ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INC v SOUTHLAND DISTRICT COUNCIL [2023] NZHC 399

ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INC v SOUTHLAND DISTRICTCOUNCIL [2023] NZHC 399 [6 March 2023]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2021-425-73[2023] NZHC 399UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for reviewBETWEEN ROYAL FOREST & BIRD PROTECTIONSOCIETY OF NEW ZEALAND INCApplicantAND SOUTHLAND DISTRICT COUNCILFirst RespondentAND NEW BRIGHTON COLLIERIES LIMITEDSecond RespondentHearing: 18–19 July 2022, further submissions 1, 7 and 9 September 2022Appearances: A W McDonald and Y Downing for ApplicantM G Conway and H P Harwood for First RespondentR J Gordon and K R Walker-Clements for Second RespondentJudgment: 6 March 2023JUDGMENT OF OSBORNE JThis judgment was delivered by me on 6 March 2023 at 2.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] Bathurst Resources Ltd (Bathurst) is seeking to establish a new coal mine inSouthland to be operated by its wholly-owned subsidiary, New Brighton Collieries Ltd(New Brighton).[2] The Royal Forest & Bird Protection Society of New Zealand Incorporated(Forest & Bird) seeks review of the decision by the Southland District Council (theCouncil) to:(a) enter into an access arrangement with New Brighton in relation toCouncil-owned commercial forestry (freehold) land at Ohai (theProperty) for coal exploration; and(b) authorise its officers to negotiate an access arrangement regarding theProperty for mining purposes.(the Core Decision)[3] Forest & Bird says the Core Decision was improperly made as a matter ofprocedure and is inconsistent with considerations relating to anthropogenic climatechange. It seeks a declaration that the Core Decision was unlawful and an orderquashing it.Factual background[4] The Property is located adjacent to State Highway 96 between Ohai andNightcaps, with flat rolling hill country topography. Bathurst owns and operates theTakitimu coal mine near Nightcaps. The pit at Takitimu has limited remaining coalresources which are expected soon to be exhausted. In close proximity to Takitimu isa known coal deposit, commonly referred to as "New Brighton", which sits beneaththe Property. Bathurst has been considering the New Brighton deposit as a possibleeconomic option to meet continuing demand.[5] In December 2020, Bathurst approached the Council to discuss exploration andpotential mine development on the Property (the Proposal). Following initialdiscussions, by letter on 25 January 2021, Bathurst:(a) provided notice under s 59 Crown Minerals Act 1991 (CMA) that NewBrighton intended to obtain an access arrangement for the purpose ofexploration over the Property; and(b) asked the Council to make an in-principle decision in relation to anaccess arrangement for mining, subject to the results of drilling thatwould be undertaken.[6] The Proposal was considered by Council staff including the Governance andDemocracy Manager, the Commercial Infrastructure Manager, the team leader forresource management, and the Council's policy analyst. Staff also sought independentexternal advice on the Proposal.[7] Officers then prepared a report (the "Recommendation Report") forconsideration by the Services and Assets Committee of the Council (the Committee)at the 23 March 2021 meeting.[8] The Council had in place a Significance and Engagement Policy (S&E Policy)(discussed below from [38]). In the Recommendation Report, the Committee directlyaddressed the significance of the Proposal under a heading "Assessment ofSignificance", which read:45 This issue could be considered to have some impact for "the currentand future social, economic, environmental or cultural wellbeing ofthe district or region" as per Council' current Significant [sic] andEngagement Policy. However, the matter specifically relates to aparticular block of Council's commercial forest estate, rather than abroader scale policy at a district, community or even forest estate as awhole.46 Although there may possibly be a high degree of interest in this issuefrom the community and affected stakeholders, not all interestedparties will necessarily be directly impacted or face consequences. Forthis reason, the matter may not be considered significant, although ispossibly approaching a significance threshold.[9] The Recommendation Report contained a discussion of "Community Views".The Council staff there noted:34 Community views have not been sought with respect to this issue andno specific engagement activities have taken place. Staff anticipatethe community holding a wide range of views on this topic so there isa high risk that any engagement exercise would be inconclusive.Further, if the decision is escalated to the Ministry level, there is a riskthat the weight of local views would be diminished.35 Community views would be considered through the resource consentprocess associated with mine development.("the 14 April Community View discussion")[10] The Recommendation Report made the following recommendations:That the Services and Assets Committee:(a) Receives the report titled "Access to Commercial Forest at Ohai forCoal Exploration and Mining" dated 16 March 2021.(b) Determines that this matter or decision be recognised "as not"significant in terms of Section 76 of the Local Government Act 2002.(c) Determines that it has complied with the decision-making provisionsof the Local Government Act 2002 to the extent necessary in relationto this decision; and in accordance with Section 79 of the Actdetermines that it does not require further information, furtherassessment of options or further analysis of costs and benefits oradvantages and disadvantages prior to making a decision on thismatter.(d) Agrees to consider the three options available for coal explorationaccess to Ohai commercial forest and note that whichever option ischosen will be of neutral cost impact to Council.(e) Agrees to recommend to Council that officers proceed with one of theoptions below:(i) Option 1 – Enter into access agreement for exploration andagree, subject to negotiation, to an access agreement for minedevelopment; or(ii) Option 2 – Enter into access agreement for exploration but donot agree at this stage to further mine development, insteadallowing for consideration of community views; or(iii) Option 3 – do not enter into access agreement for explorationnor an access agreement for mine development.(f) Agrees that if the Committee determines to recommend Option 1 or2, that it also recommends to Council that the Group Manager ofServices and Assets is delegated to execute such an agreement.[11] On 23 March 2021, the Committee met to consider the RecommendationReport. The Committee was made up of all Councillors and was chaired by the DeputyMayor. Due to uncertainty regarding whether the Committee had the necessarydelegated authority, it was decided that the Committee should make a recommendationto Council on the Proposal and that the Council would make a final decision. TheRecommendation Report was treated as confidential and was considered with thepublic excluded from the meeting. Before the public were excluded, New Brighton'srepresentatives presented to the Committee their proposed exploration activities, anddescribed the potential mining operation and their activities in Southland generally.[12] Committee members discussed the Recommendation Report and the issues.Members discussed the community views that were held or were likely to be held; theimportance of mining activities to local communities, business and the economy; andclimate change impacts of entering into the access arrangement.[13] At the conclusion of the discussion, the Committee adopted recommendations(a) to (d) and (e)(i), ((e)(i) being "Option 1") (set out at [10] above). It also adoptedrecommendation (f) with changes:Agrees that if the Committee determines to recommend Option 1 or 2, that italso recommends to Council that the Group Manager of Services and Assets,Chief Executive and Chair of the Services and Assets Committee are isdelegated to execute such an agreement.[14] The Committee forwarded its recommendation to the Council as an amendedversion of the Recommendation Report (amended so as to reflect the Committee'sconclusions).[15] The Council met on 14 April 2021 to consider the Proposal and theCommittee's Recommendation. The Committee's report to Council, entitled "Accessto Commercial Forest at Ohai for Coal Exploration and Mining" (the CommitteeReport), was identical in all material respects to the Recommendation Report, asidefrom the "Recommendation" section, which was amended to reflect therecommendation made by the Committee.[16] The Committee Report was discussed by the Council, with many of the topicsand context discussed at the Committee again covered, and some additionalcomments. The Council's Group Manager, Matthew Russell, has provided an affidavitas to his involvement in the relation to the Proposal and, in particular, at the Committeemeeting (23 March) and at the Council meeting (14 April). Mr Russell deposes thatthe Council discussed the following matters (along with others):(a) the Council's understanding of what views the community would holdregarding the Proposal;(b) whether community engagement on the Proposal was necessary;(c) the impact on climate change if the Council were to grant access formining; and(d) the ability of New Brighton to request an arbitrator determine the accessarrangement if the Council did not consent to the Proposal and thepotential that, if the matter is referred to arbitration, the Council mightlose the ability to ensure New Brighton goes through a fully-notifiedconsent application process.[17] Under a heading "Community Views" the Committee adopted and set out fromthe Recommendation Report the 14 April Community View discussion.1[18] The Committee Report describes the decision-making as taking place in thecontext of "likely mine development". The Council treated it as confidential. Thepublic were excluded from the 14 April meeting. The Report referred to the matter asa "climate change decision" from a policy perspective and recorded that:There is limited strategy or framework regarding climate change that wouldguide this particular decision. This may compound the impact or precedent1 Above at [9].from this decision with respect to future climate change decisions. Becauseof this, the matter has a risk of being considered a test decision.[19] Of the three options earlier identified by Council officers (above at [10]), theCommittee recommended to Council Option 1 (entry into access agreement forexploration and, subject to negotiation, to an access agreement for mine development).[20] At the 14 April meeting, the Council resolved:That the Council:(a) Receives the report titled "Access to Commercial Forest at Ohai forCoal Exploration and Mining" dated 7 April 2021.(b) Determines that this matter or decision be recognised "as not"significant in terms of Section 76 of the Local Government Act 2002.(c) Determines that it has complied with the decision-making provisionsof the Local Government Act 2002 to the extent necessary in relationto this decision; and in accordance with Section 79 of the Actdetermines that it does not require further information, furtherassessment of options or further analysis of costs and benefits oradvantages and disadvantages prior to making a decision on thismatter.(d) Agrees to consider the three options available for coal explorationaccess to Ohai commercial forest and note that whichever option ischosen will be of neutral cost impact to Council.(e) Agrees that officers proceed to – enter into an access agreement forexploration and agree, subject to negotiation, to an access agreementfor mine development and with the condition that the applicant appliesfor a publicly notified resource consent.(f) Agrees that the group manager of Services and Assets, chief executiveand chair of the Services and Assets Committee are delegated toexecute such an agreement.(the Decision).[21] Accordingly, in reaching the Decision the Council found the matter not to besignificant in terms of its S&E Policy and determined under s 79 Local GovernmentAct (LGA) it did not require further information.[22] The Decision was effected by the Council and New Brighton executing acontract entitled "Exploration Access Arrangement" dated 5 May 2021 (AccessAgreement). The access rights for exploration recorded in the Access Agreement wereregistered over the titles to the relevant land, as provided for by s 83 CMA. The AccessAgreement had a defined term, commencing on 5 May 2021 and expiring 30 June2022. New Brighton in fact concluded its exploration activities in August 2021. TheAccess Agreement contained an acknowledgement as to the capacity in which theCouncil entered it:[7.2] [New Brighton] acknowledges that [the Council] has entered into thisAgreement in its capacity as a landowner and nothing in this Agreement orrepresentation made by or on behalf of [the Council] binds [the Council] in itsregulatory capacity as a consenting authority under the [ResourceManagement Act] in respect of the [Property] or in the exercise of any of itspowers under its bylaws.Forest & Bird's application for review[23] By its application for judicial review, Forest & Bird sought a declaration thatthe Decision was unlawful and an order quashing the Decision.[24] For a first cause of action Forest & Bird pleaded that there had been a numberof errors of law, which were then grouped in counsel's submissions — I consider themin this judgment under the following headings:(a) failure to act in accordance with s 14 LGA principles ([53]–[80]);(b) failure to properly apply the S&E Policy ([81]–[98]);(c) failure to consider community views as preferences under s 78 LGA([99]–[119]);(d) failure to consider the scientific consensus on anthropogenic climatechange ([120]–[130]);(e) failure to take account of Council plans and policies and the LGLCCDeclaration ([131]–[145]);(f) legally erroneous reasoning as to a "loss of control" ([146]–[155]); and(g) legally erroneous reasoning through Council's failure to inform itself([156]–[161]).[25] As a second cause of action, Forest & Bird pleaded that the Council had actedunreasonably by making the Decision because "it is unreasonable to facilitate theexpansion of coalmining operations in the District in view of identified climate changeconsiderations". This ground of review is discussed below at [162]–[174].Strike-out application[26] New Brighton applied on 31 August 2021 for an order striking out Forest &Bird's statement of claim. On 4 November 2021, Associate Judge Johnston, followinga hearing, declined to rule on the strike-out application. He directed instead that theapplication be heard together with the substantive judicial review application.2 TheAssociate Judge reasoned that the necessary consideration of the merits meant that theCourt would need to have all available affidavit evidence before it before reaching aconcluded view on the merits. At this hearing Mr Gordon has not pressed for adetermination of the interlocutory application and it will be formally dismissed giventhe Court is determining the issues substantively. Accordingly, there will be no costsawarded in relation to the interlocutory application.Legislative schemes[27] Two legislative schemes are relevant.Crown Minerals Act 1991 (CMA)[28] The CMA establishes a statutory regime in relation to Crown-owned minerals.The responsible Minister may issue permits in relation to prospecting, exploring, ormining for minerals.3 New Brighton holds permits for prospecting and exploration inrelation to the Property.4 Section 54(2) CMA requires a permit holder, before anyprospecting, exploring or mining takes place on the identified land, to obtain an access2 Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [2021]NZHC 2977 at [35].3 Crown Minerals Act, s 25.4 Minerals Exploration Permit 40625 — permits to prospect and explore for Crown owned mineral.New Brighton does not hold a permit to mine in relation to the Property.arrangement either through agreement with each owner and occupier of the land or byan arbitrator's determination. For minerals other than petroleum (such as coal) thereare special requirements to be met before the alternative of an arbitrator'sdetermination may be adopted. I return to that below from [146].[29] In this case, Bathurst sought and obtained (in the form of the AccessAgreement) an agreement in writing with the Council, in the Council's capacity as theowner of the Property.Local Government Act 2002 (LGA)[30] The Council is a "territorial authority" in terms of the LGA. As such, theCouncil's operations are subject to the provisions of the LGA. As described in s 3 ofthe LGA, the LGA does four things in particular in order to provide for democraticand effective local government that recognises the diversity of New Zealandcommunities, namely:(a) states the purpose of local government; and(b) provides a framework and powers for local authorities to decide whichactivities they undertake and the manner in which they will undertakethem; and(c) promotes the accountability of local authorities to their communities;and(d) provides for local authorities to play a broad role in promoting thesocial, economic, environmental, and cultural well-being of theircommunities, taking a sustainable development approach.[31] Central to concerns raised by Fish & Game is the proposition that the fourcommunity "well-beings" identified in s 3(d) LGA (being social, economic,environmental and cultural) were neglected by the Council when making the Decisionand entering into the access arrangements.The climate change context[32] Forest & Bird asserts that the Decision was unlawful because in various waysthe Decision disregarded the contribution the extraction and use of coal from theProperty would have on climate change. Mr McDonald summarised the propositionin his introductory submissions:The Council's decision was improperly made as a matter of procedure and inthe context of a phenomenon that is one of the most critical issues of our time.Anthropogenic climate change has profound implications for the SouthlandDistrict (District) and those who live there.The extraction and use of coal to generate energy is a major contributor toclimate change. Facilitating new coal mining operations is inconsistent withthe urgent action required to keep global heating at safe levels.Forest & Bird says that the Council's decision-making process wasfundamentally flawed, and that the decision was unreasonable as a matter oflaw.[33] By an introductory paragraph to its statement of claim, Forest & Bird alsorelated its claims to the impact of activities upon climate:This application is concerned with the preservation of New Zealand's naturalenvironment and it is brought solely in the public interest, having regard tothe urgent need to reduce the impact of human activity on the climate.[34] By its statement of claim, Forest & Bird then pleaded matters under headings"Scientific consensus on climate change", "Coal's contribution to climate change" and"Impacts of climate change on the Southland District".[35] Mr McDonald's introductory submissions (above at [32]) broadly summarisedthe "scientific consensus" pleadings which contained assertions that:(a) youth and future generations will be disproportionately affected by theimpacts of climate change;(b) the Southland District and its communities will be significantlyimpacted by the effects of climate change; and(c) New Zealand's transition to zero net carbon by 2050 can be achievedonly if coal use is rapidly phased out.[36] Forest & Bird supported its application through five deponents:(a) Rick Zwaan, the Regional Conservation Manager (Otago/Southland) ofForest & Bird. He exhibited documents of the Council and other bodiesand information relating to the Decision;(b) Gemma Marnane — the National Communications Manager at Forest& Bird Youth — as a 20 year old, with a strong connection to Southlandand its communities. She deposed as to the concerns that she and otheryoung people have for the future and in particular the concern thatactivities such as coal mining will have negative environmental impactson the district, outweighing any short-term economic benefit;(c) George Curzon-Hobson — the Chief Policy Lead at Forest & BirdYouth — as a 17 year old, he deposed as to his work on environmentalmatters, the immense alarm the climate crisis has for many youngpeople and the strong objection that Forest & Bird Youth has to theCouncil allowing access for coal exploration and/or development ofmining operations at Ohai;(d) Professor Timothy Naish — he deposed, as a climate and earth scientist,as to his expertise and as to what he understands to be the consensus ofthe global scientific community on the causes and effects of climatechange and required mitigation steps. He referred to the contributionof fossil fuel combustion and industrial processes to total greenhousegas emissions and to the work of the (New Zealand) Climate ChangeCommission — its demonstration pathway for electricity generationand industrial heating shows coal being phased out by 2025 andreduced by 80 per cent in food processing by 2035. He stated that NewZealand's transition to zero net carbon by 2050 can only be achieved ifcoal use is phased out (replaced by biofuels). He said climate changewill disproportionately affect youth and future generations, and therewill be significant ramifications for Southland. In an updating affidavit,he referred to further work of the Intergovernmental Panel on ClimateChange (IPCC) as strengthening understanding that all aspects of theclimate system are being influenced by continued emissions ofgreenhouse gases. He set out statistics relating to the burning of coalworldwide and opined that the immediate decarbonisation of the energysector is central to all mitigation pathways that keep earth's climatewhen in safe operating limits;(e) Professor (Emeritus) Ralph Sims — a scientist who has been a leadauthor for four IPCC reports. He opined that the expansion ordevelopment of new coalmining operations anywhere in the world isentirely irresponsible from a climate change perspective. He statedthere is no need to develop any new coalmines either globally or in NewZealand and that there are sufficient reserves and supply of coal alreadyavailable from existing lines to meet the requirements of industryduring the phasing out of coal as an energy source for industrialprocesses and power generations. He referred to observations madeduring the (Southland District) Council's decision-making process asto the potential importation of coal to meet New Zealand's domesticrequirement — he stated New Zealand has proven technically andeconomic recoverable coal reserves that would last for 2000 years atannual consumption rates. He rejected any suggestion that any product(whether New Zealand coal or other) can be defined as "clean coal".He took issue with a statement of Craig Pilcher, wherein Mr Pilcherreferred to a Ministry for the Environment (the Ministry) document(April 2021) as "providing for the use of coal until at least 2037".Professor Sims explained it is the consultation document which in factsets out proposals to put in place a clear "phase out" date for the use ofcoal in low and medium process heat by 2037. He noted theconsultation document confirms that "phasing out the use of coal inprocess heat is the priority" and that "one of the biggest opportunitiesto reduce CO2 emissions in Aotearoa is through the decarbonisation ofprocessed heat".The respondents' pleadings[37] The respondents, by their respective statements of defence, admitted thepleadings as to the existence of climate change, the significant contribution of energyto greenhouse gas emissions and that coal currently makes up a portion of the globalprimary energy supply. They plead insufficient knowledge of other detailedallegations and therefore deny those. New Brighton, in particular, pleads that NewZealand has an intended transition to a zero net carbon economy but pleads that sucha target will take time to achieve, with the energy needs of New Zealand's economystill needing to be met during the transition.[38] New Brighton pleaded two affirmative defences:(a) the Decision is not unreasonable because it is the decision of a privatelandowner to enter into a commercial contract; and(b) review would be futile and the issues raised are moot because theagreed exploration has been completed and any mining is dependentupon other authorisation, including a resource consent which woulditself proceed on a fully-notified basis.Other policy/declarationsLGA regime for "significant decisions"[39] Section 76 LGA provides for decision-making, including in relation to"significant decisions" (under s 76(3)(b)).[40] "Significant", pursuant to s 5, LGA means in relation to a decision, one thathas a high degree of significance.Significance and Engagement Policy[41] Section 76AA LGA requires every local authority to adopt an S&E policy.[42] The purpose of an S&E policy is:5(a) to enable the local authority and its communities to identify the degreeof significance attached to particular issues, proposals, assets,decisions, and activities; and(b) to provide clarity about how and when communities can expect to beengaged in decisions about different issues, assets, or other matters;and(c) to inform the local authority from the beginning of a decision-makingprocess about—(i) the extent of any public engagement that is expected before aparticular decision is made; and(ii) the form or type of engagement required.[43] A policy adopted under s 76AA(1) LGA may be amended from time to time.6[44] The Council adopted its S&E Policy on 10 March 2021.[45] The S&E Policy says that the Council will follow a three-step process to informdecision-making:[46] Council will follow a three-step process to inform decision-making:Step 1 - determine significance - Council will use particular factors to decideif a matter is of higher or lower significance. This part of the policy also givesguidance on what to do if a matter is of high significance.Step 2 - identify community views - Council will determine what it knowsabout community views and identify if there is a need for more information.Step 3 - deciding on an approach to community engagement - the level ofsignificance and what Council wants to know about community views willguide Council on an appropriate level of engagement, and how and when toengage. This part of the policy provides clarity on how and when communitiescan expect to be engaged in different issues. It also identifies how Councilwill respond to community preferences about engagement.5 Local Government Act 2002, s 76AA(2).6 Section 76AA(4).[47] The S&E Policy at Step 1 states that decisions will be considered on a case bycase basis, with the following factors of equal weighting to be taken into account:(a) the likely impact/consequences of the issue, decision or proposal onthe current and future social, economic, environmental or culturalwellbeing of the District.(b) the effect on people who are likely to be particularly affected by orinterested in the issue, decision or proposal.(c) the financial and non-financial costs and implications of the issue,decision or proposal on Council's capability and capacity.(d) the scale of any proposed change to levels of service.(e) the ownership or function of a strategic asset.[48] Forest & Bird identifies factors (a) and (b) as particularly applicable to theCouncil's decision-making in this case. It is common ground that factors (d) and (e)had no application.[49] The S&E Policy also requires the Council to also take into account knowledgeit has previously gained about the community and its views on an issue in order toassess whether the matter has a high level of significance.[50] The S&E Policy also states, under a heading "For some matters that are notconsidered significant":In general, where a matter is not considered significant under this policy,Council is unlikely to seek additional information on community views.However, in some situations where Council staff deem communityinvolvement or notification is appropriate, informal feedback or notificationprocesses may be followed.Local Government Leaders' Climate Change Declaration[51] In 2017, a group of 40 local authority mayors and chairs joined in signing theLocal Government Leaders' Climate Change Declaration ("LGLCC Declaration").The Mayor of Southland District (Gary Tong) was one of the signatories. By itspleading Forest & Bird asserted (incorrectly) the Council is a signatory to the LGLCCDeclaration — the Mayor was the signatory and the Council (of Southland District)has not in fact resolved to adopt the Declaration.[52] That said, Forest & Bird invokes aspects of the LGLCC Declaration as mattersthe Council was required to consider when reaching the Decision. In particular, theDeclaration contains an acknowledgment of the importance and urgent need to addressclimate change for the benefit of current and future generations. It also contains"Council Commitments" to developing and implementing ambitious action plans thatreduce greenhouse gas emissions and sets out important "guiding principles" forresponding to climate change, including precaution; stewardship and kaitiakitanga;equity and justice; understanding; and co-operation and resilience.First ground of review – failure to act in accordance with s 14 LGA principlesForest & Bird's pleading[53] Forest & Bird pleads the Council erred by failing to consider, or making errorsin the consideration of, the statutorily mandatory considerations in s 14 LGA.The s 14 LGA regime[54] Section 14(1) LGA lists a set of principles relating to local authorities. Thethree invoked by Forest & Bird being in (1), (b) (c) and (h) relevantly read:14 Principles relating to local authorities(1) In performing its role, a local authority must act in accordance withthe following principles:(b) a local authority should make itself aware of, and should haveregard to, the views of all of its communities; and(c) when making a decision, a local authority should take accountof—(i) the diversity of the community, and the community'sinterests, within its district or region; and(ii) the interests of future as well as current communities;and(iii) the likely impact of any decision on each aspect ofwell-being referred to in section 10:(h) in taking a sustainable development approach, a localauthority should take into account—(i) the social, economic, and cultural well-being ofpeople and communities; and(ii) the need to maintain and enhance the quality of theenvironment; and(iii) the reasonably foreseeable needs of futuregenerations.[55] Section 78 LGA requires the local authority, in the course of its decision-making process in relation to a matter, to give consideration to the views andpreferences of persons likely to be affected by, or to have an interest in, the matters.[56] The application of the principles identified in s 14 LGA is provided for ins 79(2)(a) LGA. Section 79(1) makes it the responsibility of a local authority to make,in its discretion, judgements about how to achieve compliance with thedecision-making requirements under ss 77 and 78 that is largely in proportion to thesignificance of the matters affected by the decision. Section 79(2) then provides thatthe local authority, in making judgements under s 79(1), must have regard to thesignificance of all relevant matters and (amongst other matters) the principles set outin s 14 LGA.[57] Section 80 LGA requires the local authority when making a decision, if itsdecision is significantly inconsistent with any policy adopted by the local authority, orany plan requires by statute, to clearly identify the inconsistency and the reasons forit.Submissions[58] For Forest & Bird, Mr McDonald, invoked the s 79(2) provision that the localauthority "must have regard" to the principles set out in s 14. He submitted the s 14requirements are thereby express mandatory considerations. Mr McDonald submittedthat, in the way the Council approached its decision-making, its focus was on coal'smajor contribution and impact in the District and on the Council facilitating miningon its own land. Under the "advantages" identified under the Committee's Option 1,there was listed "supports significant District employer and related communities". Inthis way, in Mr McDonald's submission, the Council addressed only half the picturerequired for decision-making.[59] Mr McDonald submitted the Council neglected to have regard to the principleshe identified in s 14 through a failure to focus on the impact of the mining of coalagainst the immediate need for de-carbonisation, not only at a national but also aregional level. In Mr McDonald's submission, the Council (in terms of s 14) failed tohave proper regard to the views of all its communities, the interests of future as wellas current communities, and a sustainable development approach that has regard to thefour community "well-beings" (above at [31]).[60] Mr McDonald submitted the Council had very little latitude for error whenmaking the Decision. Mr McDonald cited the observations of Palmer J in HaurakiCoromandel Climate Action Inc v Thames-Coromandel District Council (HaurakiCCA) that the intensity of review of decisions about climate change by publicdecision-makers is similar to that for fundamental human rights.7 His Honourremarked that, depending on their context, decisions about climate change deserveheightened scrutiny.[61] That said, Mr McDonald submitted it does not require a "heightened scrutiny"for the Decision to be found unlawful in this case by reference to a breach of s 14principles, as that breach is simply one of a number.[62] Both Mr Conway and Mr Gordon (for the Council and New Brightonrespectively) took issue with Forest & Bird's characterisation of s 14 as containing"mandatory requirements" and of the proposition that "heightened scrutiny" is to beapplied to this Decision. They submitted the Council, as it acted, had applied the s 14principles.Discussion — "mandatory requirements"[63] The role of s 14 LGA in the context of the LGA as a whole requiresconsideration. The LGA, as it now exists (in the form of the 2002 Act), stands in7 Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC3228, [2021] 3 NZLR 280 [Hauraki CCA] at [51].contrast to the predecessor legislation (the Local Government Act 1974 and theMunicipal Corporations Act 1954) which were highly prescriptive and containeddetailed powers and obligations for many of local authorities' functions. Such wasexplained in the Explanatory Note to the Local Government Bill 2001, which spokeof a:8 shift from a detailed and prescriptive style of statute (that focuses councilson compliance with detailed legislative rules) to a more broadly empoweringlegislative framework that focuses councils on meeting the needs of theircommunities.[64] Hence s 12(2) LGA which cloaks local authorities with a general power ofcompetence, constrained by the purpose of local government (under s 10) and (unders 11) the role of a local authority. Subject to those constraints, a local authority hasfull capacity to do anything a body corporate may do so long as it is:9(a) for the purpose of performing its statutory role;(b) wholly or principally for the benefit of its district or regime; and(c) not contrary to the LGA, any other Act, or the general law.[65] Part 6 of the LGA (particularly ss 75-83) sets out specific provisions in relationto local authority decision-making. Part 6 does not generally prescribe or limitsubstantive powers but rather sets out procedural requirements that apply in theexercise of those powers.[66] Section 79 LGA (summarised at [56] above) provides direction to localauthorities on how to comply with their decision-making obligations. Section 79(1)(a)makes local authorities responsible, in their discretion, for making judgements as tohow to comply with ss 77 and 78 requirements in a way that is "largely in proportionto the significance of the matters affected by the decision", determined in accordancewith the S&E Policy (as adopted under s 76AA LGA). Section 79(2) does not requirethe local authority to have regard to s 14 principles when making decisions — the8 Local Government Bill 2001 (191-1) (Explanatory Note).9 LGA, s 12(2)–(5).requirement is focused on the discretionary judgements the local authority makesunder s 79(1) about how to achieve compliance with s 77 and 78.[67] Against this background, unsurprisingly counsel did not refer to any decisionbased purely on a breach of s 14. The reason for that has been explained academically:(a) In Kenneth Palmer's Local Government Law in New Zealand, theauthor describes s 14 as containing statements of principle which maybe useful in interpreting or applying other provisions of the Act, ratherthan quantifiable requirements; and10(b) Dr Dean Knight has observed that "it is expected that [the Courts] willfence off these principles as being non-justiciable and point to theprocesses of political accountability as being the central controlmechanism to enforce compliance".11In other words, councillors are to be held accountable for the implementation of s 14principles through the ballot box at election time rather than through review in thisCourt.[68] Very recently, in All Aboard Aotearoa Inc v Auckland Transport, one challengewas to a decision of the Auckland Council's Planning Committee endorsing theRegional Land Transport Plan.12 The applicant challenged the Planning Committee'sendorsement on the basis that the Committee did not have proper regard to the interestsof the future as well as current communities as required under s 14 LGA.13 Venning Jidentified the status of the s 14 principles:14I agree with the respondents' submission that the principles in s 14 of the LGAare not mandatory requirements enforceable in their own right, but rather area guide to the Council's exercise of its powers and functions.10 Kenneth Palmer (ed) A to Z of New Zealand Law (online ed, Thomson Reuters) at 37.5.10.1.11 Dean Knight "Democracy and the Consideration of Community Views: Obligation andObservance" in C Charters, Dean R Knight (ed) We, The People's: Participation in Governance(Victoria University Press, Wellington, 2011) at 284.12 All Aboard Aotearoa Inc v Auckland Transport [2022] NZHC 1620.13 See [219].14 At [220].[69] I respectfully adopt that passage as correctly stating the law.[70] It was against the background of this empowering legislative framework thatthe Council came to consider the decision it had to make as a landowner under theCMA. The Decision was being made because New Brighton, as a holder of permitsfor prospecting and exploration (but not mining) in relation to the Property, hadrequested a grant of right of access under s 59 CMA over the Council's land. TheCouncil, in responding to that request, was not exercising any regulatory power. Therequest made of the Council for access to the Property under the CMA was a pre-requisite to New Brighton gaining access to the land (for any of the identifiedpurposes, namely prospecting, exploring or mining). But the decision to grant accessdid not in any legal or logical sense amount to an approval, let alone a permission, tomine for coal. Nor was it a decision as to the Council's position on any issue relatingto climate change. Such was reflected in New Brighton's acknowledgement expresslycontained in the Access Agreement (above at [22]). The Council's required decisionunder the CMA was as to access. The rights New Brighton needed if it was to exploreand to mine had to be granted through other processes.[71] The fact the Council was granting access to the Property for stated purposes isof fundamental relevance to the context. The Council's decision did not authorise orset in motion the mining of coal on the Property. The grant of the existing permit toexplore and any subsequent grant of a permit to mine in relation to the Property were(if applied for) matters for the responsible Minister under the CMA. The consentingprocess for any mining activities under the RMA if applied for would be for theCouncil to determine in the exercise of its regulatory functions under the RMA.Discussion — "heightened scrutiny"[72] Returning then to the standard of review required in relation to the Council'sdecision-making, a focal point for recent discussion in this area has been the decisionin Hauraki CCA.15 It was cited by Mr McDonald for the proposition that the gravity15 Hauraki CCA, above n 7, at [45].of the subject-matter (climate change) may require the Court to exercise "heightenedscrutiny" over the decision-making and a greater "intensity of review".16[73] The concept of a variable standard of review is not without its complications(as identified by Cooke J in New Zealand Council of Licensed Firearms Owners Inc vMinister of Police).17 The approach to "intensity of review" has not been settled.18[74] This is not a case which ultimately turns on the differences or tensions betweenrecent observations as to the intensity of review. The recent discussion had its origin(in Hauraki CCA) in an analogy drawn between cases turning on fundamental humanrights and those focused on climate change decision-making. I have referred above at[51] to the LGLCC Declaration. It was the decision of a Council not to approve theMayor's signing of the Declaration that was the subject-matter of Hauraki CCA. TheDeclaration contains "Council Commitments". The decision under review in HaurakiCCA therefore was a "decision about climate change".19 The Court recognised that, ifthe LGLCC Declaration were both signed by the Mayor and approved by the Council,that could create a legally enforceable legitimate expectation as to how the Councilwould in future deal with the physical impacts of climate change.20 The Council wasbeing asked to state its commitments in relation to climate change, with enforceableobligations potentially flowing.21[75] The decision in this case was not a "climate change" decision in the sense thatterm was employed in Hauraki CCA. The decision for the Council in this case waswhether and on what terms to grant access to its land (with one of the purposes of suchaccess (mining) having potential implications for climate change). While, to thatextent, there was a climate change context in which the Council's access decision wasbeing made, it is incorrect to equate the decision to a "climate change decision" in theHauraki CCA sense.16 At [51].17 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456at [85]–[85].18 See, for instance, Cripps v Attorney-General [2022] NZHC 1532 at [188], citing Ministry ofJustice v Kim [2021] NZSC 57, [2021] 1 NZLR 338 at [51].19 At [1], [51].20 Hauraki CCA, above n 7, at [1].21 At [32].[76] Assuming (without deciding) that Hauraki CC correctly identifies arequirement of "heightened scrutiny" for certain types of decisions, the decision in thiscase was not within a relevant class. "Normal" scrutiny has to be applied.Discussion — a failure to consider s 14 LGA Principles?[77] The first, fundamental answer to the first ground of review (alleged non-compliance with s 14 LGA) is that any failure of the Council to have regard to thenon-mandatory s 14 principles does not invalidate the Decision.[78] Had that not been the case, I would in any event have found that Forest & Birdhas not established that the Council in fact failed to consider the s 14 principles. Thiswas a decision in relation to access to land under the CMA. The Council was not thebody charged by statute with authorising the exploration for or mining of minerals.The Council's consideration of principles therefore needed to relate to the relativelynarrow question of the impact of New Brighton's entry onto the land (should accessbe granted). The Committee had expressly reported to Council (above at [9]) thatcommunity views had not been sought, with staff anticipating (clearly correctly) thecommunity would hold a wide range of views on the topic of coal exploration andmining at Ohai. That said, the Committee recorded that there would be a considerationof community views through any resource consent process associated with any minedevelopments.[79] Given the issue before the Council was the question of access, for the purposesof s 14 the level of regard to the diversity of community views was sufficient. Somewould be in favour, probably strongly. Some would be opposed, probably strongly. Itaccorded with a principled approach, in those circumstances, for the Council to takethe view that adverse community views, whether based on issues of anthropogenicclimate change or otherwise, should not cut across the narrow issue of whether to grantaccess and that the appropriate context for further consideration of community viewsand impacts would be when (if at all) New Brighton came to seek the necessaryconsents or permissions to extract any coal.[80] The Council was also entitled to take into account the consideration identifiedby the Committee (above at [13])(d)). As I find below from [146], in the event theCouncil refused New Brighton access, there was a statutory means under the CMA bywhich New Brighton could achieve through the Minister an arbitrated decision. Therewas therefore a route, albeit of difficulty, whereby the Council might lose the abilityto ensure New Brighton went through a fully notified consent application process. TheCouncil's decisions to incorporate into the access agreement entered into with NewBrighton an agreement for a publicly notified resource consent process (above at[16(e)) added a measure of protection of the scope for community views.Second ground of review – failure to properly apply the S&E PolicyForest & Bird's pleading[81] Forest & Bird pleaded the Council had failed to consider, or properly consider,or correctly interpret or apply its S&E Policy, the relevant provisions of which aresummarised at [45]—[50] above.Submissions[82] Mr McDonald submitted the Decision was plainly a matter of "highsignificance" when assessed against the factors set out in the S&E Policy. He referredto three particular matters:(a) the impact/consequences of the Decision, when its climate changeramifications are considered, will have a major impact on the currentand future social, economic, environmental or cultural wellbeing of theDistrict;(b) facilitating the burning of fossil fuel, in light of the climate crisis, willimpact all current and future constituents of the District; and(c) the financial and non-financial costs of facilitating the expansion ofcoalmining operations in the current environment will be high, giventhe District's susceptibility to the effects of climate change, and notingthe billions of dollars' worth of homes, businesses and infrastructure atrisk.[83] Mr McDonald referred to Step 1 in the S&E Policy three-step process fordecision-making (above at [46]). He referred in particular to the requirement upon theCouncil, under Step 1, to consider the "effect on people who are likely to beparticularly affected by or interested in the issue, decision or proposal".[84] Mr McDonald suggested the Committee, in the Recommendation Report, hadfocused on people who would be particularly affected or "impacted" by the Decisionand not also on people "interested in the issue".22 He referred in particular toparagraph 46 of the Recommendation Report (above at [8]), which I reproduce herefor convenience:Although there may possibly be a high degree of interest in this issue from thecommunity and affected stakeholders, not all interested parties willnecessarily be directly impacted or face consequences. For this reason, thematter may not be considered significant, although is possibly approaching asignificance threshold.[85] Mr McDonald submitted the Council had thereby failed to apply one of thefactors (numbered (b)) identified at Step 1 of the S&E Policy.[86] Mr McDonald additionally submitted that the Council had failed to implementits S&E Policy by failing to secure information about the views and preferences ofthose likely to be affected.[87] Mr McDonald finally submitted the Council had not properly assessed thesignificance of the Decision because it failed to consider four particular matters, beingthe s 14 LGA principles; the scientific consensus on climate change; the Council'sother policies and plans; and the LGLCC Declaration.[88] As I consider (and dismiss) the grounds of review relating to those four mattersunder separate headings in this judgment, I will not further consider them under thisheading. I instead now examine Mr McDonald's initial arguments made under thisheading.22 Referring to s 78 LGA and the relevant provision of the S&E Policy (above at [47]).[89] For the Council, Mr Conway focused first on the Forest & Bird contention thatthe Decision had a high degree of significance.[90] Mr Conway cited observations of Philip Joseph in Constitutional andAdministrative Law in New Zealand:23Arguments of wrong weight address "value judgments rather than questionsof law" and are prone to intrude on the decision maker's domain. The ground of "wrong weight" may masquerade under several guises. Ifthe weighting of relevant factors is not "within the bounds of reason", thedecision may be struck down as Wednesbury unreasonableness[91] In Mr Conway's submission, the weighting to be given to the variousconsiderations was a matter for the Council, according to value judgements, and didnot involve an issue for the Court on judicial review, except in relation to theunreasonableness cause of action. Mr Conway emphasised the Council is requiredunder s 79(1) to exercise "its discretion" in relation to the judgements made under s 79CMA.[92] Mr Conway referred to the Council records, and the evidence of Mr Russell,as indicating the Council carefully considered the significance of the Decision againstthe requirements of s 79(1) LGA and the S&E Policy, determining as resolution (b)(above at [20]) that the Decision was not "significant". Mr Conway referred to theexercise of judgement involved when the Recommendation Report concluded "thematter may not be considered significant, although it is possibly approaching asignificance threshold".[93] Mr Conway noted that the principles of consultation (set out in s 82 LGA) arenot a required consideration when a local authority is determining a decision'ssignificance. He referred to the observation of the Court of Appeal in Wellington CityCouncil v Minotaur Custodians Ltd (Minotaur) that the s 82 principles apply when acouncil does choose to consult. In other words, the principles do not apply if thedecision is to not consult.2423 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at 1017 and 1018.24 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464[Minotaur]: see below at [109].Discussion — the significance of the Decision[94] The Council had in place its S&E Policy. For identified reasons, as initiallystated in the Recommendation Report (above at [8]), the decision Council had to makewas not viewed as having met the significance threshold, "significant" in this contextreferring to a decision that has a high degree of significance).25[95] Therefore, in terms of s 79 LGA, the Council in making, in its discretion, thejudgement about how to achieve compliance with ss 77 and 78 had a responsibility toensure it was "largely in proportion" to the level of significance the Council found tobe established.[96] The information before the Council, both through the work of its Committeeat the 23 March meeting and of the full Council at the 14 April meeting, plainlyidentified the likelihood the community would hold diverse views on the Proposal.All such views would be able to be considered through the resource consent processshould mine development be pursued. In its Report, as substantially adopted by theCouncil, the Committee recognised the competing sets of community interests: on theone side in relation to a relatively high reliance on coal resource for employment andto provide energy for industry, while on the other side recognising that others mightattach a higher priority to climate change considerations, including by reference to therecent Climate Change Commission draft recommendations.[97] Mr McDonald's submission under this head focused on the distinction betweenpeople likely to be particularly affected by a decision and those "interested" in thedecision, noting the Council's reference to the fact that "not all interested parties willnecessarily be directly impacted or face consequences". I consider the Council'sexpress reference to "direct impact or consequences" unremarkable in the context ofa decision concerning access. The understandable point being recorded may beviewed as a statement of the obvious — the grant of access to the Property at mostwould represent a preliminary step towards mine development, with no direct impactduring the period of access. The matter recorded by the Council cannot reasonably beinterpreted as the Council excluding from its consideration others who rather than25 See s 5 LGA, above at [40].being affected by mining simply hold views about the industry or the issues that arise.The Council's view clearly was that all such persons — whether simply interested ordirectly affected — would have the opportunity for their views and the impact on themto be taken into account during later processes.[98] I accept Mr Conway's submission that, in the decision-making process, it wasclearly front of mind for councillors that the community would hold a range of viewson any coal mining that might occur in the future. None of the parties here disputesthe correctness of such a conclusion. In those circumstances, and having regard to thejustifiable conclusion that the decision on the Proposal was not a "significantdecision", the decision to not seek community views or to enter into some other formof community engagement before entering an access agreement was a proper exerciseof the discretion reserved to the Council under s 79(1) LGA on how to comply withss 77 and 78 LGA.Third ground of review — failure to consider community views as preferencesunder s 78 LGAForest & Bird's pleading[99] Forest & Bird pleads the Council failed to ascertain or properly considercommunity views, as required by s 78 LGA.Section 78 LGA[100] Section 78 LGA provides:Community views in relation to decisions(1) A local authority must, in the course of its decision-making process inrelation to a matter, give consideration to the views and preferencesof persons likely to be affected by, or to have an interest in, the matter.(2) [Repealed](3) A local authority is not required by this section alone to undertake anyconsultation process or procedure.(4) This section is subject to section 79.2626 See also LGA, s 14(1)(b).[101] Section 79 LGA, to which s 78 is subject, identifies it is "the responsibility ofa local authority to make, in its discretion, judgments" as to particular matters. Thoseinclude, under s 79(1)(a):79(1)(a) about how to achieve compliance with sections 77 and 78 thatis largely in proportion to the significance of the mattersaffected by the decision as determined in accordance with thepolicy under section 76AA; and[102] In his written submissions for this hearing, Mr McDonald invoked the 2009decision of the Court of Appeal in Whakatane District Court v Bay of Plenty RegionalCouncil (Whakatane).27[103] Mr McDonald initially submitted that Whakatane is authority for theproposition that s 78 LGA requires conscious steps to be taken by the decision-makerto secure information on the views and preferences of those likely to be affected inrelation to the proposal and an actual and intentional consideration of that information.(In his oral submissions Mr McDonald withdrew the qualifier "conscious").[104] In Whakatane, the Court of Appeal (allowing an appeal from the High Court)set aside decisions of the Regional Council (known as Environment Bay of Plenty or"EBOP") whereby EBOP had amended its long-term Council community plan topermit relocation of EBOP's head office from Whakatane to Tauranga. As found bythe Court of Appeal, the decision to shift the head office and many personnel fromWhakatane to Tauranga was a "significant decision" as that term is used in s 76(3)(b)LGA.28[105] Under s 76(1) LGA, the EBOP decision in Whakatane had to be made inaccordance with the applicable provisions of ss 77, 78, 80, 81 and 82. Because it wasa "significant" decision, the EBOP under s 76(3)(b) had to ensure, before making thedecision, that the s 76(1) requirements were appropriately observed.[106] The appeal decision in Whakatane turned in particular on whether EBOP had"given consideration to the views and preferences" of the relevant members of the27 Whakatane District Court v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR826 (CA) [Whakatane] at [72]–[73].28 Whakatane, above n 27, at [11].community as required by s 78(1). The Court of Appeal held that EBOP had notcomplied with s 78, there being no evidence of actual consideration of communityviews and preferences:29[72] To "give consideration to the views and preferences" of the relevantmembers of the community is not achieved by mere knowledge of such viewsand preferences. It comprises two steps. The first is for EBOP to secureinformation as to such views and preferences. As a legal person it must do soby the conduct of natural persons which will be attributed to it by law. Theinformation may be held by councillors; it may be held by an agent of EBOPholding an appropriate delegation. We accept that some information of thatkind was held by EBOP via its councillors and perhaps via Mr Bayfield. Someof the information obtained by Deloitte would have informed its report and sobecome knowledge of EBOP.[73] There remains however the second step – of actually considering thatinformation for the purposes of stages 1 and 2. The Judge considered thatcould occur "accidentally". It is not logically impossible that EBOP couldhave "accidentally" done enough in its engagement with those likely to beaffected to comply with s 78(2). But the prescriptive nature of s 78(2),particularly when read with s 77, makes it inherently unlikely that there wouldbe "accidental" compliance. There is simply no factual basis for thesubmission that that occurred.[74] The submission that it did, like EBOP's argument that theconsideration of community views is to be given "in the course of thedecision-making process" and work in the various stages may overlap, fails tomeet the problem that it was for EBOP to show it had carried out its statutoryobligation. No document and no other evidence was adduced to show it hadin the course of its decision-making process in relation to the matter of sitingthe head office, given consideration to the views and preferences of personslikely to be affected by, or to have an interest in, the matter:(a) at the stage at which the problems and objectives related tothe matter are defined:(b) at the stage at which the options that may be reasonablypracticable options of achieving an objective are identified:[75] That is the simple end of the matter.[107] It is to be noted that s 78(2) LGA — which mandated the staged considerationthe Court of Appeal was considering in Whakatane — was repealed after the decisionin Whakatane was delivered.3029 Whakatane, above n 27, at [72]–[74].30 Local Government Act 2002 Amendment Act 2010, s 9. Section 78(2) LGA previously required:(2) That consideration must be given at—(a) the stage at which the problems and objectives related to the matter are defined:(b) the stage at which the options that may be reasonably practicable options of achievingan objective are identified:[108] The Court of Appeal revisited the operation of Pt 6 LGA in Minotaur.31 Thecase concerned judicial review of Council decisions in relation to consultation overparking policy — the relevant period was 2010 when the provisions of s 78(2)(considered in Whakatane). A landlord complained that the Council had irrationallyfailed to consult it over the changes.[109] In Minotaur, the Court of Appeal rejected the concept of an obligation toconsult or to adopt a particular consultation process, explaining:32[35] Section 78(1) provides that a local authority must, in the course of itsdecision making, give consideration to the views and preferences of personslikely to be affected by, or have an interest in, the matter. Subsection (2)provides that the views and preferences of affected persons or those who havean interest in the matter must be considered at four stated stages of decision-making.[36] Note, however, that subs (3) makes it clear that s 78 does not itselfgenerate an obligation to consult or indeed to adopt any particular consultationprocess or procedure. Rather, consultation is one of a number of options forobtaining information about the views and preferences of those affected orwith an interest. Subsection (4) restates that the section is subject to the wideimplementation discretion in s 79.[38] The effect of this provision [s 82] is that, when a council does chooseto consult, certain "principles" apply to the particular forms of consultationthe council adopts (footnote omitted)Submissions[110] Forest & Bird asserts the Council did not ascertain or properly considercommunity views and that, to the contrary, steps were deliberately not taken toascertain community views. Particular reliance was placed on the 14 April communityview discussion (above at [12]), confirming that "community views have not beensought".(c) the stage at which reasonably practicable options are assessed and proposals developed:(d) the stage at which proposals of the kind described in paragraph (c) are adopted.31 Minotaur, above n 24.32 At [35]–[36].[111] For Forest & Bird, Mr McDonald invokes s 78 LGA and submits the Councildid not give proper consideration to the members of the community. He refers to thematerial indicating the Council contemplated the possibility a significant section ofthe community might be opposed to new coalmining using Council land. He notes theobservations in the Recommendation Report and the Committee Report as tocommunity views not being sought and there having been no specific engagementactivities. He notes that the Recommendation Report, in relation to Option 1 (assubsequently adopted by the Council) recorded as a disadvantage of the option that itdid not provide time for comprehensive community engagement and consideration ofcommunity views.[112] Mr McDonald referred to the Court of Appeal decision in Whakatane,observing that the Court in that case had held that "where there was no evidenceadduced to show the necessary intention or consideration, it was 'the simple end ofthe matter'".33[113] For the Council, Mr Conway emphasised the nature of the Council decisionrequired to be made, namely whether to enter into an access arrangement. For miningto take place, New Brighton required a suite of other approvals.[114] Mr Conway noted Mr Russell's evidence that at both the committee meeting(23 March) and the meeting of the full Council (14 April) members had discussedwhether or not it was necessary to gauge community views given that the Council, aslandowner, was simply providing access to the land (and not permission to mine).Mr Conway noted the observations in the Recommendation Report that staffanticipated the community holding a wide range of views on the topic so there was ahigh risk that any engagement exercise would be inconclusive.[115] Mr Conway referred to the Council's wide implementation discretion unders 79 LGA and the fact that under s 78 consultation is an option for obtaininginformation about community views rather than an obligation — these matters havingbeen established in the Court of Appeal's guidance in Minotaur (as set out at [109]above).33 Whakatane, above n [27].[116] Mr Conway observed that the Court of Appeal decision in Whakatane was inrelation to a decision found to be significant (unlike the decision in this case) and that,even in Whakatane, the Court recognised that relevant information to communityviews may already be held by Council, without fresh engagement activities beingundertaken.Discussion — the consideration of community views as preferences[117] The Council's responsibility under s 79(1) LGA was to make, in its discretion,judgements about how to achieve compliance with ss 77 and 78. The latter provisionis that which requires the local authority to give consideration to the views andpreferences of persons likely to be affected by, or to have an interest in, the matter.But the judgement to be made by the Council is to be "largely in proportion to thesignificance of the matters affected by the decision "[118] Here the justified determination of the Council was that the Decision was notsignificant.[119] That decision flowed from the nature of the proposal, being a proposal toaccess the Property. The conclusion reached at [95]—[99] above — in relation to thesignificance of the Decision — applies equally here. The decision to neither seekcommunity views nor enter into some other form of community engagement beforeentering the access agreement was a proper exercise of the Council's discretion unders 79(1) LGA.Fourth ground of review — failure to consider the scientific consensus onanthropogenic climate changeForest & Bird's pleading[120] Forest & Bird pleads the Council erred by failing to consider the globalscientific consensus on climate change. Related to that pleading are further pleadingsthat the Council erred by failing to consider other relevant matters, including:(a) the Council's plans and policies identifying and/or recognising thechallenges posed by climate change;(b) the LGLCC Declaration;(c) the impact of climate change on youth and future generations, whetherin Southland or generally; and(d) the interests of future as well as current communities.Submissions[121] For Forest & Bird, Mr McDonald characterised the Decision as a decision "tofacilitate the extraction of coal from Council land and its subsequent combustion".Alternatively he referred to the subject matter as being "the facilitation of coalminingoperations and their contribution to climate change".[122] In its statement of claim Forest & Bird pleaded a number of matters under aheading "Scientific consensus on climate change" and some further matters under aheading "Coal's contribution to climate change", with Mr McDonald's very broadsummary as set out above at [35].[123] The Council, by its pleading, acknowledges that climate change exists, thatenergy is a significant contributor to greenhouse gas emissions and that coal currentlymakes up a portion of global primary energy supplier and recognises that mattersrelating to climate change asserted by the plaintiffs represent statements made by somein the scientific community but otherwise (because "it does not have the necessarytechnical expertise to plead to the matters") denies Forest & Bird's allegations onclimate change.[124] New Brighton's pleadings in this regard were similar to those of the Council.[125] Mr McDonald submitted the impact of the Decision on climate change was arelevant consideration (to be taken into account by the Council under s 79(2) LGA)and that, in assessing the significance of that consideration, the Council had to considerthe scientific consensus on climate change. He submitted that the Council plainly didnot take into account the global consensus.[126] For the Council, Mr Conway submitted the matters of "scientific consensus"pleaded by Forest & Bird are of a general nature that cannot create a legal requirementthat it be taken into account. He further submitted that the "relevant matters" to betaken into account under s 79(2) LGA take their meaning from s 79(1)(a) — the"relevant matters" are a shorthand for "the matters affected by the decision asdetermined in accordance with the [Council's S&P Policy]".[127] Mr Conway submitted that it is relevant that New Zealand's response to climatechange, and any emissions generated from burning coal, is addressed at a nationallevel under the Climate Change Response Act 2002.[128] Finally, Mr Conway rejected any suggestion the Council had failed to turn itsmind to the issue of climate change — he referred to repeated references in theRecommendation Report to the climate change context, as well as the evidence of MrRussell who confirmed that councillors had given consideration to climate change,and the coalmining industry in particular, and had discussed community views relatingto climate change.Discussion[129] Once the Council determined that the Proposal did not, in terms of the S&EPolicy, involve a "significant" matter (as I have found the Council was justified inconcluding) the Council could not be required to bring into consideration on thisaccess issue matters that Forest & Bird (and others) may categorise as matters ofscientific consensus on climate change. The examination of such matters and anyattempt on the part of the Council to reach its own view on the validity of the assertionsinvolved could reasonably be viewed by councillors as a disproportionate response tothe matters affected by the Decision. That decision, as s 79(1) requires, was for thejudgement of the Council, in its discretion.[130] I accordingly accept the submission of Mr Conway that the manner in whichmatters of climate change were weighed by the Council in the Decision were questionsof merit (or, in terms of s 79(1)) judgement in the Council's discretion) for the electedmembers. The Council's consideration of the diversity of views that would exist,supportive of coalmining on the one hand and of responding to climate change on theother, cannot be regarded as a failure of the Council's responsibility (under s 79 LGA)when deciding how to achieve compliance with ss 77 and 78 LGA when consideringa request for access under the CMA.Fifth ground of review — failure to take account of Council plans and policiesand the LGLCC DeclarationForest & Bird's pleading[131] Forest & Bird pleads the Council erred by failing to consider:(a) the LGLCC Declaration; and(b) the Council's plans and policies identifying and/or recognising thechallenges posed by climate change.[132] In his written submissions, Mr McDonald identified one plan — namely theDistrict Plan — and one policy — namely the S&E Policy.Submissions — s 80 LGA[133] For Forest & Bird, Mr McDonald invokes the requirement upon localauthorities, under s 80(1) LGA, to identify "inconsistent decisions", that sectionproviding:(1) If a decision of a local authority is significantly inconsistent with, oris anticipated to have consequences that will be significantlyinconsistent with, any policy adopted by the local authority or anyplan required by this Act or any other enactment, the local authoritymust, when making the decision, clearly identify—(a) the inconsistency; and(b) the reasons for the inconsistency; and(c) any intention of the local authority to amend the policy or planto accommodate the decision.[134] For the Council, Mr Conway noted that s 80 is an accountability provision,requiring the Council to identify when it is making decisions that are significantlyinconsistent with certain plans and policies and to state its reasons for doing so andany intent to alter the plan or policy accordingly (emphasis added). Mr Conway notedthat s 80 does not prevent inconsistent decisions, instead requiring them to beidentified and acknowledged.[135] Mr Conway observed not every previous council statement or policy positionis the subject of s 80 — a policy to be affected must be one that has been adopted bythe Council and a plan to be affected must be one required by statute. Secondly, theinconsistency with such plan or policy has to be "significant". The s 80 identificationof inconsistencies therefore does not apply to documents of low significance, or in thecontext of inconsistencies that are minor.[136] In Mr Conway's submission, this ground of Forest & Bird's challengeincorrectly treats s 80 as imposing a mandatory consideration in an administrative lawsense whereas s 80, properly understood, imposes a reporting or acknowledgementrequirement on the Council that is only engaged in certain circumstances.Discussion — s 80 LGA[137] The approach Mr Conway invites to the application of s 80 LGA is correct.The focus, of s 80 is upon identification of significant inconsistencies, articulation ofhow the inconsistency arises and whether the affected policy or plan is intended to beamended. A breach of s 80 does not serve to invalidate the affected decision. Anyinvalidation of the decision would have to flow from an error that goes to the vires ofthe decision itself.Submissions — LGLCC Declaration[138] Mr McDonald submitted that the LGLCC Declaration has "mandatoryrelevancy in the context of climate change decisions".[139] Mr McDonald identified that the Declaration set out seven "GuidingPrinciples" for decision-making on climate change, beginning with precaution("acting now to avoid the existential threat of climate change").[140] Mr McDonald submitted the Council acted in breach of s 80 LGA by failing toconsider the LGLCC Declaration and the Guiding Principles.[141] Mr Conway observed the Council has neither been a signatory to nor adoptedas policy the LGLCC Declaration. As such, the Guiding Principles and other contentof the Declaration cannot constitute a mandatory consideration although they arematters that may be considered in the Council's discretion.[142] Additionally, Mr Conway submitted the Declaration was by its nature verygeneral and aspirational and has little relevance to the Decision.Discussion[143] The LGLCC Declaration did not become a policy (let alone a plan) of theCouncil by signature of its Mayor. Nor has it been subsequently adopted as policy bythe Council itself.[144] Accordingly, questions of inconsistency between the Decision and theDeclaration do not arise under s 80 LGA.[145] Had the Declaration constituted a relevant policy, the situation would still havefailed to constitute a "significant inconsistency" given that the Decision is one as toan agreement for access and not mining.Sixth ground of review — legally erroneous reasoning as to a "loss of control"Process[146] Under s 59 CMA, Bathurst gave notice to the Council of New Brighton'sintention to obtain an access arrangement for the purpose of exploration over theProperty.[147] In the Recommendation Report, it had been recorded that the CMA: outlines a process where [New Brighton] may advance access agreement,if Council and [New Brighton] are unable to reach agreement, this involvesmeasures including appointment of an arbitrator and escalation to the ministerwhich may result in control over the issue at a local government level.[148] It appears to have been Forest & Bird's understanding of the CMA that theCouncil in fact had a veto right under the CMA, which the Council overlooked. Forest& Bird understood s 55 CMA prevented an arbitrator from determining an accessarrangement for exploration or mining (except in the case of petroleum) unless thelandowner agrees.[149] Section 55(1) CMA provides:55 Restrictions on determination of access arrangements byarbitrators(1) Subject to section 66, or to any agreement between each owner andoccupier of the land and the person desiring access, an arbitrator shallnot be entitled to determine an access arrangement in respect ofprospecting or exploration for, or mining of, a mineral other thanpetroleum.[150] Section 66 CMA (as referred to in s 55) makes provision for a permit holder toapply for a declaration (issued by the Governor-General) that an arbitrator mayproceed to determine an access arrangement on the grounds of public interest.Through s 66(3) it provides for steps to be taken by the Minister in this way:(3) If the Minister, after considering the application and the [chiefexecutive's] report, considers that there are sufficient public interestgrounds to support the application, the Minister shall cause to beserved on the owner and occupier of the land a notice in writing of theapplication, and of the Minister's preliminary views, and stating thatthe owner and occupier have a period of 3 months, after the date onwhich the notice was served, to either—(a) Enter into an access arrangement with the permit holder; or(b) Consent in writing to an arbitrator determining an accessarrangement; or(c) Make representations to the Minister as to why a declarationshould not be made under this section.[151] Section 66(5) then provides for the making of an Order in Council for adeclaration that the access arrangement may be determined by an arbitrator. Bysubs (6) it is then provided:(6) A consent given or declaration made under this section shall entitle anarbitrator to proceed to determine an access arrangement between theapplicant under this section and the owner and occupier of the landconcerned; and any such arrangement shall be effective in respect ofthe land to which it relates.Mr Russell's evidence[152] Mr Russell deposed that, having regard to the access mechanism under theCMA, elected members expressed their concern that, if the decision-making processwere left to an arbitrator, the Council would lose the ability to ensure community viewswere attained for a notified resource consent process.[153] That discussion led to the Council Resolution (e), as set out at [20] above.Submissions[154] Mr McDonald submitted, by reference to s 55 CMA, the Council hadoverlooked a veto right it holds under the CMA.Discussion[155] As submitted by Mr Conway, there is no right of veto in s 55 CMA, becauses 55 is subject to the declaration procedure made available under s 66. While theconcept of "public interest grounds" sufficient to support an application under s 66 islikely to substantially restrict the prospect of successful applications under thatsection, the councillors (contrary to Forest & Bird's contention) were correct whenthey did not regard the Council as having an (absolute) right of veto over the accessdecision.Seventh ground of review — legally erroneous reasoning through Council'sfailure to inform itselfIntroduction[156] This ground of review — an alleged failure by the Council to identify andaccept material relating to climate change issues — is closely related to the thirdground (failure to consider the scientific consensus on anthropogenic climate change)(above from [120]).Forest & Bird's contention[157] Although not expressly pleaded, Forest & Bird (through Mr McDonald'ssubmissions) contended the Council had failed to take reasonable steps to ascertainthe facts and circumstances relevant to the Decision.34 Mr Russell's evidence was that,during the 14 April 2021 meeting, councillors observed that the alternative to miningcleaner coal in New Zealand was to import "dirty" coal from overseas, with no viablealternative in New Zealand's energy mixed coal at that stage.[158] Mr McDonald "submitted" that the evidence of Professor Sims (summarisedat [36](e) above) negates the suggestion there is any product that can be defined as"clean coal".Submissions[159] Mr McDonald submitted that, had the Council taken proper steps to informitself (in relation to climate change and coalmining issues), the Decision may wellhave been different.[160] Mr Conway noted the jurisdictional difficulty with asking this Court to makefindings of fact in a judicial review context or asking the Court to conclude that theCouncil should have placed more weight on certain facts. Mr Conway also referredto aspects of Professor Sim's evidence in more detail, making observations as to whatis not stated in the evidence (such as the relative carbon content of the Southland coalresource as opposed to an imported alternative).Discussion[161] As in relation to the earlier discussion (above from [94]), it is key backgroundthat the Council had determined under its S&E Policy the Decision was not"significant". The Council recognised the diversity of views that the communitywould hold relating to climate change and the potential contribution (of mining andsubsequent burning) of coal to climate change. In that context it was open to34 Citing Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015]NZAR 1648 at [94].councillors to turn their minds to the trade-off between locally sourced and importedcoal. Having recognised that issues of that nature existed, it was reasonably open tothe Council (in relation to an access decision that did not reach the "significant"threshold) to decide that the appropriate time to obtain community views (and anyfurther information) was in any resource consenting process when the actual extractionof coal would be considered.Second cause of action – unreasonablenessForest & Bird's pleading[162] Forest & Bird pleaded:By making the Decision the [Council] acted unreasonably in that it isunreasonable to facilitate the expansion of coalmining operations in theDistrict in view of:(a) The global consensus on anthropogenic climate change and the urgentneed to reduce greenhouse gas emissions;(b) The effects and predicted effects of climate change on the District andits current and future community;(c) The contribution that the further extraction of coal will make toclimate change.Unreasonableness as a ground of review[163] The Court of Appeal's judgment in Wellington City Council v Woolworths NewZealand Ltd (No 2) (Woolworths) identifies when administrative decisions may beinvalidated as "unreasonable".35 Richardson P, delivering the judgment of a full court,observed:36For the ultimate decisions to be invalidated as "unreasonable", to repeatexpressions used in the cases, they must be so "perverse", "absurd" or"outrageous in [their] defiance of logic" that Parliament could not havecontemplated such decisions being made by an elected council.[164] A different formulation, to the same effect, is that of Palmer J in Hu vImmigration and Protection Tribunal.37 There his Honour observed:35 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537.36 At 552.37 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2].Where a decision is so insupportable or untenable that proper application ofthe law requires a different answer, it is unlawful because it is unreasonable.That may involve the adequacy of the evidential foundation of a decision orthe chain of logical reasoning in the application of the law to the facts.Unremarkably, unreasonableness, also termed irrationality, is to be found inthe reasoning supporting a public decision.[165] This formulation of the test for unreasonableness has recently been endorsedby the Court of Appeal in CP Group Ltd v Auckland Council.38[166] As further observed by Palmer J in Hu, three scenarios assist in identifyingwhat amounts to an "insupportable or untenable" ultimate conclusion:39(a) if the decision is not supported by any evidence;(b) if the evidence is inconsistent with or contradictory to the decision; or(c) if the only reasonable conclusion contradicts the decision (where thereis "a material disconnect in the chain of logic from a fact or a legalproposition to a conclusion, a decision may be unreasonable andtherefore unlawful".Submissions[167] Mr McDonald submitted the only reasonable conclusion available to theCouncil in this case contradicted the decision to enter into an access agreement. Hesubmitted that the decision in this case was "patently a perverse one".[168] For these propositions Mr McDonald fell back on the matters relied upon inrelation to earlier grounds — the statutory function of the Council to promote the fourwellbeings; the "global scientific consensus" on anthropogenic climate change and theproposition the Council, by granting access, is "actively facilitate new coalminingoperations" in confliction with the notion of phasing down the use of coal.38 CP Group Ltd v Auckland Council [2021] NZCA 587 at [135].39 Hu, above n 37, at [30], citing Edwards v Bairstow [1956] AC 14 (HL).[169] In response, Mr Conway referred to s 12(2) LGA as the source of the Council'sgeneral power of competence, balanced by the purpose of local government set out ins 10, its role in s 11 and the rights and powers conferred by any other enactment. Theeffect of s 12(2)—(5), within these constraints, means that a local authority has fullcapacity to do anything a body corporate may do so long as:(a) it is for the purposes of performing its statutory role;(b) it is wholly or principally for the benefit of its district or region; and(c) it is not contrary to the LGA, any other Act or the general law.[170] In this case, the context is the Council was managing its commercial forestportfolio. As a forest owner, the Council had the discretion provided by Parliamentunder the CMA to enter into an access arrangement with the holder of a CMA permitunder the CMA.[171] Mr Conway submitted the Council's entry into such arrangement does not fallwithin any of the tests identified by the Court of Appeal in Woolworths — "perverse","absurd", or "outrageous in defiance of logic".Discussion[172] The decision for the Council in this case, arising under the CMA, was whetheror not to enter into an access arrangement.[173] The concerns raised by Forest & Bird as to climate change implications, centralto its earlier grounds of review, are equally central on this final ground of review.While Forest & Bird and a significant portion of the Southland community may quitereasonably wish to be heard on steps that may lead to coalmining, there was nothingin the Council's approach to the access decision that reaches the stringent test ofunreasonableness. It was reasonable, in reaching the access decision, that the Councilhave regard to the fact there would be later opportunities for consultation and input atthe point when the actual extraction of coal was for consideration. It was reasonablefor the Council to effectively defer any consideration of climate change matters at apoint when the level of consultation and factual enquiry would have become moreproportionate to the subject matter (that is to the issue of whether extraction of coalshould occur rather than to the issue of whether the holder of a CMA permit mighthave access to the Council's land.[174] Significantly Forest & Bird's allegation that the Council acted unreasonably isexpressly premised on the basis that the Council unreasonably "facilitated theexpansion of coalmining operations in the District". There is a material differencebetween facilitation — that is making something easier — and approving or givingthat thing a "legal go-ahead". It is clear from the record that councillors appreciatedthey were not giving "the expansion of coalmining operations in the District" the legalgo-ahead. The Council focused, in accordance with the scheme of the CMA, on theaccess arrangement being requested by New Brighton under the CMA. While it maybe semantically correct to describe an access arrangement as something that"facilitates" a subsequent expansion of coalmining, it is fundamentally important toconsidering the reasonableness of the Council's approach that the Council, by agreeingto enter into an access arrangement, was not approving the expansion of coalmining.[175] There was a distinct logic to the Council's approach in reaching the Decision.The Decision falls well short of being "perverse" or "absurd".Outcome on Forest & Bird's grounds of review[176] None of Forest & Bird's grounds of review has been upheld. The applicationfor review will accordingly be dismissed.New Brighton's affirmative defences[177] New Brighton pleaded two affirmative defences, as summarised at [38] above.Mr Gordon presented detailed submissions in relation to each of those affirmativedefences (in addition to his submissions directly in response to Forest & Bird's pleadedgrounds of review).[178] Given the findings already made in this judgment, it is unnecessary that I ruleon the affirmative defences.Costs[179] I reserve the costs and disbursements of the proceeding. In the event counselare unable to agree, costs will be determined on written submissions (four-page limit),counsel for the respondents to file and serve within ten working days after thisjudgment and counsel for the applicant to file and serve within five working daysthereafter. In the event no memoranda are filed within those time limits, the order ofthe Court (without further order) will be that the applicant is to pay to each of therespondents costs on a 2B basis together with their reasonable disbursements to beapproved by the Registrar.Orders[180] I order:(a) the strike out application is dismissed;(b) the application for review is dismissed; and(c) costs and disbursements are reserved.Osborne JSolicitors:Lee Salmon Long, AucklandSimpson Grierson, AucklandMinter Ellison Rudd Watts, Wellington