SOUND (SAVE ONERAHI FROM UNDUE NOISE DISTURBANCE) INC v WHANGAREI DISTRICT COUNCIL [2023] NZHC 2988

SOUND (SAVE ONERAHI FROM UNDUE NOISE DISTURBANCE) INC v WHANGAREI DISTRICTCOUNCIL [2023] NZHC 2988 [27 October 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2022-488-000065[2023] NZHC 2988UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial reviewBETWEEN SOUND (SAVE ONERAHI FROM UNDUENOISE DISTURBANCE)INCORPORATEDApplicantAND WHANGAREI DISTRICT COUNCILFirst RespondentNORTHLAND EMERGENCY SERVICESTRUSTSecond RespondentHearing: 7 – 8 August 2023Counsel: K Anderson, AH Balme and KT Dickson for ApplicantPMS McNamara and CJ Ryan for First RespondentBJ Matheson, DJ Minhinnick and SFD Barnett for SecondRespondentJudgment: 27 October 2023JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 27 October 2023 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Wynn Williams, Queenstown.Simpson Grierson, Auckland.Russell McVeagh, Auckland.K Anderson, Auckland.BJ Matheson, Auckland.Table of ContentsThe case [1]Background [2]Noise modelling [17]The claim [20]A preliminary issue [23]Did the Council make fundamental errors of law? [36]Did the Council fail to consider mandatory considerations? [53]Do the decisions contravene the Local Government Act 2002? Did theCouncil fail to consult the Onerahi community? [63]Consultation [93]Are the decisions unreasonable in the Wednesbury sense? [104]Conclusions [108]Costs [109]The case[1] The Northland Emergency Services Trust1 provides emergency helicopterservices to Northland. On 11 November 2021 and 22 September 2022, theWhangarei District Council2 decided to support Nest's relocation toWhangarei Airport,3 in Onerahi. Save Onerahi from Undue Noise DisturbanceIncorporated,4 which represents more than 100 Onerahi residents, seeks to challenge,by judicial review, both decisions. As its name suggests, Sound's concern is theadditional, distinctive noise that would be generated by Nest's operation at the airport.Background[2] The background is not contentious.[3] Nest's sole purpose is to provide a dedicated air ambulance and emergencyrescue helicopter service for the people of Northland. Nest conducted more than 1,100missions in the year ending 31 January 2023.1 Nest.2 The Council.3 The airport.4 Sound.[4] Nest operates from a property on Western Hills Drive, Kensington, Whangarei,or what is known as Kensington base. The Council owns the land at Kensington base.[5] Nest must relocate from Kensington base, ironically, because of safetyconcerns. Kensington base is adjacent Kensington Park, a busy sports ground. Thepark also means Nest cannot expand despite Northland's growing population. Nest'slease of Kensington base site expired in July 2023, but the Council has extended thelease for another three years.[6] In October 2021, Nest approached the Council about moving fromKensington base to the airport. The Council operates the airport and is its airportauthority under the Airport Authorities Act 1966. Related land is vested in the Councilfor airport purposes.[7] As will be evident, the airport is in the suburb of Onerahi. Onerahi is apeninsula. The airport is in the middle of the peninsula, surrounded by homes.[8] On 21 October 2021, councillors attended a workshop in relation to Nest'sproposal.5 Minutes of the workshop record that Nest explained the background to itsproposal and why the airport was its preferred location.[9] On 11 November 2021, Nest's proposal was discussed at an extraordinaryCouncil meeting. The Council decided to support Nest's relocation "in principle".The Council authorised its staff to negotiate with Nest about the terms of a lease, andits Chief Executive to execute one if negotiations were successful.6[10] The Council also decided on 11 November that:(a) Nest was responsible for meeting all statutory and regulatoryrequirements, including requirements relating to the District Plan andnecessary consents.5 The workshop was not open to the public.6 The first decision.(b) Its staff would develop a communication plan in relation to the Onerahicommunity, with Nest working alongside the community to allayconcerns.(c) It would investigate the establishment of an airport noise managementcommittee.[11] On 21 February 2022, the Council and Nest entered a memorandum ofunderstanding in relation to Nest's relocation.7[12] On 9 May 2022, the Council and Nest held a meeting at the airport to hearcommunity concerns and provide information about Nest's relocation.[13] An airport noise management committee8 was formed by re-animating asubcommittee of the Council that had previously existed to address airport-relatednoise. The noise committee met repeatedly in 2022.[14] On 7 September 2022, the noise committee made several recommendations toaddress noise arising from Nest's relocation.[15] On 22 September 2022, the Council again met in relation to Nest's proposal.The purpose of the meeting was to consider the noise committee's recommendationsof 7 September 2022. The Council confirmed its support for Nest's relocation.9[16] The Council also decided on 22 September that:(a) Nest training flights should not occur at Onerahi if Nest relocated to theairport.10(b) It would enter a stand-alone agreement with Nest to address noise,including by complying with noise abatement procedures when7 The MOU.8 The noise committee.9 The second decision.10 Nest had earlier agreed to this aspect.practicable; and complying with an approved airport noise managementplan.11 The noise plan had to be consistent with legislation; theDistrict Plan; and Council policies.(c) It would work with the noise committee to:(i) Update the noise plan and related policies and systems.(ii) Develop a communication plan, an education programme, orboth, in relation to Nest's relocation.Noise modelling[17] Marshall Day Acoustics12 provides the Council with expert advice in relationto noise, including noise modelling. In May 2020, Marshall Day was asked to consider"the noise implications"13 arising from Nest's relocation. On 30 November 2020,Marshall Day concluded "if Nest's operations were included in the complianceassessment at the Airport, there was a risk of exceedances of the allowable noise levelsin the District Plan". However, Marshall Day also observed this may turn on"interpretation issues" in relation to the plan, as to which see [40] onwards.[18] Marshall Day conducted further modelling in relation to Nest's relocationbetween March 2022 and 4 August 2022, and that modelling was available to the noisecommittee at its 7 September 2022 meeting. As the modelling is both technical anddiagrammatical, I instead capture what Stephen Peakall, an acoustic consultant withMarshall Day, says about the likely impact of Nest's relocation for the purpose of thislitigation:(a) While the noise will be "greater than the existing level of noise" at theairport, the noise will be "generally consistent" with the levelsanticipated by the existing air noise boundary and outer controlboundary.11 The noise plan.12 Marshall Day.13 Affidavit of Stephen Peakall dated 31 March 2023 at [4.7].(b) The difference in noise experienced by the community"will be marginal".[19] An expert retained by Sound has a (very) different view, and I discuss this later.The claim[20] Sound filed its claim on 19 September 2022, that is, after the first decision butbefore the second. On 14 October 2022, Sound amended its claim to encompass thesecond decision as well.[21] Sound contends both decisions are unlawful or improper because:(a) They contain "fundamental" errors of law.(b) The Council failed to consider mandatory considerations.(c) The decisions contravene the Local Government Act 2002.(d) The Council failed to consult the Onerahi community.(e) The decisions are unreasonable in the Wednesbury sense.[22] All of these arguments are united by a common thread, which for convenienceI address as a preliminary issue.A preliminary issue[23] Sound contends both decisions are not ones in principle to support therelocation of Nest to the airport; rather, they are tantamount to final decisions thatmake Nest's relocation all but given.[24] Sound advances this contention because the decisions authorise Council staffto negotiate the terms of a lease and its Chief Executive to enter a lease absent furtherinput from councillors (as elected members). Sound observes Nest relinquished itsoption of an alternative site between the first and second decisions. This, it says, isconsistent with Nest's relocation as having been settled. So too the reference in theMOU to the parties wishing to progress a lease "as soon as possible".[25] Plainly, both decisions make Nest's relocation to the airport a possibility; Nestcould not move there without Council approval as airport authority. Both decisionsmay also be characterised as getting the ball rolling, in that both provide direction andimpetus. In other words, the decisions increase the likelihood that Nest may move tothe airport from Kensington base.[26] However, these aspects do not make the decisions anything more than theyappear to be, namely in principle decisions that facilitate Nest's potential relocation tothe airport. I say this for the reasons below.[27] The first decision was expressly identified as being "in principle" only.Evidence on behalf of the Council explains the utility of such a decision: it ensures thetime, effort, and cost of negotiations are not wasted by the later (unwelcome) discoverythat the proposal was never supported by the Council's elected members.[28] The same is also true of the second decision, albeit some elaboration isrequired. The minutes accompanying the meeting in relation to the second decisiondo not contain the phrase "in principle". Dominic Kula, the general manager ofplanning and development at the Council, was at the meeting. Mr Kula says thecouncillors present amended the motion to support Nest's relocation by adding thephrase "in principle", then carried the amended motion.[29] Council meetings are recorded. Mr Kula has watched the footage of themeeting, which was also livestreamed. Mr Kula says that footage confirms hisevidence.14[30] Sound advances no objection to Mr Kula's evidence, which is offered by theCouncil as additional evidence.15 However, Sound does not accept the minutes areincomplete. It invites me to adopt an orthodox view of the minutes as an accurate14 Sound offered no objection to this evidence being adduced at the hearing.15 Handed up at the hearing.record of what occurred at the meeting, and not go beyond them. This is, after all,why minutes are kept.[31] As foreshadowed, I receive and accept Mr Kula's evidence in the interests ofjustice. To do otherwise would be to act upon an incomplete, inaccurate record.I, therefore, find the second decision was intended to be, and expressed as being,in principle.[32] Both decisions are subject to significant conditions. For example, under thefirst, Nest is responsible for meeting all statutory and regulatory requirements,including those imposed by the District Plan. Under the second, the stand-aloneagreement between the Council and Nest concerning noise must be"consistent/comply with relevant legislation, Council policies, including theDistrict Plan designations".[33] An obvious but important point should also be recorded: no lease existed at thetime of either decision and no lease has been entered subsequently.16 If the terms of alease are not agreeable to both parties, Nest will not relocate to the airport. Similarly,should it transpire that Nest cannot meet its obligations in relation to noise under theDistrict Plan or otherwise, plainly, there would be no point in Nest entering a lease torelocate there. This is underscored by clause 11 of the MOU, which notes the MOUis not binding, and legal obligations "only created upon the completion of either aformal agreement or lease".[34] That elected councillors have no further role to play in the process does notchange the character of the decisions.[35] It follows I am not persuaded that either decision should be treated asdeterminative of Nest's relocation in the analysis to come.16 Affidavit of Dominic Kula dated 3 April 2023 at [8.2].Did the Council make fundamental errors of law?[36] No recitation of authority is required for the proposition that a material errorof law by a decision maker exercising public power constitutes a basis forjudicial review.[37] Sound acknowledges the decisions are not planning decisions. However, itcontends four "regulatory drivers" should have affected, influenced, or coloured thedecisions, which it says the Council failed to consider or misunderstood.Consequently, Sounds contends the Council made "fundamental" errors of law inrelation to both decisions.[38] Sound identifies the four "regulatory drivers" as:(a) Section 16 of the Resource Management Act 1991, which provides thatevery occupier of land shall adopt the best practicable option to ensurethat the emission of noise from that land does not exceed a reasonablelevel.(b) Section 17 of the same Act, which provides that every person has a dutyto avoid, remedy, or mitigate any adverse effect on the environmentarising from an activity carried on by or on behalf of that person,irrespective of whether the activity is carried on in accordance with anyrule or designation. As with s 16, Sound contends s 17 applied to theCouncil in relation to the emission of noise.(c) The "District Plan Driver".(d) The "Designation Driver".[39] Sound contends the Council "did not identify or consider any information" inrelation to (a) or (b) when making the first decision, and thus erred in law in relationto both ss 16 and 17 of the Resource Management Act. Sound acknowledges theCouncil had "some information" in relation to (a) and (b) when making the seconddecision but says the Council did not consider its duties under s 16 of the Act.Furthermore, because the Council's noise modelling presupposed the existence ofsignificant sound barriers at the airport, it could not determine whether the emissionof noise in connection with Nest's airport operation would be reasonable, or whetherthe additional, distinctive noise likely generated by that operation would beappropriately remedied or mitigated.[40] Sounds contends the "drivers" identified at (c) and (d) mean the Councilmisunderstood the applicable rules in relation to the emission of noise at the airport.The submission is best introduced with this extract from a report prepared for themeeting at which the first decision was made. I note "NAV 6.7" is a noise rule inrelation to helicopters and other aircraft, and "Designation WDC-55 Aerodrome"comprises a set of rules affecting the airport following the designation process:4.2 District PlanThe Airport would seem the most logical site to relocate NEST's howeveroperations there are some matters that need consideration as to the impact ofsuch a relocation on the District Plan.In brief:• Designation WDC-55 Aerodrome takes precedence over the District Plan.• A helicopter is an "aircraft" and is provided for in the Aerodromedesignation.• The designation is conditional upon the Plan noise rules.• NAV.6.7 (Aircraft and Helicopter Landing Areas) exempts "emergencyservices" helicopter movements.It is reasonable to conclude that the operation of helicopters is within thedesignation for an "Aerodrome". This is further reinforced by the s 42a anddecision/recommendation on the 2005 designation and variation, which referto submissions about and conditions (including a noise management plan)controlling helicopter flight paths and hovering.NAV.6.7 exempts "emergency services" helicopter movements. "Emergencyservices" is defined in the Plan as "the activities of authorities who areresponsible for the safety and welfare of people and property in the communityand include fire, ambulance and police services. Having said this, while"emergency services" are exempt and the designation does provide forhelicopters, they must still comply with the relevant noise rules of the DistrictPlan for those activities deemed non "emergency services".NEST are confident that they can satisfy the requirements under the DistrictPlan and it will be for them to demonstrate that this is the case prior to anylease agreement being settled.[41] Sounds accepts "Designation WDC-55 Aerodrome takes precedence over theDistrict Plan". Sounds also accepts a "helicopter is an 'aircraft' and provided forin the Aerodrome designation", and the "Designation is conditional upon the Plannoise rules". However, Sounds does not accept NAV 6.7 is the applicable noise rule;it says rule 62.3 of the District Plan is the applicable noise rule.[42] Rule 62.3 reads:62.3 Noise from Aircraft Operationsa) Noise from aircraft operations shall be so managed that the rolling3-month average 24-hour night weighted sound exposure doesnot exceed 65dBA Ldn at, or at any point outside, the Air NoiseBoundary; andb) Helicopter hovering (other than hovering included in normal takeoff landing) is restricted to the area identified as "HelicopterHovering Area" on Planning Map 46; andc) Noise from aircraft operations, measured as the rolling 3-monthaverage 24-hour night weighted sound exposure may exceed thenoise limits in Rule 62.3 a) in the event of:i. Aircraft landing in an emergency; andii. The operation of emergency flights required to rescuepersons from life-threatening situations or to transportpatients, human vital organs or medical personnel in amedical emergency; andiii. The operation of unscheduled flights required to meet theneeds of a national or civil defence emergency declaredunder the Civil Defence Act 1983.[43] Rule 62.3's exemption in relation "the operation of emergency flights" appearsnarrower than the "emergency services" exemption in NAV 6.7. Sounds contends ittherefore follows the Council—and Nest—wrongly presupposed more of Nest's noise-generating activities at the airport would be exempted than the law actually allows.The Council and Nest contend NAV 6.7 is the applicable rule, and anymisapprehension is Sound's alone.[44] I do not accept Sound's submission of error, fundamental or otherwise, for fiveoverlapping reasons.[45] First, because the Council was acting as a prospective landlord in relation toairport land when it made both decisions, its ballast was an airport authority under theAirport Authorities Act. Approached another way, and as Sound itself recognises, theCouncil was not making a planning decision in supporting Nest's relocation to theairport.[46] Second, the nature of the decisions tells against Sound's analysis. A decisionby a landlord to grant a lease to a tenant would not ordinarily require an understandingof the Resource Management Act. The word "ordinarily" recognises a caveat. If thelandlord knew, or ought to have known, that the tenant could not lawfully operate fromthe premises because of the existence of a planning requirement ultimately referrableto the Resource Management Act, the position would presumably be different, as inthat situation the landlord would appear to be party to an unlawful act by granting alease to the tenant. Sound's claim, however, contains no such pleading, and it wouldbe wrong to reconceptualise the case as if it did. In fairness to Sound, it does not argueotherwise.[47] Third, the decisions are a step removed from the situation above. They concernin principle support and are not tantamount to Nest's relocation as having beendetermined.[48] Fourth, it was open to the Council to make its support for Nest's relocationcontingent on Nest meeting all statutory and regulatory requirements, including thoseimposed by the District Plan. In short, the Council is entitled to assume Nest canconduct its operations at the airport lawfully. Again, Sound does not argue the Councilknew, or ought to have known, Nest cannot do so. Relatedly, ss 16 and 17 of theResource Management Act apply to the occupier of the land, not the owner, and ifgranted a lease, Nest would be the occupier.17 I do not overlook that s 17 of the Actalso applies to activities carried on by or on behalf of another, but it cannot be the casethat the activities of Nest—a not-for-profit provider of emergency helicopterservices—would be activities by or on behalf of the Council.17 An owner is often the occupier, but that would not be the position here.[49] Fifth, the most favourable case to Sound is distinguishable. Hugh Green Ltd vAuckland Council involved an action for breach of a substantive legitimateexpectation, and a claim for judicial review.18 Hugh Green Ltd was a propertydeveloper. It developed land in reliance on representations by Auckland Council thatthe Council would acquire parts of the land for public open space. Despite theserepresentations, the Council decided not to acquire the land from the company.[50] Fitzgerald J held provisions of the District Plan concerning public open spacewere mandatory considerations that should have informed the Council's acquisitiondecision. The Judge was satisfied "that when a decision-making body is decidingwhether to acquire land identified in an underlying plan as public open space, theprovisions and policies of that underlying plan on open public space will be taken intoaccount".19 Or, as the Judge put it, "it is difficult to see how a decision-maker couldproperly form a view on whether to acquire land identified as public open space in aDistrict Plan without giving due consideration to what that plan has to say about publicopen space".20 The Judge considered "the community's views, hopes and aspirationsin relation to public open space" supported this conclusion.21[51] As will be apparent, Hugh Green was not concerned with a decision by aCouncil acting primarily as an airport authority. Relatedly, the decision in Hugh Greenwas much more akin to a planning one. Therein lay Fitzgerald J's point.[52] This reasoning makes it unnecessary to address whether NAV 6.7 or rule 62.3is the applicable noise rule in the District Plan. I acknowledge not doing so willdisappoint, not least because considerable argument was devoted by Sound and theCouncil to this issue. However, there are good reasons not to decide the point, beyondthat it is unnecessary to do so:18 Hugh Green Ltd v Auckland Council [2018] NZHC 2916.19 Hugh Green Ltd v Auckland Council, above n 18, at [224].20 At [224].21 At [227].(a) It arises indirectly, which is never propitious for the application ofcommon law methodology. Relatedly, judicial review is an awkwardmechanism to determine the point, which is not far removed from achallenge to an element of the District Plan.(b) The issue is a technical, planning law matter. It turns on the airportdesignation; changes to the District Plan; and clause 20A of schedule 1to the Resource Management Act, which permits plan changes"to correct any minor errors".(c) The issue is, therefore, better determined by the Environment Court, aspecialist body.22Did the Council fail to consider mandatory considerations?[53] Decision makers of all types frequently consider a raft of things when makingdecisions. Unsurprisingly, the law requires decision makers exercising public powerto consider those things they must consider, or as these are called, mandatoryconsiderations. Failure to consider a mandatory consideration (by a decision makerexercising public power) constitutes reviewable error.[54] A leading statement of principle remains that of Cooke J in CREEDNZ Inc vGovernor-General:23A point about the legal principle invoked by the plaintiffs should beunderlined. It is a familiar principle, commonly accompanied by citation of apassage in the judgment of Lord Greene MR in Associated Provincial PictureHouses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228; [1947] 2 AllER 680, 682: "If, in the statute conferring the discretion, there is to be foundexpressly or by implication matters which the authority exercising thediscretion ought to have regard to, then in exercising the discretion it musthave regard to those matters". More recently in Secretary of State forEducation and Science v Tameside Borough Council [1977] AC 1014, 1065;[1976] 3 All ER 665, 695, Lord Diplock put it as regards the statutory powersof a Minister that ". . . it is for a court of law to determine whether it has beenestablished that in reaching his decision . . . he had directed himself properlyin law and had in consequence taken into consideration the matters whichupon the true construction of the Act he ought to have considered . . ."22 Red Hill Properties Ltd v Papakura District Council (2000) 6 ELRNZ 157 at [29].23 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 182–183.What has to be emphasised is that it is only when the statute expressly orimpliedly identifies considerations required to be taken into account by theauthority as a matter of legal obligation that the Court holds a decision invalidon the ground now invoked. It is not enough that a consideration is one thatmay properly be taken into account, nor even that it is one which many people,including the Court itself, would have taken into account if they had to makethe decision. ...[55] Sound contends the Council failed to consider the following matters whenmaking both decisions, all of which it says were mandatory considerations:Any information on consultation expectations or obligations created from pastpractice in 2013/14 when the ANMC was consulted on NEST's 2013 approachto Council to relocate to the airport.Advice that monitoring of noise levels of the current level of activity at theAirport had not been undertaken, with the consequence that councillors couldnot be provided with the baseline information that would enable them to assesswhether there were any noise compliance issues relating to the limitsprescribed by Air Noise Boundary and Outer Control Boundary beforeconsidering adding a new noise generating activity at the Airport.Any information on future levels of noise that would be generated at theAirport with the addition of the NEST activity, including whether the limitprescribed by the Air Noise Boundary could be complied with.Any information on best practicable options for reducing the exposure ofOnerahi residents from exposure to unreasonable noise from Airport activitiesin the event NEST was permitted to relocate to the Airport, including theoption of reducing existing airport activities to ensure the limit prescribed bythe Air Noise Boundary was able to be complied with.Any information on all reasonably practicable options and their respectiveadvantages and disadvantages (contrary to section 77 of the LGA).Any information on the views and preferences of persons likely to be affectedor have an interest in the matter, namely the Onerahi residents (contrary tosection 78 of the LGA).Consideration of any impacts of noise generated by NEST activity at theAirport on the amenity values of existing or future Onerahi residents.Any potential financial impacts for Council of needing to fund mitigationmeasures for Onerahi residents, such as double glazing and insulation.Advice that NEST appeared to be assessing its ability to comply with relevantAirport noise control limits on the basis that none of its helicopter movementswould be counted towards relevant noise limits.Advice relating to the suitability of land previously purchased in the contextof its future airport's location assessment (Site 9 Ruatangata) for use by NEST.[56] Sound relies on the evidence of Jon Styles and Carole Doherty in relation tothis aspect of its claim. Mr Styles is an acoustic consultant. Among other things,Mr Styles says: helicopter noise is loud and distinctive; Nest's operation at the airport"will significantly increase the noise effects from the airport, especially at night"; and"the noise levels will be unreasonable at a considerable number of dwellings".Ms Doherty lives in Onerahi and is a member of Sound. Ms Doherty offers similarevidence (from a lay perspective) as a member of the community.[57] Cooke J's observations in CREEDNZ underscore the importance of clarity inthis area of the law. The issue is not whether the considerations would be treated asrelevant, even by "many people"; rather, it is whether the Council was obliged toconsider them or again, whether the considerations constitute mandatoryconsiderations.[58] With the exception of references to the Local Government Act, which I discussat [63] under other heads of review, Sound does not identify the source of therequirement to consider the matters raised as mandatory considerations. This issignificant as a mandatory consideration must be referrable to something else—typically an enactment, decided case, or legal principle—as it is that "something else"that makes a consideration mandatory. In other words, a mandatory considerationmust have an identifiable foundation, and Sound does not identify what thatfoundation is, which in turn suggests there is not one.[59] To the extent Sound may be relying on ss 16 and 17 of theResource Management Act, these sections, as already noted, concern responsibilitiesof the occupier of the land. These responsibilities would, therefore, be Nest's if itrelocated to the airport, not the Council's.[60] Furthermore, this aspect of Sound's claim is essentially a repackaging orrepleading of its "regulatory drivers" argument. Rather than citing the four"drivers"—all of which concern the regulation of noise—Sound cites evidential orprocess matters concerning noise. But the argument is otherwise the same, and whatI said earlier about the "drivers" is equally applicable.[61] All of which is to say that while the matters identified by Sound could beconsidered relevant in the sense identified by Cooke J, they do not constitutemandatory considerations. As I explained earlier, it was open to the Council to assumeNest can conduct its operations at the airport lawfully.[62] This conclusion makes it unnecessary to address the Council's submission thatit did consider the potential impact of noise from Nest's relocation when making bothdecisions.Do the decisions contravene the Local Government Act 2002? Did the Councilfail to consult the Onerahi community?[63] These two grounds of review share elements of fact and law and I approachthem together for this reason. I begin with some law.[64] Part 6 of the Local Government Act contains principles which apply to all localauthority decision making. The important sections in this case are ss 76, 77, 78, 79and 82, which I capture below:76 Decision-making(1) Every decision made by a local authority must be made in accordancewith such of the provisions of sections 77, 78, 80, 81, and 82 as areapplicable.(2) Subsection (1) is subject, in relation to compliance with sections 77 and78, to the judgments made by the local authority under section 79.(3) A local authority—(a) must ensure that, subject to subsection (2), its decision-makingprocesses promote compliance with subsection (1); and(b) in the case of a significant decision, must ensure, before thedecision is made, that subsection (1) has been appropriatelyobserved.(4) For the avoidance of doubt, it is declared that, subject to subsection (2),subsection (1) applies to every decision made by or on behalf of a localauthority, including a decision not to take any action.(5) Where a local authority is authorised or required to make a decision inthe exercise of any power, authority, or jurisdiction given to it by thisAct or any other enactment or by any bylaws, the provisions ofsubsections (1) to (4) and the provisions applied by those subsections,unless inconsistent with specific requirements of the Act, enactment, orbylaws under which the decision is to be made, apply in relation to themaking of the decision.(6) This section and the sections applied by this section do not limit anyduty or obligation imposed on a local authority by any other enactment.77 Requirements in relation to decisions(1) A local authority must, in the course of the decision-making process,—(a) seek to identify all reasonably practicable options for theachievement of the objective of a decision; and(b) assess the options in terms of their advantages and disadvantages;and(c) if any of the options identified under paragraph (a) involves asignificant decision in relation to land or a body of water, takeinto account the relationship of Māori and their culture andtraditions with their ancestral land, water, sites, waahi tapu,valued flora and fauna, and other taonga.(2) This section is subject to section 79.78 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 preferences ofpersons 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 79.79 Compliance with procedures in relation to decisions(1) It is the responsibility of a local authority to make, in its discretion,judgments—(a) about how to achieve compliance with sections 77 and 78 that islargely in proportion to the significance of the matters affected bythe decision as determined in accordance with the policy undersection 76AA; and(b) about, in particular,—(i) the extent to which different options are to be identified andassessed; and(ii) the degree to which benefits and costs are to be quantified;and(iii) the extent and detail of the information to be considered;and(iv) the extent and nature of any written record to be kept of themanner in which it has complied with those sections.(2) In making judgments under subsection (1), a local authority must haveregard to the significance of all relevant matters and, in addition, to—(a) the principles set out in section 14; and(b) the extent of the local authority's resources; and(c) the extent to which the nature of a decision, or the circumstancesin which a decision is taken, allow the local authority scope andopportunity to consider a range of options or the views andpreferences of other persons.(3) The nature and circumstances of a decision referred to in subsection(2)(c) include the extent to which the requirements for such decision-making are prescribed in or under any other enactment (for example,the Natural and built Environment Act 2023).(4) Subsection (3) is for the avoidance of doubt.82 Principles of consultation(1) Consultation that a local authority undertakes in relation to any decisionor other matter must be undertaken, subject to subsections (3) to (5), inaccordance with the following principles:(a) that persons who will or may be affected by, or have an interestin, the decision or matter should be provided by the localauthority with reasonable access to relevant information in amanner and format that is appropriate to the preferences andneeds of those persons:(b) that persons who will or may be affected by, or have an interestin, the decision or matter should be encouraged by the localauthority to present their views to the local authority:(c) that persons who are invited or encouraged to present their viewsto the local authority should be given clear information by thelocal authority concerning the purpose of the consultation and thescope of the decisions to be taken following the consideration ofviews presented:(d) that persons who wish to have their views on the decision ormatter considered by the local authority should be provided bythe local authority with a reasonable opportunity to present thoseviews to the local authority in a manner and format that isappropriate to the preferences and needs of those persons:(e) that the views presented to the local authority should be receivedby the local authority with an open mind and should be given bythe local authority, in making a decision, due consideration:(f) that persons who present views to the local authority should haveaccess to a clear record or description of relevant decisions madeby the local authority and explanatory material relating to thedecisions, which may include, for example, reports relating to thematter that were considered before the decisions were made.(2) A local authority must ensure that it has in place processes forconsulting with Māori in accordance with subsection (1).(3) The principles set out in subsection (1) are, subject to subsections (4)and (5), to be observed by a local authority in such manner as the localauthority considers, in its discretion, to be appropriate in any particularinstance.(4) A local authority must, in exercising its discretion under subsection (3),have regard to—(a) the requirements of section 78; and(b) the extent to which the current views and preferences of personswho will or may be affected by, or have an interest in, the decisionor matter are known to the local authority; and(c) the nature and significance of the decision or matter, including itslikely impact from the perspective of the persons who will or maybe affected by, or have an interest in, the decision or matter; and(d) the provisions of Part 1 of the Local Government OfficialInformation and Meetings Act 1987 (which Part, among otherthings, sets out the circumstances in which there is good reasonfor withholding local authority information); and(e) the costs and benefits of any consultation process or procedure.(5) Where a local authority is authorised or required by this Act or any otherenactment to undertake consultation in relation to any decision or matterand the procedure in respect of that consultation is prescribed by thisAct or any other enactment, such of the provisions of the principles setout in subsection (1) as are inconsistent with specific requirements ofthe procedure so prescribed are not to be observed by the local authorityin respect of that consultation.[65] By s 76, every council decision must be made in accordance with such of ss 77,78, 80, 81 and 82 as are applicable. Section 77 and 78 enact basic standards ofdecision making. Section 77 requires a council in the course of its decision makingprocess to identify and assess reasonably practicable options. Section 78 requires acouncil to give consideration to community views. How the council complies withthese requirements is a matter for its discretion under s 79.[66] As will be evident, a council must have decision making processes which"promote compliance" with ss 77 and 78.24 But, when a decision is a"significant decision", a higher standard is engaged; a council must ensure ss 77and 78 are "appropriately observed" before that decision is made.25[67] The Court of Appeal summarised these provisions in this way inWellington City Council v Minotaur Custodians Ltd:26Relevantly for present purposes, subs (1) and (2) provide that consultationdecisions must be made in accordance with ss 78 and 82, subject, in the caseof compliance with s 78, to the ameliorating effect of s 79. Subsection (3) setstwo standards of performance. In respect of "significant decisions", the localauthority must ensure that the provisions contained in subs (1) have been"appropriately observed". This is the higher of the two standards. Where thematter is not "significant", the standard is more aspirational: decision-makingis only required to "promote compliance" with the provisions referred to insubs (1). Even that lower standard is subject to s 79 as noted.[68] The Court also said:27Section 79 begins with the position that it is for the local authority to decidein its discretion how ss 77 and 78 are to be complied with — the fourth suchrestatement of that principle in Part 6. Importantly, s 79(1)(b)(iv) providesthat it is for the local authority to decide the extent and nature of any writtenrecord to be kept of the manner in which it has complied with ss 77 and 78.We will return to that provision below.In summary, Part 6 of the LGA carefully and repeatedly rejects the idea thatthere is to be found in its provisions any duty to consult with affected orinterested parties. Instead, local authorities are given a deliberately broaddiscretion as to whether to consult, and, if so, how. That does not mean,however, that there are no limits on a council's discretion. Like all statutorydecisions, consultation decisions must be rational and consistent with theobjects of the LGA and the particular controlling provisions.24 Local Government Act 2002, s 76(3)(a).25 Local Government Act, s 76(3)(b).26 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464at [33].27 At [41]–[42]. Emphasis in original.[69] Minotaur confirms there is no general obligation on a council to consult underthe Local Government Act. Rather, consultation is one of several options for obtaininginformation about the views and preferences of interested or affected people in termsof s 78. Three further points should be made at this juncture.[70] First, ss 77 and 78 require compliance "in the course of the decision-makingprocess". The Local Government Act does not require compliance at any particularpoint in that process. This was not always so. Section 78(2) of the Local GovernmentAct required community views to be considered at four defined stages of thedecision making process. However, this provision was repealed in 2010.28[71] Second, the significance of "all relevant matters" is an important considerationin the exercise of a council's decision making discretion under s 79.[72] Third, s 76AA requires councils to adopt a significance and engagement policywhich identifies the council's approach to determining the significance of proposalsand decisions, and any criteria or procedures to be used in assessing the extent to whichproposals and decisions are significant or may have significant consequences.Consultation is required in establishing such a policy.29[73] I turn to fact, and whether the decisions were significant decisions in the sensementioned earlier.[74] The Council's applicable significance and engagement policy was adopted in2020.30 The policy identifies five criteria and provides a "decision is typicallyconsidered significant if two or more of these criteria and measures are triggered":28 Local Government Act 2002 Amendment Act 2010, s 9.29 Local Government Act, ss 76AA(5).30 The policy.Criteria MeasureImpact on Council's direction Major and long-termChange in Council's current level ofserviceMajor and long-termLevel of public impact and/or interest Major and district-wide, orMajor for an identified communityof interestImpact on Council's capability(non-cost)Major and long-termNet financial cost/revenue ofimplementation, excluding anyfinancial impact already included in aLong-Term Plan / Annual PlanNet capital expenditure >10% oftotal rates in year commenced,and/orNet operating expenditure >2.5% oftotal rates in year commenced[75] The Council concluded in relation to each decision that Nest's relocation to theairport was not a significant decision. Each accompanying report said the proposeddecision did not trigger two or more of the criteria in the policy.[76] Sound contends each is erroneous because "the relocation of Nest to the airportwill have a major impact on an identified community of interest" and the noisecommittee was not consulted before the first decision. Sound also contends theCouncil's application of the policy to the decisions was no more than "box-checking".[77] In response, the Council contends:Although the significance assessment was a matter for the Council itself,arguably none of the five criteria/measures in the [policy] was satisfied,bearing in mind the nature and effect of the First Decision, as explained earlierin these submissions. An "in principle" decision to support NEST'srelocation, as the first step in a process which may or may not end up in actualrelocation, did not, objectively speaking, have a major impact on an identifiedcommunity of interest. The fact that SOUND or its members may regard thematter as important to them is not determinative, especially as they(incorrectly) view the First Decision as a final decision to lease the Airportland.[78] Neither of the reports addresses the criteria individually. It would be helpful ifthe reports had done so, as this would address, at least facially, a contention of boxticking. However, the mere fact the reports do not do so does not constitute error.[79] While it is arguable that Nest's relocation to the airport has a major impact onan identified community of interest—the Onerahi community—it is not seriouslyarguable any of the other criteria in the policy are engaged. That being so, andirrespective of the lack of engagement of the noise committee before the first decision,it was therefore open to the Council to conclude the decisions were not significantdecisions in terms of the policy, despite, of course, their importance to the Onerahicommunity.[80] This brings me to the core contention in this ground of review. As will berecalled, the first decision was made on 11 November 2021; the second on22 September 2022. For ease of reference, I refer to the report before the first decisionas the 2021 report and that before the second as the 2022 report.[81] Sound contends in relation to the 2021 report:(a) All reasonably practical options for relocation of Nest were notconsidered. There was no advice on the options of Nest relocating tothe industrial land on which it had an option, of Nest remaining atKensington base, or Nest relocating to land the Council had purchasedin the context of its future airport location work;(b) There was no statement of or analysis of the advantages anddisadvantages of Nest relocating to the airport, and no weighing ofthose advantages and disadvantages of other options. For example,elected members were not advised that the addition of Nest activity maymean other activities needed to be reduced so that noise levels could becomplied with; and(c) There is no articulation of the views and preferences of the residentslikely to be affected by or who had an interest in the decision.[82] Sound contends the 2022 report contained only "cursory attempts to refer tooptions and risks", and both it and the 2021 report "were devoid of information aboutthe true effect" of Nest's relocation to the airport. Consequently, Sound contends thedecisions failed to promote compliance with ss 77 and 78 of the Local GovernmentAct.[83] The Council accepts the 2021 report "did not expressly consider options" butargues this was not required "given the nature and significance of the decision".And, in relation to both decisions, it contends the correct focus is "the course of thedecision-making process" (in terms of s 77(1)), not the reports alone. The Councilsays an examination of the course of that process reveals no error.[84] I begin with the obvious. Decisions of this nature should not be approached asif they were decisions of a Court, in which everything is carefully balanced andweighed, against a documented set of facts ascertained following forensic inquiry.That is not how local government works, something recognised by the provisionsdiscussed earlier and the decision in Minotaur.[85] The first decision is not a model of its kind, essentially for reasons approachingthose identified by Sound. However, the Council is right to emphasise the nature andsignificance of the decision made. Nest approached the Council, needing to relocate,and sought its approval, in principle, to move to the airport. Identification ofreasonably practicable options and assessment of advantages and disadvantages restedon a binary foundation: support the proposal—or not.[86] The Council recognised its support entailed advantages identified in the 2021report:• Whangarei District secures a long-term sustainable helicopter rescueservice that benefits all Northland communities.• Additional recreational capacity [at] Kensington Park to the benefit ofsports codes.• Resolution of conflict between NEST and the Kensington community.• The establishment of a purpose-built helicopter facility withinWhangarei.• Operational benefits for NEST.[87] The Council also recognised its support entailed disadvantages identified inthat report:Communication and engagement will be critical to any shift. The negativeimpact of transference of a noise issue away from one community to a similarimpact on another should not be overlooked Although not active at present, there has previously been a Community NoiseCommittee which met regularly to discuss noise issues at the airport If thisproposal is successful it may be prudent to reintroduce such a committee,particularly during the establishment period. As indicated above the proposed move would require a careful and well-considered communication plan to engage with the local community to allayany concerns, along with mechanisms to consider noise related complaints orconcerns going forward (i.e. re-establishment of a noise committee).None of these issues are irreconcilable and may in the long-term have morepositive outcome for the airport operation than the short-term negatives[88] These observations demonstrate the Council appreciated noise would be ofconcern to the Onerahi community. The absence of information about that noise hascaused me to pause. However, the decision was in principle only, and as I stressedearlier, it was open to the Council to assume Nest could operate lawfully at the airport.As will be recalled, the Council determined Nest would be responsible for meeting allstatutory and regulatory requirements. Moreover, s 79 recognises a local authority hasa margin of appreciation in deciding how ss 77 and 78 are discharged.[89] By the time of the second decision, the Council had the benefit of the noisecommittee's recommendations, including that Nest training flights should not occur atOnerahi if Nest relocated there, and Marshall Day's noise modelling. The 2022 reportidentified a suite of options:(a) Supporting Nest's continued operation at Kensington base.(b) Confirming support for Nest's relocation.(c) Not supporting Nest at either site, leaving it to find an alternative.(d) Actively helping Nest find an alternative site.[90] The advantages and disadvantages of these options were identified in the widermaterial available to the Council before the second decision. For example, the reportto the noise committee of 7 September 2022 identified the advantages anddisadvantages of Nest's airport relocation, including noise in relation to the Onerahicommunity. Section 79 is again relevant too. That not all of this material found itsway into the 2022 report is unimportant; s 77(1) of the Local Government Actexpressly refers to "the course of the decision-making process".[91] Given all this, I am not persuaded the Council breached that Act in relation toeither decision. Had I been of a different view in relation to the first decision, I wouldhave treated the second decision as curing the earlier breach, because the secondidentified and assessed all reasonably practicable options, and materially, did notpresuppose the correctness of the first. In short, the second decision superseded thefirst rather than being reliant on it.[92] Perhaps anticipating this outcome, Sound contends Whakatane DistrictCouncil v Bay of Plenty Regional Council precludes such reasoning.31 In that case, anin principle decision to relocate the Regional Council's headquarters to Tauranga washeld not to have complied with the Local Government Act as the community's viewswere not sought before the decision was made. However, Whakatane District Councilwas decided when the community's views had to be considered at four defined stagesof the decision making process. As I foreshadowed, this is no longer the law. Indeed,the law was changed following Whakatane District Council.Consultation[93] Sound contends that before making either decision, the Council was obliged toconsult:31 Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR826.(a) The Onerahi community, as both decisions were significant decisions.(b) The subcommittee that became the noise committee.[94] I have already concluded the decisions were not significant decisions.This determination addresses (a). I, therefore, turn to (b), which Sound's writtensubmissions helpfully capture:32The Airport Noise Management Plan (which is a requirement of the conditionsof the Designation for the Airport) recognises that one of the specificresponsibilities of the ANMC is "identifying community concerns relating toaircraft noise". It was a specialist resource able to provide advice to Councilon Airport noise issues, including the community views and preferences on apossible additional operator at the Airport.The ANMC was consulted when NEST first proposed to relocate in 2014.The Council made no attempt to constitute and engage with the ANMC beforemaking its 2021 Decision, despite recognising that the ANMC had previouslybeen successful in resolving noise issues at the Airport, and noting that itwould be 'prudent' to re-establish the ANMC. The Council ultimatelyresolved to investigate the establishment of an ANMC.The failure to reform and consult the ANMC when NEST sought to relocateto the Airport in 2021 represents a change of practice from the Council'sprevious practice, given that the ANMC had been consulted on a very similarproposal in the past. The change in practice is unexplained.Failing to constitute and consult (at the very least) the recognised body thathad this function is an error in Council's process. That error is contrary to theprinciples of the LGA and purpose of local government, (being to promote thesocial, economic, environmental and cultural well-being of communities).[95] The designation in relation to the airport provides for an airport noisemanagement committee, or as I have called it, the subcommittee. The subcommitteehas existed in various iterations, and its terms of reference have changed over time.The subcommittee was in abeyance when the first decision was made: thesubcommittee had been discharged following the Council's 2016 to 2019 term and notre-established.32 Footnotes omitted.[96] As will be apparent, Sound contends the subcommittee should have beenconsulted because it was "consulted" when Nest proposed to relocate to the airport in2014. This view of events is a little difficult to reconcile with history.[97] The identified meeting, which occurred 12 February 2013, was informal innature. The meeting occurred because community representatives on thesubcommittee raised concern about the proposal, not because the Council asked thesubcommittee for its view. No decision was made by the subcommittee about Nest'spossible relocation, and its discussion of that issue was not referred to the Council.As I observed earlier, the subcommittee is a subcommittee of the Council.Its involvement in Council decision making would, therefore, have required theCouncil's authorisation (in some manner). No such authorisation was given.Furthermore, the subcommittee's terms of reference did not and do not encompass thevetting of proposed airport activities, or the vetting of proposals to lease airport land.[98] In any event, it is clear that the Council did, "during its decision-makingprocess , give consideration to the views and preferences of persons likely to beaffected by, or to have an interest in, the matter".33 By the time of the first decision,the Council had some appreciation of the likely views of members of the Onerahicommunity. According to the minutes of the Council workshop held on21 October 2021:(a) Mr Collins of the Council said Nest's relocation was "very sensitivefrom a community point of view and would require a high degree ofconsultation and management of public expectations". He referred tothe possible establishment of a watchdog committee to provide"comfort" that Nest would operate according to the District Plan.(b) Mr Ahlers of Nest said noise had been an issue in 2013—a reference tothe informal meeting mentioned above. Mr Ahlers also said,"Most people have an affinity for the rescue helicopters, but they getcalls to fly at all times of the day and night and people don't want thenoise over their back yards."33 Local Government Act, s 78(1).[99] The 2021 report recognised "the negative impact of transference of a noiseissue away from one community to a similar impact on another should not beoverlooked." It and the first decision envisaged ongoing community engagement,including by possible establishment of a noise committee.[100] On 30 March 2022, the Council established the noise committee with thismembership:(a) Four community representatives, including on behalf of Onerahi.(b) Three airport user representatives.(c) Three elected members (on behalf of the district).[101] On 9 May 2022, the Council and Nest held a meeting at the airport to hearcommunity concerns and provide information about Nest's relocation. On 24 May,31 May, 7 June, 14 June, and 21 June 2022, the Council held "Have Your Say" sessionsat the airport to facilitate more direct engagement. The Council also invited publicfeedback on Nest's relocation through the Council's website.[102] On 4 August 2022, members of the noise committee attended a Councilbriefing in relation to Nest's possible relocation. On 7 September 2022, thenoise committee made recommendations to the Council about just that. The Councilconsidered those recommendations at its 22 September 2022 meeting, which wasaddressed by a Sound member. Moreover, the 2022 report records: those most affected by and interested in the recommendations in this reportrelating to the potential relocation of NEST's flight operations to the Airport(NEST itself, the Airport and residents of Onerahi living close to the Airport)have representation on the [Noise] Committee. In particular, this has allowedthe views of Onerahi residents to be heard and reflected in the Committee'srecommendations noted above [103] In summary, the Council was not obliged to consult the Onerahi communitybefore making the decisions. The Council was obliged to consider, in the course of itsdecision making process, the views of those likely to be interested in or affected bythe decisions. This obligation was met, particularly given the discretion available tothe Council under s 79 of the Local Government Act.Are the decisions unreasonable in the Wednesbury sense?[104] This ground can be dealt with swiftly.[105] Judicial review is not typically concerned with the merit of a decision, asagainst the process by which it was made. However, a decision is reviewable if it isso unreasonable as to be irrational.34 Whether this is so turns upon the subject matter,and of course, the facts. Or, as Professor Joseph observes, "Judgment, not semantics,is the talisman".35[106] Sound contends the decisions are "irrational, perverse and arbitrary" becausethe Council did not have the relevant information before it concerning noise; failed toconsider ss 16 and 17 of the Resource Management Act; and residents will be exposed"to an unreasonable level of noise".[107] This contention treats as final what are in principle decisions; repackagesSound's "drivers" and mandatory consideration arguments, which I have alreadyrejected; and is, as the Council observes, "a make-weight pleading". A decision tosupport the relocation of an emergency helicopter service to the airport cannot bedescribed as irrational or perverse in the sense understood by the law.Conclusions[108] The decisions do not contain errors of law or contravene theLocal Government Act, and are not unreasonable. The Council did not fail to considermandatory considerations or to consult the Onerahi community. As will be apparentfrom the judgment, several reasons underpin these conclusions: the nature of thedecisions themselves (in principle; concerning a lease; and not significant decisionsunder the Local Government Act); that the Council was acting primarily as airport34 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).35 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at 1078.authority, rather than a planner; that Nest would be the occupier, and thereforeresponsible for meeting all rules concerning noise; that the Council was entitled toassume Nest could meet those rules; the absence of "something else" to makeconsiderations mandatory; and in relation to the second decision especially, theCouncil's efforts to consider, in the course of its decision making process, the viewsof those likely to be interested in or affected by the decisions. Sound's judicial reviewof the decisions, therefore, fails.Costs[109] The respondents are presumptively entitled to costs. If costs are not agreed,I will adjudicate following submissions from:(a) Sound, on or before 8 December 2023.(b) The Council and Nest, on or before 15 December 2023...Downs J