TAURANGA ENVIRONMENTAL PROTECTION SOCIETY INCORPORATED v TAURANGA CITY COUNCIL [2021] NZHC 1201

TAURANGA ENVIRONMENTAL PROTECTION SOCIETY INCORPORATED v TAURANGA CITYCOUNCIL [2021] NZHC 1201 [27 May 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2020-470-000031[2021] NZHC 1201BETWEEN TAURANGA ENVIRONMENTALPROTECTION SOCIETYINCORPORATEDAppellantAND TAURANGA CITY COUNCIL and BAY OFPLENTY REGIONAL COUNCILRespondentsTRANSPOWER NEW ZEALANDLIMITEDApplicant for consentHearing: 3-4 September 2020Appearances: J D K Gardner-Hopkins for the appellant and the MaungatapuMarae Trustees as an interested partyM H Hill and R M Boyte for the respondentsA J L Beatson, J P Mooar and E M Taffs for the applicant forconsentAppearance excused for Ngāi Tūkairangi Trust, an interestedpartyJudgment: 27 May 2021JUDGMENT OF PALMER JThis judgment was delivered by me on Thursday 27 May 2021 at 2.00 pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarCounsel/Solicitors:J D K Gardner-Hopkins, Barrister, WellingtonSharp Tudhope Lawyers, TaurangaCooney Lees Morgan, TaurangaBell Gully, WellingtonLara Burkhardt, Mt MaunganuiContentsSummary .............................................................................................................. [1]The application for consents in context ............................................................. [4]Ngāti Hē and te Maungatapu Marae [4]Ngāi Tūkairangi [9]The A-line [10]The B-line [14]The realignment proposal [15]The application and Council decisions [20]Appeal to the Environment Court [23]The Environment Court decision .................................................................... [24]The appeal .......................................................................................................... [26]Issue 1: Was the Environment Court wrong to bundle the effects together?............................................................................................................................. [29]The Environment Court's decision [29]Submissions [32]Did the Court err in applying a bundling approach? [35]Issue 2: Was the Court wrong in its findings about adverse effects? ........... [36]Relevant provisions [37]Environment Court's decision on adverse effects [47]Submissions on adverse effects [51]Did the Court err in its findings about adverse effects? [54]Issue 3: Did the Court err in its approach to pt 2 of the RMA? ................... [70]Part 2 of the RMA and the former overall judgment approach [71]The Environment Court's treatment of pt 2 [80]Submissions on pt 2 and the overall judgment approach [83]Did the Court err in its approach to pt 2? [86]Issue 4: Did the Court err in interpreting and applying the planninginstruments? ...................................................................................................... [91]The RMA and bottom lines [92]Māori values in the RMA recognised in case law [95]The NZCPS and NPSET [101]The relationship between the NZCPS and NPSET [104]Regional and District planning instruments [105]The Court's treatment of the planning instruments [108]Submissions on application of the planning instruments [114]Did the Court err in applying the planning instruments? [117]Issue 5: Was the Court wrong in its assessment of alternatives? ................ [131]Law of alternatives [132]The Environment Court's treatment of alternatives [134]Submissions on alternatives [139]Did the Court err in its treatment of alternatives? [142]Relief ................................................................................................................. [154]Law of relief on RMA appeals [154]Submissions on relief [158]Should the decision be remitted? [161]Result ................................................................................................................ [166]Annex: Relevant planning provisions................................................................. 89Summary[1] Ngati Hē was dispossessed of most of its ancestral lands but retains theMaungatapu Marae and beach at Rangataua Bay, on Te Awanui Tauranga (TaurangaHarbour). Ngāti Hē has a long-standing grievance about the location of electricitytransmission lines across the Bay from the Maungatapu Peninsula to the MatapihiPeninsula. Some of the transmission poles will require replacement soon. In 2016, toaddress Ngāti Hē's grievance, Transpower initiated consultation with iwi aboutrealignment of the transmission lines, including at Rangataua Bay. Ngāti Hē supportedremoval of the existing lines and initially did not oppose their proposed new location.But when it became clear that a large new pole, Pole 33C, would be constructed rightnext to the Marae, Ngāti Hē concluded the proposed cure would be worse than thedisease and opposed the proposal. Consents were granted for the proposal realignmentwhich the Environment Court upheld.1 The Tauranga Environmental ProtectionSociety Inc appeals the decision of the Environment Court, supported by theMaungatapu Marae Trustees from Ngati Hē.[2] I uphold the appeal. I find:(a) The "bundled" way in which the Court considered the effects ofremoving the A-Line and construction of the new line did not constitutean error of law.(b) Proper application of the law requires a different answer from thatreached by the Environment Court. When the considered, consistent,and genuine view of Ngāti Hē is that the proposal would have asignificant and adverse impact on an area of cultural significance tothem and on Māori values of the Outstanding Natural Features andLandscapes (ONFL), it is not open to the Court to decide it would not.(c) The Court erred in law in applying an "overall judgment" approach tothe proposal and in its approach to pt 2 of the Resource Management1 Tauranga Environmental Protection Society Incorporated v Tauranga City Council [2020]NZEnvC 43 [Environment Court] at [218].Act 1991 (RMA). The Court was required to carefully interpret themeaning of the planning instruments it had identified (the Bay of PlentyRegional Coastal Environment Plan (RCEP) in particular) and applythem to the proposal.(d) The relevant provisions of the RCEP do not conflict and neither do theprovisions of the higher order New Zealand Coastal Policy Statement(NZCPS) and the National Policy Statement on ElectricityTransmission (NPSET). There are cultural bottom lines in the RCEP:(i) Policy IW 2 requires adverse effects on Rangataua Bay, an "areaof spiritual, historical or cultural significance" to Ngāti Hē, tobe avoided "where practicable".(ii) Policy NH 4, NH 5(a)(ia) and NH 11(1) require the adverseeffects on the medium to high Māori values of Te Awanui atONFL 3 to be avoided unless there are "no practical alternativelocations available", and the "avoidance of effects is notpossible", and "adverse effects are avoided to the extentpracticable".(e) Determining whether the exceptions to the cultural bottom lines applyrequires interpretation and application of the "practicable", "practical"and "possible" thresholds. The Court erred in failing to recognise thatthis determines whether the proposal could proceed at all. Thetechnical feasibility of alternatives to the proposal means the avoidanceof adverse effects on ONFL 3 at Rangataua Bay is possible. On thebasis of the Court's existing findings, Policy NH 11(1)(b) is thereforenot satisfied and consideration providing for the proposal under PolicyNH 5 is not available.[3] These are material errors. I quash the Environment Court's decision. But Iconsider it desirable for the Environment Court to further consider the issues of factrelating to the alternatives. With goodwill and reasonable willingness to compromiseon both sides, it may be possible for an operationally feasible proposal to be identifiedthat does not have the adverse cultural effects of the current proposal. And, if therealignment does not proceed over Rangataua Bay, it may still be able to proceed inrelation to Matapihi. I remit the application to the Environment Court for furtherconsideration consistent with this judgment.The application for consents in contextNgāti Hē and te Maungatapu Marae[4] Ngāti Hē is a hapū of Ngāi Te Rangi. After the battles of Pukehinahina(Gate Pā) and Te Ranga in 1864, much of Ngāi Te Rangi's land was confiscated forsettlement under the New Zealand Settlements Act 1863 and Tauranga District LandsAct 1868.2 The confiscations were then reviewed by Commissioners and land wasreturned.3[5] The confiscated land included that of Ngāti Hē at Maungatapu, a peninsula inthe south of Te Awanui Tauranga (Tauranga Harbour), jutting into Rangataua Bay. In1884, the Crown "awarded" back to Ngāti Hē two blocks of land on Maungatapupeninsula, some three kilometres east of central Tauranga.4 Block 2 was part of thetip of the Maungatapu peninsula. Ngāti Hē has since lost part of that land too. Somewas taken for the public purposes of putting in a motorway and electricity transmissionlines. Some was subject to forced sale, because Ngāti Hē was unable to pay rates, andthen sub-divided.5 As stated in the agreed Historical Account in the Deed ofSettlement between Ngāi Te Rangi and the Crown, upon which the Crown'sacknowledgement and apology to Ngāi Te Rangi was based:62 Ngāi Te Rangi and Ngā Pōtiki Deed of Settlement of Historical Claims (14 December 2013) [Deedof Settlement], cl 2 (CBD 303.0702 and 303.0703). The Deed is conditional upon settlementlegislation coming to force, which has not yet occurred.3 See generally Waitangi Tribunal Te Raupatu o Tauranga Moana: Report on the TaurangaConfiscation Claims (Wai 215, 2004) at chs 4 and 10.4 Maungatapu 1 and 2 Blocks. Commissioner Brabant "Land Returned to Ngaiterangi Tribe UnderTauranga District Land Acts" [1886] AJHR G10; Heather Bassett Aspects of the Urbanisation ofMaungatapu and Hairini, Tauranga (July 1996) at 6 (CBD 301.0024); and Des Heke TranspowerRangataua Realignment Project: Ngāti Hē Cultural Impact Assessment (September 2017) at 6(CBD 304.0966).5 Deed of Settlement, above n 2, cl 2.71.6 Clause 2.72.The Maungatapu subdivision contributed to the reduction of Ngāti Helandholdings on the peninsula to 11 hectares by the end of the twentiethcentury. Maungatapu was once the centre of a Ngāti He community who usedtheir lands for gardens, but now the hapū only maintains the marae andheadland domain, along with a small urupā.[6] Amongst the Crown's many acknowledgements in the Deed, it acknowledged:(a) public works, including "the motorway and infrastructure networks onthe Maungatapu and Matapihi Peninsulas", have had "enduringnegative effects on the lands, resources, and cultural identity ofNgāi Te Rangi";7(b) "the significant contribution that Ngāi Te Rangi . . . [has] made to thewealth and infrastructure of Tauranga on account of the lands taken forpublic works";8 and(c) "the significance of the land, forests, harbours, and waterways ofTauranga Moana to Ngāi Te Rangi . . . as a physical and spiritualresource".9[7] As stated in evidence in this proceeding:10The result of all these forms of alienation has been that very little land inMaungatapu and Hairini is still owned by Māori. There are a handful ofreserve areas, such as marae and urupā, and some families live in the area ontheir individual sections. The traditional rohe of Ngāti Hē and Ngāi Te Ahinow has the overwhelming characteristics of a well populated residentialsuburb, in which there is less scope for Māori interests and activities to bepromoted than there was in the past.[8] The Maungatapu Marae (the Marae) of Ngāti Hē , also called Opopoti, is onthe northern tip of the Maungatapu peninsula.11 The wharenui, Wairakewa, andwharekai, Te Ao Takawhaaki, look to the northeast, towards the bridge and Matapihipeninsula. Te Kōhanga Reo o Opopoti is established on the eastern side of the Marae,between the Marae and a health facility next to State Highway 29A. To the west of7 Clauses 3.15 and 3.14.5.8 Clause 3.16.1.9 Clause 3.18.1.10 Bassett, above n 4, at 6 (CBD 301.0024).11 Environment Court, above n 1, at [10].the Marae is a large flat area that was Te Pā o Te Ariki and is now Te Ariki Park, hometo the rugby field, tennis/netball courts and clubrooms of Rangataua Sports andCultural Club. The land on which the Club is situated is a Maori reservation managedby Ngāti Hē.12Ngāi Tūkairangi[9] Ngāi Tūkairangi, another hapū of Ngāi Te Rangi, has a marae and other landon the Matapihi headland.13 Te Ngāio Pā, near the southern tip of the MatapihiPeninsula, is associated with Ngāi Tūkairangi, Ngāti Hē, Ngāti Tapu, and Waitaha.14Approximately 60 hectares in Matapihi is owned by over 1,470 Ngāi Tūkairangi orNgāti Tapu landowners.15 The Ngāi Tūkairangi No 2 Orchard Trust has managedorchard land in the area since 1992.16The A-line[10] In the 1950s, the Maungatapu 2 block was implicated in plans for a motorwayand a new electricity transmission line.17 In 1958, the Maungatapu 2 block, includingthe beach in front of it, was reserved as a marae and recreation area under s 439 of theMāori Affairs Act 1953.[11] Also in 1958, the Ministry of Works, a department of the Crown, constructedthe "A-line", an electricity transmission line. It is located very near Ngāti Hē'sremaining land. It is supported by poles in Rangataua Bay and passes over some40 private residences and above the playing fields of Te Ariki Park. Ngāti Hēcomplained but the Ministry took the position that there was no alternative route forthe power lines.18 The Crown Law Office has acknowledged that the electricitydepartment did not properly inform those affected.19 The Crown acknowledged in theTreaty settlement that it did not send notices to all the owners of land taken, which12 Heke, above n 4, at 15 (CBD 304.0975).13 Environment Court, above n 1, at [28].14 At [29].15 Brief of Evidence of Peter Te Ratahi Cross, (25 March 2019) [Cross Brief] at [7] (CBD 202.0388).16 Environment Court, above n 1, at [188].17 Bassett, above n 4, at 10 (CBD 301.0030).18 At 11 (CBD 301.0032).19 Rachael Willan From Country to Town: A Study of Public Works and Urban Encroachment inMatapahi, Whareroa and Mount Maunganui (December 1999) at 85 (CBD 301.0081).may have been why Ngāti Hē owners did not apply for compensation within therequired timeframe.20 Ngāti Hē's concerns about the location of the A-Lineinfrastructure were included in their claim to the Waitangi Tribunal in 2006.21 Theclaim referred to the absence of compensation for, or adequate notification of, theconstruction of the power lines.[12] The power lines were also placed through the middle of Ngāi Tūkairangi'sland, despite the hapū's opposition.22 The A-Line went directly over Te Ngāio Pā onthe southern tip of the Matapihi peninsula. The effect of the A-line on the use anddevelopment of horticultural lands at Matapihi was also the subject of Treaty ofWaitangi claims to the Waitangi Tribunal by Ngāi Tūkairangi in 1988 and 1997.23These claims also concerned the construction of the power lines without compensationnor adequate consultation.24[13] In 1959, a bridge was constructed from the northern end of theMaungatapu peninsula to the southern end of the Matapihi peninsula. This is nowState Highway 29A, to Mt Maunganui. Construction substantially altered the site ofTe Pā o Te Ariki of Ngāti Hē, disturbing an ancient urupā and exposing bones.25The B-line[14] Under the State-Owned Enterprises Act 1986, the electricity assets of theMinistry of Works were transferred to the Electricity Corporation of New Zealand. In1991, the electricity transmission assets were further transferred to Transpower, theSOE which still manages the national grid. In mid-1991, work began on a secondtransmission line to Mt Maunganui and Papamoa. In 1993, Transpower undertook afeasibility study for erecting a new line along the Maungatapu to Matapihi portion ofthe state highway.26 That would enable the A-line to be removed. The B-line was20 Deed of Settlement, above n 2, cl 2.54.21 Environment Court, above n 2, at [44]; and Waitangi Tribunal Tauranga Moana: Report on thePost-Raupatu Claims Volume 1 (Wai 215, 2006).22 Cross Brief, above n 15, at [10].23 Environment Court, above n 1, at [44]; and Hikitapua Ngata Transpower Line RealignmentProject: Ngai Tūkairangi Hapu Cultural Impact Assessment at 10 (CBD 304.1008). Wai 211 washeard as part of the foreshore and seabed inquiry. Wai 688 was heard as part of the Kaipara inquiry.24 Ngata, above n 23, at 10 (CBD 304.1008).25 Bassett, above n 4, at 13 (CBD 301.0034); and Deed of Settlement, above n 2, cl 2.56.26 Willan, above n 19, at 79 (CBD 301.75).constructed in 1995. It crosses Rangataua Bay through a duct underneath theMaungatapu-Matapihi bridge and underground on the approaches at each end of thebridge.27 Ms Raewyn Moss from Transpower confirms the resulting expectation:28 When the B-line was constructed in 1995, there was an expectation at thetime that the A-line would eventually be re-aligned onto the B-line. Iunderstand that Ngāti Hē, Ngāi Tūkairangi, Māori trustee land owners alsoshare this expectation. This has been the subject of discussion between theparties and Transpower over many years.The realignment proposal[15] The A-Line has not yet been moved. Now, the condition of Poles 116 and 117,located in Te Ariki Park, is deteriorating and the poles need to be replaced. Inparticular, Pole 117 is close to the edge of the cliff above the harbour and recentlyrequired temporary support to protect it from coastal erosion.29 Tower 118, situated inRangataua Bay, is due for major refurbishment in the next 10 years.30[16] Recently, Transpower developed a realignment proposal that would removePoles 116 and 117 and Tower 118 from Rangataua Bay. Instead, aerial lines wouldextend between two new steel monopoles, Pole 33C on Maungatapu, at a height ofapproximately 34.7 metres, and Pole 33D at Matapihi, at a height of approximately46.8 metres. The lines would no longer pass over Ngāti Hē land or private residencesat Maungatapu or over Ngāi Tūkairangi land at Matapihi. This is depicted in theillustration below, with the red lines and poles to be removed, the green lines and polesto be added and the blue lines and poles to be retained.3127 Environment Court, above n 1, at [42].28 Notes of Evidence of Environment Court [NOE] 15/9–14 (CBD 201.0015).29 Environment Court, above n 1, at [40].30 At [42].31 Transpower Options Report: HAI-MTM-A and B Transmission Line Alterations, Rangataua Bay,Tauranga (July 2017) at Sch A.1 (CBD 304.1103).[17] Transpower's objectives for this project, set out in its Assessment of Effects onthe Environment, are to:32a) Enable Transpower to provide for the long-term security of electricitysupply into Mount Maunganui;b) Remove an existing constraint from an important cultural and socialfacility for the Maungatapu community; and from horticultural activitiesfor the Matapihi community; andc) Honour a longstanding undertaking to iwi and the community to removeTower 118 from the harbour.[18] From March 2013, Transpower discussed the project with Ngāti Hē and NgāiTūkairangi, among others.33 The proposal was a "welcome surprise" toNgāi Tūkairangi, which supports it.34 Removal of the lines will allow more flexiblefarming practices, use of shelter planting and reconfiguration of the orchard.35[19] Ngāti Hē and the Marae also initially supported the proposal. But once theapplications were notified, and Ngāti Hē and the Marae realised the size, nature and32 Transpower Assessment of Effects on the Environment: Realignment of the HAI-MTM-ATransmission Line, Maungatapu to Matapihi including Rangataua Bay, Tauranga (24 October2017) at 8 (CBD 304.0784).33 Environment Court, above n 1, at [47].34 At [12].35 At [14].location of the new Pole 33C, directly adjacent to the entrance to the Marae, theyopposed it. A mock-up of the view of Pole 33C from the Marae is depicted below.36The application and Council decisions[20] In 2017, Transpower applied for the required resource consents for the proposalfrom the Tauranga City Council and the Bay of Plenty Regional Council (theCouncils):37(a) From the Tauranga City Council under the National EnvironmentalStandards for Electricity Transmission Activities (NESETA)regulations for relocation of support structures, removal of willow andother vegetation and construction of the additional poles.(b) From the Bay of Plenty Regional Council for earthworks, disturbanceof contaminated land, drilling of foundations below ground water,modification of wetland, disturbance of the seabed and occupation ofthe coastal marine area airspace.[21] Section 2 of the RMA defines the "coastal marine area" to mean "the foreshore,seabed, and coastal water, and the air space above the water", up to the line of meanhigh water springs.36 Transpower Hairini to Mount Maunganui Re-Alignment: Landscape and Visual Graphics,Attachments to the Environment Court Evidence of Brad Coombs (30 January 2018) at 39 (CBD202.0514).37 Environment Court, above n 1, at [50], Table 1.[22] The Councils each appointed an independent hearing commissioner to considerand decide the consent applications. On 23 August 2018, the commissioners jointlydecided to grant land use consents to realign the A-Line, subject to various conditions.Appeal to the Environment Court[23] The Tauranga Environmental Protection Society (TEPS) is an association of14 people whose views of the harbour after realignment would be impacted by the newpowerlines or poles and who made submissions opposing the application. TEPSappealed to the Environment Court. The trustees of the Maungatapu Marae,Ngāi Tūkairangi Hapū Trust, Te Rūnanga o Ngāi Te Rangi Iwi Trust andMr Luke Meys joined the appeal as parties under s 274 of the RMA:(a) The Marae supported removal of the A-Line, as the subject of theirlong-held grievance and a danger to users of the Sports Club. But theMarae opposed the new poles and lines. Ngāti Hē would rather waitlonger to get the right result.(b) Similarly, Ngāi Te Rangi supported removal of the A-Line and itsrelocation. It opposed the method by which the realignment wouldcross Rangataua Bay.(c) Ngāi Tūkairangi conditionally opposed the appeal on the basis it woulddelay the removal of transmission infrastructure on Matapihi land,which would have positive cultural and other effects for them.38However, if the appellants' concerns could be met through changeswithin the scope of the application, Ngāi Tūkairangi would wish toconsider that.(d) Mr Meys, whose property is under the existing A-Line, supported theproposal, with urgency, and opposed the appeal.38 At [16]–[17].The Environment Court decision[24] The Court refused the appeal and amended the conditions of consent.39 Thestructure of its decision was to:(a) identify the background to, and nature of, the proposal and consentapplication;(b) outline the legal framework and the relevant policies and plans;(c) identify three preliminary consenting issues: bundling; alternatives; andmaintenance or upgrade;(d) consider the cultural effects of the proposal;(e) consider the effects on the natural and physical environment; and(f) consider and amend the conditions of the consents.[25] In its conclusion, the Court observed that neither the Councils nor the Court onappeal "have the power to substantially alter Transpower's proposal or to require anythird party, such as the New Zealand Transport Authority, to participate in theproposal".40 It said "[i]f we consider that the proposal, essentially as applied for, isinappropriate, then we may refuse consent".41 In summary, the Court in its concludingreasoning:(a) Found the removal of the A-Line will result in positive effects for allpeople, land and water and for Ngāti Hē and Ngāi Tūkairangi.42(b) Noted it had found the proposal is a single one and its elements shouldbe considered together.4339 At [271]–[272].40 At [260].41 At [260].42 At [261].43 At [262]–[263].(c) Held that the proposed relocation "does not result in wholly positiveeffects" and it must have regard to Policy 15 of the NZCPS because the"location is not ideal". In particular, placing the line above the bridgewith the associated tall poles "creates an increased degree of new andadverse visual effects on that part of Te Awanui, particularly when seenfrom Maungatapu Marae and Te Kōhanga Reo o Opopoti and for someof the residents on the eastern side of SH 29A".44(d) Found the alternatives of laying the A-Line on or under the seabed, orin ducts attached to the bridge, "appear from the evidence to beimpracticable", though they are technically feasible, because of thecost.45 The Court does not have the power to require Transpower toamend the proposal.(e) Found "[t]he character or nature of the effects at the heart of this caseare essentially those that relate to restrictions on using land, visualimpact and the imposition of the works on sites of significance toMāori."46 The positive effects of removal of the existing A-Line are"significantly greater than the adverse effects in intensity and scale" interms of land use, visual impact and effects on sites of significance toMāori, "even while taking account of the impact of the relocated lineon views from the marae and proximity to the kōhanga reo".(f) Considered it "must undertake a fair appraisal of the objectives andpolicies read as a whole".47 The Court did not accept Policy 15 of theNZCPS requires consent to be declined or the proposal amended on thebasis it has adverse effects on the ONFL. The NZCPS "does not havethat kind of regulatory effect" and its terms do not provide that "anyuse or development in an ONFL would be inappropriate". What isinappropriate "requires a consideration of what values and attributes ofthe environment are sought to be protected as an ONFL and what the44 At [264].45 At [265].46 At [266].47 At [267].effects of the use or development may be on the things which are to beprotected".(g) Noted it is important that the existing environment of the ONFLincludes the existing bridge and national grid infrastructure.48(h) Considered it must also "have regard under s 104(1)(b)" to the relevantobjectives and policies of the NPSET, RCEP and District Plan.49 Thoseinstruments "generally treat both the protection of ONFLs and theprovision of network infrastructure as desirable, but do not go furtherto particularise how those broad objectives or policies are to be pursuedor how potential conflict between them is to be resolved". Policy 6 ofthe NPSET guides the Court, consistently with the proposal, but "thereis no guidance in either the NPSET or the NZCPS as to how potentialconflict between those national policies is to be resolved".(i) Said finally:[270] As noted above, where a decision-maker is faced with a rangeof competing concerns, and no possible outcome would be whollywithout adverse effects, we must reach a decision as to whichoutcome better promotes the sustainable management of natural andphysical resources, as defined in s 5 RMA. In the absence of anypracticable alternative, the obvious counterfactual to the proposal isthe status quo. In our judgment, the removal of the existing line andits relocation within the Road zone applying to SH 29A and above theMaungatapu Bridge is more appropriate overall and therefore betterthan leaving the line where it is.The appeal[26] Under s 299 of the RMA, a party to a proceeding before the Environment Court"may appeal on a question of law to the High Court" against a decision, report orrecommendation of the Environment Court. Under r 20.18 of the High Court Rules2016, the appeal is "by way of rehearing".48 At [268].49 At [269].[27] TEPS appeals the Environment Court's decision. The Marae Trustees supportthe appeal as an interested party. Transpower, as the applicant for consent, supportsthe Environment Court's analysis. Ngāi Tūkairangi Trust supports the submissions ofTranspower and does not make any additional submissions. The Councils, as theconsent authorities, separately support the Court's decision.[28] Counsel argued six or seven grounds of appeal. There was quite a lot of overlapin all parties' submissions from one ground to another. I group the grounds of appealin terms of five issues and treat them in a different order. I treat submissions made bycounsel in relation to the issue to which they are most relevant. The issues are:(a) Was the Environment Court wrong to "bundle" the effects together?(b) Was the Court wrong in its findings about adverse effects?(c) Did the Court err in its approach to pt 2 of the RMA?(d) Did the Court err in interpreting and applying the planning instruments?(e) Was the Court wrong in its assessment of alternatives, including thestatus quo?Issue 1: Was the Environment Court wrong to bundle the effects together?The Environment Court's decision[29] The Environment Court addressed the issue of "bundling" as the firstpreliminary issue. It stated:[96] It is generally accepted that where a proposal requires more than oneconsent and there is some overlap of the effects of the activity or activities forwhich consent is required, then the consideration of the consents should bebundled together so that the proposal is assessed in the round rather than splitup, possibly artificially, into pieces.50 Where, however, the effects to be50 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 579–580; and King v Auckland CityCouncil [2000] NZRMA 145 (HC) at [47]–[50].considered in relation to each activity are quite distinct and there is no overlap,then a holistic approach may not be needed.51[30] The Court recorded but rejected the appellant's argument that the proposal wasin two parts that should be assessed separately using a structured approach.52 Itconsidered the term "effect" is defined broadly and inclusively in s 3 of the ResourceManagement Act 1991 (RMA) and is subject to the requirements of context.53 TheCourt considered case law has generally interpreted and applied the statutorydefinition of "effect" in a realistic and holistic way.54 It concluded:[110] These passages indicate that the correct approach to the assessment ofeffects involves not merely the consideration of each effect but also therelationships of each effect with the others, whether positive or adverse. Thisis consistent with the inclusion of cumulative effects in the definition in s 3:while many cases have considered the overall impact of cumulative adverseeffects, there is nothing in s 3 which would prevent consideration of thecumulative impact of positive and adverse effects. Where effects are directlyrelated and quantifiable in commensurable ways, then it may even be possibleto sum the overall effect, but these passages also indicate thatcommensurability is not a pre-requisite to such consideration.[111] We also consider that such an approach is not limited to the level ofindividual effects but applies similarly to the whole activity. While one mayconceive of an activity as separate elements with separate effects, thatapproach may not properly address the proposal as it is intended to occur oroperate. Numerous provisions of the RMA, including the functions ofterritorial authorities and regional councils, indicate that the statutory purposeis to be pursued or given effect by methods which help to achieve theintegrated management of the effects of the use, development or protection ofresources. While there may be separate or ancillary activities which requireseparate consideration, the analysis should not be artificial. This approach isconsistent with the identification of activities in terms of planning units whichcan assist in such integration.[112] In this case, we are satisfied that the proposal is to be assessed as a singleone with its activities bundled together for the purposes of identifying thecorrect activity classification and considering the effects, positive and adverse,cumulatively. We note that counsel for the Appellant acknowledged that itstwo parts may only proceed together: without the new line, there would be noremoval of the existing one. We agree and see that as determinative of thispoint.51 Bayley v Manukau City Council, above n 50, at 580; and Body Corporate 97010 v Auckland CityCouncil [2000] 3 NZLR 513; [2000] NZRMA 529 (CA) at [21]–[22].52 Environment Court, above n 1, at [100].53 At [104].54 At [106]–[108], citing Elderslie Park Ltd v Timaru District Council [1995] NZRMA 433 (HC);Marlborough District Council v New Zealand Rail Ltd ]1995] NZRMA 357 (EnvC); and AucklandCity Council v Minister for the Environment [1999] NZRMA 49 (EnvC).[31] In its overall conclusion, the Environment Court said that, even though it was"treating the proposal as a single one", the effects of the elements of the proposal"must be identified and analysed separately as they involve different things, but havingdone that, the judgment of whether the effects are appropriate must be done in termsof all the effects".55Submissions[32] Mr Gardner-Hopkins, for TEPS and Ngāti Hē, submits the Environment Courterred in rejecting a structured approach. He submits the Court should have consideredthe two distinct elements of the removal of the A-Line and construction of the newinfrastructure separately. He submits doing so is particularly important given the"avoid" policies which require a proposal with adverse effects to be squarelyconfronted. He submits the Court netted off the adverse effects on the Marae with thebenefits of removing Poles 116 and 117. The effect of that approach was to subsumethe adverse effects into an overall net-effect analysis. This masked the effects oncultural values and circumvented the requirement to confront the terms of the planningdocuments.[33] Mr Beatson, for Transpower, submits the Court properly accepted thatrelocation of the A-Line depended on consents being granted, which determinedwhether or not to consider the effects in a holistic way. He submits the Court wascorrect, given that the removal and placement are integrally related, and was consistentwith the assessment of all expert witnesses and the authorities.[34] Ms Hill, for the Councils, submits there is no material error of law. Separateassessment of each part of the proposal against the avoid policies would notnecessarily prohibit a proposal with adverse effects. It would just require the effectsto be squarely confronted. The Environment Court was clear that the effects of theseparate parts of the proposal must be identified and analysed separately and itsquarely confronted the effects of the proposal. The structured approach is notsupported by the policy framework. The Court's "realistic and holistic" approach was55 Environment Court, above n 1, at [263].appropriate and consistent with sound resource management practice, whereas thestructured approach has no supporting authority.Did the Court err in applying a bundling approach?[35] The "bundled" way in which the Court considered the effects of removing theA-Line and construction of the new line did not constitute an error of law. The twoelements of the proposal, removing old infrastructure and constructing newinfrastructure, are integrally related. One would not occur independently of the other,as Mr Gardner-Hopkins acknowledged. The effects on cultural values wereincorrectly determined, as I discuss in Issue 2. But they were not masked by theCourt's approach. The Environment Court was correct to consider the effects of theproposal relating to Rangataua Bay in a realistic and holistic way. The effects onMatapihi and Maungatapu seem more independent of each other. Perhaps they couldbe separately considered. But that is not the argument advanced here. The problemswith the Court's reasoning were not caused by its approach to bundling.Issue 2: Was the Court wrong in its findings about adverse effects?[36] The Court was required to consider whether the proposal had certain adverseeffects. This issue concerns whether the Court's findings regarding adverse effectsconstituted an error of law.Relevant provisions[37] The Court was required to interpret and apply two policies of the Bay of PlentyRegional Coastal Environment Plan (RCEP).56[38] First, Iwi Management Policy IW 1(d) requires proposals "which may affectthe relationship of Māori and their culture, traditions and taonga" to "recognise andprovide for" "[a]reas of significant cultural value identified in Schedule 6 and otherareas or sites of significant cultural value identified by Statutory Acknowledgements,56 Relevant extracts from the RCEP and other planning instruments are provided in full in the Annexto this judgment.iwi and hapū resource management plans or by evidence produced by Tāngata whenuaand substantiated by pūkenga, kuia and/or kaumātua".[39] Schedule 6 identifies Te Awanui as an Area of Significant Cultural Value(ASCV 4):Te Awanui and surrounding lands form the traditional rohe of Ngāi Te Rangi,Ngāti Ranginui and Ngāti Pūkenga, which extends from Wairakei in Pāpāmoaacross the coastline to Ngā Kurī a Whārei at Otawhiwhi - known as "Mai i ngāKurī a Whārei ki Wairakei." Te Awanui is a significant area of traditionalhistory and identity for the three Tauranga Moana iwi – Ngāi Te Rangi, NgātiRanginui and Ngāti Pūkenga. Hapū of the Tauranga Moana iwi maintainstrong local communities which are dependent on maintenance of the life-supporting capacity of the harbour and surrounding land. Maintenance ofkaimoana and coastal water quality is particularly important.Te Awanui is rich in cultural heritage sites for Waitaha and the TaurangaMoana iwi. Many of these sites are recorded in Iwi and Hapū ManagementPlans and other historical documents and files. Treaty Settlement documentsalso contain areas of cultural significance to iwi and hapū. These iwi, alongwith their hapū, share Kaitiakitanga responsibilities of Te Awanui.Traditionally, Tauranga Moana (harbour) was as significant, if not more so,than the land to tāngata whenua. It was the source of kaimoana and the meansof access and communication among the various iwi, hapū and whānau aroundits shores. Today there are 24 marae in the Tauranga Moana district.[40] IW 2 of the RCEP applies to "adverse effects on resources or areas of spiritual,historical or cultural significance to tāngata whenua in the coastal environmentidentified using criteria consistent with those included in Appendix F set 4 to the RPS[Regional Policy Statement]". Advice Note 2 to the Policy states that "[t]he Areas ofSignificant Cultural Value identified in Schedule 6 are likely to strongly meet one ormore of the criteria listed in Appendix F set 4 to the RPS".[41] Second, Natural Heritage Policy NH 4 applies to "adverse effects" "on thevalues and attributes of" "[ONFL] (as identified in Schedule 3)". Te Awanui(Tauranga Harbour) is identified as ONFL 3, including the harbour aroundMaungatapu and Matapihi. Schedule 3 states "[t]he key attributes which drive therequirement for classification of ONFL, and require protection, relate to the highnatural science values associated with the margins and habitats; the high transientvalues associated with the tidal influences; and the high aesthetic and natural charactervalues of the vegetation and harbour patterns".[42] Schedule 3 of the RCEP provides assessment criteria for "Māori values" as"Natural features and landscapes that are clearly special or widely known andinfluenced by their connection to the Māori values inherent in the place". "Māorivalues" of ONFL 3 are rated as "medium to high" and evaluated as follows:Ancient pā, mahinga kai, wāhi tapu, kāinga, taunga ika.Te Awanui is a significant area of traditional history and identity for the threeTauranga Moana Iwi – Ngāi Te Rangi, Ngāti Ranginui and Ngāti Pūkenga.Waitaha of Arawa also has strong ancestral connections to Te Awanui.Te Awanui includes many cultural heritage sites, many of which are recordedin Iwi and Hapū Management Plans and other historical documents and files(including Treaty Settlement documents).[43] Policy NH 4A provides:When assessing the extent and consequence of any adverse effects onthe values and attributes of the areas listed in Policy NH 4 andidentified in Schedule 3 to this Plan :(a) Recognise the existing activities that were occurring at thetime that an area was assessed as having Outstanding NaturalCharacter, being an Outstanding Natural Feature orLandscape (b) Recognise that a minor or transitory effect may not be anunacceptable adverse effect;(c) Recognise the potential for cumulative effects that are morethan minor;(d) Have regard to any restoration and enhancement of theaffected attributes and values, and(e) Have regard to the effects on the tāngata whenua cultural andspiritual values of ONFLs, working, as far as practicable, inaccordance with tikanga Māori.[44] The Tauranga City Plan, which has the legal status of a District Plan, shouldalso be interpreted and applied. It identifies Te Ariki Pā/Maungatapu as a significantMāori area (No M 41) of Ngāti Hē.57 Its values are recorded as:57 Environment Court, above n 1, at [26].Mauri: The mauri and mana of the place or resource holds special significanceto Māori;Wāhi Tapu: The Place or resource is a Wāhi tapu of special, cultural, historicand or spiritual importance to the hapū;Kōrero Tuturu / Historical: The area has special historical and culturalsignificance to the hapū;Whakaaronui o te Wa / Contemporary Esteem: The condition of the area issuch that it continues to provide a visible reference point to the hapū thatenables an understanding of its cultural, architectural, amenity or educationalsignificance.[45] The iwi management plans, included in the Annex to this judgment, andinvoked in other planning instruments, relevantly provide:(a) Policy 10 of Te Awanui Tauranga Harbour Iwi Management Plan 2008specifically records that "[i]wi object to the development of powerpylons in Te Awanui".(b) Policy 15.1 and 15.2 of the Tauranga Moana Iwi Management Plan isto "[o]ppose further placement of power pylons on the bed of TeAwanui" and "[p]ylons are to be removed from Te Ariki Park andOpopoti (Maungatapu) and rerouted along the main Maungatapu roadand bridge".(c) The Ngāi Te Rangi Resource Management Plan states:Marae provide the basis for the cultural richness of Tauranga Moana.The key role that they play in supporting the needs of their whanau,hapu, and wider communities – Maori and non Maori – shall berecognised in the development of resource management policies, rulesand practices. The evolving nature of that role must also beaccommodated.Resource consents for the upgrading or provision of additional hightension power transmission lines, or other utilities, will not in generalbe supported.[46] Te Tāhuna o Rangataua (Rangataua Bay) is also listed in the New ZealandHeritage List/Rārangi Kōrero as a wāhi tapu historically associated with several iwiand hapū, including Ngāti Hē.58Environment Court's decision on adverse effects[47] In its lengthy discussion of cultural effects, the Environment Court outlined theconsultation process, the iwi management plans, and the cultural impact assessmentsof the proposal.59 It summarised the evidence of each witness from the Marae,Ngāi Te Rangi and Ngāi Tūkairangi.60 In particular:(a) The late Mr Taikato Taikato, chairperson of the Maungatapu MaraeTrust and kaumātua, supported the removal of the A-Line from Te ArikiPark but did not support its replacement as an aerial line. This wasbecause the cable would be directly in front of the marae and would"move the lines from our backs and put them back in front of ourfaces".61 He had concerns about the noise from the lines. He believedNgāti Hē could wait another year or two to get the right result. MrTaikato agreed that he would want his mokopuna to enjoy the benefitsthat come with electricity, and that, should consent be refused,negotiations about replacing Poles 116 and 117 would have to start allover again.(b) Dr Kihi Ngatai focused on the significance of Te Pā o Te Ariki, the pāsite of Ngāti Hē. He told the Court his main purpose as a member ofthe Te Pā o Te Ariki Trust is to get the line shifted away from thissignificant site because it is wāhi tapu and should be left as it was whenit became tapu; without powerlines.58 Heritage New Zealand New Zealand Heritage List/Rārangi Kōrero – Report for a Wāhi Tapu Area:Te Tāhuna o Rangataua at 5 and 22 (CBD 303.0663 and 303.0680).59 Environment Court, above n 1, at [153]–[169].60 At [170]–[193].61 At [170]; and Statement of Evidence of Taikato Taikato on behalf of the Maungatapu Marae Trust,(25 March 2019) at 3 (CBD 202.0370).(c) Ms Hinerongo Walker, a kuia and a Trustee of both the MaungatapuMarae and the kōhanga reo, and Ms Parengamihi Gardiner, a kuia wholives in the Kaumātua Flats on Te Ariki, gave evidence together.Ms Walker was concerned about the visual aesthetics and constanthumming of the realignment and the impact on the marae and kōhangareo. Ms Gardiner said they had been trying to have the lines removed,and confirmed she had submitted in favour of the proposal to removethe lines from Te Ariki Park. However, she said she did not want themremoved if it meant an impact on the marae, the kōhanga reo or otherpeople. When asked whether they supported the removal of Tower 118from the middle of Te Awanui, they said that depended "on the removalof lines from here" and they looked it as a whole package.62(d) Ms Matemoana McDonald, of Ngāti Hē and a councillor on the Bay ofPlenty Regional Council, gave evidence on the changes to the culturallandscape of Ngāti Hē over her lifetime.63 She said the Transpowerproposal adds insult to injury in terms of what Ngāti Hē have lost inproviding for the needs of the city, and said they do not want two newpoles in close proximity to their sacred marae. She wanted to seealternative options considered and discussed to find a better solution tothe proposal. She accepted that Transpower had put a lot of effort intotrying to find a workable solution to the A-Line issue. She questionedwhy Pole 33C could not go to the other side of SH 29A, becausealthough it could have effects on other parties on that side of the road,those houses would change hands over time, whereas Ngāti Hē wouldalways be present at their marae. She confirmed that "Te Awanui andTe Tahuna has much significance as what the marae does".64(e) Ms Ngawaiti Hera Ririnui, chairperson of Te Kōhanga Reo o Opopoti,said the potential effect of Pole 33C on tamariki that live on the maraeor attend the kōhanga reo was seen as negative, as there is no research62 NOE 260/3.63 Statement of Evidence of Matemoana McDonald (8 April 2019) (CBD 202.0378).64 NOE 276/6–9.that proves or disproves whether there is an impact on health from suchpowerlines.65 She gave evidence of tamariki having full access to thearea around the Marae and "tamariki out on the beach at Rangatauabeing taught by our kaimahi about what it means to be part of ourcommunity and be a member of Ngāti Hē".66 She saw the pole as a"monstrous dark structure that's going to be hanging over our marae ona daily basis, lines that are going to be slung across our marae swingingin the wind for our tamariki to see".67 She said generations have triedto fight the changes in the surrounding environment, but have neverwon. She agreed removal of the poles and wires from Te Ariki Parkwould be a benefit, but not if the poles were relocated to beside thekōhanga reo.(f) Ms Yvonne Lesley Te Wakata Kingi, secretary of the MaungatapuMarae committee for 25 years, said she felt they were having tocontinue a battle to maintain the mana on their land. She talked abouttheir use of the beach.68 She stated they are being treated in the wayMāori were when new people first began to settle there. She describedwanting the marae to be a happy place, not only for Māori but for thevisitors who come there.(g) Mr Mita Michael Ririnui, a kaumātua, the chair of the Ngāti Hē HapūTrust, and the Ngāti Hē representative on the Ngāi Te Rangi SettlementTrust and Te Rūnanga O Ngāi Te Rangi Iwi Trust, clarified thatNgāti Hē Hapū Trust supported the removal of the existing line fromTe Ariki Park. However, the Trust had not given any support to theproposed structures including Pole 33C. He said the proposedstructures are considered "a blight on the [Ngāti Hē] estate" andmarae.6965 Environment Court, above n 1, at [179].66 NOE 281/12–25.67 NOE 281/27–30.68 NOE 286/4–15.69 NOE 291/5–6.(h) Mr Paul Joseph Stanley, Chief Executive of Te Runanga o Ngāi TeRangi Iwi Trust, submitted "[i]t will be much better if those lineswere put across with the bridge or underneath the harbour".70[48] In relation to cultural effects, the Court:(a) said its assessment of cultural effects was not assisted by the RCEPbecause it "is not specific about cultural values and attributes ofRangataua Bay / Te Awanui";71(b) identified "the key cultural issues" to be "the damage to the mana ofMaungatapu Marae and concern about the environment, particularly atthe kōhanga reo there";72(c) traversed the process of consultation in preparing the application;73(d) summarised the submissions on the notified consent application,focussing on Ngāti Hē's position, including in this (implicitly critical)paragraph:74[205] The evidence for Ngāti Hē did not make any mention ofthe adverse effects on Ngāti Tūkairangi of not allowing therealignment. It did not address in detail the cultural mattersaffected by the existing line crossing the harbour, or theeffects on the harbour and sea bed of the removal of Tower118. The effects on cultural values relating to the moanagenerally did not appear to be front of mind. The evidence didnot mention any cultural effects of the alternatives that NgātiHē preferred in terms of effects on the seabed of, for example,excavations for new piles or a trench to take the line belowthe harbour floor. The evidence called by Ngāi Te Rangisupported the Ngāti Hē point of view.(e) found that Transpower had carried out a full and detailed consultation,and that Ngāti Hē changed its mind, as it was entitled to do;7570 NOE 265/19–20.71 Environment Court, above n 1, at [194].72 At [195].73 At [196]–[197].74 At [198]–[206].75 At [207]–[208].(f) noted Ngāti Hē's frustration and anger about the original constructionof the A-Line and accepted the cultural effects of that had adverselyaffected them for the last half-century;76(g) found the removal of the A-Line and poles from Ngāti Hē's land atTe Ariki Park and of Tower 118 in Rangataua Bay would have positiveeffects;77(h) "deeply regretted" the "adverse effects from their point of view" ofPole 33C, but found there was no opportunity to move the pole withoutadversely affecting other persons not before the Court;78(i) found Ngāti Hē's preferred alternatives of a strengthened or new bridgeor under-sea-bed crossing would reduce the effects on the marae andkōhanga reo but "may also, from our understanding of the evidence"have greater effects within the [Coastal Marine Area] and on the ONFLthan those that will result from the aerial transmission line";79(j) observed that Ngāi Tūkairangi consider the effects of the proposal ontheir land would be highly beneficial;80(k) observed there is no certainty that a proposal Ngāti Hē can support willcome forward or achieve their desired outcomes;81(l) suggested changes to activities or to the environment may result in thecumulative effect being less than before and doubted the only properstarting point for assessing cumulative effects was prior to anydevelopment;8276 At [209].77 At [211].78 At [212].79 At [213].80 At [214].81 At [214]–[215].82 At [216].(m) held that the question was whether Ngāti Hē is better or worse off interms of the assessment of cumulative effects, deducting the removalof adverse effects from the creation of adverse effects, and notedNgāti Hē "are clear in their view that they are worse off, not leastbecause they see the proposed change as continuing to subject them toadverse effects";83(n) considered no other group would be worse off by the proposal andsome, "particularly Ngāi Tūkairangi and the residents alongMaungatapu Road" would be better off and refusing consent wouldleave them worse off;84(o) noted Transpower has said it will walk away from the realignmentproject if the appeal is granted and then strengthen or replace itsinfrastructure on Te Ariki Park, which does not require furtherconsent;85 and(p) concluded:86[220] Ultimately, we have had to assess the realisticalternatives and the likely effects of those through the culturallens as best we can, taking into consideration the interests ofboth hapū. From the above analysis we do not find theproposed realignment to have cumulative adverse culturaleffects on Ngāti Hē. Existing adverse effects at Te Ariki Parkwill be removed and new adverse effects will occur near themarae and the kōhanga reo. We are conscious that the benefitsto Ngāi Tūkairangi will be considerable. We conclude that thebenefits of the realignment to Ngāti Hē, coupled with thebenefits to Ngāi Tūkairangi, are greater than the adverseeffects of Pole 33C's placement near the marae and thekōhanga reo. For Ngāti Hē, those benefits will be felt as soonas the structures and line are removed from Te Ariki Park, andthere is some urgency to that. Their removal will immediatelyfacilitate change. The opportunity to change the configurationof the A-Line in relation to a bridge or sea-bed location mayarise in future but Ngāti Hē cannot rely on that.83 At [217].84 At [218].85 At [219].86 Emphasis added.[49] In relation to the effects on the ONFL, the Environment Court compared andassessed the evidence of expert witnesses, in particular that of Ms Ryder for theCouncils and Mr Brown for TEPS.87 The Court was "unable to confirm Mr Brown'sopinions in relation to what he considered [were] the significant effects on Māorivalues in ONFL 3 on the basis of the evidence provided by the cultural witnesses".88[50] The Court further concluded:[246] We have no doubt about the importance of Rangataua Bay to the maraeand to Ngāti Hē hapū. But we must draw the argument back to the assessmentof the effects on ONFL 3 and its values, attributes and associations. Theactivities that will take place there are the removal of Tower 118 and theaddition of a powerline above the SH 29A bridge. We heard no evidence aboutthe effect of the removal of Tower 118 on Maori Values in the ONFL 3, except,as Ms Ryder pointed out, that there is a strong preference of iwi for no powerpylons to be present in Te Awanui – and we cannot accept that taking thisstructure out of the centre of Rangataua Bay, where it stands alone, will nothave benefits to Te Awanui in this area. Similarly, the removal of thepowerlines to the SH 29A corridor consolidates the infrastructure into oneplace rather than having the line strung across the otherwise open RangatauaBay, again surely a cultural benefit in relation to its current intrusion into theopen airspace above the bay.[247] The cultural witnesses expounded more on the effects on the marae ofPole 33C (and to a lesser extent pole 33D) with concern, as noted above, forthe mana of the marae and the health of the tamariki who attend the kōhangareo directly adjacent to it than they did on the effects of the activities that willtake place within ONFL 3, the latter being the subject of this evaluation.[248] During the removal of Tower 118 the works will be visible albeit short-lived and the realignment of the powerline to a new position above and parallelwith the bridge will similarly be visible and could be considered by someviewers to be fleetingly adverse. The works may be visible from the maraeand vicinity. We consider those effects both short term and long term to be deminimis. On the other hand, there will benefits to the ONFL from the removalof Tower 118 and the powerline.Submissions on adverse effects[51] Mr Gardner-Hopkins, for TEPS and Ngāti Hē, submits:(a) The Court erred in light of the evidence before it, because the true andonly reasonable conclusion is that there would be:87 Summarised at [243], Table 3.88 At [244].(i) at least some adverse effects in terms of ASCV 4 or otherwiseon resources or areas of spiritual, historical or culturalsignificance to tāngata whenua in the coastal environment,contrary to Policy IW 2; and/or(ii) significant, or at least some, adverse effects on Ngāti Hē'sassociation with the cultural values of ONFL 3, contrary toPolicy NH 4(b).(b) It is for Ngāti Hē to identify the cultural impacts on them and they havedone so. All the Ngāti Hē witnesses promoted the same overalloutcome and gave a consistent message. They did not support theproposal because the benefits of the removal of the A-Line did notoutweigh the adverse effects. Not one witness said the proposal shouldproceed if the cost was the poles being in front of the Marae. Theevidence focussed on the visual dominance of the poles but kaumātuaand kuia also raised wider issues of the connectedness of the Marae andthe reserve with Rangataua Bay. The visual effects can clearly affectthe aesthetic and experience of the ONFL. The moderate to high ratingof Māori values in ONFL 3 answers the submission that Māori valuesare not a key component of the ONFL at the Bay.(c) The Environment Court navigated around all that, finding the effectswere de minimis. It was focussed on the effects of aerial lines crossingthe harbour on the ONFL, not the effects of the large structures on eitherside that will impact on Ngāti Hē's cultural association with theharbour. If the Court had applied the right framework and focussed onthe poles as well as the lines, it could not have found the effects to bede minimis.(d) It cannot be right that any adverse effect needs to be assessed againstthe Tauranga harbour as a whole, because that would require a proposalof a massive scale. In the context of this proposal, the appropriate scalemust be Rangataua Bay. If the project proceeds and Poles 33C and 33Dare constructed, the effects on Ngāti Hē and the Marae will continue foranother two to three generations. They do not want an additional visualintrusion into their connectedness with Rangataua Bay from their maraeor beach. If that is not available now, they are prepared to wait.[52] Mr Beatson, for Transpower, submits:(a) It could not be further from the truth to suggest the Court found therewere no effects on cultural values at all or it imposed its own assessmentof the cultural effects. The Court spent some 20 pages summarising theconsultation and evidence on cultural effects. It weighed the evidencebefore concluding there was an overall positive cultural effect. Thebenefits of the realignment to Ngāti Hē and Ngāi Tūkairangi would begreater than the adverse effects of Pole 33C on the Marae and kōhangareo. Its approach is consistent with SKP Incorporated and Trans-Tasman Resources.89(b) The Court focussed its enquiry on the effects of ONFL. It noted themain adverse cultural effects related to visual effects on the Marae andkōhanga reo enjoyment of the ONFL, rather than on the values andattributes of ONFL 3. The description of the values and attributes is aguide to the key focus of the ONFL. Adverse effects on Māori valueswould not necessarily lead to the conclusion there is an adverse effecton the ONFL as a whole, in terms of the description. The Court foundthe conclusion that the effects on the Māori values would be significantwas not supported by the evidence of the cultural witnesses.90(c) The Environment Court's findings were well supported by thelandscape and cultural evidence. As the primary finder of fact it shouldbe given latitude to do so. The appellant has not cleared the high barof an "only true and reasonable conclusion". An assessment of the89 SKP Incorporated v Auckland Council [2018] NZEnvC 81; and Trans-Tasman Resources Ltd vTaranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248.90 Environment Court, above n 1, at [228].effects should take an overall approach, allowing the significantpositive effects of the relocation to be taken into account. Therelocation is more desirable than retaining the status quo.[53] Ms Hill, for the Councils, submits:(a) The weight given to particular considerations by the EnvironmentCourt is not able to be revisited as a question of law. It should be givensome latitude in reaching findings of fact within its area of expertise,with which the High Court should not readily intervene.(b) The Environment Court thoroughly set out and carefully evaluated thecultural evidence. It observed the evidence given by the culturalwitnesses focussed on the visual effects of the pole in front of theirmarae rather than the effects on the cultural values of ONFL 3. Thevalues and attributes of the ONFL include the national gridinfrastructure so that is why the effect of the proposal is de minimis.(c) Policy IW 2 is not a directive policy. The Court clearly explained itsapproach to the cumulative effects on Ngāti Hē arising from historicalmatters. The effects on Ngāti Hē are only part of the wider culturalequation. Cultural values are often intangible and it is difficult to avoidsomething that cannot be seen.Did the Court err in its findings about adverse effects?[54] It is clear from the evidence before the Court, as summarised above, thatNgāti Hē considers the re-alignment proposal would have an overall adverse effectcompared with the status quo. In particular, they are concerned about the implicationsof the location of Pole 33C on their use and enjoyment of their marae and kōhangareo, and the effects on the ONFL. The Environment Court summarised thesubmissions this way:[198] Submissions received on the notified consent application in 2018indicated opposition to the proposal, specifically around Pole 33C, and theeffects on the ONFL. Neither had been raised previously. The effects of Pole33C were expressed in terms of cultural values, effects of noise and electro-magnetic radiation, visual effects of the pole and line, effects on kōhanga reochildren, effects on the mana of the marae, ongoing cumulative effects on theHapū of developments being imposed on their land over the last 50 or so years,which they claimed was illegal (that matter is not being pursued through thishearing), and the need for greater attention to alternatives they preferred whichwere bridge and sea-bed options, including a new bridge (and cycleway).[55] That view is understandable given the history and cultural values of Ngāti Hēthat are recognised in ASCV 4 and ONFL 3 of the RCEP and substantiated by theevidence of kuia and kaumātua of Ngāti Hē. It is consistent with the identification inthe Tauranga City Plan of Te Ariki Pā and Maungatapu as a significant area forNgāti Hē with special values and significance in terms of mauri, wāhi tapu,korero tuturu and whakaaronui o te Wa. It is consistent with the significance ofTauranga Moana to Ngāi Te Rangi as a physical and spiritual resource, recognised bythe Crown in the Deed of Settlement. It is consistent with the objections in theIwi Management Plans to power pylons and the emphasis of Ngāi Te Rangi's ResourceManagement Plan on the importance of marae. It is consistent with theMarae Sightlines Report, which was in evidence before the Environment Court andreferred to by several witnesses. That report was prepared for SmartGrowth and theCombined Tāngata Whenua Forum in 2003 to review the visual setting, values andlandscape context of 36 marae in the Western Bay of Plenty.91 Its conclusions stated:92Protecting visual access and linkages to the ancestral landscape is critical tothe personal and cultural wellbeing of the tāngata whenua of the rohe.Discrete taonga identifiable as landscape markers or pou whenua cue the oraltraditions, poetry and waiata, traces events leaders and traditions, catalysesand facilitates the education of generation to generation and serves as personalmentor.The sense of belonging and turangawaewae is dependent on the quality of thevisual of the surrounding landscape. The challenge then is to promulgate alandscape management principle dedicated to tāngata whenua interest toprotect the mnemonic – iconic values associated with their rohe andturangawaewae. Particular regard for their relationship with the landscape asa component of landscape quality and diversity is required.91 Kaahuia Policy Resource Planning & Management Marae Sightlines Report (December 2003)(CBD 301.0143).92 At 34–35 (CBD 301.0163–301.0164).[56] In its decision, the Court explicitly noted that Ngāti Hē "were opposed to theaerial transmission line and wanted a bridge or sea bed harbour crossing".93 Itrecorded that "[t]hey are clear in their view that they [will be] worse off, not leastbecause they see the proposed change as continuing to subject them to adverseeffects".94 The Court recorded that "the evidence called by Ngāi Te Rangi supportedthe Ngāti Hē point of view".95 In its conclusion, the Court said:[264] The proposed relocation of the A-Line to an alignment which followsSH 29A and is located above the Maungatapu Bridge does not result in whollypositive effects. While it enables the removal of the existing line and ensuressecurity of electricity supply, its location is not ideal. In particular, placing theline above the Maungatapu Bridge, with associated tall poles, creates anincreased degree of new and adverse visual effects on that part of Te Awanui,particularly when seen from Maungatapu Marae and Te Kōhanga Reo oOpopoti and for some of the residents on the eastern side of SH 29A.[57] The depth of Ngāti Hē's opposition to the proposal is reflected in theirpreference for the status quo over the proposal. In its Deed of Settlement withNgāi Te Rangi, the Crown acknowledged the infrastructure networks on theMaungatapu peninsula "have had enduring negative effects on the lands, resources,and cultural identity of Ngāi Te Rangi" while making a "significant contribution . . .to the wealth and infrastructure of Tauranga".96 The Court said:[209] The cultural evidence described the frustration and anger held by thehapū over many years as a result of the original construction of the A-Lineacross Te Ariki Pā and the earthworks for roading and bridge construction thataffected their marae. We acknowledge the information and opinions providedabout the history of development activities in the Ngāti Hē rohe and acceptthat these cultural effects have adversely affected the hapū for the last halfcentury.[58] Yet Ngāti Hē preferred that status quo to the proposal.[59] The Environment Court's conclusion in relation to the cultural effects of theproposal, relevant to IW 2, or the effects on the values of the ONFL relevant to NH 4,did not reflect the evidence before it:93 Environment Court, above n 1, at [200].94 At [217].95 At [205].96 Deed of Settlement, above n 2, cls 3.15.5 and 3.16.1.(a) Having set out in 67 paragraphs the extent and depth of Ngāti Hē's firmopposition to the proposal, in one paragraph the Court effectively foundthat the adverse cultural effects would be outweighed by the beneficialeffects.97 That involved the Court saying explicitly that it did not findthat the proposed realignment would have cumulative adverse culturaleffects on Ngāti Hē,98 even though it had found Ngāti Hē clearlyconsiders it would.99(b) In relation to the ONFL, the Court said it had no doubt about theimportance of Rangataua Bay to the marae and Ngāti Hē.100 That isclearly demonstrated by the evidence before it. But the Courtconcluded the long-term visual effects of the works from the marae andvicinity to be "de minimis".101[60] The Supreme Court's judgment in Bryson v Three Foot Six Ltd is the mostauthoritative current exploration of the parameters of questions of law.102 In summary:(a) Misinterpretation of a statutory provision obviously constitutes an errorof law.103(b) Applying law that the decision-maker has correctly understood to thefacts of an individual case is not a question of law. "Provided that thecourt has not overlooked any relevant matter or taken account of somematter which is irrelevant to the proper application of the law, theconclusion is a matter for the fact-finding court, unless it is clearlyinsupportable".10497 Environment Court, above n 1, at [220].98 At [220].99 At [217].100 At [246].101 At [248].102 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 72. Applied in an RMA context inEstate Homes Ltd v Waitakere City Council [2006] 2 NZLR 619 (CA) at [198].103 At [24].104 At [25].(c) But "[a]n ultimate conclusion of a fact-finding body can sometimes beso insupportable – so clearly untenable – as to amount to an error oflaw, because proper application of the law requires a differentanswer".105 The three rare circumstances in which that "very highhurdle"106 would be cleared are where "there is no evidence to supportthe determination" or "the evidence is inconsistent with and contradictoryof the determination" or "the true and only reasonable conclusioncontradicts the determination".107[61] I consider the Court's conclusions about the evidence were insupportable interms of Bryson v Three Foot Six Ltd. The Court accurately summarised Ngāti Hē'sclear opposition to the proposal on the basis of its significant adverse effects on anarea of cultural significance and on the Māori values on the ONFL. But it refused tofind that the proposed realignment would have cumulative adverse cultural effects onNgāti Hē and it found that the long-term visual effects from the marae and vicinitywould be "de minimis".[62] The evidence of Ngāti Hē, as summarised above, is contradictory of thosefindings. The evidence is that, in Ngāti Hē's view, Pole 33C will have a significantand adverse impact on their use and enjoyment of the Marae and on their culturalrelationship with Te Awanui, even taking into account the removal of the existingadverse effects. For the purposes of IW 2, this constitutes a significant adverse effecton Rangataua Bay, an "area of spiritual, historical or cultural significance to tāngatawhenua" identified in ASCV 4. For the purposes of NH 4, taking into account theconsiderations in NH 4A, it constitutes a significant adverse effect on the medium tohigh Māori values of Te Awanui at ONFL 3. I consider those are the true and onlyreasonable conclusions. Even though cultural effects may be intangible, they are noless real for those concerned, as the evidence demonstrates.105 At [26]. The sentence quoted in Bryson contained a semi-colon rather than the word "because",which was inserted in the application of the principle in the subsequent Supreme Court judgmentin Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153at [52].106 Bryson v Three Foot Six Ltd, above n 102, at [27].107 Edwards v Bairstow [1956] AC 14 (HL) at 36. These can also be seen as circumstances ofunreasonableness: Hu v Immigration Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at[28] and footnote 27.[63] The Court's approach is not saved by a distinction between the "values andattributes" of the ONFL and the ONFL itself. The Māori values of ONFL 3 are ratedas medium to high and clearly encompass connections to ancestral and culturalheritage sites. The evidence is that Pole 33C would interfere with those connectionswith Rangataua Bay, including on the beach.[64] As Mr Gardner-Hopkins submits, an effect of a proposal at Rangataua Baydoes not have to be assessed for its impact on the whole Tauranga Harbour, justRangataua Bay. And neither is the Court's approach saved by it being an overallassessment of cultural effects, including the effects on Ngāi Tukairangi. The Courtclearly rested its conclusions on its findings that the effects on Ngāti Hē alone wouldbe, on balance, positive for Ngāti Hē. It relied on evidence from an expert landscapearchitect for the councils, Ms Ryder, to that effect.108 But that was not Ngāti Hē'sview. As the Court recorded Mr Gardner-Hopkins submitted:109While the evidence for the marae trustees was not articulated in terms ofcultural values of the ONFL it provides significant support for the importanceof Rangataua Bay to the Marae and Ngāti Hē Hapū (and other mana whenua).It provides real world support for and elaboration on the "cultural values" asexpressed in the RCEP for ONFL 3 but with greater specificity as to locationand content. The evidence was genuine and heartfelt, and should not need a"cultural expert" to have to put it into "planning speak".[65] The effect of the Court's decision was to substitute its view of the culturaleffects on Ngāti Hē for Ngāti Hē's own view. The Court is entitled to, and must, assessthe credibility and reliability of the evidence for Ngāti Hē. But when the considered,consistent, and genuine view of Ngāti Hē is that the proposal would have a significantand adverse impact on an area of cultural significance to them and on Māori values ofthe ONFL, it is not open to the Court to decide it would not. Ngāti Hē's view isdeterminative of those findings.[66] Deciding otherwise is inconsistent with Ngāti Hē's rangatiratanga, guaranteedto them by art 2 of the Treaty of Waitangi, which the Court was bound to take intoaccount by s 8 of the RMA. It is inconsistent with the requirement on the Court, as adecision-maker under the RMA, to "recognise and provide for" "the relationship of108 Environment Court, above n 1, at [228]–[229].109 At [245].Māori and their culture and traditions with their ancestral lands, water, sites, waahitapu, and other taonga" as a matter of national importance in s 6(e) of the RMA. It isinconsistent with the approach in SKP Incorporated v Auckland Council, approved bythe High Court in 2018 that:110 persons who hold mana whenua are best placed to identify impacts of anyproposal on the physical and cultural environment valued by them, andmaking submissions about provisions of the Act and findings in relevant caselaw on these matters.[67] Deciding otherwise is also inconsistent with the requirement of Policy IW 5 ofthe RCEP, and similar statements in Policies IW 2B(b) and IW 3B(e) of the RPS.Contrary to the Court's finding, the RCEP is specific enough about the cultural valuesand attributes of Rangataua Bay and Te Awanui. Policy IW 5 states:111Decision makers shall recognise that only tāngata whenua can identify andevidentially substantiate their relationship and that of their culture andtraditions with their ancestral lands, water, sites, wāhi tapu and other taonga.Those relationships must be substantiated for evidential purposes by pūkenga,kuia and/or kaumātua.[68] Mr Taikato and Mr Ririnui are kaumātua. Ms Walker and Ms Gardiner arekuia. The evidence of Ngāti Hē is clear.[69] I do not readily reach a different view of the facts to that of the EnvironmentCourt. But I consider proper application of the law requires a different answer fromthat reached by the Court regarding the significant adverse effect of the proposal onan area of cultural significance to Ngāti Hē and on the Māori values of the ONFL.Accordingly, the Court's findings about those matters constitute an error of law.Whether that matters to the outcome of the appeal depends on how material the errorwas, which I consider in the context of the remaining issues.110 SKP Incorporated v Auckland Council, above n 89, at [157]. On appeal, Gault J considered thegeneral statement of position in support of the proposal by the party taken to represent manawhenua "resolved any cultural effects issue". (He accepted that finer grained evidence would berequired in an application for re-hearing where two entities were claiming mana whenua withcompeting evidence on cultural effects): SKP Inc v Auckland Council [2020] NZHC 1390, (2020)21 ELRNZ 879 at [57].111 Bay of Plenty Regional Council Proposed Bay of Plenty Regional Coastal Environment Plan(RCEP) at 38 (CBD 302.0302).Issue 3: Did the Court err in its approach to pt 2 of the RMA?[70] This ground of appeal is whether the Court erred in not applying pt 2 of theRMA. It is integrally related to the submissions of counsel about whether the Courtshould have, and did, apply an "overall judgment" approach.Part 2 of the RMA and the former overall judgment approach[71] Part 2 of the RMA provides the overall sustainable management purpose andprinciples of the Act. Section 5(1) in pt 2 states that the purpose of the Act "is topromote the sustainable management of natural and physical resources". Section 5(2)explains that "sustainable management" means "managing the use, development, andprotection of natural and physical resources in a way which enables people andcommunities to provide for their "social, economic, and cultural well-being" while:(a) sustaining the potential of natural and physical resources (excludingminerals) to meet the reasonably foreseeable needs of futuregenerations; and(b) safeguarding the life-supporting capacity of air, water, soil, andecosystems; and(c) avoiding, remedying, or mitigating any adverse effects of activities onthe environment.[72] The Act then provides for a cascading hierarchy of legal instruments in "athree-tiered management system" which give effect to pt 2.112 A document in a tiermust give effect to, or not be inconsistent with, those in the tiers above. The highesttier is national policy statements, which set out objectives and identify policies toachieve them. The next tier are regional policy instruments, which identify objectives,policies and methods of achieving them including rules, that are increasingly detailedas to content and location.[73] The tiers of planning instruments are the legal instruments which "flesh out"how the purpose and principles in pt 2 apply in a particular case in increasing detail112 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014]1 NZLR 593 [EDS v King Salmon] at [10] and [30].and specificity.113 The Supreme Court explained in EDS v King Salmon theimportance of attending to the wording of the planning instruments, as with any law:[129] When dealing with a plan change application, the decision-maker mustfirst identify those policies that are relevant, paying careful attention to theway in which they are expressed. Those expressed in more directive terms willcarry greater weight than those expressed in less directive terms. Moreover, itmay be that a policy is stated in such directive terms that the decision-makerhas no option but to implement it. So, 'avoid' is a stronger direction than 'takeaccount of'. That said however, we accept that there may be instances whereparticular policies in the NZCPS 'pull in different directions'. But we considerthat this is likely to occur infrequently, given the way that the various policiesare expressed and the conclusions that can be drawn from those differences inwording. It may be that an apparent conflict between particular policies willdissolve if close attention is paid to the way in which the policies areexpressed.[130] Only if the conflict remains after this analysis has been undertaken isthere any justification for reaching a determination which has one policyprevailing over another. The area of conflict should be kept as narrow aspossible. The necessary analysis should be undertaken on the basis of theNZCPS, albeit informed by s 5. As we have said, s 5 should not be treated asthe primary operative decision-making provision.[131] A danger of the 'overall judgment' approach is that decision-makers mayconclude too readily that there is a conflict between particular policies andprefer one over another, rather than making a thoroughgoing attempt to find away to reconcile them[74] So, although pt 2 is relevant to decision-making, because it sets out the RMA'soverall purpose and principles, the basis for decision-making is the hierarchy ofplanning documents.114 The Supreme Court noted in EDS v King Salmon that pt 2 ofthe RMA may be relevant if a planning document, there the NZCPS, does not "coverthe field" or to assist in a purposive interpretation if there is uncertainty as to themeaning of particular policies in the NZCPS.115[75] There has been some debate as to the implications for this approach offollowing the subsequent Court of Appeal judgment in RJ Davidson Family Trust vMarlborough District Council.116 There, the Court of Appeal accepted that, inconsidering a resource consent application compared with a plan change proposal, a113 At [151].114 At [151].115 At [88].116 RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR283.decision-maker must have regard to the provisions of pt 2 when appropriate.117 TheCourt said that applications for resource consent "cannot be assumed" to "reflect theoutcomes envisaged by pt 2" and "the planning documents may not furnish a clearanswer to whether the consent should be granted or declined".118 It did not considerthat the Supreme Court's rejection of the "overall judgment" approach prohibitedconsideration of pt 2 in the context of resource consent applications.119[76] There are obiter comments by the Court of Appeal in RJ Davidson Family Trustthat appear to suggest the Supreme Court's proscription of the "overall judgment"approach in EDS v King Salmon might not apply outside a context that engages theNZCPS.120 However, this case does engage the NZCPS. It is clear that, where theNZCPS is engaged, any consent application will necessarily be assessed applying theprovisions of the NZCPS and other relevant plans, and also pt 2 if it is otherwiseunclear whether the consent should be granted or not.121 Part 2 cannot be used "forthe purpose of subverting a clearly relevant restriction in the NZCPS".122 Where thereis "doubt" as to the outcome of the consent application on the basis of the NZCPS,recourse to pt 2 is necessary.123 Recourse to pt 2 may or may not assist, depending onthe provisions of the relevant plan.124[77] In any case, I read the Court of Appeal's comments as being focussed onpermitting reference to pt 2 of the RMA. I do not read the Court of Appeal to beendorsing the previous approach of courts simply listing relevant considerations,including provisions of planning documents, and stating a conclusion under the rubricof an "overall judgment" in relation to consent applications that do not engage theNZCPS. The Supreme Court was clear about the obvious defects of that approach.125It is inconsistent with the text and purpose of the RMA, inconsistent with the need togive meaning to the text of the plans as the legal instruments made under the RMA,and inconsistent with the rule of law. The Court of Appeal's statement, that in all cases117 At [47].118 At [51].119 At [66].120 At [67]–[69] and [71].121 At [71] and [73].122 At [71].123 At [75].124 At [75].125 EDS v King Salmon, above n 112, at [131]–[140].not involving the NZCPS "the relevant plan provisions should be considered andbrought to bear on the application" makes it clear it does not advocate for that.126Rather, the Court considered there must be "a fair appraisal of the objectives andpolicies [of a plan] read as a whole".127 While the Court of Appeal expanded on theuse of pt 2 of the RMA, I do not consider its judgment contradicted the reasoning ofthe Supreme Court in warning about the defects of the overall judgment approach inrelation to particular consent applications.[78] This was illustrated in Royal Forest and Bird Protection Society ofNew Zealand Inc v Bay of Plenty Regional Council.128 That case involved a challengeto the formulation of natural heritage policies for the Regional Coastal EnvironmentPlan (RCEP) on the basis of inconsistency with the NZCPS. Wylie J held:(a) The Environment Court was not entitled to focus on the unchallengedprovisions of the planning document at issue, or the one immediatelyabove it and ignore or gloss over higher order planning documents.129(b) The Court erred in resolving tensions in RCEP policies primarily byreference to the RCEP's objectives, with only limited reference to theRPS and NZCPS.130 The Court "failed to make 'a thoroughgoingattempt to find a way to reconcile' the provisions it considered to be intension".131(c) The "proportionate" approach adopted by the Environment Court wasan overall judgment approach, "albeit by a different name", of the sortthat had been "roundly rejected" by the majority of the Supreme Courtin EDS v King Salmon.132 It was not available to the Court to suggestthat the benefits and costs of regionally significant infrastructure thatcould have adverse effects on areas of Indigenous Biological Diversity,126 RJ Davidson Family Trust v Marlborough District Council, above n 116, at [73].127 At [73], citing Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [25].128 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional Council[2017] NZHC 3080, [2019] NZRMA 1.129 At [84].130 At [89].131 At [98], citing EDS v King Salmon, above n 112, at [131].132 At [103]which are areas with outstanding natural character in the coastalenvironment, should be assessed on a case-by-case basis having regardto all relevant factors.133(d) Accordingly, the Environment Court erred in:(i) approving policies and a rule that did not give effect to therequirements set out in policies 11(a), 13(1)(a) and 15(a) of theNZCPS;134(ii) by failing to consider the directive nature of Policies CB 2B andCE 6B of the RPS;135 and(iii) by failing to recognise that the objectives in the RCEP recognisethat "provision needs to be made for regionally significantinfrastructure, but not in all locations in the coastal marinearea".136[79] The Supreme Court's decision in EDS v King Salmon, and the Court ofAppeal's decision in RJ Davidson, requires decision-makers to focus on the text andpurpose of the legal instruments made under the RMA. A decision-maker consideringa plan change application must identify the relevant policies and pay careful attentionto the way they are expressed.137 As with any legal instrument, the text of theinstrument may dictate the result. Where policies pull in different directions, theirinterpretation should be subjected to "close attention" to their expression. Where thereis doubt after that, recourse to pt 2 is required.138 The same approach, of carefullyinterpreting the meaning and text of the relevant policies, is required in applying themto consent applications, for the same reasons. That is consistent with the standard133 At [106].134 At [123].135 At [129].136 At [135].137 At [128]–[129].138 At [75].purposive interpretation of enactments, as summarised by the Supreme Court inCommerce Commission v Fonterra Co-operative Group Ltd:139[22] It is necessary to bear in mind that s 5 of the Interpretation Act 1999makes text and purpose the key drivers of statutory interpretation. Themeaning of an enactment must be ascertained from its text and in the light ofits purpose. Even if the meaning of the text may appear plain in isolation ofpurpose, that meaning should always be cross checked against purpose inorder to observe the dual requirements of s 5. In determining purpose the courtmust obviously have regard to both the immediate and the general legislativecontext. Of relevance too may be the social, commercial or other objective ofthe enactment.The Environment Court's treatment of pt 2[80] Here, the Environment Court held, with reference to RJ Davidson, that it is"necessary to have regard to Part 2, when it is appropriate to do so", but reference topt 2 is "unlikely to add anything" where it is clear a plan has been competentlyprepared having regard to pt 2.140 "[A]bsent such assurance, or if in doubt, it will beappropriate and necessary to do so".141 The Court considered submissions aboutwhether reference to pt 2 was required here, in particular regarding the relationshipbetween the NPSET and NZCPS, or whether those instruments were clear and hadbeen reconciled in the formulation of the RCEP.142 The Court considered evidence ofexpert planning witnesses about whether to refer to pt 2,143 which is irrelevant and anerror given that the necessity or otherwise of reference to pt 2 is an issue of law. TheCourt said:[68] We agree that the RCEP is comprehensive, has been tested throughhearing and appeal processes and provides a clear policy framework andconsenting pathway for these applications. Accordingly, our evaluation of thestatutory provisions focusses on the relevant policies in the RCEP. We alsoaddress the higher order policy documents and the District Plan.139 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 at [22].140 Environment Court, above n 1, at [59].141 At [59].142 At [60]–[67], citing Royal Forest and Bird Protection Society of New Zealand Inc v Bay of PlentyRegional Council, above n 128, and related Environment Court judgments.143 At [66].[81] The Court acknowledged the need to give effect to national policy statementsaccording to their particular terms, rather than on the basis of a broad overalljudgment.144[82] In the final two paragraphs of its concluding reasoning, after rejecting theargument that the NZCPS required consent to be declined, the Court said:[269] The NPSET, the RCEP and the District Plan also contain relevantobjectives and policies to which we must have regard under s 104(1)(b). Theregional and district plans generally treat both the protection of ONFLs andthe provision of network infrastructure as desirable, but do not go further toparticularise how those broad objectives or policies are to be pursued or howpotential conflict between them is to be resolved. Policy 6 of the NPSETguides us to using a substantial upgrade of transmission infrastructure as anopportunity to reduce existing adverse effects of transmission, and theproposal is consistent with that. There is no guidance in either the NPSET orthe NZCPS as to how potential conflict between those national policies is tobe resolved.[270] As noted above, where a decision-maker is faced with a range ofcompeting concerns, and no possible outcome would be wholly withoutadverse effects, we must reach a decision as to which outcome better promotesthe sustainable management of natural and physical resources, as defined in s5 RMA. In the absence of any practicable alternative, the obviouscounterfactual to the proposal is the status quo. In our judgment, the removalof the existing line and its relocation within the Road zone applying to SH29A and above the Maungatapu Bridge is more appropriate overall andtherefore better than leaving the line where it is.Submissions on pt 2 and the overall judgment approach[83] Mr Gardner-Hopkins, for TEPS and Ngāti Hē, submits the Court erred byfailing to assess the proposal against pt 2, including ss 6(3), 7(a) and 8, directly. Thenature of the issues, the meaning of the policies and the relationship between theNZCPS and NPSET made it "appropriate and necessary" for it to do so. He submitsthe Court erred in applying an overall judgment of the proposal against s 5 selectively,without analysis, and without consideration of the balance of pt 2. RJ Davidson doesnot mean that reference to pt 2 only occurs if there is a problem. Rather, pt 2 andsuperior planning instruments must be taken into account in a difficult case, as it washere. He submits that pt 2 should be used in a purposive interpretation of the terms inthe RCEP.144 At [92].[84] Mr Beatson, for Transpower, submits:(a) EDS v King Salmon rejected the previous "overall broad judgmentapproach". RJ Davidson confirms recourse to pt 2 is only necessarywhere there is a question as to whether a plan has been competentlyprepared having regard to pt 2. The Court was correct that it is up to adecision-maker to give competing policies such weight as it thinksnecessary in the context.(b) The Court found there is no need for an overall evaluation under pt 2 atthe consenting stage where plans have been prepared having regard topt 2. Here, the Court found the RCEP is comprehensive and providesa clear policy and consenting pathway for the project, so it focussed onthe RCEP policies. The relevance to a proposal of higher orderdocuments, which have been reconciled and prepared in accordancewith pt 2, does not justify concluding it is unclear as to whether consentshould have been granted. No defect within the RCEP has beenidentified that makes recourse to pt 2 necessary. The Court's concludingparagraphs were not attempting to undertake a pt 2 analysis.(c) Regardless of its decision that recourse to pt 2 was not necessary, theCourt carefully set out the cultural evidence provided by witnesses, theconsultation undertaken by Transpower, the potential cumulativecultural effects and how the cultural effects on both hapū would beimpacted by the proposal. That is the same analysis that would beundertaken under ss 6(e), 7(a) and 8. Addressing those sections directlywould have added nothing. Sections 7(b), 7(c) and 7(f) of pt 2 of theRMA would also be relevant. The conclusions reached wouldinevitably have been the same.[85] Ms Hill, for the Councils, submits the Environment Court exercised adiscretionary judgment not to consider the proposal against pt 2.145 As the Court ofAppeal held in RJ Davidson, assessment against pt 2 is only necessary where a plan145 Environment Court, above n 1, at [59]–[68].has not been competently prepared in accordance with pt 2. The Court correctlyobserved that, in applying the policies, no specific outcomes are particularised and nooutcome that would wholly avoid adverse effects was possible.146 Its consideration ofs 5 did not purport to be an assessment against pt 2.Did the Court err in its approach to pt 2?[86] I outlined above the proper approach to pt 2 of the RMA and the legal defectsof the overall judgment approach. Consistent with EDS v King Salmon andRJ Davidson Family Trust, a Court will refer to pt 2 if careful purposive interpretationand application of the relevant policies requires it. That is close to, but not quite thesame as, Mr Gardner-Hopkins' submission that recourse to pt 2 is required "in adifficult case". To the extent that Mr Beatson's and Ms Hill's submissions attempt toconfine reference to pt 2 only to situations where a plan has not been assessed as"competently prepared", I do not accept them.[87] Mr Beatson is correct that the Court here considered that the RCEP iscomprehensive and provides a clear policy framework and consenting pathway for theproposal.147 The Court also correctly acknowledged the need to give effect to theNational Policy Statement according to their particular terms "rather than on the basisof a broad overall judgment".148 But the Court did not provide the careful analysisrequired of how the relevant planning instruments should be interpreted and appliedto the proposal. It stated that the planning instruments contain "relevant objectivesand policies to which we must have regard".149 That generic characterisation recallsthe overall judgment approach that the Supreme Court ruled out in EDS v KingSalmon. The planning instruments are more than "relevant" and the Court must domore than "have regard" to them.[88] In the last two paragraphs of its reasoning, the Court characterised the regionaland district plans as generally treating as desirable both the protection of ONFL andprovision of network infrastructure. It characterised Policy 6 of the NPSET as guiding146 At [269].147 At [68].148 At [92].149 At [269].it to reduce existing adverse effects of transmission. But the Court said the NPSETand NZCPS do not provide guidance as to how potential conflict between them shouldbe resolved. So it fell back on reaching "a decision as to which outcome betterpromotes the sustainable management of natural and physical resources, as defined ins 5 RMA".150 In only two further sentences, the Court made a "judgment" that theproposal was "more appropriate overall" than the status quo.151 This is effectively,and almost explicitly, the application of an overall judgment approach. As such, it wasan error of law.[89] Instead, what the Court was required to do was to carefully interpret themeaning of the planning instruments it had identified, the RCEP in particular, andapply them to the proposal. If the text of the RCEP was not sufficient to do that, asthe Court considered they were not, it was required to have recourse to the higher-level instruments such as the NZCPS and NPSET, and to pt 2 of the Act. The Courtdid consider the NZCPS and NPSET and found them insufficient. Yet all partiesagreed the Court did not have recourse to pt 2.[90] The Court's approach to pt 2, and its use of an overall judgment approach, wasa legal error. Whether that makes sufficient difference to the outcome to sustain theappeal depends on the outcome of that exercise, which I examine next.Issue 4: Did the Court err in interpreting and applying the planning instruments?[91] The submissions on this ground of appeal centred on whether one nationalpolicy statement, the NZCPS, is inconsistent or takes priority over another, theNPSET. Lying behind that were submissions as to whether the NZCPS or the RCEPcontains directive provisions determining the result of the application.The RMA and bottom lines[92] The Supreme Court in EDS v King Salmon clarified that a policy of preventingadverse effects of development on particular areas is consistent with the sustainable150 At [270].151 At [270].management purpose of the RMA.152 It held that "avoid", in s 5 and the NZCPS, is astrong word that has its ordinary meaning of "not allowing" or "preventing theoccurrence of".153 The use in s 5 of "remedying and mitigating" indicates thatdevelopments with adverse effects could be permitted if they were mitigated orremedied, assuming they were not avoided.154[93] Specific decisions depend on the application of the hierarchy of planninginstruments. Accordingly, the RMA envisages that planning documents may (or maynot) contain "environmental bottom lines" that may determine the outcome of anapplication.155 This illustrates why it is important to focus on, and apply, the text ofthe planning instruments rather than simply mentioning them and reaching some"overall judgment".156[94] The RMA also envisages that there may be cultural bottom lines. As Whata Jstated recently in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd, " thereis comprehensive provision within the RMA for Māori and iwi interests, bothprocedurally and substantively".157 The cascading hierarchy of the RMA, and thelegal instruments under it, accord an important place to the cultural values of Māori.That is reflected in pt 2 of the Act:(a) The core purpose of the Act, stated in s 5, is to promote sustainablemanagement by managing the "use, development and protection ofresources in a way which enables people and communities" to providefor their "social, economic, and cultural well-being" at the same timeas sustaining the potential of resources to meet the reasonablyforeseeable needs of future generations.(b) The requirements on all persons exercising functions and powers underthe Act in relation to "managing the use, development, and protectionof natural and physical resources":152 EDS v King Salmon, above n 112, at [24](d).153 At [24](b), [96] and [126].154 At [24](b).155 At [47].156 At [39]–[41].157 Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768 at [29].(i) to "recognise and provide for" "the relationship of Maori andtheir culture and traditions with their ancestral lands, water,sites, waahi tapu, and other taonga" as one matter of nationalimportance in s 6(e);(ii) to "have particular regard to" kaitiakitanga in s 7(a); and(iii) to "take into account the principles of the Treaty of Waitangi(Te Tiriti o Waitangi)" in s 8.Māori values in the RMA recognised in case law[95] The implications of those pt 2 provisions have been recognised in case law.In 2000, in his last sitting in the Judicial Committee of the Privy Council inMcGuire v Hastings District Council, Lord Cooke described pt 2 of the RMA as"strong directions, to be borne in mind at every stage of the planning process".158 Theymean "that special regard to Māori interests and values is required in such policydecisions as determining the routes of roads".159 In that case, which involved achallenge to the designation of a road through Māori land, the Privy Council held "ifan alternative route not significantly affecting Maori land which the owners desire toretain were reasonably acceptable, even if not ideal, it would accord with the spirit ofthe legislation to prefer that route".160 This principle would extend to not constructingthe new route at all in that case if "other access was reasonably available".161 Allauthorities making decisions are therefore "bound by certain requirements, and theseinclude particular sensitivity to Maori issues".162 The Judicial Committee wassatisfied that Māori land rights are adequately protected by the RMA.163[96] Similarly, in 2014 the Supreme Court in EDS v King Salmon affirmed that "theobligation in s 8 to have regard to the principles of the Treaty of Waitangi will haveprocedural as well as substantive implications, which decision-makers must always158 McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577 at [21].159 At [21].160 At [21].161 At [21].162 At [21].163 At [29].have in mind".164 In its reasoning rejecting the "overall judgment approach", theSupreme Court held that s 58 of the RMA was inconsistent with the NZCPS being nomore than a statement of relevant considerations.165 Section 58 contemplates thepossibility, depending on the meaning of the planning instruments, that there might beabsolute protection from the adverse effects of development — a potentialenvironmental bottom line.[97] The Supreme Court's emphasis on s 58 is also relevant to this case. Section58(1)(b) empowers a NZCPS to state objectives and policies about "the protection ofthe characteristics of the coastal environment of special value to the tangata whenuaincluding waahi tapu, tauranga waka, mahinga mataitati, and taonga raranga" and, ins 58(1)(gb), "the protection of protected customary rights". This indicates that culturalbottom lines, as well as environmental bottom lines, can be provided for under theNZCPS. Whether there are particular cultural bottom lines depends on the text andinterpretation of the relevant planning instruments.[98] In 2020, the Court of Appeal in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board (currently under appeal to the Supreme Court), theCourt of Appeal considered an appeal of decisions on consent applications under theExclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.166The Court held the decision-maker erred by "failing to give separate and explicitconsideration" to environmental bottom lines; failing to address the effects of theproposals on the cultural and spiritual elements of kaitiakitanga; and in failing toidentify relevant environmental bottom lines under the NZCPS and consider whetherthe proposal would be consistent with them.167[99] The Court held the interests of Māori in relation to all taonga, referred to in theTreaty of Waitangi and regulated by tikanga, were included in a statutory requirementto take into account the effects of activities on "existing interests".168 It held it wasnecessary for the decision-maker to "squarely engage with the full range of customary164 EDS v King Salmon, above n 112, at [88].165 At [117].166 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, above n 89.167 At [12](a), [12](c), and [12](d) and [201].168 At [163] and [177].rights, interests and activities identified by Māori as affected by the TTR proposal, andto consider the effect of the proposal on those existing interests".169 The Court stated:[174] In this case, the DMC needed to engage meaningfully with the impactof the TTR proposal on the whanaungatanga and kaitiakitanga relationshipsbetween affected iwi and the natural environment, with the sea and othersignificant features of the marine environment seen not just as physicalresources but as entities in their own right – as ancestors, gods, whānua – thatiwi have an obligation to care for and protect.[100] Also in 2020, in Ngāti Maru v Ngāti Whātua Ōrakei Whaia Maia Ltd, aftercomprehensively traversing the ways in which the RMA recognises Māori culturalvalues, Whata J observed that:170[73] the obligation 'to recognise and provide for' the relationship of Māoriand their culture and traditions with their whenua and other tāonga mustnecessarily involve seeking input from affected iwi about how theirrelationship, as defined by them in tikanga Māori, is affected by a resourcemanagement decision. [102] where an iwi claims that a particular resource management outcomeis required to meet the statutory directions at ss 6(e) , 6(g) 7(a) and 8 (or otherobligations to Māori), resource management decision-makers mustmeaningfully respond to that claim. The NZCPS and NPSET[101] The NZCPS and NPSET are national policy statements which bear on theinterpretation of lower order planning instruments. The NZCPS of 1994 was the firstnational policy statement formulated. It was substantially revised in 2010, under s 58of the RMA. Under s 56, the purpose of a NZCPS is "to state objectives and policiesin order to achieve the purpose of this Act in relation to the coastal environment ofNew Zealand". Under ss 62(3), 67(3) and 75(3), regional policy statements, regionalplans and district plans must "give effect" to the NZCPS. Its 29 policies support sevenstated objectives. The relevant Objectives and Policies are set out in the Annex to thisjudgment. As explored further below they involve three sets of relevant values:protection of natural features and landscape; culture; and social, economic, andcultural values.169 At [170].170 Ngāti Maru v Ngāti Whātua Ōrakei Whaia Maia Ltd, above n 157.[102] Policy 15 of the NZCPS was a particular focus in EDS v King Salmon and isin this case too. The Supreme Court held that:(a) Policy 15 of the NZCPS, in relation to natural features and landscapes,states a policy of directing local authorities to avoid adverse effects ofactivities on natural character in areas of outstanding natural landscapesin the coastal environment.171(b) The overall purpose of the direction is to "protect the natural featuresand natural landscapes (including seascapes) from inappropriatesubdivision, use and development".172 It provides a graduated schemeof protection that requires avoidance of adverse effects in outstandingareas but allows for avoidance, mitigation or remedying in others.173(c) The broad meaning of "effect" in s 3 must be assessed against theopening words of the policy.174 Consistent with Objectives 2 and 6,"avoid" in Policy 15 bears its ordinary meaning as stated above.175Similarly, "inappropriate" use and development should be assessedagainst the characteristics of the environment that the Policy seeks topreserve.176(d) Policies 15(a) and 15(b) provide "something in the nature of a bottomline".177 It considered "there is no justification for reading down orotherwise undermining the clear terms" of the policy.178[103] The NPSET was the second national policy statement formulated. Under s 45of the RMA its purpose is to "state objectives and policies for matters of nationalsignificance that are relevant to achieving the purpose of this Act". Sections 62(3),67(3) and 75(3) also require regional policy statements, regional plans and district171 EDS v King Salmon, above n 112, at [58] and [61].172 At [62].173 At [90].174 At [145].175 At [96].176 At [100]–[102] and [126].177 At [132].178 At [146].plans to effect to it. The NPSET sets out the objectives and policies for managing theelectricity transmission network under the RMA. The relevant Objectives and Policiesare also set out in full in the Annex to this judgment. They set out relevantconsiderations for, and impose requirements on, decision-makers.The relationship between the NZCPS and NPSET[104] In an interim judgment in Transpower New Zealand Ltd v Auckland Council¸Wylie J considered the respective relationships of the NZCPS and NPSET to thepurposes of the RMA.179 He noted that documents lower in the planning hierarchy arerequired to give effect to both of them and he considered EDS v King Salmon.180 Henoted that a national policy statement "can provide that its policies are simply mattersdecision-makers must consider in the appropriate context, and give such weight asthey consider necessary" and accepted that the NPSET does so provide.181 Beforeundertaking a detailed analysis of the text of the NPSET policies, regional policystatement and district plan provisions relevant there, he said:[83] I also agree with Ms Caldwell and Mr Allan that the New Zealand CoastalPolicy Statement at issue in King Salmon, and the NPSET, derive fromdifferent sections of the Act, which use different terms. Section 56 makes itclear that the purpose of the New Zealand Coastal Policy Statement is to statepolicies in order to achieve the purpose of the Act. In contrast, the NPSET waspromulgated under s 45(1). Its purpose is to state objectives and policies thatare relevant to achieving the purpose of the Act. Section 56 suggests that theNew Zealand Coastal Policy Statement is intended to give effect to the Part 2provisions in relation to the coastal environment. A national policy statementpromulgated pursuant to s 45 contains provisions relevant to achieving theResource Management Act's purpose. The provisions are not an exclusive listof relevant matters and they do not necessarily encompass the statutorypurpose. In this regard I note that a number of the policies relied on in thiscase, including Policy 10, start with the words "(i)n achieving the purpose ofthe Act".[84] I accept the submission advanced by Ms Caldwell and Mr Allan that theNPSET is not as all embracing of the Resource Management Act's purpose setout in s 5 as is the New Zealand Coastal Policy Statement. In my judgment, adecision-maker can properly consider the Resource Management Act'sstatutory purpose, and other Part 2 matters, as well as the NPSET, whenexercising functions and powers under the Resource Management Act. Theyare not however entitled to ignore the NPSET; rather they must consider it andgive it such weight as they think necessary.179 Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [77]–[84].180 At [77]–[78].181 At [82].Regional and District planning instruments[105] Regional and District planning instruments sit below the national policystatements but are more detailed in their provisions. The RCEP is required bys 67(3)(b) of the RMA to give effect to the NZCPS and national policy statementsincluding the NPSET. The RCEP sets out issues, objectives and policies in relation tothe coastal environment in the Bay of Plenty regarding the same three sets of valuesas the NZCPS and taking into account the requirements of the NPSET. The relevantprovisions of the RCEP involve the same three sets of values involved in the NZCPSnoted above.[106] Consent authorities consider the granting of consents under s 104 of the RMA,which provides that "the consent authority must, subject to Part 2, have regard to:actual and potential effects on the environment of allowing the activity; relevantprovisions of planning instruments; and any other matter it considers relevant andnecessary". Here, the Resource Management (National Environmental Standards forElectricity Transmission Activities) Regulations 2009 (NESETA Regulations) specifywhat activities relating to existing transmission lines are permitted, controlled,restricted discretionary, discretionary, or non-complying. They are nationalenvironmental standards made under s 43 of the RMA and take precedence over theDistrict Plan, under s 43B. Transpower's proposal here involved controlled, restricteddiscretionary or discretionary activities under the NESETA Regulations.182[107] The Tauranga City Plan is a District Plan for the purposes of s 43AA of theRMA. Its purpose is to enable the Council to carry out its functions under the RMA.Relevant provisions are included in the Annex. They involve the same three sets ofvalues involved in the NZCPS and RCEP.The Court's treatment of the planning instruments[108] The Environment Court agreed that the RCEP is comprehensive, has beentested and "provides a clear policy framework and consenting pathway for theseapplications."183 Accordingly, its "evaluation of the statutory provisions focusses on182 Environment Court, above n 1, at [55] and Table 1.183 At [68].the relevant policies in the RCEP". It also addressed the higher order policydocuments and the District Plan.[109] After outlining the NPSET and the NZCPS in its decision, the EnvironmentCourt noted the Transpower New Zealand Ltd v Auckland Council decision. Despiteits later recourse to an overall judgment approach, the Court said:[77] There is no basis on which to prefer or give priority to the provisions ofone National Policy Statement over another when having regard to them unders 104(1)(b) RMA, much less to treat one as "trumping" the other. What isrequired by the Act is to have regard to the relevant provisions of all relevantpolicy statements. Where those provisions overlap and potentially pull indifferent directions, then the consent authority or this Court on appeal, mustcarefully consider the terms of the relevant policies and how they may applyto the relevant environment, the activity and the effects of the activity in theenvironment.[110] The Court noted no party had identified any policy in the RPS which set outanything not otherwise found in the other planning instruments. It noted the RCEPgives effect to the RPS through more specific direction, and there was no contest inrelation to any of the RPS provisions.184 Therefore, it did not quote any of the RPSprovisions. It set out relevant provisions of the RCEP. It considered it should haveregard to the District Plan and iwi management plans and outlined some of theirrelevant provisions.[111] The Court addressed the issue of whether the proposal is a maintenance projector an upgrade, and whether it includes new infrastructure, for the purposes of Policies4 and 6 of the NPSET.185 It agreed with expert evidence that the proposal is a"substantial" rather than "major" upgrade and that it is not new infrastructure.186 TheCourt also said it was guided by Policies 7 and 8 of the NPSET but concluded thosepolicies were not determinative. They are expressed to deal with the planning anddevelopment of the transmission system, which "indicates these policies relate tofuture and new works rather than to upgrades of the existing system".187184 At [78].185 From [145].186 At [150].187 At [152].[112] The Court said its assessment of cultural effects was not assisted by the RCEPbecause it "is not specific about cultural values and attributes of Rangataua Bay / TeAwanui".188[113] In its concluding reasoning, the Court said:[259] While a range of competing concerns have been raised, and nopossible outcome would be wholly without adverse effects, we must reach adecision as to which outcome better promotes the sustainable management ofnatural and physical resources, as defined in s 5 RMA.[267] The relevant policy framework applicable to the assessment of theseeffects of the proposal is extensive, as set out earlier in this decision, and isnot limited to Policy 15 of the NZCPS. In having regard to the statutoryplanning documents under s 104(1)(b) RMA we must undertake a fairappraisal of the objectives and policies read as a whole.189 We do not acceptthe argument that Policy 15 would require consent to be declined or theproposal to be amended on the basis that it has adverse effects on the ONFL.As a policy, it does not have that kind of regulatory effect. In its terms, itrequires avoidance of adverse effects of activities on the ONFL to protect thenatural landscape from inappropriate use and development. The policy doesnot entail that any use or development in an ONFL would be inappropriate.The identification of what is inappropriate requires a consideration of whatvalues and attributes of the environment are sought to be protected as anONFL and what the effects of the use or development may be on the thingswhich are to be protected.[268] It is important to note that this is not a proposal to undertake and use anew intensive commercial development in an ONFL. The existingenvironment of the ONFL includes the existing bridge and national gridinfrastructure.[269] The NPSET, the RCEP and the District Plan also contain relevantobjectives and policies to which we must have regard under s 104(1)(b). Theregional and district plans generally treat both the protection of ONFLs andthe provision of network infrastructure as desirable, but do not go further toparticularise how those broad objectives or policies are to be pursued or howpotential conflict between them is to be resolved. Policy 6 of the NPSETguides us to using a substantial upgrade of transmission infrastructure as anopportunity to reduce existing adverse effects of transmission, and theproposal is consistent with that. There is no guidance in either the NPSET orthe NZCPS as to how potential conflict between those national policies is tobe resolved.[270] As noted above, where a decision-maker is faced with a range ofcompeting concerns, and no possible outcomes would be wholly without188 At [194].189 Dye v Auckland Regional Council, above n 127, at [25]; and RJ Davidson Family Trust vMarlborough District Council, above n 116, at [73].adverse effects, we must reach a decision as to which outcome better promotesthe sustainable management of natural and physical resources, as defined ins 5 RMA. In the absence of any practicable alternative, the obviouscounterfactual to the proposal is the status quo. In our judgment, the removalof the existing line and its relocation within the Road zone applying to SH29A and above the Maungatapu Bridge is more appropriate overall andtherefore better than leaving the line where it is.Submissions on application of the planning instruments[114] Mr Gardner-Hopkins, for TEPS and Ngāti Hē, submits:(a) The Court erred in not giving the more directive provisions of theNZCPS priority over the less directive provisions of the NPSET.NZCPS is a mandatory document at the top of the hierarchy of planninginstruments with the purpose under s 56 of achieving the purpose of theRMA. It could have, but did not, refer specifically to NPSET. TheNPSET states objectives and policies that are only relevant to achievingthe purpose of the RMA. The NPSET is not as all-embracing of theRMA's purpose. It was intended to be only a guide for decision-makers— a relevant consideration, subject to pt 2, which is not to prevail overthe RMA's purpose. Accordingly, if one national policy statement hasto give way to another, the NPSET must give way to the NZCPS,particularly Policy 15.(b) The Court erred in finding that the proposal constitutes a substantial,rather than a major, upgrade and that it is not new infrastructure. Thisfollows from the extent of works proposed in a different location,amounting to almost 40 new structures and several kilometres of lines,the benefit to mana whenua as promoted by Transpower, and the majornature of some of the new poles such as Poles 33C and 33D.Accordingly, the Court should have applied Policy 4 of the NPSET,which contains an "avoid" directive, rather than Policy 6.(c) The Court failed to have regard to Policy IW 2 of the RCEP and itsdirective to avoid adverse effects on sites of cultural significance or tobe sure that it is not possible to avoid them or not practicable tominimise them. It also failed to apply NH 4, which provides thatadverse effects on the values and attributes of ONFLs must be avoided.Policy SO 1 confirms the primacy of IW 2 and NH 4.[115] Mr Beatson, for Transpower, submits:(a) There is no difference in the status of the NZCPS and the NPSET.When they are both engaged and read together, the specific overridesthe general, according to EDS v King Salmon and Transpower NewZealand Ltd v Auckland Council. Therefore, the "reduce existingadverse effects" language in Policy 6 and "seek to avoid" language ofPolicy 8 of the NPSET should be preferred over the NZCPS "avoid".Making anything of the silence of NZCPS as to NPSET is a speculativeand fruitless exercise.(b) There is no bottom line, or absolute policy of avoidance of all adverseeffects, in Policy 15(a) of the NZCPS. That policy directs that theadverse effects of inappropriate development should be avoided, whichis context-dependent. The Court assessed the proposal against Policy15(a) and other instruments. Policy IW 2 of the RCEP does not havedirect relevance to this ground of appeal because it does not referencethe criteria in set 2 to the RPS. The Court accepted Ms Golsby's expertplanning evidence for the Council that Policy IW 2 does not directavoidance of all adverse effects, as it allows remedying, mitigating andoffsetting them.190(c) In any case, the RCEP gives effect to both the NZCPS and NPSET, asit is required to do by s 67(3) of the RMA. It reconciles the tensionsbetween them. As the Environment Court held in Infinity InvestmentGroup Holdings Ltd v Canterbury Regional Council, higher order190 Reply Evidence of Paula Golsby, 4 April 2019 at [26] (CBD 203.0824).instruments should be regarded as particularised in the relevant planunless there is a problem with the plan itself.191(d) The Court presumably did not engage with Policies NH 4, NH 5 andNH 11 on the basis of the evidence that effects on the ONFL wereavoided. If NH 4 is triggered, Policies NH 5(a) and NH 11(a) providean alternative consenting pathway. Transpower adopts the Councils'submissions on that issue. A project should not have to meet twodifferent thresholds within the same policy context. Policy IW 2 doesnot direct avoidance of all adverse effects, as it allows remedying,mitigating and offsetting them. The Court relied on the evidence ofMs Ryder for the Councils, and concluded the proposal was consistentwith NH 4.192(e) Even if there were adverse effects on the Māori values of ONFL 3, theywould not have made a difference to the outcome. Māori values areonly one part of the values and attributes associated with the ONFL.They would not necessarily lead to the conclusion there was an adverseeffect on the ONFL as a whole. ONFL 3 is identified in the RCEP ashaving existing infrastructure located within it, which must be relevantto assessing the appropriateness of its relocation.(f) The Court's findings that Policy 6 of NPSET had greater relevance thanPolicy 4, that the proposal was consistent with it, and that the findingthat the proposal is a substantial upgrade, are not susceptible to beingoverturned on appeal unless it is clear there is no evidence to supportthe interpretation. This is not the case.[116] Ms Hill, for the Councils, adopts Transpower's submissions. In addition, shesubmits:191 Infinity Investment Group Holdings Ltd v Canterbury Regional Council [2017] NZEnvC 35,[2017] NZRMA 479.192 Environment Court, above n 1, at [228]–[229]. Statement of Evidence of Rebecca Keren Ryder,11 February 2019 (CBD 202.0517).(a) The Environment Court correctly applied EDS v King Salmon bydirectly applying the RCEP without recourse to the NZCPS andNPSET. There is no authority requiring otherwise. The process ofreconciling the NZCPS and NPSET has already been undertakenthrough the recent development of the RCEP. If the Court is requiredto re-examine whether the NH policies appropriately reconcile relevantnational policy statement directions in every subsequent consentapplication, planning processes could be rendered futile.(b) The Court was not required to assess the proposal against the detail ofeach policy such as IW 2, but to undertake a fair appraisal of theobjectives and policies read as a whole. The Court did consider theproposal against the intent of IW 2. It carefully evaluated the culturaleffects based on the evidence of the tāngata whenua witnesses andMr Brown and gave considerable attention to cultural mitigationopportunities.193 It was conscious that the existing environmentincludes the existing bridge and national grid infrastructure.(c) The finding of adverse effects was not contrary to Policies IW 2 orNH 4(b) because: those policies require consideration as a whole;avoidance of adverse effects is not required by IW 2; NH 4(b) onlyrequires avoidance of effects on the particular "values and attributes"of ONFL 3; the effect of Poles 33C and 33D does not detract from theidentified factors, values, and associations with the ONFL of the wholeharbour; the Māori values component of the ONFL is only one ofseveral components; and the Court was unable to confirm there weresignificant effects on the Māori values of ONFL 3.Did the Court err in applying the planning instruments?[117] I agree it was reasonable for the Environment Court to focus particularly onthe RCEP as providing a clear policy framework and consenting pathway and as giving193 Environment Court, above n 1, at [165], [167], [194]–[220], [232], [233] and [244]–[248].effect to the RPS through more specific direction.194 There are provisions of the RPSand Tauranga City Plan that are relevant but they supplement and reinforce theinterpretation and application of the RCEP undertaken below. It is arguable thatprovisions of the Tauranga City Plan further constrain the decision.195 But this wasnot the subject of submission, so I do not consider it further.[118] The more major difficulty with the Court's decision is that, consistent with itsoverall judgment approach, the Court did not sufficiently analyse or engage with themeaning of the provisions of the RCEP or apply them to the proposal here. The Courtrejected the proposition that the NZCPS requires consent to be declined because itdoes not have that regulatory effect. It suggested the regional and district plans"generally treat both the protection of ONFLs and the provision of networkinfrastructure as desirable".196 But it considered they did not "particularise how thosebroad objectives or policies are to be pursued or how potential conflict between themis to be resolved".197 Then it mentioned Policy 6 of the NPSET and suggested there isno guidance as to how "potential conflict" between the NPSET and NZCPS is to beresolved, and moved to its overall judgment.198 As I held above, the Court'semployment of the overall judgment approach, and failure to analyse the relevantpolicies carefully, is an error of law.[119] The starting point is the RCEP. When they are examined carefully, the threesets of values in them can be seen to overlay and intersect with each other withoutconflicting.[120] Interpreting and applying the natural heritage provisions of the RCEP:(a) Issue 7 of the RCEP, which gives a clue to its purpose, is that "Māoricultural values associated with natural character, natural features andlandscapes are often not adequately recognised or provided forresulting in adverse effects on cultural values". Consistent with Policy194 At [68] and [78].195 For example, Policy 6A.1.7.1(g).196 At [269].197 At [269].198 At [269].15 of the NZCPS, Objective 2(a) is to protect the attributes and valuesof ONFL from inappropriate use and development "and restore orrehabilitate the natural character of the coastal environment whereappropriate".(b) Te Awanui is identified in sch 3 of the RCEP as ONFL with medium tohigh Māori values, "a significant area of traditional history andidentity" and as including "many cultural heritage sites", many ofwhich are recorded in iwi management plans and Treaty settlementdocuments. That is reinforced by the recognition in the Tauranga CityPlan of Te Ariki Pā/Maungatapu as a significant area for Ngāti Hē interms of mauri, wāhi tapu, kōrero tuturu and whakaaronui o te wa. Ifound in Issue 2 that the proposal would constitute a significant adverseeffect on the medium to high Māori values of Te Awanui at ONFL 3.(c) The natural heritage policies include a requirement on decision-makersin Policy NH 4 to avoid adverse effects on the values and attributes ofthe OFNL, in order to achieve Objective 2: protecting the attributes andvalues of ONFL from inappropriate use and development. This isconsistent with and reflected in the Tauranga City Plan, as it must be.As noted in relation to Issue 2, I consider the proposal's adverse effecton Ngāti Hē's values in ONFL 3 would constitute an adverse effect onthe ONFL.(d) Under Policies NH 4A and 9A respectively:(i) The assessment of adverse effects should: recognise theactivities existing at the time the area was assessed as ONFLand have regard to the restoration of the affected attributes andvalues and the effects on the cultural and spiritual values of thetāngata whenua.(ii) Recognise and provide for Māori cultural values, including by"avoiding, remedying or mitigating cumulative adverse effectson the cultural landscape", "assessing whether restoration ofcultural landscape features can be enabled", and "applying therelevant iwi resource management policies". Those policiesobject to power pylons and emphasise that "Marae provide thebasis for the cultural richness of Tauranga Moana".199(e) So, if a proposal is found to adversely affect the values and attributesof the ONFL having regard to all those considerations, as I have heldthis one does, the default decision is that it should be avoided under NH4.(f) But, nevertheless, Policy NH 5(a)(ia) requires decision-makers to"consider providing for" proposals that relate to the construction,operation, maintenance, protection or upgrading of national grid, eventhough will adversely affect those values and attributes. Policy 11(1)in turn sets out the requirements for NH 5(a) to apply, including that:(a) There are no practical alternative locations availableoutside the areas listed in Policy NH 4; and(b) The avoidance of effects required by Policy NH 4 isnot possible; and(d) Adverse effects are avoided to the extent practicable,having regard to the activity's technical andoperational requirements; and(e) Adverse effects which cannot be avoided areremedied or mitigated to the extent practicable.(g) Policies NH 4 and NH 5 do not conflict. NH 5 is simply an exception,if all the circumstances specified in NH 11 apply, to the default rule inNH 4, assessed by reference to NH 4A and NH 9A (including the iwimanagement plans).199 Ngāi Te Rangi Resource Management Plan. See also Te Awanui Tauranga Harbour IwiManagement Plan 2008 (Objective 1, Policies 1, 2, 10), Tauranga Moana Iwi Management Plan2016 (Policies 15.1, 15.2, 15.4).[121] The Iwi Resource Management Policies of the RCEP must also be applied:(a) Schedule 6 of the RCEP identifies Te Awanui as an ASCV, withreference to iwi management plans and other historical documents andTreaty settlement documents.(b) Policy IW 1 of the RCEP requires proposals "which may" affect therelationship of Māori and their culture, traditions and taonga, to"recognise and provide" for" areas of significant cultural valueidentified in sch 6, and other sites of cultural value identified in hapūresource management plans or evidence. Policy IW 5 provides that"only tāngata whenua can identify and evidentially substantiate theirrelationship and that of their culture and traditions with their ancestrallands, water, sites, wāhi tapu and other taonga".(c) Similarly, but slightly differently to Policy NH 4, Policy IW 2 requires"adverse effects on resources or areas of spiritual, historical or culturalsignificance to tāngata whenua in the coastal environment identifiedusing criteria consistent with those included in Appendix F set 4 to theRPS" to be avoided as a default. As Advice Note 2 states, ASCVs arelikely to strongly meet one or more criteria in Appendix F. Unlike theONFL, the ASCV applies directly to the land on which the Marae issituated. I held in Issue 2 that the proposal constitutes a significantadverse effect on an area of cultural significance to Ngāti Hē.(d) The qualification in IW 2 is that, where avoidance is "not practicable",the adverse effects must be remedied or mitigated. Where that is notpossible either, it may be that offsetting positive effects can beprovided. Policy 7C.4.3.1 of the District Plan expands slightly on that.[122] The issues, objectives and policies related to activities in the coastal marinearea must also be interpreted and applied:(a) Issue 40 recognises that activities in the coastal marine area canpromote social, cultural, and economic wellbeing, may need to belocated in the coastal marine area in appropriate locations and inappropriate circumstances, but may cause adverse effects.(b) Policy SO 1 recognises infrastructure is appropriate in the coastalmarine area but that is explicitly made subject to the NH and IWpolicies "and an assessment of adverse effects on the location", whichinvolve the practicability tests as above. That is reinforced byObjective 10A.3.3 and Policies 10A.3.3.2(c) and 10A.3.3.2(d) of theDistrict Plan that minor upgrading of electric lines "avoids ormitigates" and "address[es]", respectively, potential adverse effects.Objective 10B.1.1 and Policy 10B.1.1.1 of the District Plan providesthat adverse effects should be "avoided, remedied or mitigated to theextent practicable". Policy 10A.3.3.1 requires network utilityinfrastructure to be placed underground unless certain conditions apply.[123] So, read carefully together, the iwi resource management policies areconsistent with the natural heritage policies and with the structures and occupation ofspace (SO) policies:(a) Policy IW 2 of the RCEP requires that adverse effects on areas ofspiritual, historical or cultural significance to tāngata whenua must beavoided "where practicable". The Environment Court erred in failingto interpret and apply Policy IW 2. This is not a matter of evidence,however expert. Expert witnesses cannot and should not give evidenceon issues of law, as it appears Ms Golsby was permitted to do.200 Theinterpretation and application of the law is a matter for the Court.(b) Similarly, Policies NH 4 and 4A of the RCEP require that "adverseeffects must be avoided on the values and attributes of ONFL".However, a decision-maker can still consider providing for a proposalin relation to the national grid if, under NH 5(a)(ia) and NH 11(1), there200 Reply Evidence of Paula Golsby, 4 April 2019 at [26] (CBD 203.0824).are "no practical alternative locations available" outside the areas listedin NH 4, the "avoidance of effects" is not possible, and "adverse effectsare avoided to the extent practicable, having regard to the activity'stechnical and operational requirements". The Court did not apply theseeither.(c) I do not accept the submission that there cannot be two differentthresholds in the IW and NH policies. The thresholds are similar andmust each be satisfied for the proposal to proceed.(d) Policies NH 4 and NH 5 do not conflict. NH 5 is simply an exception,in the circumstances specified in NH 11, to the default rule in NH 4,assessed by reference to NH 4A and NH 9A.(e) Under Policy SO 1, the analysis of adverse effects overrides the defaultapproach that infrastructure is appropriate in the coastal marine area.Policy SO 2 also invokes the requirements of both the NZCPS andNPSET.[124] The last point expressly directs reference to the "requirements" of NZCPS andNPSET. Even if it did not, as I held in Issue 3, a Court will refer to pt 2 and higherorder planning instruments if careful purposive interpretation and application of therelevant policies requires that. But it is wrong to turn first to the NZCPS and NPSET.Whether consent needs to be declined depends on an application of the RCEP (andDistrict Plan) provisions interpreted in light of the NZCPS and NPSET.[125] I agree with the Environment Court that the NZCPS itself does not necessarilyrequire consent to be declined.201 That is clear on the face of the relevant policies andbecause of the operative role of the RCEP. I also agree with the Court that, in relationto the issues at stake here, neither the NZCPS nor the NPSET should necessarily betreated as "trumping" the other and neither should be given priority over or "give way"to the other.202 As the Supreme Court in EDS v King Salmon stated, their terms should201 Environment Court, above n 1, at [267].202 At [77].be carefully examined and reconciled, if possible, before turning to that question. Itmay be that, in relation to a specific issue, the terms of one policy or another is morespecific or directive than another, and accordingly bear more directly on the issue, ascounsel submit. In Transpower New Zealand Ltd v Auckland Council, Wylie Jcharacterised the NPSET as providing relevant considerations in general.203 I agreethat a number of the policies do that. And it may be that the NPSET is not as "allembracing" of the RMA's purpose as the NZCPS.204 But the terms of both nationalpolicies inform the interpretation and application of the relevant planning instrumentto the specific issue in determining the outcome, as Wylie J demonstrated.205[126] I do not agree with the implication of the Environment Court's reasoning thatthe NZCPS and NPSET conflict in their application to this proposal.206 I accept thesubmissions of Mr Beatson and Ms Hill that, in relation to this issue, the RCEP giveseffect to the NZCPS and NPSET and reconciles them. I consider their requirementsare consistent with each other as expressed in both the RCEP and District Plan. Inmore detail:(a) Objective 2 and Policy 15 of the NZCPS, as interpreted by the SupremeCourt in EDS v King Salmon, reinforce the nature of the natural heritagepolicies of the RCEP as bottom lines in requiring adverse effects to beavoided. The circumstances in which use and development are"appropriate" under Policy 15 are set out in the RCEP. Adverse effectsshould be avoided, but may be considered if no practical alternativelocations are available, avoidance of adverse effects is not possible andthey are avoided to the extent "practicable".(b) Objective 3 and Policy 2 of the NZCPS, as outlined above, reinforcethe Iwi Resource Management policies of the RCEP as cultural bottomlines in requiring adverse effects to be avoided unless "not practicable".203 Transpower New Zealand Ltd v Auckland Council, above n 179, at [82].204 At [84].205 At [85]–[104].206 Environment Court, above n 1, at [269].(c) Objective 6 and Policy 6 of the NZCPS reinforce the recognition inIssue 40 and Policies SO 1 and SO 2 of the importance to well-being ofuse and development of electricity transmission in "appropriate placesand forms" on the coast or coastal marine area and within "appropriatelimits". Policy 6 specifically references the need to make "appropriate"provision for marae and associated developments of tāngata whenua, to"consider how adverse visual impacts of development can be avoided"and "as far practicable and reasonable" apply controls of conditions toavoid those effects. Policy 6 also recognises that activities with a"functional need to be located in the coastal marine area" should be, in"appropriate" places, and those that do not, should not.(d) The NPSET similarly recognises the national significance of electricitytransmission while managing its adverse effects. Policies 2, 5, 6, 7 and8 put requirements on decision-makers. But Policy 2 is general inrequiring that they "recognise and provide for the effective operation"etc of the network. Policy 5 is more specific in requiring decision-makers to "enable the reasonable operational, maintenance and minorupgrade requirements of transmission assets when consideringenvironmental effects. That is consistent with the general requirementsof the NZCPS as expressed in the more detailed regime for doing so setout in the RCEP and District Plan. Policy 6 is relative, in requiringdecision-makers to "reduce" existing adverse effects where there are"substantial upgrades of transmission infrastructure". And Policies 7and 8 are consistent with the NZCPS and RCEP in requiring decision-makers to "avoid" or "seek to avoid" certain adverse effects.[127] I do not consider Mr Gardner-Hopkins' submission that the Court erred infinding the proposal constitutes a "substantial" rather than "major" upgrade makesmuch difference to the outcome. Policy 4 of the NPSET requires decision-makers to"have regard" to the extent to which adverse effects of major upgrades have beenminimised, which must be relevant anyway, under other provisions. Policy 6 adds anelement of proactivity in requiring "substantial upgrades" to be used as an opportunityto "reduce existing adverse effects". Each bears on the outcome of the application,but neither is determinative. If it does matter, I consider it was open to the Court tofind the proposal was a "substantial" upgrade on the basis of the evidence before it. Iam more dubious about the Court's conclusion that Policies 7 and 8 relate only tofuture and new works rather than to upgrades of the existing system. I see no reasonwhy upgrades do not involve planning of the transmission system and the purpose ofthose policies, of avoiding adverse effects, may apply to upgrades.[128] More generally, to the extent that there is room for differences to be foundbetween the NZCPS and NPSET, both instruments are reconciled and given effect inthe RCEP and District Plan. But the Court needed to carefully interpret the RCEP andapply it to the facts here, as outlined above, in light of the higher order instruments.Reference to the general principles in pt 2 of the Act, particularly ss 6(e), 7(a) and 8,simply confirms the analysis undertaken above.[129] I found in Issue 2 that as a matter of fact and law, the proposal would have asignificant adverse effect on an "area of spiritual, historical or cultural significance totāngata whenua" and a significant adverse effect on the medium to high Māori valuesof Te Awanui at ONFL. That means the bottom lines in Policies IW 2 and NH 4 ofthe RCEP respectively may be invoked:(a) Under IW 2, the adverse effects on Rangataua Bay as an "area ofspiritual historical or cultural significance to tāngata whenua" must beavoided "where practicable".(b) Under NH 4, NH 5(a)(ia) and NH (11), the adverse effects on themedium to high Māori values of Te Awanui at ONFL 3 must be avoidedunless there are "no practical alternative locations available", and the"avoidance of effects is not possible", and "adverse effects are avoidedto the extent practicable".[130] So, whether the cultural bottom lines in the RCEP are engaged depends onwhether the "practicable", "possible" and "practical" thresholds are met. That requiresconsideration of the alternatives to the proposal, which is the next issue.Issue 5: Was the Court wrong in its assessment of alternatives?[131] In this issue I deal with the grounds of appeal regarding whether the Courterred in failing to adequately consider alternatives and whether it erred in law inconsidering the status quo was the obvious counterfactual. Both of those issues relateto how the Court assessed the alternatives.Law of alternatives[132] In EDS v King Salmon, the Supreme Court considered whether a decision-maker was required to consider alternatives sites when determining a site-specific planchange that is located in, or fails to avoid, significant adverse effects on an ONFL.207It considered previous case law, including the High Court's judgment inMeridian Energy Ltd v Central Otago District Council, which rejected the propositionthat alternatives must be considered.208[133] The Supreme Court held that consideration of alternatives may be necessarydepending on "the nature and circumstances" of the particular application and thejustifications advanced in support of it.209 If an applicant claims that an activity needsto occur in the coastal environment and it would adversely affect the preservation ofthe natural character, or that a particular site has features that make it especiallysuitable, the decision-maker ought to test those claims. That will "[a]lmost inevitably"involve consideration of alternative localities.210 In that case, it considered theobligation to consider alternatives sites arose from the requirements of the NZCPS andsound decision-making, as much as from s 32 of the RMA.211The Environment Court's treatment of alternatives[134] In its decision, the Environment Court stated:212[46] Transpower considered a range of options for taking the transmissionline across Rangataua Bay including bridge or sea bed cable options as well207 EDS v King Salmon, above n 112, at [156].208 Meridian Energy Ltd v Central Otago District Council [2011] 1 NZLR 482 (HC).209 EDS v King Salmon, above n 112, at [170].210 At [170].211 At [172].212 Environment Court, above n 1, at [46], citing Transpower's Assessment of Effects on theEnvironment, above n 32.as the aerial crossing option. The bridge and sea bed options were rejected forreasons that included costs being between 10 and 20 times more than those ofan aerial crossing, programming issues, health and safety effects and accessand maintenance considerations.[135] In its second preliminary issue section, the Court considered whether it wasnecessary for Transpower to consider alternative methods for realignment of the A-Line and, if so, whether its assessment and evaluation was adequate.213 In summary,the Court said:(a) An assessment of alternatives "may be relevant" under s 104(1)(a) ofthe RMA if the adverse effects are significant or, under the RCEP, ifthere are adverse effects of an activity on the values and attributes ofONFL 3.214 The Court referenced Policies NH 4 and NH 5.(b) It noted that the identification of the attributes of ONFL 3 in sch 3 ofthe RCEP recognises that the current uses of ONFL 3 includes nationalgrid infrastructure.215 It considered it may follow, "in the absence ofany policy for the removal of such uses", that it "might be consideredto be generally appropriate within it on the basis that they do notundermine or threaten the things that are to be protected".216 This doesnot take into account IW 2, NH 4, NH 5 and NH 11(1).(c) The Court considered "an applicant is not required to undertake a fullassessment or comparison of alternatives, or clear off all possiblealternatives, or demonstrate its proposal is best in net benefit terms"and "[a]ll that is required is a description of the alternatives consideredand why they are not being pursued".217(d) The Court considered a list of seven options considered by Transpowerin Table 2, entitled "Principal options considered by Transpower":213 At [113].214 At [115].215 At [116].216 At [116].217 At [117].Option Option Description Comments1 Do nothing Poles A116 and A117 will stillrequire replacement. Ongoingmaintenance and access issues willremain. Does not resolve historicgrievances with iwi.2 Underground cablebetween Poles A116 andA117 on Ngāti Hē land(sports field)Would require two new cabletermination structures to replacePoles A116 and A117. Ongoingmaintenance and access issues willremain. Does not resolve historicgrievances with iwi.All remaining options below involve relocation of the circuit onto oradjacent to the HAI-MTM-B support poles between poles B28 and B48,and removal of redundant HAI-MTM-A line poles from Te Ariki Park,residential and horticultural land.3(a) Aerial crossing ofRangataua Bay in a singlespan.Requires two monopoles ofapproximately 34.7 m on theMaungatapu side and 46.8 m highon the Matapihi side, and removalof the existing Tower A118 from theCMA.3(b) Aerial crossing ofRangataua Bay utilising astrengthened orreplacement Tower A118in the CMA.Requires one monopole of up to 40m high on the Maungatapu side ofthe harbour and a 12m to 17m highconcrete pi-pole on the Matapihiside. Existing Tower A118 in theCMA is retained.4(a) Integrate a cable into apotential futurereplacement road bridge.New cable termination structuresrequired on either side in the orderof 15m to 20m high. New bridgewould need to be designed toaccommodate an additionaltransmission cable.4(b) Cable across estuary on anew stand-alonefootbridge or cable bridgeNew cable termination structuresrequired on either side in the orderof 15m to 20m high. New bridgestructure required.4(c) Cable across existingbridge - east sideNew cable termination structuresrequired on either side in the orderof 15m to 20m high. Terminate onwest side adjacent to Marae, butthen cross to east side (opposite sideto existing cable) as soon aspracticable. Thrust bore under roadrequired.(e) The Court recorded that Transpower rejected option 2 for culturalreasons and lack of wider benefits.218 Transpower rejected the options218 At [122].attaching a cable to the bridge or beneath the seabed for reasons ofoperational and security of supply risk, unacceptable costs and the needfor substantial termination structures on either side of the waterway.Transpower shortlisted the two aerial crossing options. Its preferredoption was the single span, option 3(a).(f) The Court considered in some detail the potential alternatives of under-seabed and bridge-attachment cables because they were particularlymentioned by TEPS, the Marae and Ngāi Te Rangi.219 The cost of thebridge-crossing option was estimated by Transpower at more than10 times that of the aerial crossing.220 The costs of undergrounding was"at least an order of magnitude more" than an aerial route.221 On thatbasis, the Court considered these alternatives were "impracticable".222(g) The Court held that "[a] relocated A-Line crossing of the harbour on astrengthened existing bridge would appear to be technicallyfeasible".223 But it considered that the cost alone meant Transpower"has a clear reason for discounting a bridge option".224 It consideredimposing a condition requiring that cost "could well be unreasonable"and "would also be likely to go beyond the Court's proper role inadjudicating disputes under the RMA".225 The Court considered that,if it were to conclude that level of expenditure was necessary to avoid,remedy or mitigate the adverse effects "then the more appropriatecourse could be to refuse consent to the proposal".226 It acceptedTranspower's dismissal of the under-sea options on the same basis.(h) The Court considered all of the alternatives would place tall structuresin the ONFL "whether above or below it or on its margins".227219 At [123] and [124]–[137].220 At [130].221 At [136].222 At [265].223 At [138].224 At [139].225 At [140].226 At [140].227 At [143].(i) Accordingly, it concluded "the alternatives to have been appropriatelyassessed and the reasons for the selection of the project on whichTranspower wishes to proceed to be sound".228[136] Later, in considering the cultural effects of the proposal, the Court held that thealternatives may have greater effects on the values and attributes of the harbour thanthe proposal.229 In acknowledging Ngāti Hē's view that the effects of a new Pole 33Coutweigh the benefits of the A-Line removal, the Court said "there is no certainty thata proposal they can support will come forward, and if it does, whether it will achievethe outcomes they desire".230 It noted evidence, though not from NZTA, that NZTAhas no plans to upgrade the bridge to a standard that could support the lines.231 TheCourt also said:[219] Transpower has in effect said that it will walk away from the realignmentproject altogether if the appeal is granted. It would then strengthen or replaceits infrastructure on Te Ariki Park which is work that does not require anyfurther consent. We have no ability to require that they do otherwise. We donot regard this as any kind of threat or otherwise as an inappropriate position:it simply recognises that if an activity requires resources consent but cannotobtain it, then not undertaking that activity is an obvious option for theunsuccessful applicant.[137] As noted in relation to Issue 4, in its concluding reasoning, the Court said:[265] The alternatives of laying the re-located A-Line on or under the seabedor in ducts attached to the Bridge appear from the evidence to beimpracticable. While technically feasible, the uncontroverted evidence is thatthe works involved would entail costs of an order of magnitude greater thanthe estimated costs of Transpower's proposal. We have already found that wedo not have the power to require Transpower to amend its proposal in amanner that would result in a cost increase of that kind. To do that would gobeyond the scope of the power to impose conditions on the proposal as itwould effectively result in a new proposal.[138] And, in the last two sentences of its last paragraph, the Court said:[209] In the absence of any practicable alternative, the obviouscounterfactual to the proposal is the status quo. In our judgment, the removalof the existing line and its relocation within the Road zone applying to SH29A and above the Maungatapu Bridge is more appropriate overall andtherefore better than leaving the line where it is.228 At [144].229 At [213].230 At [214].231 At [215].Submissions on alternatives[139] Mr Gardner-Hopkins, for TEPS and Ngāti Hē, submits:(a) It is accepted there is a functional need for the lines to crossRangataua Bay at some location. But Transpower did not try very hardto consider alternatives. It did not commission a detailed investigationas to whether strengthening the bridge would feasibly accommodate theA-Line. Its costs were "back of the envelope" figures provided byemail.(b) The RCEP's requirements that adverse effects be avoided in the IW 2and NH 11 policies mean the Court must satisfy itself there are notpossible alternatives or no practicable alternatives that would avoid theadverse effects. The terms "not practicable" and "not possible" inPolicies IW 2 and NH 11 establish a very high threshold. The term "notpossible" must impose a higher threshold than "not practicable". Thethreshold in NH 11(1)(d) is not met because it only requires havingregard to technical and operational requirements.(c) The Environment Court did not engage with what it understood the twoterms to mean. It simply listed the relevant policies, applied theMeridian Energy test, and made no assessment of the requirements. Itdismissed the bridge and under-sea alternatives solely for cost reasons,but cost is not the determining element — its weight depends on thecontext. The Court made no findings as to whether the bridge andunder-sea alternatives were "possible" or "practicable", or what theymean in the regulatory context here, so it failed to have regard toPolicies IW 2 and NH 11.(d) It would accord with the spirit of pt 2 of the RMA, consistent withMcGuire, to prefer an alternative. Transpower's 2017 Options Reportidentifies two alternative ways of achieving the project while avoidingthe adverse effects required to be avoided by IW 2. They would involveusing a cable across the bridge, with a termination structure of, at most,half the height of the proposed structures, some distance away from theMarae.232 It was not established that the termination structures of thesealternatives, however "Dalek-like" (as apparently discussed at theEnvironment Court hearing), would need to be placed where Pole 33Cis proposed to go or whether they could go in a different location,further away from the Marae.(e) Posing the status quo as the obvious counterfactual was a mistake,given the evidence. At the least, the Court should have acknowledgedthat declining consent would not necessarily deprive Ngāti Hē andothers of the benefits of the current proposal in removing the A-Linealignment across Rangataua Bay. But it is unlikely the status quo wouldbe maintained, given the evidence that Pole 117, on a cliff face, issubject to erosion and episodic erosion events of three to six metres ata time.(f) Mr McNeill, Transpower's Investigations Project Manager, agreed thatif Transpower had known the proposal did not have Ngāti Hē andMaungatapu Marae support, it would have said "no way" and would"continue to meet and to, yeah, come up with other proposals".233Ms Raewyn Moss, a General Manager at Transpower, gave evidencethat Transpower would need to consider whether to proceed with theMatapihi aspect of the proposal if that was the only aspect grantedconsent.234 Another Transpower witness confirmed it was possiblefrom an engineering perspective, with modification to how the linesconnected.235(g) Transpower has an obligation to address the historical breach of theTreaty of Waitangi, especially given the assurance that the A-Linewould be relocated to the new B-Line path when the B-Line was232 Transpower New Zealand Ltd Options Report: HAI-MTM-A and B Transmission Line Alterations,Rangataua Bay, Taurauga (July 2017) at 16–18 (CBD 304.1087–304.1089).233 NOE 34/19–21.234 NOE 27/12–15.235 NOE 114/10–20.proposed some 25 years ago. Otherwise, the existing bridge andmotorway will be a justification for further infrastructure being locatedalongside them with further negative cumulative effects.[140] Mr Beatson, for Transpower, submits:(a) The approach in Meridian Energy Ltd is correct. Transpowerundertook a comprehensive analysis of all technically viable alternativeoptions. "Practicable" imports feasibility, viability, and costconsiderations. In NH 11(1), "practicable" is clearly informed byTranspower's technical and operational requirements.(b) Transpower satisfied the requirements of NH 5 and NH 11, givenavoidance of all effects is not possible and adverse effects are avoidedto the extent practicable. Ugly termination structures of 23 metres,characterised as "Daleks" would be required for any alternate option.236The alternatives of laying the relocated A-Line on or under the seabedor attached to the bridge were found to be impracticable, not solely forcost reasons. The Court's findings were reasonable and supported byevidence.(c) The Court was entitled to rely on, and prefer, the evidence ofTranspower as to its plans and ability to retain the existing A-Linealignment if consent is declined. Mr McNeill's comments provide noguarantee unspecified alternatives would have been pursued. Ms Mossprovided clear statements that Transpower would maintain Poles 116and 117.237 It is not clear whether it would be practically possible tosplit the Matapihi and Maungatapu aspects of the proposal.(d) Mr Thomson confirmed maintenance of the A-Line is achievable ifrealignment does not proceed, with Pole 117 being relocated further236 Evidence of Richard Joyce (1 February 2019) (CB 203.623) at [28] and following photograph.237 Statement of Evidence of Raewyn Moss, 1 February 2019 at [38] (CBD 203.0612); and NOE15/18–22.inland.238 The Court accepted Transpower could apply for a newconsent for the anchor blocks associated with Pole 117 and continue tooperate until all appeals were determined. Mr Beatson advises this iswhat has transpired. The Court also noted other regulatory avenuesopen to Transpower to secure the failing poles.(e) What Transpower is trying to do is entirely consistent with McGuire. Ithas worked extremely hard to come up with a solution that it felt struckthe right balance between cost and resolving the ongoing source ofcontention. It put it forward in good faith and got agreement and stillconsiders it is a suitable response. There is no legal obligation onTranspower to move the A-Line under the RMA. Transpower does nothave the obligations of the Crown under s 9 of the State-OwnedEnterprises Act 1986 and there has been a Treaty settlement with NgāiTe Rangi. Transpower would not be creating an additionaltransgression by maintaining the A-Line where it is. But dialogue withNgāti Hē would continue in any case.[141] Ms Hill, for the Councils, submits:(a) Meridian Energy does not require all possible alternatives to beevaluated nor proof that the intended proposal is the best of thealternatives. Avoidance of adverse effects to the "extent practicable"under NH 11(d) and NH 11(e) clearly relates to the particular proposalrather than to alternatives.(b) The Environment Court did not dismiss particular options but assessedthe adequacy of Transpower's consideration of them and whether aclear rationale for discounting an option was provided.239 It set outdetailed reasons why Transpower discounted particular options. Itclearly considered whether avoidance of adverse effects was "not238 Statement of Evidence of Colin Thomson, 1 February 2019 at [26] (CBD 203.645).239 Environment Court, above n 1, at [46] and [144].possible" having regard to the alternatives.240 The Court assessedmitigating or offsetting adverse effects and found the alternatives wereimpracticable. It found the alternatives may affect the values andattributes of the harbour to a greater extent than the aerial line, andavoidance of adverse effects was not possible under any scenario.(c) The Councils adopt the submissions of Transpower in relation to thestatus quo issue. In addition, it is difficult to know how such an error,if established, would be material to the outcome. Even if the prospectof the A-Line remaining is less certain than the Court considered it tobe, the Court would be unable to establish there is another feasiblealternative to the status quo with the requisite certainty or to directTranspower to implement that.Did the Court err in its treatment of alternatives?[142] As determined in Issue 4, both the IW 2 and NH 4 Policies of the RCEP requireconsideration of whether it is "practicable" and "possible" to avoid adverse effects andwhether alternative locations are "practical". If it is practicable to avoid the proposal'sadverse effects on the area of spiritual, historical or cultural significance to Ngāti Hē,the proposal must not proceed under Policy IW 2. If there are practical alternativelocations of the infrastructure, or it is possible to avoid the proposal's adverse effectson the Māori values of Te Awanui as ONFL 3, then the proposal must not proceedunder Policy NH 4, NH 5(a)(ia) and NH 11(1)(a) and (b).[143] Either way, applying EDS v King Salmon, the practicability, practicality, andpossibility of alternatives is a material fact which directly affects the availableoutcome of the application. This is more than something that "may be relevant" as theCourt characterised them.241 EDS v King Salmon has overtaken Meridian Energy inthat regard. In this context, given the nature of the application and the relevant law,the Court was legally required to examine the alternatives in order to determinewhether they are practicable, practical and possible with respect to the meaning of240 At [143].241 At [115].those terms in the relevant policies of the RCEP. Furthermore, the Court is requiredto satisfy itself that the alternatives are not practicable, practical and possible in orderto be able to consider agreeing to the proposal. The Court's findings would determinewhether the relevant adverse effects must, as a matter of law, be avoided under PoliciesIW 2 and NH 4 of the RCEP.[144] In Wellington International Airport Ltd v New Zealand Air Line Pilots'Association Industrial Union of Workers Inc, the Supreme Court considered themeaning of "practicable" in the context of the Civil Aviation Act 1990:242[65] 'Practicable' is a word that takes its colour from the context inwhich it is used. In some contexts, the focus is on what is able to bedone physically; in others, the focus is more on what can reasonablybe done in the particular circumstances, taking a range of factors intoaccount. Unlike the Court of Appeal, we do not find the dictionarydefinitions of much assistance given the flexibility of the word andthe importance of context to determining its meaning. Rather, weconsider that the assessment of what is "practicable" must takeaccount of the particular context of Appendix A.1 and the statutoryframework that produced it and will depend on the particularcircumstances of the relevant airport, including the context in whichthe request for the Director's acceptance is made.[145] The Environment Court dealt with practicability rather differently. In itsconclusion, the Court considered that the alternatives favoured by Ngāti Hē weretechnically feasible but would "entail costs of an order of magnitude greater" than theproposal.243 It therefore concluded, apparently because it did not consider it had thepower to require Transpower to amend its proposal, that the alternatives "appear fromthe evidence to be impracticable".244 The Court determined that, when faced with arange of competing concerns and no possible outcome would be wholly withoutadverse effects, it had to decide which outcome better promotes the sustainablemanagement of natural and physical resources as defined in s 5 of the RMA.245[146] The Court misdirected itself in law by not interpreting and analysing the"practicable", "possible" and "practical" in the context of the policies and the242 Wellington International Airport Ltd v New Zealand Air Line Pilots Association Inc IndustrialUnion of Workers [2017] NZSC 199, [2018] 1 NZLR 780.243 Environment Court, above n 1, at [46] and [265].244 At [265].245 At [270].proposal. It erred in failing to recognise that the practicability, practicality orpossibility of alternatives are directly relevant to whether the proposal could proceedat all.246[147] The "practicability" of avoiding adverse effects in Policy IW 2 relates tocultural values. The emphasis on the Treaty of Waitangi and cultural values, andpotential for cultural bottom lines in the RMA and planning instruments suggests thatcultural values should not be underestimated. Issue 7 of the RCEP suggests they are"often not adequately recognised or provided for". It is always difficult to put a priceon culture, which is what is implied in a finding that the cost of an alternative is "too"high. That conclusion should not be too readily reached. And a conclusion has to bethat of the Court, not of the applicant. But the cost of network infrastructure iseventually felt by all electricity consumers, as well as the Crown. I do not consider,in this context, that cost must be irrelevant to practicability or to practicality.[148] What cost is "too" high to satisfy an alternative not being "practicable" is amatter of fact and degree to be assessed in the circumstances. I do not rule out thepossibility that, if the Court had itself examined robust costings of the alternatives, itmay still have concluded the cost to be too high to be "practicable". I do not considerthe reference in NH 11(d) to having regard to technical and operational requirementsexcludes the possibility of having regard to cost implications. A court would have toconsider and weigh that. For the same reason, it may reasonable for a court toconclude that no "practical" alternative locations are available. It is hard to draw ameaningful distinction between "practical" and "practicable" in this context.[149] But the requirement of Policy NH 11(1)(b), that "the avoidance of effectsrequired by Policy NH 4 is not possible", does not involve an assessment of costs. Theplain meaning of "possible" in NH 11(1)(b) suggests that if an alternative is technicallyfeasible it is possible, whatever the cost. That interpretation is reinforced by the useof "practical" in NH 11(1)(a) and "practicable" in NH 11(d). This interpretation isnot inconsistent with the wording of NH 11(1)(a) because (a) relates to the practicalityof alternative locations while (b) relates to the possibility of avoidance of effects. It is246 At [265].not inconsistent with NH 11(1)(d) and (e) because they relate to the avoidance,remedying or mitigation of all "adverse effects" to the extent practicable, while (b)requires the avoidance of effects required by Policy NH 4 to be possible. Policy NH 4relates to the values and attributes of ONFL, which are different. It is the values andattributes of the ONFL that are the subject of the cultural bottom line in Policy 15(a)of the NZCPS, supported by pt 2 of the RMA.[150] So, the technical feasibility of the alternatives to the proposal means theavoidance of adverse effects on ONFL 3 at Rangataua Bay is possible. Policy NH11(1)(b) is therefore not satisfied and consideration of providing for the proposal underPolicy NH 5 is not available.[151] I also consider the Court's consideration of the alternatives was focussed toowidely on the alternatives considered by Transpower. The Court should have focussedon the precise issues that constituted the adverse effects that had to be avoided unlessone of the exceptions applied. As I found in Issue 2, those effects centred on the effectof Pole 33C. What were the alternatives to the location, size and impact of that on thearea of cultural significance to Ngāti Hē and the Māori values of Te Awanui at ONFL3? Could Pole 33C be situated in a location that did not have those adverse effects butdid not have the cost implications of the alternatives Transpower considered?[152] The status quo was one of the alternatives that Transpower, and the Court,considered. The Court was obliged to consider Transpower's evidence that it wouldwalk away from the realignment project if the appeal was granted. It was open to theCourt to regard that as an obvious option for Transpower. It was not required to givegreater weight to Mr McNeill's evidence or even to make a finding either way.Predicting the future of this proposal is inherently speculative. But examination of thestatus quo option needed to be included in the analysis of alternatives. It was not amatter of preferring the proposal to the status quo, as the Court said. In law, it was amatter of whether the proposal was lawfully available, given the alternatives.[153] Finally, Mr Gardner-Hopkins submits Transpower has an obligation to addressthe location of the transmission lines as an ongoing breach of the Treaty of Waitangi.Mr Beatson submits it does not. This was not fully argued before me and the issue isnot part of the appeal, so I do not comment further. Neither do I further consider howit might affect the obligations on the decision-maker in relation to the proposal. Butthere is no doubt that further discussion between Transpower and Ngāti Hē over theseissues would be consistent with the principles of the Treaty of Waitangi, given theunhappy history of the transmission lines at issue.ReliefLaw of relief on RMA appeals[154] Section 299 of the RMA provides that appeals are made in accordance with theHigh Court Rules 2016. Rule 20.19 provides:(1) After hearing an appeal, the court may do any 1 or more of thefollowing:(a) make any decision it thinks should have been made:(b) direct the decision-maker—(i) to rehear the proceedings concerned; or(ii) to consider or determine (whether for the first time oragain) any matters the court directs; or(iii) to enter judgment for any party to the proceedings thecourt directs:(c) make any order the court thinks just, including any order as tocosts.(3) The court may give the decision-maker any direction it thinks fitrelating to—(a) rehearing any proceedings directed to be reheard; or(b) considering or determining any matter directed to beconsidered or determined.(4) The court may act under subclause (1) in respect of a whole decision,even if the appeal is against only part of it.(6) The powers given by this rule may be exercised in favour of arespondent or party to the proceedings concerned, even if therespondent or party did not appeal against the decision concerned.[155] As Dunningham J observed in Gertrude's Saddlery Ltd v Queenstown LakesDistrict Council, the "usual course" is to refer the matter back to the EnvironmentCourt.247 But "the High Court has been prepared to substitute its own decision wherethe outcome is inevitable and there is no need to make further factual determinationsin the specialist Court".248[156] In Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa Ki Kawerau, Heath Jquashed a decision imposing a condition and referred it back to the Environment Courtfor rehearing, leaving the rest of the decision undisturbed.249[157] In Te Runanga o Ngāti Awa v Bay of Plenty Regional Council, Gault J said: 250[207] As indicated, even if the Court finds an error of law, it must be materialto the decision under appeal for relief to be granted. The Court is cautious,however, before accepting that it would be futile to remit on the basis that theoutcome would be the same. That is particularly so here given the importanceof the relationship of iwi and hapū with water evident in the NPSFMPreamble, and the fact that the Environment Court is the specialist tribunalbest placed to assess the effects. Also, effects may be relevant to assessingappropriate conditions, not merely whether consent should be granted ordeclined.Submissions on relief[158] Mr Gardner-Hopkins, for TEPS and Ngāti Hē, submits the errors are material.He submits it cannot be assumed the Environment Court would reach the samedecision and the matter should be referred back to it for reconsideration. He alsosubmits that I should refuse the consent if I find the effects of the proposal are adversein terms of Policy 15(a) of the NZCPS and Policies IW 2 and NH 4 of the RCEP andthat Transpower has failed to demonstrate it is not practicable or possible to avoidthose effects. It would only be if I definitively found that there are practicablealternatives that would avoid the adverse effects, and other errors, that I could quashthe consents and not refer the matter back to the Environment Court.247 Gertrude's Saddlery Ltd v Queenstown Lakes District Council [2020] NZHC 3387 at [112].248 At [112].249 Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa Ki Kawerau [2003] 2 NZLR 349 at [69].250 Te Runanga o Ngāti Awa v Bay of Plenty Regional Council, [2020] NZHC 3388.[159] Mr Beatson, for Transpower, submits that the Environment Court has not madean error of law. Thus, the High Court is not able to interfere with a decision made onthe merits where there is no error of law.[160] Ms Hill, for the Councils, submits that it is not the role of the High Court toweigh the evidence or substitute its own assessment of the consistency of the proposalwith a plan. If the Court finds the Environment Court erred in its approach to assessingeffects, Ms Hill submits the matter should be remitted to the Environment Court toreconsider in light of this Court's directions.Should the decision be remitted?[161] In summary, I have concluded the Environment Court made errors of law in:(a) its findings regarding the significant adverse effect of the proposal onan area of cultural significance to Ngāti Hē and on the Māori values ofONFL 3;(b) its "overall judgment" approach and treatment of pt 2 of the RMA;(c) interpreting and applying to the proposal the cultural bottom lines inthe planning instruments; and(d) its treatment of the practicability, or practicality and possibility ofavoiding the adverse effects of the proposal.[162] These are material errors. I have determined the true and only reasonableconclusion about the adverse effects of the proposal. I have indicated the correctapproach to interpreting and applying the planning instruments. I have interpreted andapplied the meaning of Policy NH 11(1)(b) in light of the Environment Court'sexisting findings. But the Court's findings were not premised on the legal need for itto satisfy itself that the alternatives are not practicable, practical and possible in orderto be able to consider agreeing to the proposal.[163] I consider it is desirable for the Environment Court to further consider theissues of fact relating to whether the alternatives to the proposal are practicable,practical or possible in light of the legal framework and the questions about thealternatives that I have identified. It is likely that further evidence on that will berequired from Transpower.[164] The interpretation of "possible" in Policy NH 11(1)(b) in this judgmentsuggests that, if the proposal remains as it is and the Environment Court comes to thesame conclusion as it did before on the basis of further evidence about alternatives,the proposal will not proceed as it is. But further consideration of alternatives with anarrower focus on the size, nature and location of Pole 33C might lead Transpower toamend its proposal. Evidence of Ngāti Hē's considered views of any such alternativeswould be required in order to determine the adverse effects of any such amendments.With goodwill, and reasonable willingness to compromise on both sides, it may bepossible for an operationally feasible proposal to be identified that does not have theadverse cultural effects of the current proposal.[165] Furthermore, no issue has been taken with the part of the realignment proposalfrom Matapihi north. There are clear benefits to that part of the proposal, including toNgāi Tūkairangi. If the realignment does not proceed over Rangataua Bay, it may stillbe able to proceed in relation to Matapihi. There is evidence that may be possible, butthe implications are not clear to me. I leave that to the Environment Court as well.Result[166] I quash the Environment Court's decision and remit the application to it forfurther consideration, consistent with this judgment.[167] Costs should be able to be worked out between counsel. If not, I give leave forthe appellant to file and serve a memorandum of up to 10 pages on outstanding issuesregarding costs within 10 working days of the judgment and leave for the respondentsto file and serve a memorandum of an equivalent length within 10 days of that. If thathappens, the appellant then has five days to file and serve a memorandum in reply ofup to five pages.Palmer JAnnex: Relevant planning provisionsNew Zealand Coastal Policy Statement 2010Objective 2To preserve the natural character of the coastal environment and protectnatural features and landscape values through:• recognising the characteristics and qualities that contribute to naturalcharacter, natural features and landscape values and their location anddistribution;• identifying those areas where various forms of subdivision, use, anddevelopment would be inappropriate and protecting them from suchactivities; and• encouraging restoration of the coastal environment.Objective 3To take account of the principles of the Treaty, recognise the role of tāngatawhenua as kaitiaki and provide for tāngata whenua involvement inmanagement of the coastal environment by:• recognising the ongoing and enduring relationship of tāngata whenuaover their lands, rohe and resources;• promoting meaningful relationships and interactions between tāngatawhenua and persons exercising functions and powers under the Act;• incorporating mātauranga Māori into sustainable managementpractices; and• recognising and protecting characteristics of the coastal environmentthat are of special value to tāngata whenua.Objective 6To enable people and communities to provide for their social, economic, andcultural wellbeing and their health and safety, through subdivision, use anddevelopment, recognising that:• the protection of the values of the coastal environment does notpreclude use and development in appropriate places and forms, andwithin appropriate limits;• some uses and developments which depend upon the use of naturaland physical resources in the coastal environment are important to thesocial, economic and cultural wellbeing of people and communities;• functionally some uses and developments can only be located on thecoast or in the coastal marine area;Policy 2 The Treaty of Waitangi, tāngata whenua and Māori heritageIn taking account of the principles of the Treaty of Waitangi (Te Tiriti oWaitangi), and kaitiakitanga, in relation to the coastal environment:(a) recognise that tāngata whenua have traditional and continuing culturalrelationships with areas of the coastal environment, including placeswhere they have lived and fished for generations;(c) with the consent of tāngata whenua and as far as practicable inaccordance with tikanga Māori, incorporate matauranga Māori inregional policy statements, in plans, and in the consideration ofapplications for resource consents, notices of requirement fordesignation and private plan changes;(d) provide opportunities in appropriate circumstances for Māoriinvolvement in decision-making, for example when a consentapplication or notice of requirement is dealing with cultural localitiesor issues of cultural significance, and Māori experts, includingpūkenga, may have knowledge not otherwise available;(e) take into account any relevant iwi resource management plan and anyother relevant planning document recognised by the appropriate iwiauthority or hapū and lodged with the council, to the extent that itscontent has a bearing on resource management issues in the region ordistrict; and(i) where appropriate incorporate references to, or material from,iwi resource management plans in regional policy statementsand in plans; (f) provide for opportunities for tāngata whenua to exercise kaitiakitangaover waters, forests, lands, and fisheries in the coastal environment,through such measures as:(i) bringing cultural understanding to monitoring of naturalresources;(ii) providing appropriate methods for the management,maintenance and protection of the taonga of tāngata whenua;(iii) ; and(g) in consultation and collaboration with tāngata whenua, working as faras practicable in accordance with tikanga Māori, and recognising thattāngata whenua have the right to choose not to identify places orvalues of historic, cultural or spiritual significance or special value:(i) recognise the importance of Māori cultural and heritagevalues through such methods as historic heritage, landscapeand cultural impact assessments; and(ii) provide for the identification, assessment, protection andmanagement of areas or sites of significance or special valueto Māori . . .Policy 6 Activities in the coastal environment(1) In relation to the coastal environment:(a) recognise that the provision of infrastructure, the supply andtransport of energy including the generation and transmission ofelectricity, . . . are activities important to the social, economic andcultural well-being of people and communities.(b) consider the rate at which built development and the associatedpublic infrastructure should be enabled to provide for thereasonably foreseeable needs of population growth withoutcompromising the other values of the coastal environment;(d) recognise tāngata whenua needs for papakainga, marae andassociated developments and make appropriate provision forthem;(h) consider how adverse visual impacts of development can beavoided in areas sensitive to such effects, such as headlands andprominent ridgelines, and as far as practicable and reasonableapply controls or conditions to avoid those effects;(i) set back development from the coastal marine area and otherwater bodies, where practicable and reasonable, to protect thenatural character, open space, public access and amenity valuesof the coastal environment;(2) Additionally, in relation to the coastal marine area:(c) recognise that there are activities that have a functional needto be located in the coastal marine area, and provide for thoseactivities in appropriate places;(d) recognise that activities that do not have a functional need forlocation in the coastal marine area generally should not belocated therePolicy 15 Natural features and natural landscapesTo protect the natural features and natural landscapes (including seascapes) ofthe coastal environment from inappropriate subdivision, use, anddevelopment:(a) avoid adverse effects of activities on outstanding natural features andoutstanding natural landscapes in the coastal environment; and(b) avoid significant adverse effects and avoid, remedy or mitigate otheradverse effects of activities on other natural features and naturallandscapes in the coastal environment;National Policy Statement on Electricity Transmission5. ObjectiveTo recognise the national significance of the electricity transmission networkby facilitating the operation, maintenance and upgrade of the existingtransmission network and the establishment of new transmission resources tomeet the needs of present and future generations, while:• managing the adverse environmental effects of the network; and• managing the adverse effects of other activities on the network.7. Managing the environmental effects of transmissionPolicy 2In achieving the purpose of the Act, decision-makers must recognise andprovide for the effective operation, maintenance, upgrading and developmentof the electricity transmission network.Policy 3When considering measures to avoid, remedy or mitigate adverseenvironmental effects of transmission activities, decision-makers mustconsider the constraints imposed on achieving those measures by the technicaland operational requirements of the network.Policy 4When considering the environmental effects of new transmissioninfrastructure or major upgrades of existing transmission infrastructure,decision-makers must have regard to the extent to which any adverse effectshave been avoided, remedied or mitigated by the route, site and methodselection.Policy 5When considering the environmental effects of transmission activitiesassociated with transmission assets, decision-makers must enable thereasonable operational, maintenance and minor upgrade requirements ofestablished electricity transmission assets.Policy 6Substantial upgrades of transmission infrastructure should be used as anopportunity to reduce existing adverse effects of transmission including sucheffects on sensitive activities where appropriate.Policy 7Planning and development of the transmission system should minimiseadverse effects on urban amenity and avoid adverse effects on town centresand areas of high recreational value or amenity and existing sensitiveactivities.Policy 8In rural environments, planning and development of the transmission systemshould seek to avoid adverse effects on outstanding natural landscapes, areasof high natural character and areas of high recreation value and amenity andexisting sensitive activities.Bay of Plenty Regional Coastal Environment PlanIssues of the RCEP1.2 Natural HeritageIssue 7 Māori cultural values, practices and mātauranga associated withnatural character, natural features and landscapes and indigenousbiodiversity are often not adequately recognised or provided forresulting in adverse effects on cultural values.1.4 Iwi Resource ManagementIssue 17 Ko te moana ko au, ko au ko te moana (I am the sea – the sea is me).Tangata whenua, as indigenous peoples, have rights protected by theTe Tiriti o Waitangi (the Treaty of Waitangi) and that consequently theRMA accords tangata whenua a status distinct from that of interestgroups and members of the public.Issue 19 Wāhi tapu and other sites of significance to tāngata whenua can beadversely affected by human activities and coastal erosion.Degradation of coastal resources and the lack of recognition of therole of tāngata whenua as kaitiaki of this resource can adversely affectthe relationship of Māori and their ancestral lands, waters, sites, wāhitapu and other taonga.Issue 20 Māori have a world-view that is unique and that can bemisunderstood, unrecognised and insufficiently provided for in thestatutory decision-making process.Issue 26 Policy 6 of the NZCPS recognises tangata whenua needs forpapakainga, marae and associated developments in the coastalenvironment; but tangata whenua aspirations in relation to use, valuesand development are not well understood, particularly in the coastalmarine area.1.8 Activities in the coastal marine areaIssue 40 The use and development of resources in the coastal marine area canpromote social, cultural and economic wellbeing and providesignificant social, cultural and economic benefits but may also causeadverse effects on the coastal environment.Objectives of the RCEP2.2 Natural HeritageObjective 2 Protect the attributes and values of:(a) Outstanding natural features and landscapes of the coastalenvironment; and(b) Areas of high, very high and outstanding natural character inthe coastal environment;from inappropriate subdivision, use, and development, and restoreor rehabilitate the natural character of the coastal environmentwhere appropriate.2.4 Iwi Resource ManagementObjective 13 Take into account the principles of the Treaty of Waitangi and providefor partnerships with the active involvement of Tāngata whenua inmanagement of the coastal environment when activities may affecttheir taonga, interests and values.Objective 15 The recognition and protection of those taonga, sites, areas, features,resources, attributes or values of the coastal environment (includingthe Coastal Marine Area) which are either of significance or specialvalue to tāngata whenua (where these are known).Objective 16 The restoration or rehabilitation of areas of cultural significance,including significant cultural landscape features and culturallysensitive landforms, mahinga mātaitai, and the mauri of coastalwaters, where customary activities or the ability to collect healthykaimoana are restricted or compromised.Objective 18 Appropriate mitigation or remediation is undertaken when activitieshave an adverse effect on the mauri of the coastal environment, areasof cultural significance to tāngata whenua or the relationship oftāngata whenua and their customs and traditions with the coastalenvironment.2.8 Activities in the Coastal Marine AreaObjective 27 Activities and structures that depend upon the use of natural andphysical resources in the coastal marine area, or have a functionalneed to be located in the coastal marine area are recognised andprovided for in appropriate locations, recognising the positionalrequirements of some activities.Objective 28 The operation, maintenance and upgrade of existing regionallysignificant infrastructure, and transportation infrastructure thatprovides access to and from islands, is recognised and enabled inappropriate circumstances to meet the needs of future and presentgenerations.Policies of the RCEPNatural Heritage (NH) PoliciesPolicy NH 4 Adverse effects must be avoided on the values and attributesof the following areas:(b) Outstanding Natural Features and Landscapes (asidentified in Schedule 3).Policy NH 4A When assessing the extent and consequence of any adverseeffects on the values and attributes of the areas listed in PolicyNH 4 and identified in Schedules . . . 3 to this Plan . . :(a) Recognise the existing activities that were occurringat the time that an area was assessed as havingOutstanding Natural Character, being an OutstandingNatural Feature or Landscape . . .(b) Recognise that a minor or transitory effect may not bean unacceptable adverse effect;(c) Recognise the potential for cumulative effects that aremore than minor;(d) Have regard to any restoration and enhancement ofthe affected attributes and values, and(e) Have regard to the effects on the tāngata whenuacultural and spiritual values of ONFLs, working, asfar as practicable, in accordance with tikanga Māori.Policy NH 5 Consider providing for use and development proposals thatwill adversely affect the values and attributes associated withthe areas listed in Policy NH 4 where:(a) The proposal:(ia) Relates to the construction, operation,maintenance, protection or upgrading of theNational Grid;Policy NH 9A Recognise and provide for Māori cultural values and traditions whenassessing the effects of a proposal on natural heritage, including by:(a) Avoiding, remedying or mitigating cumulative adverseeffects on the cultural landscape;(b) Assessing whether restoration of cultural landscape featurescan be enabled; and(c) Applying the relevant Iwi Resource Management policiesfrom this Plan and the RPS.Policy NH 11(1) An application for a proposal listed in Policy NH 5(a)must demonstrate that:(b) There are no practical alternative locationsavailable outside the areas listed in Policy NH4; and(b) The avoidance of effects required by PolicyNH 4 is not possible; and(d) Adverse effects are avoided to the extentpracticable, having regard to the activity'stechnical and operational requirements; and(e) Adverse effects which cannot be avoided areremedied or mitigated to the extentpracticable.Iwi Resource Management (IW) PoliciesPolicy IW 1 Proposals which may affect the relationship of Māori and theirculture, traditions and taonga must recognise and provide for:(a) Traditional Māori uses, practices and customary activitiesrelating to natural and physical resources of the coastalenvironment such as mahinga kai, mahinga mātaitai, wāhitapu, ngā toka taonga, tauranga waka, taunga ika andtaiāpure in accordance with tikanga Māori;(b) The role and mana of tāngata whenua as kaitiaki of theregion's coastal environment and the practicaldemonstration and exercise of kaitiakitanga;(c) The right of tāngata whenua to express their ownpreferences and exhibit mātauranga Māori in coastalmanagement within their tribal boundaries and coastalwaters; and(d) Areas of significant cultural value identified in Schedule 6and other areas or sites of significant cultural valueidentified by Statutory Acknowledgements, iwi and hapūresource management plans or by evidence produced byTāngata whenua and substantiated by pūkenga, kuia and/orkaumatua; and.(e) The importance of Māori cultural and heritage valuesthrough methods such as historic heritage, landscape andcultural impact assessments.Policy IW 2 Avoid and where avoidance is not practicable remedy ormitigate adverse effects on resources or areas of spiritual,historical or cultural significance to tāngata whenua in thecoastal environment identified using criteria consistent withthose included in Appendix F set 4 to the RPS. Where adverseeffects cannot be avoided, remedied or mitigated, it may bepossible to provide positive effects that offset the effects ofthe activity.Policy IW 5 Decision makers shall recognise that only tangata whenua canidentify and evidentially substantiate their relationship andthat of their culture and traditions with their ancestral lands,water, sites, wāhi tapu and other taonga. Those relationshipsmust be substantiated for evidential purposes by pūkenga,kuia and/or kaumātua.Policy IW 8 Tāngata whenua shall be involved in establishing appropriatemitigation, remediation and offsetting options for activitiesthat have an adverse effect on areas of significant culturalvalue (identified in accordance with Policy IW 1(d)).Structures and Occupation of Space (SO) PoliciesPolicy SO 1 Recognise that the following structures are appropriate in thecoastal marine area, subject to the Natural Heritage (NH)Policies, Iwi Resource Management Policy IW 2 and anassessment of adverse effects on the location:(c) Structures associated with new and existingregionally significant infrastructurePolicy SO 2 Structures in the coastal marine area shall:(a) Be consistent with the requirements of the NZCPS, inparticular Policies 6(1)(a) and 6(2);(b) Where relevant, be consistent with the NationalPolicy Statement on Electricity Transmission;Schedule 3 of the RCEP identifies areas of Outstanding Natural Features andLandscapes (ONFL) using the criteria of Policy 15(c) of the NZCPS and Appendix F,set 2 to the RPS.Te Awanui Harbour, Waimapu Estuary & Welcome Bay – ONFL 3Description:Tauranga Harbour is a shallow tidal estuary of 224 km². At low tide, 93% ofthe seabed is exposed. The harbour and its estuarine margins comprisenumerous bays,estuaries, wetland and saltmarsh. The key attributes which drive therequirement for classification as ONFL, and require protection, relate to thehigh natural sciencevalues associated with the margins and habitats; the high transient valuesassociated with the tidal influences; and the high aesthetic and naturalcharacter values of the vegetation and harbour patterns.Current uses:Bridges, national grid infrastructure, wharves, moorings, residentialdevelopment, boardwalks, stormwater and sewer infrastructure, boat ramps,reclamations,recreational activities such as water skiing, fishing, boating, channel markers,navigational signs.Evaluation of Māori values: Medium to HighAncient pa, mahinga kai, wāhi tapu, kāinga, taunga ika.Te Awanui is a significant area of traditional history and identity forthe three Tauranga Moana Iwi – Ngāi Te Rangi, Ngāti Ranginui andNgāti Pūkenga. Waitaha of Arawa also has strong ancestralconnections to Te Awanui.Te Awanui includes many cultural heritage sites, many of which arerecorded in Iwi and Hapū Management Plans and other historicaldocuments and files (including Treaty Settlement documents).Schedule 6 of the RCEP identifies Te Awanui as an Area of Significant CulturalValue (ASCV 4):Te Awanui and surrounding lands form the traditional rohe of Ngāi TeRangi, Ngāti Ranginui and Ngāti Pūkenga, which extends fromWairakei in Pāpāmoa across the coastline to Ngā Kurī a Whārei atOtawhiwhi - known as "Mai i ngā Kurī a Whārei ki Wairakei." TeAwanui is a significant area of traditional history and identity for thethree Tauranga Moana iwi – Ngāi Te Rangi, Ngāti Ranginui and NgātiPūkenga. Hapū of the Tauranga Moana iwi maintain strong localcommunities which are dependent on maintenance of the life-supporting capacity of the harbour and surrounding land.Maintenance of kaimoana and coastal water quality is particularlyimportant.Te Awanui is rich in cultural heritage sites for Waitaha and theTauranga Moana iwi. Many of these sites are recorded in Iwi andHapū Management Plans and other historical documents and files.Treaty Settlement documents also contain areas of culturalsignificance to iwi and hapū. These iwi, along with their hapū, shareKaitiakitanga responsibilities of Te Awanui.Traditionally, Tauranga Moana (harbour) was as significant, if notmore so, than the land to tāngata whenua. It was the source ofkaimoana and the means of access and communication among thevarious iwi, hapū and whānau around its shores. Today there are 24marae in the Tauranga Moana district.Bay of Plenty Regional Policy Statement (RPS)Policy IW 2B: Recognising matters of significance to MāoriProposals which may affect the relationship of Māori and their culture andtraditions must:(a) Recognise and provide for:(i) Traditional Māori uses and practices relating to natural andphysical resources such as mahinga mātaitai, waahi tapu,papakāinga and taonga raranga;(ii) The role of tangata whenua as kaitiaki of the mauri of theirresources;(iii) The mana whenua relationship of tangata whenua with, and theirrole as kaitiaki of, the mauri of natural resources;(iv) Sites of cultural significance identified in iwi and hapū resourcemanagement plans; and(b) Recognise that only tangata whenua can identify and evidentiallysubstantiate their relationship and that of their culture and traditionswith their ancestral lands, water, sites, waahi tapu and other taonga.Policy IW 3B: Recognising the Treaty in the exercise of functions and powers underthe ActExercise the functions and powers of local authorities in a manner that:(a) Takes into account the principles of the Treaty of Waitangi;(b) Recognises that the principles of the Treaty will continue to evolveand be defined;(c) Promotes awareness and understanding of councils' obligations underthe Act regarding the principles of the Treaty, tikanga Māori andkaupapa Māori, among council decision makers, staff and thecommunity;(d) Recognises that tangata whenua, as indigenous peoples, have rightsprotected by the Treaty and that consequently the Act accords iwi astatus distinct from that of interest groups and members of the public;and(e) Recognises the right of each iwi to define their own preferences forthe sustainable management of natural and physical resources, wherethis is not inconsistent with the Act.Policy IW 4B: Taking into account iwi and hapū resource management plansEnsure iwi and hapū resource management plans are taken into account inresource management decision making processes.Policy IW 5B: Adverse effects on matters of significance to MāoriWhen considering proposals that may adversely affect any matter ofsignificance to Māori recognise and provide for avoiding, remedying ormitigating adverse effects on:(a) The exercise of kaitiakitanga;(b) Mauri, particularly in relation to fresh, geothermal and coastal waters,land and air;(c) Mahinga kai and areas of natural resources used for customarypurposes;(d) Places sites and areas with significant spiritual or cultural historicheritage value to tangata whenua; and(e) Existing and zoned marae or papakāinga land.Policy IW 6B: Encouraging tangata whenua to identify measures to avoid, remedyor mitigate adverse cultural effectsEncourage tangata whenua to recommend appropriate measures to avoid,remedy or mitigate adverse environmental effects on cultural values,resources or sites, from the use and development activities as part ofconsultation for resource consent applications and in their own resourcemanagement plans.Tauranga City Plan (the District Plan)ObjectivesObjective 6A.1.3 The natural character of the City's coastal environment,wetlands, rivers and streams is preserved and protected frominappropriate subdivision, use and development.Objective 6A.1.7 The landscape character values of the City's harbourenvironment is maintained and enhanced.Objective 6A.1.8 The open space character of the coastal marine area and thefactors, values and associations of outstanding natural featuresand landscapes and important amenity landscapes and theirmargins is maintained and enhanced.Objective 10A.3.3 Construction, Operation and Maintenance of Network Utilitiesa) The construction (and minor upgrading in relation toelectric lines) of network utilities avoids or mitigates anypotential adverse effects on amenity, landscape character,streetscape and heritage values;b) The operation (and minor upgrading in relation to electriclines) and maintenance of network utilities mitigates anyadverse effects on amenity, landscape character,streetscape and heritage values.PoliciesPolicy 6A.1.7.1 By ensuring that subdivision, use and development along themargins of Tauranga Harbour does not adversely affect thelandscape character values of that environment by:g) Protecting areas of cultural value;h) Avoiding built form of a scale that dominates theharbour's landscape character;i) Siting buildings, structures, infrastructure and services toavoid or minimise visual impacts on the harbour marginsenvironment;m) Ensuring activities maintain and enhance the factors,values and associations of outstanding natural features andlandscapes and/or important amenity landscapes.Policy 6A.1.8.1 By ensuring that buildings, structures and activities along themargins of the coastal marine area, outstanding natural featuresand landscapes and important amenity landscapes do notcompromise the natural character, factors, values andassociations of those areas, through:a) The impact of the bulk and scale of buildings, structuresand activities on the amenity of the environment;d) Buildings, structures and activities detracting from theexisting open space character and the factors, values andassociations of outstanding natural features andlandscapes and important amenity landscapes and theirmargins;Policy 7C.4.3.1 By ensuring that subdivision, use and development maintainsand enhances the remaining values and associations of Group 2Significant Maori Areas by having regard to the followingcriteria:a) The extent to which the degree of destruction, damage,loss or modification associated with the activity detractsfrom the recognised values and associations and theirreversibility of these effects;b) The magnitude, scale and nature of effects in relation tothe values and associations of the area;c) The opportunities for remediation, mitigation orenhancement;d) Where the avoidance of any adverse effects is notpracticable, the opportunity to use alternative methods ordesigns that lessen any adverse effects on the area,including but not limited to the consideration of the costsand technical feasibility of these.Policy 10A.3.3.1 Undergrounding of Infrastructure Associated with NetworkUtilitiesBy ensuring infrastructure associated with network utilities(including, but not limited to pipes, lines and cables) shall beplaced underground, unless:a) Alternative placement will reduce adverse effects on theamenity, landscape character, streetscape or heritagevalues of the surrounding area;b) The existence of a natural or physical feature or structuremakes underground placement impractical; c) Theoperational, technical requirements or cost of the networkutility infrastructure dictate that it must be placed aboveground;d) It is existing infrastructure.Policy 10A.3.3.2 Effects on the EnvironmentBy ensuring that network utilities are designed, sited, operatedand maintained to address the potential adverse effects:a) On other network utilities;b) Of emissions of noise, light or hazardous substances;c) On the amenity of the surrounding environment, its landscapecharacter and streetscape qualities;d) On the amenity values of sites, buildings, places or areas ofheritage, cultural and archaeological value.Objective 10B.1.1 Electricity Transmission NetworkThe importance of the high-voltage transmission network to theCity's, regions and nation's social and economic wellbeing isrecognised and provided for.Policy 10B.1.1.1 Electricity Transmission NetworkBy providing for the sustainable, secure and efficient use anddevelopment of the high-voltage transmission network withinthe City, while seeking that adverse effects on the environmentare avoided, remedied or mitigated to the extent practicable,recognising the technical and operational requirements andconstraints of the network.The Tauranga City Plan identifies Te Ariki Pā/Maungatapu as a significant Māori areaof Ngāti Hē (Area No M41). Its values are recorded as:Mauri: The mauri and mana of the place or resource holds specialsignificance to Māori;Wāhi Tapu: The Place or resource is a Wāhi tapu of special, cultural,historic and or spiritual importance to the hapū;Kōrero Tuturu/Historical: The area has special historical and culturalsignificance to the hapū;Whakaaronui o te Wa/ Contemporary Esteem: The condition of thearea is such that it continues to provide a visible reference point to thehapū that enables an understanding of its cultural, architectural,amenity or educational significance.Iwi Management PlansThe Te Awanui Tauranga Harbour Iwi Management Plan 2008OBJECTIVE1. To reduce the impacts on cultural values resulting frominfrastructural development in, on or near Te Awanui.POLICIES1. To restrict the placement of structures in, on or near Te Awanui,and to promote the efficient use of existing structures around TeAwanui.8. To avoid adverse effects on culturally important areas, includingwaterways and cultural important landscape features as a result ofworks, including the storage and or disposal of spoil as a product ofworks.10. Iwi object to the development of power pylons in Te Awanui,appropriate alternative routes need to be investigated in conjunctionwith tāngata whenua.The Tauranga Moana Iwi Management Plan 2016-202615.1 Oppose further placement of power pylons on the bed of TeAwanui (Tauranga Harbour).15.2 Pylons are to be removed from Te Ariki Park and Opopoti(Maungatapu) and rerouted along the main Maungatapu road andbridge.15.4 In relation to the placement, alteration or extension of structures,within Tauranga Moana:(a) Ensure that:(i) tāngata whenua values are recognised andprovided for.(b) Avoid adverse effects on sites and areas of culturalsignificance, wetlands or mahinga kai areas.Ngāi Te Rangi Resource Management PlanAll environmental activities that take place within the rohe of Ngaiterangimust take into account the impact on the cultural, social, and economicsurvival of the Ngaiterangi hapu.The cultural significance of Ngaiterangi's links to their lands and the valuesthey hold in respect of land, whether still in customary title or not, should beacknowledged and respected in all resource management activities.Marae provide the basis for the cultural richness of Tauranga Moana. The keyrole that they play in supporting the needs of their whanau, hapu, and widercommunities – Maori and non Maori – shall be recognised in the developmentof resource management policies, rules and practices. The evolving nature ofthat role must also be accommodated.Resource consents for the upgrading or provision of additional high tensionpower transmission lines, or other utilities, will not in general be supported.