ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC & NGĀTI WHĀTUA ŌRĀKEI WHAI MAIA LTD v NEW ZEALAND TRANSPORT AGENCY & ORS [2021] NZHC 390

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC & NGĀTI WHĀTUAŌRĀKEI WHAI MAIA LTD v NEW ZEALAND TRANSPORT AGENCY & ORS [2021] NZHC 390 [5 March2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-234CIV-2018-404-236[2021] NZHC 390IN THE MATTER Of an appeal under s 149V of the ResourceManagement Act 1991 (RMA)AND IN THE MATTER Of the East West Link ProposalBETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDAppellantNGĀTI WHĀTUA ŌRĀKEI WHAI MAIALTDAppellantAND NEW ZEALAND TRANSPORT AGENCYRespondentCONTINUED OVERLEAFHearing: 15 – 18 June 2020Appearances: S Gepp and P Anderson for Royal Forest and Bird ProtectionSociety of New Zealand IncorporatedR Enright for Ngāti Whātua Ōrākei Whai Maia Ltd and TeKawerau Iwi TribunalP H Mulligan, V S Evitt and J W E Parker for the New ZealandTransport AuthorityG C Lanning and O M C Zambuto for Auckland CouncilK Ketu for Ngāti Maru Runanga Trust, Te Ākitai Waiohu WakaTrust and Ngāti Tamaoho TrustJudgment: 5 March 2021JUDGMENT OF POWELL JAND AUCKLAND COUNCILNGĀTI MARU RUNANGATE ĀKITAI WAIOHUA WAKA TAUAINCORPORATEDTE KAWERAU IWI TRIBAL AUTHORITYNGĀI TAI KI TĀMAKI TRUSTNGĀTI TAMAOHO TRUSTROYAL FOREST AND BIRD PROTECTIONSOCIETY OF NEW ZEALAND INCORPORATEDNGĀTI WHĀTUA ORĀKEI WHAIA MAIALIMITEDSection 301 partiesThis judgment was delivered by me on 5 March 2021 at 4 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The East West Link is a proposal from the New Zealand Transport Agency("NZTA") for the construction, operation, and maintenance of a new four-lane arterialroad and associated works to connect State Highway 20 in Onehunga withState Highway 1 in Penrose/Mt Wellington ("the proposed EWL").1[2] The proposed EWL is intended to run from Māngere Bridge in the west, alongthe northern shore of the Manukau harbour (through an area known as the MāngereInlet), before altering course in a north easterly direction to meet up with StateHighway 1 and the existing Auckland motorway network at Penrose. The design ofthe road also incorporates stormwater treatment for an adjacent 611 hectares ofdeveloped urban catchment in the Onehunga-Penrose area, as well as leachatemanagement from adjacent landfills.2[3] To achieve this outcome the following works are required:3(a) A new four-lane arterial road between the existing SH20 Neilson StreetInterchange in Onehunga and SH1 at Mt Wellington; and connection ofthe new arterial road to SH1 via two new ramps south of Mt WellingtonInterchange;(b) The widening of SH1 and an upgrade of the Princes Street Interchange;(c) Reconfiguration of the Neilson Street Interchange and surrounding roadsincluding a trench on the southern side of the Interchange, with a localbridge connecting Onehunga Harbour Road to Onehunga Wharf;(d) New commuter and recreational cycle paths along the EWL connectinginto the local Onehunga, Penrose and Sylvia Park communities; and a newpedestrian and cycle connection across Ōtāhuhu Creek;1 Final Report and Decision of the Board of Inquiry into the East West Link Proposal (21 December2017) ("Board Decision") at [5].2 Board Decision at [9].3 Board Decision at [6].(e) New local road connections to and from the EWL Main Alignment; andlocal road improvements including extensions to Galway Street, CaptainSprings Road and Hugo Johnston Drive;(f) A new grade-separated intersection at Great South Road / Sylvia ParkRoad;(g) Reclamation of a total of 18.3 hectares within the Coastal Marine Areaalong the northern foreshore of Māngere Inlet to construct parts of theEWL Main Alignment, and to construct stormwater treatment areas,headlands to form a naturalised coastal edge, and recreational space.[4] Although the northern shore of the Manukau has already been heavily modifiedboth the Māngere inlet and the adjacent land subject to the proposed EWL nonethelessremain ecologically significant, particularly as a habitat for sea birds, and arerecognised as such in the Auckland Unitary Plan ("AUP") by way of overlayclassifications.4 As a result, and given the extensive reclamation required by theproposal, from the outset the proposed EWL has been controversial.[5] As the Ministers for the Environment and Conservation noted, the proposedEWL:5(a) Involves significant use of natural and physical resources (includingapproximately 18.3 hectares of reclamation of the Māngere Inlet), toconstruct much of the proposed four-lane arterial road linking StateHighways 1 and·20.(b) Is likely to result in and contribute to irreversible changes to theenvironment, in particular the loss of bird feeding areas in the MāngereInlet; changes to coastal processes by re-contouring, and addressinglegacy groundwater contamination issues by effectively 'bunding' thenorthern shoreline of the Māngere Inlet.(c) Includes relocating regionally and nationally important infrastructure,including electricity, gas, and crossing over bulk water supply.(d) Has, and is likely to continue to, aroused widespread public concern orinterest regarding actual or likely effects on the environment.4 See [16] below.5 Board Decision at [43].(e) Relates to an area that may be of national interest to Māori and a numberof sites in and around the proposal area are classified as outstandingnatural features within the Auckland Unitary Plan.(f) Would assist the Crown in fulfilling its public health, welfare, securityand safety obligations or functions.(g) Relates to a network utility operation (the State Highway network) thatwhen viewed in its wider geographic context extends to more than onedistrict or region.[6] The Ministers established a board of inquiry ("the Board") to consider theproposal pursuant to s 149J of the Resource Management Act 1991 ("the RMA"), andin particular to determine the 24 applications for resource consent6 together with thetwo notices of requirement ("NoR")7 necessary for the project to proceed.[7] The proposed EWL was formally notified in February 2017. Some 685submissions were received of which 582 (85 per cent) opposed the proposal either infull or in part, with 94 in support and nine neutral.8 The Board commenced substantivehearings in June 2017. After some 49 sitting days the hearings concluded inSeptember 2017, with the Board issuing its Final Report and Decision on 21 December2017 ("Board Decision").[8] In broad terms the Board approved the resource consent applications and NoRsought by the NZTA, thereby enabling the proposed EWL to proceed. Overall, theBoard concluded:(a) While the proposed EWL was not able to comply with a number of specificpolicies and its effects on the environment were clearly more than minor,6 One land use consent for activities on new land created by the proposed reclamations under s 89of the RMA; seven land use consents relating to works on contaminated soils, earthworks,vegetation alteration and removal, new network infrastructure and construction of new impervioussurfaces for roads; one further land use consent for the operation of a temporary concrete batchingplant during the construction of the proposed East West Link; four coastal permits for the roadconstruction activities plus related construction activities including reclamations, deposition ofmaterial in the coastal marine area ("CMA"), disposal of waste and other matter in the CMA andtemporary and permanent occupation of the CMA by structures; six water permits for works inwater courses and associated drainage and diversion activities and five discharge permits fordischarge of contaminants into air or on to land or water, both during construction andsubsequently: Board Decision at [31].7 One NoR was for the construction, operation and maintenance of a state Highway, while the otheraltered the present designation as it relates to State Highway 1: Board Decision at [30].8 Board Decision at [57].the proposal was not contrary to the objectives and policies of the AUP,and therefore met the threshold for non-complying activities set out in s104D(1)(b) of the RMA.(b) Assessing the merits of the proposal pursuant to ss 104 (in relation to theresource consent applications) and 171 (with regard to the NoR) of theRMA, the Board concluded that while the proposed EWL would createadverse effects both during construction and in operation, these could beavoided, remedied or mitigated.9 As a result, the Board unanimouslyconcluded that the NoR should be confirmed and the various consentapplications granted with the exception of the coastal permit for dredging,which was granted in part.10[9] The Royal Forest and Bird Protection Society of New Zealand Incorporated("Forest and Bird") and Ngāti Whātua Ōrākei Whai Maia Limited ("Ngāti Whātua")have both, with the support of Te Kawerau Iwi Tribal Authority ("Te Kawerau"),appealed the Board Decision pursuant to s 149V of the RMA. This section does notpermit any general right of appeal against the Board's decision but limits the right ofappeal to questions of law.11 Two questions of law are the subjects of this judgment:(a) Forest and Bird argues that the Board had no jurisdiction to consider themerits of the proposed EWL because the particular policies it could notcomply with meant it was contrary to the objectives and policies of theAUP and therefore did not meet the threshold test in s 104D(1)(b) of theRMA.(b) In the alternative, and if Forest and Bird was unsuccessful in its primaryargument it, along with Ngāti Whātua and Te Kawerau, argue that theBoard, in any event, failed to have regard/particular regard to the NewZealand Coastal Policy Statement ("NZCPS") as required by ss 104 and9 Board Decision at [1391].10 At [1398].11 Resource Management Act 1991, s 149V(1).171 of the RMA when it considered the resource consent applications andNoR.[10] There is no dispute as to the approach to be taken on these appeals. As helpfullysummarised by Mr Mulligan on behalf of the NZTA:(a) The High Court will interfere with the Board's decision only if it issatisfied that the Board committed one (or more) of the following errorsof law (identified by the full High Court bench in Countdown Properties(Northlands) Ltd v Dunedin City Council):12(i) applied a wrong legal test; or(ii) came to a conclusion without evidence or one to which, on evidence,it could not reasonably have come; or(iii) took into account matters which it should not have taken intoaccount; or(iv) failed to take into account matters which it should have taken intoaccount.(b) The weight to be afforded to relevant considerations is a question for theBoard and is not a matter available for reconsideration by the High Courtas a question of law;13(c) The High Court will not engage in a re-examination of the merits of thecase under the guise of a question of law;14 and12 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.There are multiple cases referring to these principles including, for example, the Supreme Courtin Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153at [50] – [55] and Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24] –[28].13 Moriarty v North Shore City Council [1994] NZRMA 433 (HC) at 438, noting that the High Courtwas referring to a decision of the Environment Court.14 This principle has been noted in a number of cases. Examples include Sean Investments Pty Ltdv Mackellar (1981) 38 ALR 363; Murphy v Takapuna County Council HC Auckland M456/88; 7August 1989 and Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [28].(d) The High Court will not grant relief where there has been an error of lawunless it has been established that the error materially affected the resultof the Decision.15The s 104D issue[11] As noted, the primary issue raised by Forest and Bird is that the Board erred inreaching the conclusion that the proposed EWL was not contrary to the objectives andpolicies of the AUP for the purposes of s 104D(1)(b) of the RMA.[12] There is no dispute that the proposal was appropriately categorised as a non-complying activity under the RMA.16 As such, and because it was accepted by allparties that the environmental effects of the proposed EWL would be more than minor,before the Board could consider the merits of the proposed EWL it had to be satisfiedin terms of s 104D that the EWL was not contrary to the objectives and policies of therelevant plan, in this case the AUP.17[13] Therefore, it was only if the Board was satisfied that the proposal met thes 104D(1) threshold that it was then required to consider the merits of the proposal interms of:(a) section 104 of the RMA (in relation to the resource consents); and(b) section 171 of the RMA (in considering the NoR).[14] The Board's overall approach to the analysis required by s 104D(1)(b) was setout in the following terms:18[T]he Board focuses its initial s 104D(1)(b) assessment on the provisions mostrelevant to the non-complying coastal activities, They comprise15 Countdown at 153, citing Royal Forest and Bird Protection Society Inc v WA Habgood Ltd (1987)12 NZTPA 76 (HC) at 81-82. See also BP Oil NZ Ltd v Waitakere City Council [1996] NZRMA67 (HC) at [69].16 Board Decision at [32].17 Resource Management Act 1991, s 104D(1)(b). It is noted that at the time the Board consideredthe proposed EWL there were parts of the then Auckland Regional Plan: Coastal remainingoperative. The Board placed limited weight on these provisions in its analysis and the AUP is nowfor the purposes of the appeal, fully operative.18 Board Decision at [618].infringements under Chapter F2 of the [AUP] associated with the formation ofreclamations and structures within the SEA-M1 and SEA-M2, ONFs andHistoric Heritage Extent of Place overlays within the Māngere Inlet, includingassociated vegetation removal, damming or impounding water, and otherconstruction activities. The Board considers that that approach will provide themost conservative assessment, minimising the risk of artificially weighting anyconclusion with supportive provisions in favour of the Proposal.(citations omitted)[15] Chapter F2 of the AUP referred to by the Board is the Coastal – General CoastalMarine Zone of the AUP ("General Coastal Marine Zone"). The initial focus of theBoard was on F2.2 of that chapter, headed "Drainage, reclamation and declamation",which sets out the policies for drainage, reclamation and declamation activities withinthe General Coastal Marine Zone. With the exception of F2.2.3(2), the Boardconcluded that the policies were consistent with the proposed EWL, achieved or wereotherwise not relevant.19 With regard to F2.2.3(2), the Board noted that this policyrequired "consideration of the overlay policies that are relevant to the area of theproposed reclamation".20 It therefore proceeded to analyse what it described as therelevant provisions of chapters D9 (Significant Ecological Areas Overlay), D10(Outstanding Natural Features Overlay and Outstanding Natural Landscapes Overlay)and D17 (Historic Heritage Overlay), of which only D9 is relevant for the purposes ofthe present appeal.[16] Specifically, chapter D9 sets out the objectives and policies for the SignificantEcological Areas Overlay. The different types of significant ecological area ("SEA")are defined in D9.1, being those applying on land (SEA-T), the "T" denotingterrestrial,21 and those located in the coastal marine area (SEA-M).22 The SEA-M arefurther sub-divided into M1 (being the SEA that are most vulnerable) and M2 (wherethe habitat is more robust). A "W" after the M1 and M2 signifies that the habitats areimportant to wading birds. Within the area directly affected by the proposed EWL are19 At [620], [628] and [630]-[641].20 At [629].21 D9.1.1.22 D9.1.2.areas of SEA-T,23 SEA-M124 and SEA-M2,25 all specifically identified in theschedules to the AUP.[17] Working its way through the D9 policies, the Board commenced its analysis byconsidering D9.3(1)(a), which directs avoidance of adverse effects on indigenousbiodiversity in the coastal environment to the extent stated in policies D9.3(9) and(10).26 It then turned its attention to D9.3(9) and (10). It noted actual or potentialinconsistencies between the proposed EWL and policies D9.3(9)(a)(ii), (iii) and (iv)27and D9.3(9)(b) and (c),28 before concluding that the proposed EWL was "consistent inpart, and not contrary to Policy D9.3(10)."29[18] Overall, with regard to the D9 policies the Board noted:30Careful consideration has been given to all other relevant coastal policies ofChapter F2 (and the extent that it engages the biodiversity provisions in D9) ofthe [AUP]. On the basis of the Board's finding that there is no "practicablealternative" to the proposed alignment, and that the [proposed EWL] will notresult in significant adverse effects on populations or ecosystems, the Boardfinds that the [proposed EWL] is not contrary to those other provisions. Nor isthe [proposed EWL] contrary to the broadly worded objectives F2.2.2(1), (2)and (3).[19] The Board then briefly analysed the remaining policies in the General CoastalMarine Zone contained in chapter F2 that it considered relevant to the proposed EWL,in particular:(a) F 2.3 (Depositing and Disposal of Material);31(b) F 2.4 (Dredging);32(c) F 2.5 (Disturbance of the Foreshore and Seabed);3323 See AUP, Schedule 3.24 Schedule 425 Schedule 4.26 Board Decision at [643].27 At [647].28 At [645]-[646].29 At [649].30 At [654].31 At [655].32 At [656].33 At [657].(d) F 2.7 (Mangrove removal);34(e) F 2.10 (Damming and impounding water);35(f) F 2.11 (Discharges);36(g) F 2.14 (Structures, public amenities, artwork and associated use andoccupation);37[20] From there, the Board set out its overall approach to and conclusions in relationto the s 104D issue:38The Board is persuaded by Mr Mulligan's submission that the approach takenby the Environment Court in Akaroa Civic Trust v Christchurch City Council isappropriate to adopt. Further discussion about the relevance and force ofAkaroa is contained in chapter 12.5 of this Report. In some consent applicationsa provision may be so central to a proposal that it sways the s104D decision,but generally the s104D assessment will be made across the objectives andpolicies of the plan as a whole and not determined by individual provisions.The Board finds that the latter applies in this case, notwithstanding that thereare indeed some inconsistencies between the NZTA Proposal and relevantobjectives and policies, particularly in the areas of reclamation and biodiversity.In doing so, the Board has given measured weight to the word "avoid", whichis clearly not a direction to be ignored.On balance, the Board finds that the Proposal is not contrary to the objectivesand policies of the [AUP] when considered as a whole. Its consideration hasgiven particular focus to the provisions most directly relevant to the activitieswith non-complying status but has also recognised the broader planningassessments of Ms Rickard and Mr Gouge. The Board is left in no doubt that itsconclusion would be strengthened if it were to look in detail at every relevantobjective and policy (of which there are many), rather than those provisions ofmost relevance, as it has done.While the Proposal is concluded to be contrary to a small number of policies orsubclauses of policies, the Board does not consider those individually orcumulatively as reason to conclude that the[EWL] is repugnant to the policydirection of the [AUP] with respect to the resource consents sought. TheBoard's conclusion is that where the [EWL] infringes policies, neitherindividually nor cumulatively do those infringements tilt the balance for s 104Dpurposes against the Proposal as a whole.(citations omitted)34 At [658].35 At [658].36 At [658].37 At [658].38 At [662]-[664].The s 104D issue - the case for Forest and Bird[21] Forest and Bird argues that the Board erred in concluding the proposed EWLwas not contrary to the objectives and policies of the AUP in terms of s 104D(1)(b).Forest and Bird relies upon the mandatory nature of chapter D9, and in particularpolicies D9.3(9) and (10), which require avoidance of the type of adverse effectswithin the overlay zone the Board acknowledged that the proposed EWL would haveif it was permitted to proceed. More broadly, Forest and Bird submitted that the Board:(a) failed to consider the D9 objective;(b) failed to consider policy D9.3(11);(c) incorrectly interpreted Policy F2.2.3(2); and(d) otherwise erred in its approach to s 104D(1)(b).[22] Ms Gepp, as counsel for Forest and Bird, submitted that when the provisions ofthe AUP are properly reconciled in the manner required by the Supreme Court decisionin Environmental Defence Society Incorporated v New Zealand King Salmon Ltd("King Salmon"),39 the overlay policies, including those set out in D9.3(9) and (10) inparticular, trump not only the reclamation policies in F2.2 but all other objectives andpolicies in the AUP relevant to the proposed EWL. In Ms Gepp's submission, as theoverlay policies were the result of a long and prescriptive planning process, any non-complying activity that was unable to avoid adverse effects in the significantecological areas that were the subject of D9.3 was, by definition, contrary to theobjectives and policies of the AUP and the merits of the proposed EWL could nottherefore be considered. Put another way, in Forest and Bird's submission the D9overlay policies, and D9.3(9) and (10) in particular, created "environmental bottomlines" which by their mandatory nature meant that the Board was not able to concludeother than that the proposed EWL was contrary to the objectives and policies of theAUP for the purposes of s 104D(1)(b). In Ms Gepp's submission, to conclude39 Environmental Defence Society Incorporated v New Zealand King Salmon Limited [2014] NZSC38, [2014] 1 NZLR 593.otherwise would convert those environmental bottom lines into no more than"meaningless platitudes".[23] It followed that if Ms Gepp was correct in her interpretation of the relevant planprovisions, the Board had no choice but to conclude the proposed EWL did not meetthe threshold for non-complying activities under s 104D(1)(b). As a result, this meantconsent could not be granted for the proposed EWL notwithstanding no full evaluationof the proposal pursuant to ss 104 and 171 of the RMA had occurred.The approach to the s 104D issue[24] I begin my analysis by considering the approach the Board was required to takein considering whether the EWL was contrary to the objectives and policies of theAUP in terms of s 104D(1)(b). First, there is no dispute that to be "contrary" for thepurposes of s 104D(1)(b) means that it must be "opposed in nature, different to oropposite repugnant and antagonistic" in terms of New Zealand Rail v MarlboroughDistrict Council.40[25] As to what must be considered, as both Mr Mulligan for the NZTA andMr Lanning for the Auckland Council have pointed out, the principles were discussedat length in two related decisions of the Court of Appeal: Arrigato Investments Ltd vAuckland Regional Council41 and Dye v Auckland Regional Council.42 In Dye, theCourt discussed the appropriate approach to be taken in relation to the precursor to s104D(1)(b):43In summary, the Environment Court was fully mindful of the basic thrust of therelevant objectives and policies which was to confine rural residential activitiesto the designated areas. The Court considered that the objectives and policiesallowed for the possibility, albeit limited, that such activities might neverthelessappropriately be allowed to occur outside the designated areas and in the generalrural part of the district. Whether a particular application which wouldnecessarily be for a non-complying activity was appropriate, would obviouslydepend on its particular combination of circumstances. It is implicit in itsapproach that the Environment Court did not see the relevant objectives andpolicies as precluding altogether developments not falling within a designatedarea. The objectives and policies themselves recognised that some wider40 New Zealand Rail v Marlborough District Council [1994] NZRMA 70 (HC) at [11].41 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA).42 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA).43 At [25].development might be appropriate. If the Court found a particular proposal tobe appropriate, it could not be said to be contrary to the objectives and policieson the basis that it was outside the particular controls which were designed toimplement them. We are unable to conclude that in approaching the matter inthat way the Environment Court misunderstood or misinterpreted the objectivesand policies. The view which the Court took was open to it on a fairappraisal of the objectives and policies read as a whole and, in reaching itsview, the Court committed no error of law.(emphasis added)[26] Although this approach has been applied in numerous subsequent cases,44 asMs Gepp noted, the Supreme Court in King Salmon recently warned against what itdescribed as the "danger of the 'overall judgment' approach". The Court observed inparticular "that decision makers may conclude too readily that there is a conflictbetween particular policies and prefer one over another, rather than making a thoroughgoing attempt to find a way to reconcile them".45[27] As however both NZTA and Auckland Council submitted in the present case,the Supreme Court's observations were made in the context of a plan change, and thereis no suggestion that the Court was intending to change the overall approach set out inDye, but rather to ensure that the analysis undertaken was thorough.[28] This was in fact the conclusion reached by the Court of Appeal in R J DavidsonFamily Trust v Marlborough District Council, a decision post-dating King Salmon.46In that case, the Court noted the particular context of the Supreme Court's decision inKing Salmon.47 It confirmed that when a consent authority is required to assess themerits of an application against the relevant objectives and policies in a plan:48What is required is what Tipping J referred to [in Dye] as "a fair appraisal of theobjectives and policies read as a whole".[29] Having considered the relevant authorities, I agree with Mr Lanning'ssubmission on behalf of the Auckland Council that it is difficult to see that there is in44 See for example Auckland Council v Auckland Council [2020] NZEnvC 70 and Te Rūnanga oNgāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196; (2019) 21 ELRNZ 539.45 King Salmon at [131].46 R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR283.47 At [66].48 At [73].fact any substantive difference in approach required as a result of the King Salmondecision, or more broadly between the approach identified in Dye and that contendedfor by Ms Gepp. As Mr Lanning noted in his submissions:It is not clear what the difference is between an analysis that 'considers' and'reconciles' relevant plan provisions; and the 'holistic' or 'thrust' approach. Thelatter approach requires the relevant plan provisions to be considered andreconciled, to the extent possible, where those provisions pull in differentdirections.[30] It follows that in order to reach a conclusion as to whether the proposed EWL isnot contrary (in the sense of not being repugnant) to the objectives and policies of theAUP for the purposes of s 104D(1)(b) of the RMA, the relevant plan provisions mustall be considered comprehensively and, where possible, appropriately reconciled.This is necessary in order to ascertain whether the conclusion reached by the Boardwas open to it, or whether, as Mr Gepp submitted, there was in fact no other conclusionavailable to the Board than to find the proposed EWL was contrary to the objectivesand policies of the AUP.Chapter D9[31] As noted, the critical part of the AUP from the perspective of Forest and Bird ischapter D9. I begin with the objectives set out in D9.2, which as Ms Gepp noted wasnot mentioned by the Board in its analysis. D9.2(1) sets the following objective:49Areas of significant indigenous biodiversity value in terrestrial, freshwater, andcoastal marine areas are protected from the adverse effects of subdivision, useand development.[32] The principal policy for giving effect to this objective is D9.3(1)(a) whichrequires the effects of activities on the SEA to be managed by:Avoiding adverse effects on indigenous biodiversity in the coastal environment to theextent stated in Policies D9.3(9) and (10) [33] D9.3(9) and (10) in turn state:(9) Avoid activities in the coastal environment where they will result in anyof the following:49 D9.2(1).(a) non-transitory or more than minor adverse effects on:(i) threatened or at risk indigenous species (including Maui'sDolphin and Bryde's Whale);(ii) the habitats of indigenous species that are at the limit of theirnatural range or which are naturally rare;(iii) threatened or rare indigenous ecosystems and vegetationtypes, including naturally rare ecosystems and vegetationtypes;(iv) areas containing nationally significant examples ofindigenous ecosystems or indigenous community types; or(v) areas set aside for full or partial protection of indigenousbiodiversity under other legislation, including the WestCoast North Island Marine Mammal Sanctuary.(b) any regular or sustained disturbance of migratory bird roosting,nesting and feeding areas that is likely to noticeably reduce thelevel of use of an area for these purposes; or(c) the deposition of material at levels which would adversely affectthe natural ecological functioning of the area.(10) Avoid (while giving effect to Policy D9.3(9) above) activities in thecoastal environment which result in significant adverse effects, andavoid, remedy or mitigate other adverse effects of activities, on:(a) areas of predominantly indigenous vegetation;(b) habitats that are important during the vulnerable life stages ofindigenous species;(c) indigenous ecosystems and habitats that are found only in thecoastal environment and are particularly vulnerable tomodification, including estuaries, lagoons, coastal wetlands,dunelands, intertidal zones, rocky reef systems, eelgrass andsaltmarsh;(d) habitats of indigenous species that are important for recreational,commercial, traditional or cultural purposes including fishspawning, pupping and nursery areas;(e) habitats, including areas and routes, important to migratoryspecies;(f) ecological corridors, and areas important for linking ormaintaining biological values; or(g) water quality such that the natural ecological functioning of thearea is adversely affected.[34] It is the injunction to avoid the specific types of adverse effects identified inD9.3(9) that lies at the heart of the case for Forest and Bird. The types of adverseeffects contemplated in D9.3(1) and D9.3(9) and (10) are detailed in D9.3(2) and makeit clear that those effects are extraordinarily broad.50 Likewise, there can be no doubtthat a requirement to avoid is intended to stop something from happening.51[35] Moreover, in this case, the Board concluded that the proposed EWL was actuallyor potentially inconsistent with:(a) D9.3(9)(a)(ii) - the Board finding that the proposed EWL would have"non-transitory and more than minor effects on areas of habitat utilised bysome rare species".52(b) D9.3(9)(a)(iii) and (iv) - the Board found the "placement of the road acrossAnns Creek is not consistent with the policy directive".53(c) D9.3(9)(b) - The Board found "displacement of the birds from areasdirectly affected by the reclamations will be permanent, and ongoingdisturbance may result from people utilising the proposed coastalwalkways, which will extend further into the inlet than the currentwalkway. Thus, the [proposed EWL] can be considered inconsistent withD9.3(9)(b)".54(d) D9.3(9)(c) - The proposed EWL "will result in deposition of material atlevels that would adversely affect the natural ecological functioning of thearea of deposition".5550 Adverse effects include (but are not limited to) fragmentation of, or reduction in the size andextent of, indigenous ecosystems and the habitats of indigenous species; loss of ecosystemservices; downstream effects on wetlands, rivers, streams and lakes from hydrological changesfurther up the catchment; the destruction of, or significant reduction in, educational, scientific,amenity, historical, cultural, landscape, or natural character values; and reduction in the historical,cultural, and spiritual association held by Mana Whenua or the wider community.51 King Salmon at [96] and [126].52 Board Decision at [645].53 Although the Board subsequently noted that "the efforts made to avoid the relevant effects to thegreatest practicable [sic] suggest that the [proposed EWL] is not contrary to those policies": BoardDecision at [646].54 At [647].55 At [648].[36] In addition to these identified inconsistencies, I also accept the submissions ofboth Forest and Bird and the Auckland Council that the Board erred in concluding itwas "contestable whether the [proposed EWL] will have non-transitory or more thanminor adverse effects or threatened at risk species" for the purposes of D9.3(9)(a)(i).56[37] The Board based its conclusion on evidence that the proposed EWL "would notadversely affect the populations of those species and that the shorebirds wouldopportunistically feed elsewhere on the Māngere Inlet, Manukau harbour or TāmakiRiver".57 However as Mr Lanning pointed out, such a finding cannot be sustained inlight of the Board's findings elsewhere in its report that "there will be permanent lossof feeding and roosting areas for shore birds, including threatened and at-risk species.Such effects must be considered significant."58 Given D9.3(9) does not impose asignificant threshold before activities are required to be avoided, but simply requiresthe identification of non-transitory or more than minor adverse effects, it follows thatthe Board should have also concluded that the proposed EWL could not avoid sucheffects on threatened or at risk species in terms of D9.3(9)(a)(i), as well as the otherparts of D9.3(9) identified in its decision.[38] Although the Board appeared to have limited its detailed consideration toD9.3(1), (9) and (10), it is clear that other policies in D9.3 reinforce the wordingcontained in those policies. For example, although D9.3(3)-(5) provide for theenhancement or enabling of activities, the wording of those policies does not permitderogation from the direction to avoid the activities identified in D9.3(9) and (10).[39] On the contrary, the thrust of the remaining provisions in D9.3 is either to avoida range of specific activities entirely or to provide specific guidance on particularissues while applying D9.3(9) and (10). Relevant provisions include:(a) avoiding removal of vegetation and loss of biodiversity in the course ofconstruction activities (D9.3(6));56 At [645].57 At [645].58 At [471].(b) avoiding subdivision use and development where it results in permanentuse and occupation (D9.3(11));(c) taking into account additional matters and managing adverse effects of useand development on the values of SEA-M (D9.3(12));(d) avoiding structures in SEA-M1 (except where a structure is necessary forparticular purposes) (D9.3(13)); and(e) additional policies to avoid the extension to or alteration of any existinglawful structures in SEA-M1 unless particular matters can bedemonstrated (D9.3(14)).[40] Of particular note is D9.3(11), to which the Board also did not refer. This addsa further level to the protections contained in D9.3(9) and (10), stating:In addition to Policies D9.3(9) and (10), avoid subdivision, use anddevelopment in the coastal environment where it will result in any of thefollowing:(a) the permanent use or occupation of the foreshore and seabed to the extentthat the values, function or processes associated with any SignificantEcological Area – Marine is significantly reduced;(b) any change to physical processes that would destroy, modify, or damageany natural feature or values identified for a Significant Ecological Area– Marine in more than a minor way; or(c) fragmentation of the values of a Significant Ecological Area – Marine tothe extent that its physical integrity is lost.[41] As Ms Gepp submitted, there is nothing within chapter D9 that remotelycontemplates a project on the scale of the proposed EWL within an overlay area.Indeed the only mention of providing for infrastructure in chapter D9 is contained inpolicy D9.3(8), which provides:Manage the adverse effects from the use, maintenance, upgrade anddevelopment of infrastructure in accordance with the policies above,recognising that it is not always practicable to locate and design infrastructureto avoid significant ecological areas.[42] Although D9.3(8) recognises that infrastructure may not be able to avoid SEAand is situated before D9.3(9) and (10), the reference to "managing in accordance withthe policies above" clearly incorporates D9.3(9) and (10) through D9.3(1)(a). As aresult, nothing in D9.3(8) can be relied upon to authorise infrastructure where adverseeffects will occur of the type prescribed in D9.3(9) and (10).[43] The fact that the Board failed to consider the relevant objectives (D9.2), and anumber of other relevant policies noted above, does not however give rise to an errorfor the purposes of the appeal as the ultimate issue is not whether the proposed EWLwas inconsistent with any particular objective or policy but whether it was contrary tothe objectives and policies of the AUP. Thus, while the Board's conclusion theproposed EWL was unable to comply with the various specific D9 policies notedabove could be argued to provide a sufficient basis to conclude that the proposed EWLis contrary to the objectives and policies of the AUP, this is so only in the event that Iaccept Ms Gepp's submission that D9 is in effect paramount to the other relevant partsof the AUP for the purposes of the proposed EWL such that it makes the proposedEWL repugnant to the objectives and policies of the AUP. As the Board notedhowever, simply because the proposed EWL is inconsistent with discrete parts of theAUP, including D9, does not necessarily mean that it is contrary to the objectives andpolicies of the AUP for the purposes of s 104D(1)(b) of the RMA. Rather the issue iswhether the fact that the proposed EWL is inconsistent with chapter D9 means that, asMs Gepp contends, the proposed EWL is by definition contrary to the objectives andpolicies of the AUP when properly reconciled in the manner discussed above.Relationship of D9 with other chapters[44] At issue therefore is the relationship between D9 and the following chapters ofthe AUP:(a) Chapter F2 - General Coastal Marine Zone(b) Chapter E15 - Vegetation management and biodiversity(c) Chapter A - Introduction(d) Chapter E26 - Infrastructure[45] I begin with chapter F2, given it was through consideration of the relevantprovisions of the General Coastal Marine Zone that the Board turned its attention tochapter D9.59 As noted above, the detailed analysis undertaken by the Board for thepurposes of s 104D(1)(b) was largely limited to an analysis of the Drainage,reclamation and declamation section of F2,60 and the connection between thosepolicies and the overlay policies contained in D9.3.[46] The Board's focus on the Drainage, reclamation and declamation section of F2(F2.2) was not just because of the scale of the reclamation contemplated by theproposed EWL but because of the specific requirements in F2.2.3(2) to "consider therelevant provisions of chapter D9" when reclamation or drainage is proposed where itaffects an overlay.61 This provision had been inserted into the AUP by way of aconsent decision of this Court62 after Forest and Bird raised concerns that the NZCPShad not appropriately been given effect in the AUP as it was then drafted. In insertingF2.2.3(2), the Court does not appear to have been made aware of the broaderprovisions contained in F2.1. In defining the area subject to the objectives, policiesand rules in the General Coastal Marine Zone, F2.1 specified:If an overlay applies to the area where an activity is proposed, the provisions ofthe overlay will also apply, including any overlay rule that applies to the activity.[47] It is thus clear that the Board overlooked that the D9 overlay provisions appliednot only to the Drainage, reclamation and declamation section of the General CoastalMarine Zone , but also to all of the other sections identified by the Board as beingrelevant to the proposed EWL, and specifically:(a) F2.3 (Depositing and Disposal of Material);63(b) F2.4 (Dredging);6459 Board Decision at [620]-[642].60 F2.2.61 At [642].62 Royal Forest and Bird Protection Society Incorporated v Auckland Council [2017] NZHC 980.63 Board Decision at [655].64 At [656].(c) F2.5 (Disturbance of the Foreshore and Seabed);65(d) F2.7 (Mangrove removal);66(e) F2.10 (Damming and impounding water);67(f) F2.11 (Discharges); and68(g) F2.14 (Structures, public amenities, artwork and associated use andoccupation).69[48] As a result the relevant provisions in chapter F2 are entirely subject to chapterD9 where there is a relevant overlay. Therefore, to the extent that the proposed EWLwas contrary to D9 for the purposes of F2, it was equally contrary to the other relevantparts of F2 for the same reasons the Board had identified in relation to F2.2. There isaccordingly nothing in chapter F2 that purports to authorise a project on the scale ofthe proposed EWL where that is contrary to the policies in chapter D9.[49] There is equally nothing in chapter E15 – (Vegetation management andbiodiversity) which diminishes the protections contained in chapter D9, and indeeddid not form a specific part of the Board's s 104D analysis.70 On the contrary, in thecontext of this case, chapter E15 is essentially complimentary to chapter D9.E15.1 provides:71The objectives and policies in this chapter apply to the management ofterrestrial and coastal vegetation and biodiversity values outside of scheduledsignificant ecological areas.65 At [657].66 At [658].67 At [658].68 At [658].69 At [658].70 The Board does mention E15 at [210] and [704]-[705] but outside the s 104D analysis. At footnote85 the Board noted that the biodiversity policies in D9 and E15 are essentially worded the same.71 It is noted E15.1 also provides that the rules for SEA-T (not relevant to the s 104D analysis) arecontained within chapter E15.[50] The objectives set out in E15.2 apply slightly less prescriptively than theequivalent objectives in D9 (D9.2(1)) but nevertheless provide for a high level ofprotection. Objective E15.2(1) states:Ecosystem services and indigenous biological diversity values, particularly insensitive environments, and areas of contiguous indigenous vegetation cover,are maintained or enhanced while providing for appropriate subdivision, useand development.[51] The policies set out in E15.3 likewise appear to provide for alternatives otherthan outright avoidance, as E15.3(1)-(4) details:(1) Protect areas of contiguous indigenous vegetation cover and vegetationin sensitive environments including the coastal environment, riparianmargins, wetlands, and areas prone to natural hazards.(2) Manage the effects of activities to avoid significant adverse effects onbiodiversity values as far as practicable, minimise significant adverseeffects where avoidance is not practicable, and avoid, remedy or mitigateany other adverse effects on indigenous biological diversity andecosystem services, including soil conservation, water quality andquantity management, and the mitigation of natural hazards.(3) Encourage the offsetting of any significant residual adverse effects onindigenous vegetation and biodiversity values that cannot be avoided,remedied or mitigated, through protection, restoration and enhancementmeasures, having regard to Policy E15.3(4) below and Appendix 8Biodiversity offsetting.(4) Protect, restore, and enhance biodiversity when undertaking new use anddevelopment through any of the following:(a) using transferable rural site subdivision to protect areas inSchedule 3 Significant Ecological Areas -Terrestrial Schedule;(b) requiring legal protection, ecological restoration and activemanagement techniques in areas set aside for the purposes ofmitigating or offsetting adverse effects on indigenous biodiversity;or(c) linking biodiversity outcomes to other aspects of the developmentsuch as the provision of infrastructure and open space.[52] At the same time, E15.3(7) requires the development of infrastructure to becarried out in accordance with the policies in E15.3, "recognising that it is not alwayspracticable to locate or design infrastructure to avoid areas with indigenousbiodiversity value".[53] Within the coastal environment, the prescriptive language used in D9.3(9) and(10) is essentially replicated in E15(9) and (10), which provide:(9) Avoid activities in the coastal environment where they will result in anyof the following:(a) non-transitory or more than minor adverse effects on:(i) threatened or at risk indigenous species (including Maui'sDolphin and Bryde's Whale);(ii) the habitats of indigenous species that are at the limit of theirnatural range or which are naturally rare;(iii) threatened or rare indigenous ecosystems and vegetationtypes, including naturally rare ecosystems and vegetationtypes;(iv) areas containing nationally significant examples ofindigenous ecosystems or indigenous community types; or(v) areas set aside for full or partial protection of indigenousbiodiversity under other legislation, including the WestCoast North Island Marine Mammal Sanctuary.(b) any regular or sustained disturbance of migratory bird roosting,nesting and feeding areas that is likely to noticeably reduce thelevel of use of an area for these purposes;(c) the deposition of material at levels which would adversely affectthe natural ecological functioning of the area; or(d) fragmentation of the values of the area to the extent that its physicalintegrity is lost.(10) Avoid (while giving effect to Policy E15(9) above) activities in thecoastal environment which result in significant adverse effects, andavoid, remedy or mitigate other adverse effects of activities, on:(a) areas of predominantly indigenous vegetation;(b) habitats that are important during the vulnerable life stages ofindigenous species;(c) indigenous ecosystems and habitats that are found only in thecoastal environment and are particularly vulnerable tomodification, including estuaries, lagoons, coastal wetlands,dunelands, intertidal zones, rocky reef systems, eelgrass andsaltmarsh;(d) habitats of indigenous species that are important for recreational,commercial, traditional or cultural purposes including fishspawning, pupping and nursery areas;(e) habitats, including areas and routes, important to migratoryspecies;(f) ecological corridors, and areas important for linking ormaintaining biological values; or(g) water quality such that the natural ecological functioning of thearea is adversely affected.[54] Despite the apparent clarity of the relevant provisions of chapters D9, F2 andE15 those chapters must still however be read in their wider context. That context isprovided by Chapter A (Introduction), and Chapter E26 (Infrastructure), and is ofparticular importance in this case.[55] Chapter A is one of only three chapters that applies across the entire AUP andplays a significant role in reconciling the plan as a whole. Section A1.1 begins bysetting out the statutory purposes of the AUP, before explaining the key roles of theplan of which the following are directly relevant in the present case:72(1) it describes how the people and communities of the Auckland region willmanage Auckland's natural and physical resources while enabling growthand development and protecting the things people and communitiesvalue;(2) it provides the regulatory framework to help make Auckland a qualityplace to live, attractive to people and businesses and a place whereenvironmental standards are respected and upheld;[56] As Mr Mulligan and Mr Lanning both submitted, a tension is immediatelyobvious in the identified roles; in particular, the requirement to provide for growth,development and protection.[57] Chapter A goes on to explain the structure of the plan in some detail and, inparticular, the relationship between the different chapters. For example, because theAUP is a combined plan incorporating the coastal plan for the Auckland region:73Any provision of the [AUP] which applies to activities or natural or physicalresources in the coastal marine area is a provision of the Auckland regionalcoastal plan.72 A1.73 A1.5.[58] Likewise, chapter A provides guidance with regard to the hierarchy betweendifferent elements of the plan, including in particular the relationship between theoverlay provisions (as contained in chapter D9) and Auckland-wide provisions (forexample, chapter E26 (Infrastructure)). The somewhat elastic nature of therelationship is explained as follows:74A1.6.2. OverlaysOverlays manage the protection, maintenance or enhancement of particularvalues associated with an area or resource. Overlays can apply across zonesand precincts and overlay boundaries do not follow zone or precinct boundaries.Overlays also manage specific planning issues such as addressing reversesensitivity effects between different land uses.Overlays generally apply more restrictive rules than the Auckland-wide, zoneor precinct provisions that apply to a site, but in some cases they can be moreenabling. Overlay rules apply to all activities on the part of the site to whichthe overlay applies unless the overlay rule expressly states otherwise.A1.6.3. Auckland-wide provisionsAuckland-wide provisions apply to the use and development of natural andphysical resources across Auckland regardless of the zone in which they occur.Auckland-wide provisions are located in Chapter E of the Plan and cover naturalresources, Mana Whenua, the built environment, infrastructure, environmentalrisk, subdivision and temporary activity matters. Auckland-wide provisionsgenerally apply more restrictive rules than the zone or precinct provisions thatapply to a site, but in some cases they can be more enabling.[59] Finally, the chapter explains the differences between the type of activitiesprovided for in the plan. Again, of particular relevance in the context of the presentcase, the explanation given for non-complying activities provides:75Resource consent is required for a non-complying activity. As thresholdmatters, the proposal must be assessed to determine whether its adverse effectson the environment will be no more than minor or whether it will not be contraryto the objectives and policies of the Plan. If the proposal is found not to breachone or other of those thresholds, then its merits may be considered on a broadlydiscretionary basis and consent may be granted (with or without conditions) orrefused. If it is found to breach both thresholds, then consent must be refused.74 A1.6.2.75 A1.7.5.Activities are classed as non-complying where greater scrutiny is required forsome reason. This may include:• where they are not anticipated to occur; or• where they are likely to have significant adverse effects on the existingenvironment; or• where the existing environment is regarded as delicate or vulnerable; or• otherwise where they are considered less likely to be appropriate.[60] It is within the context established by chapter A that chapter E26 is set. While itis clear that the proposed EWL cannot meet the standards prescribed by the policies inchapter D9 and, as a result, chapter F2, E26 takes a much broader view. It specificallyenvisages that it will sometimes be necessary to locate infrastructure within an overlayarea, notwithstanding the apparently mandatory nature of the protections contained inchapter D9.[61] E26 does this not by specifically overriding the protections contained in D9, butrather enabling a decision-maker, including the Board in this case, to consider whetherparticular infrastructure is required even where it would otherwise be unable to beaccommodated by particular objectives and policies, including those in D9.[62] Specifically, chapter E26 begins by noting in E26.1.1:Infrastructure is critical to the social, economic, and cultural well-being of peopleand communities and the quality of the environment. This section provides aframework for the development, operation, use, maintenance, repair, upgradingand removal of infrastructure.[63] The same section of E26 makes it clear that a wide range of issues must bebalanced before a decision on the appropriateness of infrastructure in any givenlocation can be determined:As well as benefits infrastructure can have a range of adverse effects on theenvironment, visual amenity of an area, and public health and safety. Thesensitivity of adjacent activities, particularly residential, to these effects can leadto complaints and ultimately constraints on the operation of infrastructure.Managing these reverse sensitivity effects is essential. Equally in somecircumstances other activities and development need to be managed in a waythat does not impede the operation of infrastructure.[64] With this approach in mind, the objectives set out in E26.2.1 relevantly provide:(1) The benefits of infrastructure are recognised.(2) The value of investment in infrastructure is recognised.(3) Safe, efficient and secure infrastructure is enabled, to service the needs ofexisting and authorised proposed subdivision, use and development.(4) Development, operation, maintenance, repair, replacement, renewal,upgrading and removal of infrastructure is enabled.(5) The resilience of infrastructure is improved and continuity of service is enabled.(9) The adverse effects of infrastructure are avoided, remedied or mitigated.[65] The policies to give effect to these objectives are set out in E26.2.2. Far fromprecluding infrastructure in any particular area, including the General Coastal MarineZone and/or overlay areas, the relevant policies instead envisage a detailed analysis beundertaken to determine whether particular infrastructure will be appropriate in anyparticular location so as to:(1) Recognise the social, economic, cultural and environmental benefits thatinfrastructure provides, including:(a) enabling enhancement of the quality of life and standard of livingfor people and communities;(b) providing for public health and safety;(c) enabling the functioning of businesses;(d) enabling economic growth;(e) enabling growth and development;(f) protecting and enhancing the environment;(g) enabling the transportation of freight, goods, people; and(h) enabling interaction and communication.(2) Provide for the development, operation, maintenance, repair, upgrade andremoval of infrastructure throughout Auckland by recognising:(a) functional and operational needs;(b) location, route and design needs and constraints;(c) the complexity and interconnectedness of infrastructure services;(d) the benefits of infrastructure to communities within Auckland andbeyond;(e) the need to quickly restore disrupted services; and(f) its role in servicing existing, consented and planned development.(4) Require the development, operation, maintenance, repair, upgrading andremoval of infrastructure to avoid, remedy or mitigate adverse effects,including, on the:(a) health, well-being and safety of people and communities, includingnuisance from noise, vibration, dust and odour emissions and lightspill;(b) safe and efficient operation of other infrastructure;(c) amenity values of the streetscape and adjoining properties;(d) environment from temporary and ongoing discharges; and(e) values for which a site has been scheduled or incorporated in anoverlay.(5) Consider the following matters when assessing the effects of infrastructure:(a) the degree to which the environment has already been modified;(b) the nature, duration, timing and frequency of the adverse effects;(c) the impact on the network and levels of service if the work is notundertaken;(d) the need for the infrastructure in the context of the wider network;and(e) the benefits provided by the infrastructure to the communities withinAuckland and beyond.(6) Consider the following matters where new infrastructure or major upgradesto infrastructure are proposed within areas that have been scheduled in thePlan in relation to natural heritage, Mana Whenua, natural resources,coastal environment, historic heritage and special character:(a) the economic, cultural and social benefits derived frominfrastructure and the adverse effects of not providing theinfrastructure;(b) whether the infrastructure has a functional or operational need to belocated in or traverse the proposed location;(c) the need for utility connections across or through such areas toenable an effective and efficient network;(d) whether there are any practicable alternative locations, routes ordesigns, which would avoid, or reduce adverse effects on the valuesof those places, while having regard to E26.2.2(6)(a) - (c);(e) the extent of existing adverse effects and potential cumulativeadverse effects;(f) how the proposed infrastructure contributes to the strategic form orfunction, or enables the planned growth and intensification, ofAuckland;(g) the type, scale and extent of adverse effects on the identified valuesof the area or feature, taking into account:(i) scheduled sites and places of significance and value to ManaWhenua;(ii) significant public open space areas, including harbours;(iii) hilltops and high points that are publicly accessible sceniclookouts;(iv) high-use recreation areas;(v) natural ecosystems and habitats; and(vi) the extent to which the proposed infrastructure or upgrade canavoid adverse effects on the values of the area, and wherethese adverse effects cannot practicably be avoided, then theextent to which adverse effects on the values of the area canbe appropriately remedied or mitigated.(h) whether adverse effects on the identified values of the area or feature mustbe avoided pursuant to any national policy statement, nationalenvironmental standard, or regional policy statement.[66] Given the specified importance of infrastructure within the AUP, it is clear thatboth the objectives and policies in chapter E26 envisage a careful and balanced lookat the merits of a particular infrastructure proposal in order to determine whether itshould proceed, whether or not such a proposal may be contrary to or inconsistent withany particular provision in the AUP.76[67] As a result, far from confirming that the development of infrastructure such asthe proposed EWL is contrary to the AUP for the purposes of s 104D(1)(b), chapterE26 retains a discretion to approve such development if it is found to be appropriatefollowing the type of comprehensive analysis required by the policies contained inE26.2.2 set out above. The nature of the enquiry envisaged requires a comprehensiveassessment of the merits of the proposed infrastructure against all relevant provisionsin the relevant planning documents, and not just the objectives and policies of therelevant plan required by the threshold test in s 104D(1)(b).[68] As both Mr Mulligan and Mr Lanning submitted, when the relevant objectivesand policies of the AUP are properly reconciled it is apparent that the AUP provides aspecific, albeit narrow, framework for the consideration of infrastructure proposalsrather than automatically excluding them at the s 104D stage. Instead, the AUP,through chapter E26 in particular, specifically contemplates the approval of significantinfrastructure when other non-complying activities giving rise to more than minoradverse effects would be precluded as contrary to the objectives and policies of theAUP. Given this position, I conclude that when the relevant chapters are properlyconstrued the AUP was never intended to categorically block infrastructure projectssuch as the proposed EWL at the s 104D stage as to do so would preclude the veryanalysis envisaged in chapter E26.76 Unless, of course, it is a prohibited activity.Conclusion on the s 104D issue[69] Therefore, and despite the apparent mandatory nature of the protectiveprovisions in chapter D9 (and in particular D9.3(9), (10) and (11)), as well as theassociated protective provisions, and notwithstanding those provisions are clearlyintended to take precedence over the general provisions in chapter F2, infrastructurelike the proposed EWL where the adverse effects will be more than minor cannot beby definition contrary to the objectives and policies of the AUP for the purposes ofs 104D(1)(b). The Board did not err in reaching this conclusion.[70] The s 104D limb of the Forest and Bird appeal is dismissed.The s 104/171 issue[71] As I have found the Board was correct in concluding consideration of the meritsof the proposed EWL was not precluded by s 104D(1)(b), the focus turns to the Board'sassessment of the merits of the proposal. This is both in terms of the resource consentapplications (pursuant to s 104 of the RMA) and the NoR (pursuant to s 171).[72] Although the Board's task in determining those matters naturally involved amuch broader enquiry, the limited ability to challenge the decision on appeal meansthat the appeals by Ngāti Whātua and Forest and Bird against the s 104/171 analysisundertaken by the Board is limited to whether the Board properly considered theNZCPS.[73] In particular, Mr Enright for Ngāti Whātua and Te Kawerau, who took the leadfor the appellants on this limb of the appeals, submitted that the Board erred in law inits analysis of NZCPS. While Mr Enright accepted that the Board had specificallyturned its attention to the NZCPS, he submitted it had applied the wrong legal test byincorrectly fettering its assessment of the relevant policies within the NZCPS throughadopting what he described as a "particularisation" approach. By this Mr Enrightcontended that the Board had failed to independently assess the proposed EWL againstthe relevant provisions of the NZCPS but rather:The Board wrongly limited its assessment to confirming consistency betweenthe NZCPS and the [AUP]. The Board decided that it was not necessary toundertake a cross checking or "loop back" to the NZCPS objectives andpolicies. Instead, it was only necessary to confirm that the [AUP]'particularised' the NZCPS provisions. This was a truncated (and erroneous)assessment. It was arguably a methodology error, but it could also bedescribed as wrong legal test or misinterpretation.[74] In support of his submission Mr Enright pointed in particular to the Board'sexplanation of its approach, where it stated:77Turning to the NZCPS, on the question of whether to focus the Board's attentionon the provisions of the [AUP], which as Mr Mulligan reinforced has beenprepared in full recognition of King Salmon, or whether to loop back up tohigher order instruments such as the NZCPS received much attention at theHearing.In principle, the Board agrees that the RMA anticipates that in giving effect tothe higher order NZCPS, regional coastal plans will be refined to reflect thespecifics of the region. Otherwise the RMA would have required plans to"adopt" the NZCPS, rather than "give effect to" it. As noted in chapter 12 ofthis Report, the Board also accepts the general assertion that referring in detailto the higher order planning instruments may be limited to instances ofinvalidity, incomplete coverage or uncertainty of meaning in the lower orderdocuments.However, in order to be satisfied that there is consistency (or otherwise), theBoard must be cognizant of the higher order documents, in this case the NZCPS,and s104(1)(b)(iv) requires the Board to have specific regard to the NZCPS.Having had such regard, the Board is satisfied that there is no specificincongruity between the NZCPS and [AUP]. Any key differences are ananticipated and appropriate particularisation between the national and regionallevel documents. Therefore, the substantive discussion on coastal objectivesand policies herein is made against the [AUP] provisions. The NZCPSassessment is limited to confirming the consistency between the two documents,with particular attention to reclamation and biodiversity provisions. In takingthis approach, the Board acknowledges and considers the emphasis placed onthe NZCPS by Mr Brown and Ms Coombes in particular, and takes account oftheir evidence throughout the following assessment.(citations omitted)[75] Mr Enright argued that the Board's approach was inconsistent with the approachtaken in King Salmon. He submitted the Board erred in relying instead on anEnvironment Court decision in Appealing Wanaka Incorporated v Queenstown LakesDistrict Council78 and the decision of the High Court in R J Davidson Family Trust vMarlborough District Council.79 Mr Enright submitted that, although a plan change77 Board Decision at [678]-[680].78 Appealing Wanaka Incorporated v Queenstown Lakes District Council [2015] NZEnvC 139.79 R J Davidson Family Trust v Marlborough District Council [2017] NZHC 52, [2017] NZRMA227.case, the correct approach was set out by Wylie J in Royal Forest and Bird ProtectionSociety of New Zealand Incorporated v Bay of Plenty Regional Council ("Forest andBird BOP decision") and in particular the following comments:80There is nothing in the majority's observation in King Salmon which suggeststhat a decision-maker can confine his, her or its attention to unchallenged partsof the planning document in issue or to the planning document immediatelyabove the document under consideration, and ignore or gloss over higher orderplanning documents.Counsel also referred me to Appealing Wanaka Inc v Queenstown Lakes DistrictCouncil Inc, where the Environment Court held as follows: 81The recent decision of the Supreme Court in EDS v NZ King Salmonsets out an amended — and simpler — approach to assessing planchanges The principle in EDS v NZ King Salmon is that if higherorder documents in the statutory hierarchy existed when the planwas prepared then each of those statutory documents isparticularised in the lower document. It appears that there is, ineffect, a rebuttable presumption that each higher document has beengiven effect to or had regard to (or whatever the relevant requirementis). Thus there is no necessity to refer back to any higher documentwhen determining a plan change provided that the plan issufficiently certain, and neither incomplete nor invalid. This seemsto have been accepted by the High Court in a recent decision —Thumb Point Station Ltd v Auckland City Council. We respectfully agree provided that the reference to giving effect tothe "purposes and principles" of the Act includes giving effect to thehigher order statutory instruments, and indeed to the considerationof the other statutory documents referred to in sections 74 and 75 ofthe RMA.As I have already noted, the Environment Court in the case before the Court didnot refer to the Appealing Wanaka decision, but it appears to have adopted thesame approach.I have reservations about the approach taken by the Environment Court inAppealing Wanaka. First, I do not consider that it accurately records what wassaid in King Salmon or by this Court in Thumb Point. Secondly, and perhapsmore importantly, in my view there is a distinct risk that the intent and effect ofhigher order plans can be diluted, or even lost, in the provisions of plans lowerin the planning hierarchy. Put colloquially, the story can be lost in the re-telling.Indeed, a similar point was noted in Appealing Wanaka, where the Courtsounded a warning in the following terms:8280 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil [2017] NZHC 3080, [2019] NZRMA 1 at [84] and [86]-[88].81 Appealing Wanaka Inc v Queenstown Lakes District Council [2015] NZEnvC 139, at [43].82 At [47].While the simplicity of that process may sometimes be more theoreticalthan real, since in practice plans may be uncertain, incomplete or evenpartly invalid, it is easier than the exhaustive and repetitive processfollowed before the Supreme Court decided EDS v NZ King Salmon.In my judgment, there are dangers in the truncated approach taken in AppealingWanaka and by the Environment Court in this case.(citations included).[76] As a result, Mr Enright submitted in adopting a particularisation approach, theBoard failed to acknowledge or address differences between the wording of, inparticular, policies 2, 10 and 11 of the NZCPS and the corresponding wording withinthe AUP including in chapters F2 and D9 and with regard to the Regional PolicyStatement, including in particular chapter B6 (Mana whenua). Mr Enright submittedthis error in approach was material and should therefore be remitted back to the Boardto be considered afresh.Discussion – the s 104/171 issue[77] There is no dispute that the NZCPS was a mandatory relevant consideration forthe Board as it considered the applications for resource consent and NoR. Havingconsidered carefully the Board's approach as set out in the Board Decision, I amhowever unable to see any error in the approach that was taken.[78] Contrary to the cases advanced by the appellants, I do not consider the Board inany way incorrectly fettered its approach, or otherwise failed to consider the relevantparts of the NZCPS as it was required to do. On the contrary, it is clear that far fromsimply relying upon the way in which the NZCPS had been reflected in the AUP, theBoard had in fact satisfied itself that the NZCPS was appropriately reflected in theAUP, with a particular reference to the planning evidence adduced by both theAuckland Council and Ngāti Whātua, and at no stage had it simply assumed that theAUP was consistent to the NZCPS.[79] First, in an earlier section of its decision the Board confirmed it understoodwhere the NZCPS fitted into its analysis, noting:8383 Board Decision at [171]-[172].The New Zealand Coastal Policy Statement is a national policy statement underthe RMA. The purpose of the NZCPS is to state policies in order to achieve thepurpose of the RMA in relation to New Zealand's coastal environment.The Board is required to "have regard" or "particular regard" to the relevantprovisions of the NZCPS. The Board has already noted that it must do so in thecontext of all of the relevant considerations provided for in ss104 and 171 whileattributing the appropriate weight to those provisions, particularly in light of theKing Salmon decision. In that regard, various aspects of the NZCPS arerelevant, particularly to the proposed reclamations of the Māngere Inlet thattraverse the coastal environment and to the discharges to the CMA that willresult from the construction and operation of the Proposal.[80] The Board went on to set out carefully what the Supreme Court had said in KingSalmon:84The Supreme Court in King Salmon was considering plan changes to facilitatethe development of a marine farm in an area of outstanding natural characterand outstanding natural landscape. The Court was, therefore, required to addressthe provisions of the NZCPS relating to those aspects of the coastalenvironment, namely Policies 13(1)(a) and 15(a). A key issue was whetherthose policies established "environmental bottom lines" that needed to bestrictly applied or whether an "overall broad judgment" in accordance withhitherto accepted practice needed to be exercised. The Court concluded that thepolicies in question require the avoidance of adverse effects on areas of thecoastal environment that have outstanding natural character, outstanding naturalfeatures and outstanding natural landscapes. In those circumstances, where theregional coastal plan was required to "give effect to" the NZCPS, strictadherence to directive policies contained in the NZCPS was required. It wasnot appropriate for decision-makers on plan changes to make an "overall broadjudgment" in terms of Part 2 of the RMA.Of particular importance, the majority considered the use and relevance of theverb "avoid" in relation to Policies 13(1)(a) and (b) and 15(a) and (b) of theNZCPS:"[96] We consider that 'avoid' has its ordinary meaning of 'not allow'or 'prevent the occurrence of'. In the sequence of 'avoiding, remedying,or mitigating any adverse effects of activities on the environment' in s5(2)(c), for example, it is difficult to see that 'avoid' could sensibly bearany other meaning. Similarly in relation to policies 13(1)(a) and (b) and15(a) and (b), which also juxtaposed the words 'avoid', 'remedy' and'mitigate'. This interpretation with objective two of the NZCPS whichis, in part, '[t]o preserve the natural character of the coastal environmentand protect natural features and landscape values through identifyingthose areas where various forms of subdivision, use, and developmentwould be inappropriate and protecting them from such activities'.84 Board Decision at [173]-[174].[97] However, taking that meaning [of avoid] may not advance mattersgreatly: whether 'avoid' (in the sense of 'not allow' or 'prevent theoccurrence of') bites depends on whether the 'overall judgment' approachor the 'environmental bottom line' approach is adopted under the 'overalljudgment' approach, a policy direction to 'avoid' adverse effect is simplyone of a number of relevant factors to be considered by the decisionmaker, albeit that it may be entitled to greater weight; under the'environmental bottom line' approach, it has greater force."[81] As the Board went on to note however:85The Board has given careful consideration to these dicta relating to NZCPSby New Zealand's final appellate court. It is clear from the Supreme Courtdecision that the NZCPS, particularly the directive policies such as Policies13(1)(a) and 15(a), are clearly entitled to very significant weight. The Boardhas accorded those policies such weight in deference to the Supreme Court'sdecision. However, as already noted, the Board is required by s104 to "haveregard to" and s171 "to have particular regard" only (not to "give effect to")the NZCPS. It is required to consider that instrument alongside other factorsmade relevant by those sections in making a balanced judgment takingaccount of all such factors. That is the approach it has adopted, as will beapparent from its specific consideration of this issue in the context of theapplications before the Board. As discussed later, it is the [AUP] that hasgiven effect to the NZCPS. The overlap and duplication is considerable andhighly relevant.[82] It is this latter point that establishes clearly that different considerations arerequired as between plan change cases and those determining applications for resourceconsent and/or NoR. As Mr Enright responsibly acknowledged at the hearing, theBoard was not required to give effect to the NZCPS as were the decision-makersinvolved in formulating new plans such as in King Salmon and the Forest and BirdBOP decision but rather in determining applications for resource consent and NoRnecessary for the proposed EWL was required simply to have regard86 or particularregard87 to the NZCPS respectively.[83] In the context of applications for resource consent and NoR as in the presentcase, and as Mr Lanning submitted, the Board was required to "give genuine attentionand thought to the matters set out in s 104 and 171 [including the NZCPS] but theymust not necessarily be accepted".8885 At [175].86 Resource Management Act, s 104.87 Section 171.88 See for example Foodstuffs [South Island] Limited v Christchurch City Council [1999] NZRMA481 (HC) and the Environment Court's discussion of that case in Unison Networks Limited v[84] Given that context and far from disclosing an error, paragraphs [678]-[680] ofthe Board's decision set out at [74] above, together with the other specific referencesto the Board Decision criticised by the appellants, make it clear that the Board did notjust assume that the AUP had given effect to the NZCPS. It instead considered therelevant parts of the NZCPS and the corresponding provisions of the AUP, and to theextent that there were differences preferred the formulation contained in the AUP as itwas entitled to do.[85] The extent of the analysis undertaken by the Board is in fact made clear in anumber of different sections of the Board Decision. The Board confirmed that it hadspecifically considered the relevant parts of the policies put at issue by the appellants,including the planning witness called on behalf of Ngāti Whātua, and in the course ofits analysis specifically considered Policy 2,89 10,90 and 1191 of the NZCPS. In thatregard the Board specifically considered and rejected the arguments raised byNgāti Whātua that the NZCPS itself did not favour the construction of roads withinthe coastal marine area,92 and that with regard to the Mana Whenua section of theAUP:93Consistent with the NZCPS, under Policy 2 the Board accepts that in takingaccount of the principles of the Treaty of Waitangi, NZTA have incorporatedmātauranga Māori (Policy 2(c)) through the consultation and engagementprocess, recognising the importance of culturally significant sites such as (butnot limited to) Mutukāroa, Te Tō Waka and Te Apunga o Tainui. They haveclearly provided opportunities for Māori involvement in decision-making(Policy 2(d)) and, as set out later in this Report, NZTA has taken into accountrelevant iwi resource management plans. The Board accepts that each of theserequirements has been met as part of the consultation and engagement processthat occurred.(citations omitted)Hastings District Council [2011] NZRMA 394 at [69]-[70], and see discussion in R J Davidson vMarlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 at [71]-[73].89 Board Decision at [689] and [773]. The Board considered 2(a) and (c) and Mr Enright's suggestionthat Policy 2(f) was also relevant, but this is clearly a direction for those developing relevant plansand had no relevance to a resource consent application in the nature of the proposed EWL.90 At [682]-[685].91 At [686]-[688].92 At [698]-[700].93 At [773].Conclusion on the s 104/171 issue[86] By any measure, I am satisfied that the Board has had as it was required to doregard/particular regard to the NZCPS in the course of its consideration of theproposed EWL. Having done so it was therefore entirely open to the Board to reject,as it did, the submission made on behalf of Ngāti Whātua and Forest and Bird that thespecific wording of the NZCPS somehow trumped the provisions of the AUP, and,likewise, for the Board to instead prefer the relevant provisions of the AUP to theextent that these differed from the NZCPS.[87] Having concluded there was no error in approach by the Board to itsconsideration of the NZCPS, there is no basis upon which the second limb of theappeal can succeed. The appeals on the s 104/171 issue are accordingly dismissed.Decision[88] The appeals are dismissed. Should the respondents seek costs, memoranda areto be filed within one month of the issue of this judgment. The parties from whomcosts are sought will have one further month to respond, following which I willdetermine the issue on the papers._______________________________Powell J