA contemplates.82 Seaton v Minister for Land Information, above n 24, at [24] per Elias CJ, [66] per Chambers andGlazebrook JJ and [83] per William Young and McGrath JJ.[86] There are also practical reasons why requiring the Minister to be satisfied theproposal will definitely meet the s 24(7) requirements would not work. When theMinister is acting under s 186(1) of the RMA, the PWA procedures will not have beencommenced. Whether or not a particular proposal will be accepted by the affectedlandowners or whether there will be objections cannot at that point be ascertained.And any consideration of the merits at the s 186 stage would take place in the absenceof the information produced as a result of the receipt and consideration of objections,and without there being any equivalent process designed to achieve input fromaffected parties, which is a feature of the hearing of objections by the EnvironmentCourt. It is consistent with this that the Environment Court is the body which actuallyexercises the power to decide whether or not the land of the objector may be taken.Its decision is binding on the Minister.83 In the present case information from objectorswas referred to in the briefing materials given to the Minister, including criticisms ofTEL's failure to pursue the OTS route and other issues raised by the objectors'solicitors. Although this added to the material before the Minister relevant to thequestion of alternatives, and it was open to the Minister to consider it when makingthe s 186 decisions, it was not the Minister's role under s 186 to reach a view on themerits of different routes and the provision of this information in the present case didnot require the Minister to do so.[87] In addition, negotiations with those affected may well result in modificationsto a proposal by the time the matter reaches the Environment Court. Those changesmay be designed to respond to issues that have been raised by objectors. We do notsee any suggestion in the legislation that this iterative approach cannot occur. Indeed,the possibility of modification is inherent in the concept of mandatory priornegotiation, which is a central feature of the procedures required by pt 2 of the PWA.84It can be said in fact that the statutory procedures must leave room for the ongoingconsideration of alternatives after a notice of intention to take land has been givenunder s 23. It would be artificial and inconsistent with the obligation to negotiate ingood faith if the serving of the notice of intention to take were seen as necessarily83 Public Works Act, s 24(10).84 Section 18(1)(d). A modification resulting in a proposal affecting different land might of courserequire the statutory procedures to be recommenced in the absence of agreement from the newlyaffected landowners.bringing negotiations to an end. Similarly, negotiation might result in the withdrawalof a notice of intention to take under s 23(8) on the basis that it was no longerconsidered necessary to take the land.[88] The fact that a proposal is initiated by a network utility operator does not putit in an exceptional category in this respect. On the contrary, s 186(1) has clearly beendrafted with the intention that the PWA procedures will apply.[89] Mr Salmon placed considerable emphasis on the fact that it is only if theMinister agrees under s 186 that the compulsory acquisition procedures may beimplemented. As noted above, he submitted that the Minister must decide at the s 186stage to exercise the powers of acquisition under the PWA. Once the Minister hasagreed, if unable to negotiate an outcome after three months he or she can proceed totake the land.85 Mr Salmon submitted the prospective exercise of the Crown's coercivepowers of acquisition means the Minister needs to be in a position to ensure that usingthose powers is appropriate, which must include the consideration of alternatives bythe Minister.[90] However, it is not accurate to describe the Minister's role under s 186 asinvolving a decision to exercise the powers of compulsory acquisition. If the affectedlandowners agree, there will be no compulsory acquisition, and no use of the Crown'scoercive powers. There may be a proclamation, but that will be implementing theagreement. Absent agreement by the affected landowners, the acquisition will be ableto proceed only if the Environment Court considers there has been an adequateexamination of alternatives,86 and reaches the evaluative judgement that the landshould be taken.87 If the Environment Court were to reach the view that theconsideration of alternatives was inadequate it could send the matter back to theMinister for further consideration,88 or simply report adversely on the proposal.85 Section 18(2).86 Section 24(7)(b).87 Section 24(7)(d).88 Section 24(7)(c).[91] These possible outcomes do not mean the Minister has the sole responsibilityto consider "any relevant factors" as the High Court held.89 On the contrary, they areconsistent with the fact that where a network utility operator is involved, it will haveassumed primary responsibility for the consideration of alternative means of achievingits objectives. Of course it is open to the Minister, in an appropriate case, to decidethat the consideration of alternatives has been inadequate. But where the Ministeragrees to the land being taken or acquired under pt 2 of the PWA, and the matterproceeds to the Environment Court, the question the Court will ask is whether therehas been adequate consideration given to the alternatives. The Court's obligationunder s 24(7)(b) is to enquire into that issue and report on it, as well as the other mattersit is required to consider. It is not directed to enquire into whether the Ministerpersonally has given adequate consideration to alternatives.[92] In describing the nature of the Minister's decision under s 186 as"supervisory", Mr Isac relied on the decision of the Supreme Court in Schmuck v OpuaCoastal Preservation Inc.90 That case required the Court to consider the power givenin s 48(1)(f) of the Reserves Act 1977 to the administering body of a reserve to grantrights of way and other easements over any part of the reserve for various purposes inrespect of land not forming part of the reserve. The power of the administering bodyto grant the rights of way and other easements was exercisable "with the consent ofthe Minister and on such conditions as the Minister thinks fit".91 The Supreme Courtconsidered that the terms "check" and "supervisory" were useful shorthanddescriptions of the role of the Minister in giving consent to a grant,92 but added:93 we do not consider that the Minister is under any obligation in processterms to reconsider the matters taken into account by the administering bodyin granting the easement, so long as they are within the administering body'spowers.[131] In characterising the Minister's power as supervisory, we are notintending to create any artificial limit on that power. All we are saying is thatthere is no requirement to re-run the process already undertaken by theadministering body of the reserve. However, if the Minister takes a differentview of the situation from that taken by the administering body, there isnothing to stop the Minister refusing to consent to a decision that the89 High Court judgment, above n 13, at [47].90 Schmuck v Opua Coastal Preservation Inc [2019] NZSC 118, [2019] 1 NZLR 750.91 Reserves Act 1977, s 48(1).92 Schmuck v Opua Coastal Preservation Inc, above n 90, at [130].93 At [130]–[131].administering body has made lawfully and which the administering bodyconsiders is reasonable. We agree with the Court of Appeal that the Ministeris free to take a different view from that of the administering body as grantor.But there is also nothing requiring the Minister to reconsider matters decidedby the administering body and the Minister does not act unlawfully if he orshe does not do so.[93] The Court agreed with a submission that the Minister's decision is not arubber-stamping exercise. However, in the absence of any statutory requirements asto process, it was for the Minister to determine what was relevant to the decision,and:94 the manner and intensity of the inquiry into any such matter (beyondthe essentials of checking that the statutory process has been undertaken bythe administering body and that the easement was lawfully granted), subjectonly to challenge on grounds of unreasonableness.[94] Mr Salmon invited us to distinguish Schmuck on the basis thatthe administering body had the power to grant the easement and the Minister's role ingranting consent was simply a final check on the exercise of that power. In thosecircumstances it was appropriate to describe the power as "supervisory", especially asthe Minister's consent was being given to a voluntary granting of an easement by theowner of the land. Moreover, the decision to grant the easement was subject to specificrequirements as to compliance with the RMA, and mandatory public notification andconsideration of public submissions.95 Given that the Minister's consent power wasbeing exercised after a prior decision-making process that was public and contestable,a narrow view of the power was understandable. By contrast, in the present caserequiring the Minister to consider alternative sites and routes when acting under s 186of the RMA would not be to require repetition of a process already undertaken byanother public body, the situation that applied in Schmuck.[95] We agree that the statutory setting here is clearly different from that consideredby the Supreme Court in Schmuck, and the case can be distinguished for the reasonsadvanced by Mr Salmon. Nor do we think the word "supervisory" an accuratedescription of the Minister's role under s 186(1). Where s 186 is engaged the Ministeris doing more than approving an action which the network utility operator is itself able94 At [132] (footnote omitted).95 Reserves Act, s 48(2).to carry out. The Minister is taking a crucial step to facilitate the project, which couldnot proceed without the Minister's agreement. For these reasons we think the"supervisory" label is inappropriate and might in fact be misleading.[96] However, some aspects of the reasoning in Schmuck may properly be appliedby analogy. In both cases the Minister's power is expressed in open language withoutreference to statutory criteria governing its exercise, and in both cases the exercise ofthe Minister's power is contingent on another entity making a decision, subject topublic rights of participation and process. In this case, the result of the Minister'sagreement under s 186(1) of the RMA is that the taking may proceed, but, if the takingis opposed, it may occur only after the Environment Court agrees, after carrying outits function under s 24(7) of the PWA. As in Schmuck, there is a justification forreading the relevant statutory provisions in a way that avoids duplication of process,especially when the PWA gives such a pivotal role to the Environment Court.[97] Further, as in that case, we see nothing in the statutory language which preventsthe Minister from reaching his or her own view as to the intensity of the enquiry it isappropriate for him or her to undertake. Doubtless the Minister should be satisfiedthat the proposal is one that is capable of passing muster in the Environment Court,but we do not see how a reasonable decision to that effect could render unlawful thePWA process that ensues. And importantly, as mentioned above, we consider thebroad statutory language in s 186(1) of the RMA leaves room for the Minister toconsider relevant government policies that might make it inappropriate to facilitate aproject or work proposed by a network utility operator by agreeing to the taking oracquisition.[98] The Judge found persuasive the discussion of s 24(7)(b) of the PWA byHigh Court in Kett v Minister for Land Information,96 a case on which Mr Salmon alsorelied. The case involved a proposed acquisition of land for the purposes of therealignment of State Highway 1 between Orewa and Puhoi. In the present case, theJudge noted that the Environment Court's duty to enquire into alternatives unders 24(7)(b) presupposed that someone would have considered the alternatives before96 Kett v Minister for Land Information, above n 65.the matter reaches the Environment Court, and held that "[t]hat person must,self-evidently, be the Minister",97 citing what Paterson J said in Kett:98If this phrase is given its normal plain and dictionary meaning, the Court wasrequired to consider whether the Minister sufficiently and with due regard,chose the route, after taking into account circumstances which werereasonably relevant relating to that route and alternative routes. I see noreason, from the context of the Act or statements made when the Bill wasintroduced, to give the term any other meaning. The Court was not itselfrequired to determine whether the route was the most suitable of the availablealternatives. Its role was to ensure that the Minister had carefully consideredthe possibilities, taken into account relevant matters and come to a reasoneddecision.[99] We do not think this statement has the significance that the Judge afforded it,for a number of reasons. First, in the quoted passage Paterson J was giving reasonsfor rejecting an argument advanced on behalf of an objector that the EnvironmentCourt had applied the wrong test in determining that the Minister had given adequateconsideration to alternative routes. It was submitted that the Environment Courtshould have required the Minister to establish that there was no alternative to theoption that required the compulsory acquisition of land to which the landowner hadobjected. Paterson J disagreed. But the discussion was about the role of theEnvironment Court, not the Minister.[100] Secondly, the requiring authority was Transit New Zealand, a Crown entityresponsible for the designation of the realigned section of the State Highway. The casedid not involve a network utility operator or, therefore, a request to the Minister unders 186 of the RMA. For this reason, it does not assist with the definition of theMinister's role under that section.[101] Thirdly, although in the passage set out above Paterson J referred to theMinister choosing the route, the actual discussion in the judgment, about whether therewas evidence on which the Environment Court could have concluded the Minister hadgiven adequate consideration to alternative routes, focused on the consideration ofalternatives by Transit New Zealand.99 The Judge did not draw any distinctionbetween the Minister and Transit New Zealand insofar as the consideration of97 High Court judgment, above n 13, at [49].98 At [51], citing Kett v Minister for Land Information, above n 65, at [32].99 Kett v Minister for Land Information, above n 65, at [37]–[38].alternatives was concerned, and it does not appear to have been argued that he shouldhave. We suspect that reflects the fact that the Environment Court defined the relevantobjectives of the Minster as being:100 to enable Transit to give effect to the proposal to construct and operate theRealignment of State Highway 1 between Orewa and Puhoi generally inaccordance with the designation for it in the district plan as part of a safe andefficient highway system.[102] In any event, we consider it is clear from the relevant discussion in thejudgment that the High Court considered the relevant history of investigation ofvarious alternatives by Transit New Zealand, which led to the development of theparticular proposal, should be considered as relevant to the enquiry under s 24(7)(b).We do not consider the Court was requiring a number of alternatives to be put beforethe Minister to enable him to choose between various alternatives at the stage ofdeciding to give notice of an intention to take land for a particular proposal.[103] In this case, having held that the Minister was required to consider alternativeroutes and that the Environment Court was required to examine the adequacy of thatconsideration, the Judge thought it significant that the evidence before theEnvironment Court from Mr Sun, a LINZ official, was that "no alternatives were everbefore the Minister".101 The Judge took that quotation from the Environment Court'sreport, but Mr Isac drew our attention to the context in which it appeared. TheEnvironment Court recorded a submission made to it by Mr Salmon that the Ministershould have considered alternative routes, and should then have chosen betweenthem.102 It then continued:103Mr Sun noted that no alternatives were ever before the Minister. The Ministryof Land Information deals with the application made by the requiringauthority. Although the report by the requiring authority does indicate somebackground information on how the route selection was made, we agree thatthis cannot bind the Minister at the s 186 decision stage.[104] Mr Isac noted that in this part of its report the Environment Court was dealingwith Mr Salmon's submission that the s 186 applications should have set out100 Kett v Minister of Land Information EnvC Auckland A110/2000, 15 September 2000 at [44].The Environment Court's finding in this respect was not challenged on appeal.101 High Court judgment, above n 13, at [59].102 Environment Court report, above n 8, at [42].103 At [42].alternatives for the Minister to choose between. Mr Sun's evidence was effectivelythat an application setting out two options and requiring the Minister to choose theroute she preferred would not be provided to the Minister. He explained:It's not my understanding of the s 186 process It's a requirement thatthe applicant identifies what it's applying for. The Minister does not pick(a),(b) or (c). She decides "yes" or "no". [If an applicant advised that therewere two equally good routes] the relevant official would say to theapplicant, "decide which one's better and tell us why".[105] Mr Isac contrasted this with the proposition that no information was before theMinister about the alternatives that had been examined, which was not correct. Heemphasised in this respect that the material provided by TEL for the purposes of thes 186 applications was substantial and dealt with a number of relevant matters,including the need for the project, the efforts that had been made to negotiateagreements with affected landowners and the assessment of alternatives. Theapplications identified four routes that TEL had considered, and were placed beforethe Minister with the briefing papers prepared by LINZ officials, which referred theMinister to the various parts of the applications where the assessment of alternativeswas addressed. The papers given to the Minister included a "decision sheet" whichshe marked to indicate that the consideration of alternatives had been assessed.[106] The Environment Court found that there had been adequate consideration ofalternatives by TEL, and that was sufficient for the purposes of its enquiry unders 24(7)(b) of the PWA.104 On the view we take, the summary given by LINZ officialsto the Minister of the consideration of alternatives by TEL was adequate for her toreach the view that TEL's applications were capable of achieving a favourable reportfrom the Environment Court. A second appeal on questions of law is not anappropriate proceeding for the merits of the Environment Court's report to bechallenged.[107] We note further that it is clear from the Minister's decision that she took intoaccount the contents of the applications made by TEL, which were attached to thebriefing papers prepared for her by LINZ officials. The arguments that she did notconsider the contents of the applications, and that the requirements of LINZS15005104 At [109].were not met, appear to be further manifestations of the argument that the Ministerwas obliged to personally consider and decide between the alternatives. Thosearguments cannot be sustained for the reasons we have earlier discussed.Other issues[108] Mr Salmon endeavoured to support the outcome in the High Court on groundsadditional to those given by the Judge. He submitted in particular that theEnvironment Court erred by:(a) treating the Minister's decision as valid when it was defective becauseTEL's route selection was based on improper and irrelevantconsiderations (including a landowner's alleged political connections)and the s 186 applications contained "fatal omissions";(b) failing to consider that, as a matter of law, the Crown could havegranted easements over the OTS land without requiring compulsoryacquisition; and(c) treating the reasons given in the Minister's notice of intention to takeland as sufficient, when they were not.Improper/irrelevant considerations and omissions[109] The first issue was based on the contention that TEL had decided against oneof the potential routes on the basis that the landowner concerned was connected to aMinister of the Crown. Mr Salmon secured a concession in cross-examination in theEnvironment Court that the relationship had been considered in the route selectionprocess, a matter that had not been referred to in the briefing papers given to theMinister. However, the Environment Court rejected this contention, noting that thelandowner concerned had in fact signed an agreement to grant an easement in respectof his property, although in a different location and for a shorter distance than had beenproposed at one stage.105 The Court considered that the previous proposal would have105 At [113].had a greater impact on some parties than the route in fact selected.106 In the HighCourt, the Judge considered the issue did "not raise an appealable question of law".107She expressed the view that the Minister's decision-making process could not bear onan appeal against the Environment Court's decision.108[110] We think it would be possible in an appropriate case for the Environment Courtto consider, in the course of its inquiry under s 24(7) of the PWA, the processes thathad been followed by the Minister in making a decision under s 186(1) of the RMA.An unfair process might have the implication that there had been an inadequateconsideration of alternatives or justify a finding that it would not be fair for the landof the objector to be taken. In either case, it would need to be shown that what hadoccurred had a material impact on the decision. There is no basis upon which we couldreach that view in this case. We do not consider any error has been demonstrated.[111] As to the suggestion of a "fatal omission", the argument is that TEL'sapplications to the Minister had been premised on urgency and necessity whereasboard documents made available prior to the Environment Court hearing demonstratedthat the board had not yet decided to proceed with constructing the line, and that dieselgeneration might be a possible means of avoiding the need for the line altogether. TheEnvironment Court considered this argument in the course of ascertaining TEL'sobjectives. It decided that the relevant objectives were the construction of lines for anetwork distribution system, not the production of power.109 Mr Salmon alsocontended that TEL misrepresented the objection route as the "only practical andeconomic route", and withheld its costing modelling for the various routes fromthe Minister.[112] The High Court considered that these various omissions could not be relevantto the appeal against the Environment Court's decision.110 We agree.106 At [114].107 High Court judgment, above n 13, at [68].108 At [68].109 Environment Court report, above n 8, at [83].110 High Court judgment, above n 13, at [68].The OTS land[113] The second issue raised by Mr Salmon concerned the possibility the Crownmight grant easements over the OTS land. The Environment Court considered thatsince the PWA did not permit compulsory acquisition of land owned by the Crown,there was no means of obtaining the OTS land without the agreement of the Ministerfor Treaty of Waitangi Negotiations.111 While recording that it could not reviewthe decision of that Minister, it thought there was a reasonable basis for that Ministerto refuse to allow the easements, given the objections of tangata whenua and evidencefrom a witness at the Office of Treatment Settlements.112[114] The evidence for that view was summarised in the Environment Court's report.It recorded, amongst other things, that the OTS land was part of an area of some4000 ha, referred to as the OTS block, the taking of which had been disputed byTe Whiu, a hapū of Ngāpuhi, over the years since 1868. Some 2000 acres had beenre-vested in Te Whiu in 1921. What was referred to as the OTS remnant land was partof the original tūrangawaewae of Te Whiu, and contained urupā and a pā site.The Court observed that it had been "repeatedly identified as of significant culturalvalue to Te Whiu".113 Further, it was the sole remnant land available of their originalancestral lands, which increased its importance for the purposes of cultural redressunder the Treaty of Waitangi.114[115] The Judge considered the Environment Court's approach was correct.115No challenge had been mounted in relation to the refusal of the Minister for Treaty ofWaitangi Negotiations to make the OTS land available for the construction oftransmission lines, and the Environment Court was entitled to proceed on the basisthat the decision of that Minister not to grant consent was valid.116 Further, TEL wasnot obliged to exhaust the legal pathways available in respect of the OTS route beforeseeking consent under s 186(1) of the RMA.117111 Environment Court report, above n 8, at [64].112 At [66].113 At [60(c)].114 At [65(d)].115 High Court judgment, above n 13, at [73].116 At [73].117 At [74].[116] In this Court, Mr Salmon again submitted the Environment Court erred byfailing to consider that as a matter of law the Crown was able to grant easements overits own land-banked land without resorting compulsory acquisition to allow TEL toproceed with its project. He contended that the reasons for the Crown's refusal were"policy-driven, and as such, irrelevant". He referred to Phillip A Joseph,Constitutional and Administrative Law in New Zealand for the proposition thatconsiderations such as the public interest, administrative efficiency or governmentpolicy may not excuse an unauthorised statutory purpose or reliance on an irrelevantconsideration.118 He also repeated the argument advanced in the High Court thatthe Environment Court erred by failing to take into account that TEL had notchallenged the refusal of the Crown to grant an easement over the OTS land.[117] It will be apparent from the discussion earlier in this judgment that we cannotaccept these arguments. In the High Court, Mr Salmon relied on the decision of theHigh Court in Dannevirke Borough Council v Governor-General.119 Although he didnot refer to it in this Court, that judgment reflects the basis of the argument headvanced, based on a narrow conception of the purpose of the statutory scheme.The case concerned a resolution by the Council that land be compulsorily acquiredunder the Public Works Act 1928 (the PWA 1928) for the purposes of a new rubbishdump. In accordance with constitutional procedures, it was necessary for the Ministerof Works to recommend to the Governor-General that land be taken for the purposesof the proposed work. The Minister declined to recommend to the Governor-Generalthat the subject land be taken, giving as his reason the fact that the land was Māoriland and it was government policy not to allow its compulsory acquisition.[118] After reviewing the scope and purposes of the PWA 1928, Davison CJ referredto Padfield v Minister of Agriculture, Fisheries and Food.120 He held that the Act didnot enable particular classes of land or land owned by particular classes of persons tobe excluded from the compulsory taking provisions of the legislation by the exerciseof the discretion of the Minister or Governor-General, and that by making a decision118 Phillip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, ThomsonReuters, Wellington, 2014) at [23.2.6].119 Dannevirke Borough Council v Governor-General [1981] 1 NZLR 129 (HC).120 Padfield v Minister of Agriculture, Fisheries and Food, above n 67.based on the policy not to compulsorily acquire Māori land, the Minister exercised hispowers for an improper purpose. In this regard, Davidson CJ stated:121The Government policy to which the Minister referred is contrary to the policyand objects of the Act. It is a consideration which did not entitle him to refuseto recommend the compulsory taking of the land. If the Government wishesto implement the stated policy in relation to Maori land then it must be givenlegislative effect by an appropriate statutory enactment. It cannot apply apolicy which is contrary to the statute.[119] This reasoning appears anachronistic judged in the light of today's enhancedappreciation of the importance of the Treaty of Waitangi and the need to ensure thatland use issues of significance to Māori are properly recognised and provided for.Further, the legislation has undergone significant change, which makes application ofthe approach adopted in Dannevirke inappropriate as a general proposition. TheMinister's power in s 186(1) of the RMA must now be exercised in a statutory settingwhich requires application of the purposes and principles expressed in pt 2 of theRMA, including the requirement to recognise and provide for "the relationship ofMāori and their culture and traditions with their ancestral lands, water, sites,waahi tapu, and other taonga".122 And under s 8 of the Act, the Minister is obliged totake into account the principles of the Treaty of Waitangi.[120] Given these provisions of the RMA, it cannot possibly be said that allowingsuch considerations an influential role in the decision-making process would doanything other than promote the purposes of the statutory scheme.123 If such matterscan legitimately be considered under s 186(1) of the RMA it would be odd if theycould not be brought into account under the PWA. In this field both statutes clearlyneed to operate in a complementary manner.[121] More fundamentally, treating the significance of land to Māori as apolicy-driven and therefore "irrelevant" consideration in determining whether landshould be acquired or taken under pt 2 of the PWA runs counter to the principles of121 Dannevirke Borough Council v Governor-General, above n 119, at 134–135.122 Resource Management Act, s 6(e). As earlier discussed, other subsections of s 6 could be relevantwhere a project gives rise to issues of environmental concern.123 See Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 210–211where Chilwell J noted that the Water and Soil Conservation Act 1967 and Country Planning Act1977 comprised a "comprehensive statutory scheme" providing for the terms of one statute to beuseful for interpreting another.the Treaty of Waitangi. While s 24(7) does not expressly require the EnvironmentCourt to have recourse to the Treaty of Waitangi or its principles, where the acquisitionof land of significance to Māori is at issue the Treaty is clearly relevant to theEnvironment Court's inquiry.124[122] These considerations underline the correctness of the conclusion of the Courtsbelow that the refusal to grant an easement over the OTS land, and the "failure" ofTEL to challenge that decision, were not matters that needed to be weighed against theproject.Notice of intention[123] The final issue raised by Mr Salmon was based on the requirement in s 23(1)(c)of the PWA that notices be served on the landowners explaining, amongst other things,why the taking of the land is considered reasonably necessary. Here, the respectivenotices of intention relevantly asserted that the project would allow TEL to constructa single circuit high-voltage transmission line and other electrical and communicationworks. Further, it was said that the project was required: to improve the capacity, security and reliability of the electricitydistribution network in the Far North region to meet growth and increasingdemand for electricity in the region; and to remedy underlying networkweaknesses which will provide a more secure supply for the region.[124] Mr Salmon criticised this on the basis that the reasons given were genericstatements about the benefits of the transmission line project as a whole. He arguedthat they did not enable the landowners to know why the decision to take the easementsover their land was made, and to be satisfied that it was lawful.[125] The Environment Court rejected this argument. It held that in the case of alinear project affecting (as was the case here) some 96 properties, there was norequirement for the objectives to relate to each specific property.125 The High Court124 See New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318at [74], citing Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC)at 184. See also Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597at [36]; and Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [248] per Chambers J.125 Environment Court report, above n 8, at [91].then rejected the appeal on this issue on the basis that errors affecting the Minister'sdecision-making were properly within the ambit of judicial review, not appeal.126[126] We do not consider the Environment Court made any relevant error of law indealing with this issue. It is possible that an error of a fundamental kind affecting anotice issued under s 23(1) of the PWA might mean that the appropriate response ofthe Environment Court is to refer the matter back to the Minister for furtherconsideration under s 24(7)(e) or to report adversely on the proposal. At leasttheoretically a failure by the Environment Court to take such steps might give rise toan appealable question of law. But this case is far from that. There is no suggestionthat anyone was misled by the nature of the works or the need for the acquisition ofeasements along the intended route. There is no error of law.Costs[127] For the reasons we have expressed, we conclude that the High Court was wrongto set aside the Environment Court's report, and the appeal must be allowed. In thatevent, the Minister sought costs calculated for a standard appeal. Having consideredthis issue, we record our view that the issues raised have resulted in importantclarification of the statutory powers relevant to the compulsory acquisition of landrequired for a project or work of a network utility operator. In the circumstances,although the Minister has succeeded, we consider costs should lie where they fall.Result[128] The appeal is allowed.[129] The decision of the High Court is set aside.[130] The report of the Environment Court is confirmed.[131] As requested by Mr Isac, we refer the matter back to the Environment Court tofinalise the terms of the easements as contemplated by the report.127126 High Court judgment, above n 13, at [76].127 Environment Court report, above n 8, at [176]–[177].[132] We make no order as to costs.Solicitors:Crown Law Office, Wellington for AppellantLee Salmon Long, Auckland for Respondents