NGĀTI TAMA KI TE WAIPOUNAMU TRUST v TASMAN DISTRICT COUNCIL [2018] NZHC 2166

NGĀTI TAMA KI TE WAIPOUNAMU TRUST v TASMAN DISTRICT COUNCIL [2018] NZHC 2166 [22August 2018]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2017-442-68[2018] NZHC 2166UNDER the Judicial Review Procedure Act 2016IN THE MATTER of a decision made under section 125(1A)(b)Resource Management Act 1991BETWEEN NGĀTI TAMA KI TE WAIPOUNAMUTRUSTApplicantAND TASMAN DISTRICT COUNCILFirst RespondentKAHURANGI VIRGIN WATERSLIMITEDSecond RespondentHearing: 3 August 2018Appearances: T Hovell and R Ashton for the ApplicantC Thomsen and J Maslin-Caradus for the First RespondentJudgment: 22 August 2018JUDGMENT OF COOKE JTable of ContentsBackground [2]Summary of parties' arguments [12]Judicial review procedure: strike out [16]Mootness/Utility [26]Nature of the challenge [31]The current position [40]Precedent value [43]Proceedings continued to resolve costs? [49]Result [51][1] The first respondent, the Tasman District Council (the Council) applies tostrike out the judicial review proceedings brought by the applicant, Ngāti Tama ki TeWaipounamu Trust (Ngāti Tama). The second respondent is taking no activeinvolvement in these proceedings and counsel have been given leave to withdraw.Background[2] Beneath the Tākaka Valley in the Tasman District lies a large subterraneangeological formation of kaarst limestone. Over millions of years the limestone haspartly dissolved leading to a network of caves and rivers where the water makes itsway underground for considerable distances. When the water travels through thenetwork it becomes filtered by the limestone so that when it re-emerges it hasremarkable clarity. Counsel described the subterranean network as spectacular, andthe filtered water as some of the purest in the world. Precisely where all the waterresurfaces after travelling through the network is not fully known, but one of the placesit does so is the Te Waikoropupū Springs.[3] On 22 February 2005, the second respondent, Kahurangi Virgin Waters Ltd(KVW), was granted a water take consent authorising the taking of ground water fromthe network at the Tākaka Gravel Aquifer, bore WWD 6011, Golden Bay. KVW is aMāori/Pākehā joint venture limited liability company. Two iwi with a special interestin Golden Bay and Te Waikoropupū Springs, Ngāti Rārua and Te Ātiawa, areshareholders.[4] Ngāti Tama is a trust formed in April 2013 for the purposes of promoting thespiritual and cultural advancement of the Ngāti Tama ki Te Tau Ihu iwi (the iwi), andthe maintenance and establishment of places of cultural and spiritual significance tothe iwi. It is also the Mandated Iwi Organisation for the iwi. The iwi also has a specialrelationship with the Te Waikoropupū Springs. At the time the resource consent wasgranted it was anticipated that the iwi would also be part of the joint venture. At thattime a written approval dated 21 January 2005 was provided from a body representingthe three iwi, the Tangata Whenua Iwi Trust (Manawhenua ki Mohua). It was signedby a representative of each iwi, including the chairperson of the trust representingNgāti Tama ki Te Tau Ihu at the time. As a result of this consent the originalapplication did not assess cultural or spiritual effects of the consented activities. Theresource consent was processed on a non-notified basis, and was granted with a 2019expiry date, but on condition it was required to be implemented by February 2010otherwise it would lapse.[5] On 27 July 2009 KVW applied for an extension of the lapse date, and on11 August 2009 this was granted to extend the date to 22 February 2013.[6] In the meantime, the position of the iwi changed. It provided evidencesuggesting that the original body representing all three iwi made decisions on amajority basis, and that it operated with little input from the iwi trusts or iwi members.Ngāti Tama says that the extent of the iwi's interests have now been more fullyrecognised in the Treaty settlement process, and particularly in the terms of thesettlement set out in the Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and TeĀtiawa o Te Waka-a-Māui Claims Settlement Act 2014 (the Settlement Act). TheSettlement Act includes statements of association that the iwi have with the Tākakariver catchment. The Crown has also in the settlement acknowledged iwi values inother sites including the Te Waikoropupū Springs, which are described as a precioustaonga. The Te Waikoropupū Springs are also identified in the settlement in terms ofprotection principles subject to agreement with the Minister of Conservation, whichhad been reflected in a Gazette notice dated 21 August 2014.[7] It was against this changed context that KVW applied on 11 February 2013 fora second three-year extension to the lapse date. Prior to the application being made,on 10 December 2012, Ngāti Tama's predecessor wrote registering its objection tosuch an extension as it now opposed the activities covered by the resource consent.Notably in the extension application itself KVW identified that the involvement andcollaboration of all three iwi was "both highly desirable and indeed necessary in theKVW water project". The Council nevertheless granted the further extension onconditions, but it said that yet a further extension was unlikely to be approved.[8] On 18 December 2015, KVW applied for yet a further extension. KVW alsoapplied for a variation to the resource consent. On 20 January 2016, Ngāti Tama againwrote indicating that it opposed. On 22 February 2016, the Council decided to grantthe third extension, extending the new lapse date to 31 May 2018. The variationdecision was put on hold.[9] Such extensions to the lapse dates are granted under s 125 of the ResourceManagement Act 1991 (the RMA) which provides:125 Lapsing of consents(1) A resource consent lapses on the date specified in the consent or, if nodate is specified,—(a) 5 years after the date of commencement of the consent, if theconsent does not authorise aquaculture activities to beundertaken in the coastal marine area; or(b) 3 years after the date of commencement if the consent doesauthorise aquaculture activities to be undertaken in the coastalmarine area.(1A) However, a consent does not lapse under subsection (1) if, before theconsent lapses,—(a) the consent is given effect to; or(b) an application is made to the consent authority to extend theperiod after which the consent lapses, and the consentauthority decides to grant an extension after taking intoaccount—(i) whether substantial progress or effort has been, andcontinues to be, made towards giving effect to theconsent; and(ii) whether the applicant has obtained approval frompersons who may be adversely affected by the grantingof an extension; and(iii) the effect of the extension on the policies and objectivesof any plan or proposed plan.[10] Ngāti Tama then challenged the extension decision by way of judicial review.In Ngāti Tama ki Te Waipounamu Trust v Tasman District Council, Thomas J upheldthe judicial review challenge.1 Firstly, she held that the Council had erred in law inapplying s 125(1A)(b)(i) because it had failed to properly consider whether or notsubstantial progress or effort had been and continued to be made towards giving effectto the consent, which was a material error. Secondly, she held that a factual error as1 Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2017] NZHC 1081.to whether there was a physical connection between the point of take and the TeWaikoropupū Springs meant that Ngāti Tama's position as a potentially affected partywas not correctly analysed under s 125(1A)(b)(ii). Finally, she held that the changedcontext surrounding the Treaty settlement was of relevance to the planning situation,which could also be properly considered under s 125(1A)(b)(iii), although shedismissed the pleaded challenge under that subsection.[11] On reconsideration, the Council again granted the extension. The presentproceeding is a challenge to the reconsideration decision. Since this decision wasmade the relevant resource consent has lapsed as it was not implemented by the timeof the reconsidered lapse date.Summary of parties' arguments[12] The Council says that the present challenge to the reconsideration decision isnow moot, has no utility and ought to be struck out. In doing so it relied on the decisionof the Court of Appeal in Te Whakakitenga O Waikato Inc v Martin, where it was heldthat the Court could strike out judicial review proceedings when they had no utility.2Mr Thomsen and Ms Maslin-Caradus argued that the relief sought by Ngāti Tama aspleaded in the amended statement of claim was now futile as the resource consent hadlapsed.[13] Mr Thomsen and Ms Maslin-Caradus also argued that there was no exceptionalprecedent value arising from the case, and they contrasted it to the precedent valueinvolved in the judgment of the Supreme Court in R v Gordon-Smith.3 They said thatthe issues in the present proceeding were highly fact specific and any decision wouldnot have general application. They also said that the costs of the proceeding could bedealt with in the usual way. They extended upon these key submissions in furtherwritten submissions provided at the hearing, and in exchanges during the oral hearing.[14] Ngāti Tama contended that the proceeding should continue for the purpose ofdeclaratory relief as it had utility for Ngāti Tama, territorial authorities and other2 Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173.3 R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721.interested parties involved in decisions on applications to extend the lapse dates ofresource consents. Mr Hovell argued that the matters raised in the amended statementof claim related to broader principles that are highly likely to arise in the future. Hesaid that the precise formal declarations sought could be addressed at a later point, oralternatively that leave should be granted to formulate declarations if the Court thoughtthat was necessary. Reliance was placed on a number of the principles that areapplicable to strike out applications, including that the procedure should be usedsparingly.[15] Mr Hovell particularly relied on the judgment of Thomas J in New ZealandMaori Council v Attorney-General4 and the decision of this Court in Reuters HomesLtd v Wanganui District Council,5 where the Court gave declaratory relief in a judicialreview challenge to RMA decisions because of their precedent value. Mr Hovelldistinguished the decision of the Court of Appeal in Te Whakakitenga O Waikato,which did not relate to statutory powers of decision, but a claim for breach of naturaljustice. Further he argued that the proceeding should continue, at the very least, toresolve the question of who was liable for the costs of the proceeding to date.Judicial review procedure: strike out[16] There is no dispute that a judicial review proceeding can be struck out underr 15.1 of the High Court Rules 2016. That was confirmed by the Court of Appeal inTe Whakakitenga O Waikato, where the Court said:6Approach to strike out[15] A court may strike out a claim if it discloses no reasonably arguablecause of action. It is inappropriate to strike out a claim unless "the court canbe certain that it cannot succeed". The jurisdiction should be exercisedsparingly. However, as this Court said in Attorney-General v McVeagh:" if the claim is doomed to failure, there can be no justification forallowing it to continue. The striking-out jurisdiction is founded on therealisation that resources are finite and are not to be wasted."[16] The same principles apply to striking out an application for judicialreview.4 New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 (CA) at 186.5 Reuters Homes Ltd v Wanganui District Council (2011) 16 ELRNZ 493, [2011] NZRMA 357(HC).6 Te Whakakitenga O Waikato, above n 2, at [15]–[16] (footnotes omitted).[17] There is one possible adjustment to the appropriate approach arising from thesubsequent enactment of the Judicial Review Procedure Act 2016, however. Whilstthe replacement of the Judicature Amendment Act 1972 with the Judicial ReviewProcedure Act was not intended to make substantive changes to judicial reviewprocedure, there is one clarification that may have been introduced by the new Act.Under s 9(7) of the Judicature Amendment Act 1972, an application for judicial reviewwas to be "in accordance with rules of Court", which was sometimes taken to be areference to the High Court Rules in totality. Under the Judicial Review ProcedureAct, it may be that not all High Court Rules have automatic application. The JudicialReview Procedure Act appears to say more clearly which rules apply. In particular,s 8(2) of the Judicial Review Procedure Act applies Part 5 of the High Court Rules inrelation to the commencement and filing of an application for judicial review, ands 10(3) provides Part 5 applies to the filing of a defence. There is no equivalent ofs 9(7) of the Judicature Amendment Act to brings in all the other rules. Questions ofprocedure are regulated by the case management conference contemplated by s 13,which encompasses the orders that the Court can make under s 14(1). This includes:(2) The orders and directions referred to in subsection (1) are orders anddirections to—(k) exercise any powers of direction or appointment vested in the courtor a Judge by the High Court Rules in respect of originatingapplications:(m) give any consequential directions that the Judge considersnecessary.[18] Whilst it is not clear that this was a deliberate change,7 the authors ofMcGechan on Procedure have noted it, stating that the provisions of the Act would beexpected to prevail over the High Court Rules if there was a conflict.8 This7 See Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLCR126, 2012) at [2.34] and [2.35].8 McGechan on Procedure (online ed, Thomson Reuters) at [JR8.01].interpretation means that the relevant High Court Rules may apply, but subject to theCourt's control under ss 13 and 14.[19] This approach seems to me to be the preferable one. It is consistent with thegeneral approach to judicial review procedure, and with the view expressed in earlierCourt of Appeal decisions that the former s 10 (now ss 13 and 14) was to some extentintended to be a procedural code for judicial review.9 It allows judicial reviewproceeding to be managed in the appropriate way given what the case involves. Thecontrol is important to achieving the "simple, untechnical and prompt" approach toreview.10 It may be the case that the pursuit of an application to strike out a proceedingwill not achieve those objectives, as it will simply add a layer of complexity to aproceeding. Judicial review is usually determined on affidavit material, and a strikeout application does not ultimately save the cost and expense of a trial involving vivavoce evidence. So it may be better to proceed straight to the substantive hearing. Butthere will nevertheless be cases where such an application may be appropriate. Thepresent case may be an example. The key point is that the better view may be that noparty has the ability to apply to strike out a judicial review proceeding as of right. Itis ultimately subject to judicial control under ss 13 and 14.[20] In the present case, there may also have been another way forward inprocedural terms. In Association of Dispensing Opticians of New Zealand Inc v TheOpticians Board, the Court of Appeal dealt with a situation where there was acounterclaim in a judicial review proceeding that sought declaratory orders.11 An issuearose as to rights of appeal to the Court of Appeal, and the Court indicated that thepowers in the equivalent of s 14 could have been used to more efficiently deal withthe issues in that case. Richardson P held:[18] Section 10 of the Judicature Amendment Act 1972 also providesspecific case management powers. A Judge may direct the holding of a judicialconference and give a wide range of directions for the purpose of ensuring thatthe application and the matters in dispute may be determined conveniently,effectively and expeditiously, including fixing a time by which affidavits or9 See, for example, Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at353 and Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1NZLR 650 (CA) at 656–658.10 See Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].11 Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158(CA).documents shall be filed (s 10(2)(f)), requiring the discovery of documents(s 10(2)(i)), fixing the time for hearing (s 10(2)(g)) and giving suchconsequential directions as may be necessary (s 10(2)(l)).[20] Similar considerations apply to the hearing of this counterclaim whichis so closely linked to the application for judicial review and where theprocedure is designed to provide a convenient and speedy determination ofquestions as to the construction of statutory provisions under which theimpugned decisions were made by the Opticians Board. And instead ofcounterclaiming for a declaration the Opticians Board could have asked theHigh Court pursuant to s 10(2)(k) of the 1972 Act to exercise the power underthe rules to direct that the construction questions be the first issue fordetermination in the judicial review proceedings.[21] Section 14 of the Judicial Review Procedure Act is in equivalent terms, and theformer s 10(2)(k) correspondents to s 14(2)(k). For similar reasons, the Council herecould have asked the Court to direct, as a preliminary question, whether in light ofdevelopments and the fact that executory orders can no longer be sought, that it wasnot an appropriate case to continue for declaratory purposes only and that the judicialreview proceedings should be dismissed.[22] One of the advantages of proceeding in this way is that it would have avoidedcomplications associated with technical points that may have reduced relevance in thiscontext. For example, Mr Hovell raised the following issues as matters of oppositionto the strike out application.The following case law principles apply to an argument that a case discloses"no reasonably arguable cause of action"12(a) Pleaded facts, whether or not admitted, are assumed to be true.(b) The cause of action or defence must be clearly untenable. In Couch vAttorney-General Elias CJ and Anderson J, at [33], said: "It isinappropriate to strike out a claim summarily unless the court can becertain that it cannot succeed."(c) The jurisdiction is to be exercised sparingly, and only in clear cases.This reflects the Court's reluctance to terminate a claim or defence shortof trial.(d) The jurisdiction is not excluded by the need to decide difficult questionsof law, requiring extensive argument.12 Attorney-General v Prince [1998] l NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA)at 267, and endorsed by the Supreme Court in Couch v Attorney-General [2008] NZSC 45 at [33],per Elias CJ and Anderson J.(e) The Court should be particularly slow to strike out a claim in anydeveloping area of the law. In Couch, at [33], Elias CJ and Anderson Jsaid: "Particular care is required in areas where the law is confused ordeveloping."[23] For its part, the Council argued that no application to amend the pleadings forsolely declaratory relief had been made by Ngāti Tama, and that the close of pleadingsdate had now passed so that leave was required under r 7.7 of the High Court Rules.Mr Thomsen further argued that the wording of the declarations sought was also ofsignificance.[24] Such technical issues have reduced significance in the present situation. As Iexplain in greater detail below this is a special type of strike out application wherethese kinds of matters do not have the same significance. By addressing the questionof mootness as a preliminary issue such distractions are more clearly avoided.[25] I proceed on the basis, however, that the present question can be addressed ona strike out basis. I do so on the basis that the complexities raised by Ngāti Tama andthe Council only have relevance if they bear on the key question. The key question iswhether the Court should continue to consider a judicial review claim for what willnow be limited to declaratory relief in circumstances where the underlying issuebetween the parties may no longer be a live one.Mootness/Utility[26] On this key question it is well established that relief can be denied in judicialreview proceedings for what broadly can be described as "mootness" or lack of utility.In Te Whakakitenga O Waikato Inc, the Court of Appeal described the principles in thefollowing way:13[39] there is the concept that the Court will not make orders that haveno utility. The Court's time is precious, and it is not the function of Courts toprovide abstract opinions. This has been described as an "ancient principlethat the law requires no one to do that which is vain and ineffectual" and thatrelief which has "no utility" will not be granted. Relief may be inappropriatewhere the applicant has "achieved the substantial result sought", where itwould serve no useful purpose, or where the passage of time means it couldnot have any practical effect. Thus the traditional position in New Zealand has13 Te Whakakitenga O Waikato, above n 2, at [39] (footnotes omitted).been that the Courts will not hear an appeal "where the substratum of the litigation between the parties has gone and there is no matter remaining inactual controversy and requiring decision"[27] In that case the applicant challenged her removal as the chairperson ofincorporated bodies managing iwi assets. The challenge had been rendered mootbecause the applicant had been re-elected to the relevant bodies. The Court struck outthe judicial review claim as it had no impact on the current situation between theparties, and the precedent value was limited given that it was a "very fact-specificscenario that no longer applies".14[28] On the other hand, there are cases when there is no prospect of judicial reviewrelief such as an order requiring reconsideration, but the claim has precedent value. InReuters Homes Ltd v Wanganui District Council, Dobson J dealt with such a case inrelation to a challenge to decisions made by a local authority to exercise informationgathering, and public notification powers under the RMA, apparently in an effort toget a developer to change its proposals to those more agreeable to the authority. Theconsent was ultimately granted in the form the developer desired, however. Itnevertheless pursued its challenge to the earlier decisions. Dobson J held:15[51] Here, the developer has obtained resource consent for thedevelopment substantially as it proposed, and certainly without being requiredto comply with the WDC's wishes on road connectivity. There has been nosuggestion of any claim to recover any additional costs that may have arisenas a result of WDC's invocation of ss 92 and 95C. However, the point is notmoot. Declaratory relief could have some practical value because suchconduct is likely to recur, if not for this developer then for others, and certainlyfor territorial authorities. Use of statutory powers arising in the pre-determination stages of processing resource consent applications is a matterof some importance. It is not an issue on which the Court should decline toprovide a ruling on the basis that it can no longer affect the course of relevantdealings between the developer and the local authority, in the immediatecontext.[29] There are numerous other examples of cases involving claims of mootness,which are helpfully summarised in the New Zealand Judicial Review Handbook.1614 At [48].15 Reuters Homes, above n 5, at [51] (footnote omitted).16 Matthew Smith New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington,2016) at [19.6] and [19.7].[30] The question here is where the present case fits in light of such principles.Ultimately the Court is determining an issue relating to the discretion as to relief injudicial review. Recent authority has stressed the importance of flexibility in thisarea.17 It is important to concentrate on the full facts and circumstances of the case.This can be done in a preliminary way, including on a strike out application, if theCourt is able to get the necessary understanding of the facts and circumstances relevantto the discretion as to relief. In this context, some of the language of strike out, suchas arguability, and assuming the pleaded facts are correct, have less relevance.Nature of the challenge[31] It is important first to understand the nature of the challenge. This is a furtherchallenge to a decision made under s 125 of the RMA to extend the lapse datefollowing the earlier orders of the Court directing a reconsideration of that decision.The reconsideration decision is set out in a formal decision paper provided to KVWby letter dated 4 August 2017.[32] For the reasons identified with greater particularity below, it is accepted thatthe decision was no longer of any legal significance to the parties. The further date towhich the consent was extended to, 31 May 2018, has past. The resource consent wasnot given effect to, and it has lapsed. Counsel for Ngāti Tama argued, however, thatthe issues raised in its challenge have significant precedent value. Mr Hovell arguedthat it raised the following important issues:(a) The legal threshold for determining when a potentially affectedperson's views should be considered on an application to exten[d] alapse date;(b) Whether TDC should have consulted with Ngāti Tama as manawhenua in making its assessment under section 125 of the RMA orhow it should have otherwise taken into account the principles of theTreaty of Waitangi in exercising its function under this section, and byimplication, what ought to occur in respect of future applicationsunder section 125 of the RMA. To illustrate this point, TDC arguesthat consultation was not required in respect of its decision undersection 125 which is an issue of some significance in the context ofdecisions under the RMA;17 See Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48]; and Ririnui v Landcorp FarmingLtd [2016] NZSC 62, [2016] 1 NZLR 1056.(c) Whether TDC was required to take into account the waterconservation order application over the springs;(d) Whether TDC had adequate information and whether it ought to havetaken steps to acquire further information;(e) Whether TDC took into account the changed planning context andundertook a proper interpretation of the objectives and policies of theTasman Resource Management Plan, and in particular whether "waterbanking" was a matter TDC was required to consider in its extensiondecision;(f) How the principles of the Treaty of Waitangi should be taken intoaccount in the context of the statutory decisions.[33] I do not need to consider all of these formulations of the challenge in detail. Itis sufficient to say that Ngāti Tama's challenge is strongly arguable on a key point,which may be reflected in one or more of the more detailed points Mr Hovellidentified. In Body Corporate 97010 v Auckland City Council,18 the Court of Appealheld that the passage of what was then the terms of s 125 gave statutory confirmationto the philosophy outlined by the Planning Tribunal in Katz v Auckland City Council,where the Tribunal said:19There are compelling reasons of policy why a planning consent should notsubsist for a lengthy period of time without being put into effect. Both physicaland social environments change. Knowledge progresses. District schemes arechanged, reviewed and varied. People come and go. Planning consents aregranted in light of present and foreseeable circumstances as at a particulartime. Once granted a consent represents an opportunity of which advantagemay be taken. When a consent is put into effect it becomes a physical realityas well as a legal right. But if a consent is not put into effect within areasonable time it cannot properly remain a fixed opportunity in an ever-changing scene. Likewise, changing circumstances may render conditions,restrictions and prohibitions in a consent inappropriate or unnecessary.Sections 70 and 71 of the Act give legislative recognition and form to thesematters of policy which, in the ultimate, do but recognise that planning looksto the future from an ever-changing present.[34] Section 125 has since been changed again, but as Thomas J indicated in herearlier judgment, its reference in s 125(1A)(b)(iii) to the effect of the extension on thepolicies and objectives of any plan or proposed plan requires councils to consider theeffect of the extension not only on the planning instruments, but on the policies andobjectives of those instruments.20 Changes to the planning framework itself may be18 Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA).19 Katz v Auckland City Council (1987) 12 NZTPA 211 at 213.20 Ngāti Tama ki Te Waipounamu Trust, above n 1, at [104].relevant. But the focus is on the effect of the extension on what the planningframework is seeking to achieve. So how that framework would apply to changedfactual circumstances may be just as relevant. If granting an extension would allowan activity to occur that is now inconsistent with those objectives, and/or causesprejudice to them, councils will need to take that into account.[35] Here there was a significant change in the planning context. Ngāti Tamastrongly opposes the activities, when 13 years earlier its predecessor had consented tothem. The extent of its interests in the Te Waikoropupū Springs and the Tākaka Rivercatchment have also now been formerly acknowledged in the Settlement Act. Therewas no previous cultural assessment because of the unanimous iwi consent. Theremay now be a different understanding of the relevant cultural dimension. The policiesand objectives of the planning framework in relation to cultural factors needed to beconsidered given these changes. Extending the consent may now undermine orprejudice such objectives given what is now understood.[36] This does not appear to have been addressed in the new decision. That decisionnoted Ngāti Tama's opposition, and the adverse effects that it raised, but reached theview that "these effects arise from the exercise of the consent itself, not the effects ofthe extension" (at 5). Then in relation to s 125(1A)(b)(iii) the decision-maker said thatthe policies recognised the possibility of involving iwi in the management of waterresources generally, but (at 7):Statutory acknowledgements are a device which has emerged on the planningframework since the original grant of consent whereby iwi must be alerted toall relevant resource consent applications and councils must have regard to astatutory acknowledgement in forming an opinion as to whether the relevantclaimant group may be adversely affected under Section 95E of the ResourceManagement Act. I note that Section 125 is not a resource consent applicationand the notification provisions under Section 95E are not applicable.Nonetheless, I have already concluded above that I do not consider NgatiTama (or other Te Tau Ihu Iwi) to be adversely affected by the grant of theextension. I do not consider the Treaty Settlement itself to lead to any other orparticular adverse effects on Ngāti Tama.I conclude that notwithstanding the Treaty Settlement and its legislativerecognition, the planning context has not changed in a way that means theobjectives and policies of the TRMP require reconsideration of the consent oralter my conclusions about the effect of the extension.[37] It is true that the assessment to be made under s 125 is not the opportunity toreassess whether the consent should have been granted. But it is designed to addressany changes affecting the policies and objectives of the plan. Ngāti Tama's opposition,and the formal recognition of the significant importance of the resources to it, arepotentially significant to what the planning regime is seeking to achieve. Theobjective of involving iwi in water management may now be seen as beingcompromised by the consented activities. It is surprising that this has not beensquarely addressed by the decision-maker. It is difficult to not to have some sympathyfor the view expressed by the Chair of Ngāti Tama in a passage quoted in the earlierjudgment of Thomas J in the following terms:21It is deeply distressing to go through a Treaty Settlement process, receive ourSettlement and acknowledgement from the Crown and receive overlayrecognition over our cultural wahi tapu, and then be told by Council that weare not an affected person, and that we have no rights to be engaged orconsulted about resource consents that affect our wahi tapu. The process wasshameful and disempowering.[38] I should emphasise that I have considered the nature of the challenge, and itspossible strength, in order to understand its importance, and its potential continuingsignificance. But in terms of the strength of the challenge, the Council's strike outapplication needs to proceed on the basis that the proceedings should be struck outeven if Ngāti Tama turns out to be right in the allegations set out in the first amendedstatement of claim.[39] I should also say that I do not accept the Council's argument that the proposeddeclarations needed to be formulated. An appropriate declaration here may simplyhave been a declaration that the decision was not lawfully made.The current position[40] Notwithstanding the nature and importance of Ngāti Tama's challenge, what iscritical is that the consent that was granted has now lapsed. Any issue that now arisesin relation to these resources, and Ngāti Tama's interest, will be addressed underdifferent sections of the RMA in relation to any application for further resource21 Ngāti Tama ki Te Waipounamu Trust, above n 1, at [68].consents. If there is any further contest between the parties it will now be on a differentbattlefield. Any consideration under s 125 is now not relevant.[41] In his submissions Mr Thomsen also pointed out that there are at least two verysignificant changes to the planning framework for the future. First, Ngāti Tama andothers have applied for a water conservation order covering both the Te WaikoropupūSprings and the Arthur Marble Aquifer. A Special Tribunal has been appointed by theMinister under Part 9 of the RMA. It has mostly heard the application. I understandthat the Council supports the making of the order over the Te Waikoropupū Springs,but not over the Arthur Marble Aquifer. In addition, and as a consequence of theNational Policy Statement for Freshwater Management, a plan change entitled the"Tākaka Freshwater Management Unit Plan Change" is in train. That change is notyet finalised, or notified, and currently has no legal effect. It is on hold awaiting thedecision of the Special Tribunal on the water conservation order.[42] What these changes make plain is that the legal framework for any futuredecision-making will now be very different. I did not understand Mr Hovell to reallydispute that. Importantly it means that the current challenge not only has no relevancein any practical terms between these parties, but also that it is most unlikely that s 125will be called upon again as between these parties. Or at least if it is it will be againstthe background of a different planning regime.Precedent value[43] Ultimately, therefore, this judicial review challenge can only have significanceif it has what can be described as precedent value. Mr Hovell relied on the approachadopted in Reuters Homes Ltd v Wanganui District Council in that context.22 Doesthis case have potential relevance for Ngāti Tama, or other iwi who may be placed insimilar circumstances?[44] In my view, it is very difficult to see how such precedent value could reallyarise. That is because the present case involves such unusual circumstances. An iwiinitially gave its consent to the granting of a resource consent some 13 years ago, in22 Reuters Homes Ltd, above n 5.connection with a joint venture operation involving other iwi interests, but it nowstrongly opposes the activities. The nature of its interests are now more fullyrecognised in a Treaty settlement process that has occurred in the interim. Thatinvolves a highly unusual set of circumstances for consideration under s 125.[45] In my view, it is most unlikely that such circumstances will present themselvesagain in the future in a substantially similar way. And if there is a case that hassimilarities to the present circumstances, it is almost inevitable that it will turn on itsown facts and circumstances. Any decision in the present proceeding seems to me tohave limited potential precedent value.[46] Mr Hovell argued that it may not be unusual for consents to be in existencewhere subsequent Treaty settlements result in greater formal recognition of interestsin the underlying resources. That may be the case, but what is unusual here is theapplication of s 125 when a resource consent has not been given effect to, and there isa request to extend the lapse date, when the earlier resource consent was grantedfollowing the express approval of the relevant iwi that now opposes it. These strikeme as quite unusual circumstances.[47] Moreover, there is already a High Court precedent relating to the facts andcircumstances of this case – that is Thomas J's judgment. Some precedent value thatthe existing judgment does not already have needs to be identified. And to the extentthat the challenge to the reconsideration decision will involve different features tothose addressed in the earlier judgment this simply demonstrates the extent to whichany case in the future will likely turn on its particular facts and circumstances.[48] In assessing whether these proceedings should nevertheless continue throughto final judgment, I take into account the importance of the right to have access to theCourt to challenge decisions by way of judicial review as reflected in s 27 of the NewZealand Bill of Rights Act 1990, and that decisions that may be seen as relevant to theapplication of the principles of the Treaty potentially have public importance, aseffectively acknowledged in s 74(3) of the Senior Courts Act 2016. Butnotwithstanding those points, the facts and circumstances of this case are so unusualthat I cannot see any real precedent value in a further decision of the Court.Proceedings continued to resolve costs?[49] Ngāti Tama argued that this proceeding should continue to resolve the questionof the entitlement to costs already incurred in the pursuit of it. The Council suggestedthat was not an appropriate approach. On being asked, Mr Thomsen indicated that hethought the award of costs to date on the underlying proceedings on a 2B basis wouldbe approximately $16,000, and a costs award on the strike out application would beapproximately $8,000.[50] I do not think it appropriate for the Court to allow the proceeding to continuesimply for the purpose of deciding who should bear the cost of it. If a proceedingshould no longer continue because it serves no useful purpose, then it should notcontinue for the question of costs alone. During the hearing, the Council not onlyindicated its view that costs should lie where they fall on the substantive proceeding,but also said that it would not seek costs on the strike out application even if itsucceeded. That seems to me to be a sensible and just outcome, and I am grateful tothe Council for moving to that position.Result[51] For the above reasons, I conclude that the proceedings no longer have anyutility, and should be struck out.[52] There will be no order for costs on either the strike out application, or on thejudicial review proceedings generally.Cooke JSolicitors:Atkins Holm Majurey, Auckland for the ApplicantFletcher Vautier Moore, Richmond for First RespondentPitt and Moore, Nelson for the Second Respondent