WAIKANAE CHRISTIAN HOLIDAY PARK INCORPORATED v NEW ZEALAND HISTORIC PLACES TRUST MAORI HERITAGE COUNCIL [2013] NZHC 2319

WAIKANAE CHRISTIAN HOLIDAY PARK INCORPORATED v NEW ZEALAND HISTORIC PLACES TRUST MAORI HERITAGE COUNCIL [2013] NZHC 2319 [6 September 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-515[2013] NZHC 2319UNDER the Judicature Amendment Act 1972IN THE MATTER OF an application for Judicial ReviewBETWEEN WAIKANAE CHRISTIAN HOLIDAYPARK INCORPORATEDPlaintiffAND NEW ZEALAND HISTORIC PLACESTRUST MAORI HERITAGE COUNCILFirst DefendantTAKAMORE TRUSTEESSecond DefendantHearing: 25-26 March 2013Counsel: I R Millard QC and M S Smith for the PlaintiffHJP Wilson and A M Hall for the First DefendantL H Watson for the Second Defendant (granted leave towithdraw)Judgment: 6 September 2013Reissued: 13 September 2013JUDGMENT OF GODDARD JThis judgment was delivered by me on 6 September 2013at 4.30 pm, pursuant to r 11.5 of the High Court Rules,and reissued on 13 September 2013.Solicitors:Rees-Thomas Law Ltd, Wellington for PlaintiffKensington Swan, Wellington for First DefendantIntroduction[1] On 25 August 2011, the first defendant, the Māori Heritage Council (the Council) met with members of the Board of the Historic Places Trust to consider initiating a review of the boundaries of an area of land in Waikanae registered as wahi tapu. The area, known as the Takamore wahi tapu area, had first been registered as wahi tapu under the Historic Places Act 1993 (the Act) in 1995.1[2] A wahi tapu is a place sacred to Māori in the traditional, spiritual, religious, ritual or mythological sense. A wahi tapu area is an area of land that contains one or more wahi tapu.[3] The review was sought by the second defendant, the Takamore Trustees (the Trustees), a group mandated by the iwi to represent mana whenua interests in the area.[4] The outcome of the 25 August meeting was a decision to initiate and notify a review of the boundaries of the Takamore wahi tapu area.[5] Following notification of this review, submissions were received from a number of interested parties, including the plaintiff, Waikanae Christian Holiday Park Incorporated. On 14 December 2011, the Council met to consider the review and the submissions received in response. In the outcome the Council unanimously confirmed that the boundaries of the Takamore wahi tapu area should be extended and the register amended accordingly.[6] The extension to the boundaries included the whole of the plaintiff's land.2[7] The plaintiff challenges the decision to confirm the extension of the boundaries to include its land on six main grounds. In addition eighteen sub-issues were listed in an agreed summary of facts and issues filed by the plaintiff and first defendant.1 See appendix 1 for map of area registered as wahi tapu.2 See appendix 1 for outline of new boundary.[8] The Trustees filed a notice of appearance reserving their rights in this proceeding but advised they are not sufficiently resourced to take an active part. Their counsel, Mr Watson, appeared briefly at the hearing to seek leave to withdraw and was granted leave accordingly.[9] The six grounds of review advanced by the plaintiff are as follows:(a) whether the Council erred in accepting an application for review with no legal description of the general area of land affected, nor specification of the general nature of the wahi tapu sought to be included in the area;(b) whether the Council failed to disclose relevant documents to the plaintiff;(c) whether the Council should have held an oral hearing to resolve"disputed issues of fact";(d) whether the Council should have given reasons for its decision;(e) whether the Council considered the impact of registration as a wahi tapu area on the plaintiff's property rights; and(f) whether there was cumulative impropriety justifying intervention to set the decision aside.[10] The Council's position is that it came to its decision to review and extend the boundaries of the Takamore wahi tapu area, so as to include the plaintiff's land, lawfully and in accordance with its statutory powers under the Act. Whilst theCouncil accepts that a potential purchaser of the plaintiff's land may not besympathetic to the registration of a wahi tapu area and may regard it as some kind of impediment to property rights, the Council says registration does not affect theplaintiff's rights nor diminish the plaintiff's ability to exercise those rights in relation to ownership, occupation and property development.[11] The Council's approach is that the plaintiff's case is fundamentally misconceived in relation to the Council's role in considering and determining a proposal to review registration of a wahi tapu area; and also misunderstands the purpose and effect of registration of land as wahi tapu.[12] As is invariably the case, the facts are a vital aid to resolution of the issues, particularly in relation to the process that was followed and culminated in the Council's decision to confirm the extension to the boundaries of the Takamore wahi tapu area.[13] I will begin by outlining the legislative scheme, the internal processes, thebackground facts and the Council's decision. I will then consider amenability toreview, before going on to consider the grounds for review.The legislative scheme[14] The purposes and guiding principles of the Act are set out in s 4 of the Act, which provides:(1) The purpose of this Act is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand.(2) In achieving the purpose of this Act, all persons exercising functions and powers under it shall recognise—(a) the principle that historic places have lasting value in their own right and provide evidence of the origins of New Zealand's distinct society; and(b) the principle that the identification, protection, preservation, and conservation of New Zealand's historical and cultural heritage should—(i) take account of all relevant cultural values, knowledge, and disciplines; and(ii) take account of material of cultural heritage value and involve the least possible alteration or loss of it; and(iii) safeguard the options of present and future generations; and(iv) be fully researched, documented, and recorded, where culturally appropriate; and(c) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga.[15] The Act establishes the Historic Places Trust as the lead historic heritage agency in New Zealand. The Trust is directed by an independent Board and the Council. The Council has a specialist role in relation to any historic area, historic place, wahi tapu or wahi tapu area associated with Māori heritage. These functions are set out in s 85(a) and (e)–(h) of the Act. They are:(a) to ensure that, in the protection of wahi tapu, wahi tapu areas, and historic places and historic areas of Maori interest, the Trust meets the needs of Maori in a culturally sensitive manner:...(e) to make recommendations to the Trust on applications referred by the Trust under section 14(3) that relate to archaeological sites of Maori interest:(f) to consider and determine proposals for the registration of wahi tapu and wahi tapu areas:(g) to propose the registration of historic places and historic areas of Maori interest:(h) to make recommendations to the Trust on applications for resource consents referred by the Trust under section 33:...[16] An additional and related function to determining proposals for the registration of wahi tapu and wahi tapu areas is the review, variation or removal of such registrations under s 37 of the Act.[17] The Historic Places Trust is required to establish and maintain a register, which consists of four parts: one for historic places, one for historic areas, one for wahi tapu and one for wahi tapu areas.3 The register is required to be open for publicinspection at the Historic Places Trust's principal office in Wellington, as well as atthe Trust's regional offices.4 The purpose of the register is to inform members of the public about the areas recorded in it, to notify owners of these areas where necessary,3 Historic Places Act 1993, s 22(3).4 Section 36.and under s 22(2)(c) of the Act to assist in ensuring these areas are protected under the Resource Management Act 1991 (RMA).5[18] The legislative provisions which have assumed particular prominence in this proceeding are s 32, which provides for matters and processes relevant to a proposal for registration of a wahi tapu area; s 32A which provides for the procedures required when a wahi tapu area is proposed; and s 37 which, in similar terms, prescribes matters and processes relevant to review of a registration.[19] Section 32 is as follows:(1) Any person may propose to the Maori Heritage Council that any wahi tapu area be entered on the register.(2) Every proposal for registration shall contain a legal description of the general area of land affected and specify the general nature of the wahi tapu included in the area.(3) If satisfied that the proposal is supported by sufficient evidence, the Council must—(a) publicly notify the proposal for registration in the manner that the Council considers appropriate; and(b) give notice in writing of the proposal to—(i) any person that—(A) is an owner of the wahi tapu area or part of the wahi tapu area; or(B) has a registered interest in the wahi tapu area or part of the wahi tapu area; and(ii) the relevant territorial authority and regional council; and(iii) the appropriate iwi.[20] The key provisions of s 32 for the purposes of this proceeding are those requiring a proposal to register a wahi tapu area to contain a legal description of the general area of land affected and to specify the general location and nature of the wahi tapu; and the threshold criteria that a proposal must be supported by sufficient evidence to satisfy the Council that a recommendation for registration is appropriate.5 Section 22(2).[21] Section 32A makes provision for the procedure to be followed if registration of a wahi tapu area is proposed. The relevant provisions are as follows:(1) The following persons may make written submissions on a proposal under section 31 to register an historic area or on a proposal under section 32 to enter a wahi tapu area on the Register:(a) every owner of the historic area or wahi tapu area, or part of the historic area or wahi tapu area:(b) any occupier of the historic area or wahi tapu area, or part of the historic area or wahi tapu area:(c) every person having a registered interest in the historic area or wahi tapu area, or part of the historic area or wahi tapu area:...(2) The submissions must be made to the ... Council, ... , within—(a) 20 working days after the public notification of the proposal ... ; or(b) any longer period specified by the ... Council in a particular case, but not longer than 40 working days after the public notification of the proposal ...(3) The Council may make any inquiries that it sees fit before deciding whether to register a wahi tapu area.[22] Section 37 provides for review, variation or removal of the registration of a wahi tapu area after a period of three years. In the context of this case s 37(4), (6), (7) and (8)(a) are of particular relevance:(4) An application for the review of a registration must be made in the prescribed form (if any) and state the grounds for review....(6) However, the Trust or the Council (as the case may be)—(a) may decline to consider any application that does not state any grounds for review or if it considers that the grounds stated are insufficient to justify a review; and(b) must notify the applicant of its decision in writing.(7) If the Trust or the Council decides to review a registration (whether on its own initiative or as a result of an application), the Trust or the Council (as the case may be) must conduct the review in the samemanner as if it were a proposal for registration or an application to enter on the Register (as appropriate) under this Act.(8) When its review is completed, the Trust or the Council (as the case may be) may—(a) vary the registration; or(b) remove the registration; or(c) confirm the registration;...Overview of internal processes[23] When a proposal for registration of a wahi tapu area or an application for review of a registration is received by the Trust, relevant research and inquiries may be carried out (see s 32A(3)) and a number of in-house procedural steps may be undertaken. As will shortly be outlined, in the present case there was the involvement of a Steering Group, of the Technical Review Committee and of the Historic Places Trust Lead Team before the application for review was placed before the Council for its determination as to whether there was sufficient evidence to justify a review being initiated and the application notified publicly and to interested persons.[24] Following the receipt of submissions from interested persons, the Council considered and determined whether the application should be confirmed and the existing registration varied accordingly.Background facts[25] On 15 May 1995, the then Chair of the Trustees, Robert Ngaia, applied to the Council for registration of an area of land as wahi tapu on the basis that it contained an urupā (a graveyard) and a Macrocarpa tree known as the Maketu Burial Tree. The Burial Tree marked a number of sacred gravesites. The Council accepted the application and registered the area as wahi tapu under s 30 of the Act on 4 August 1995.6 The area, referred to as the Takamore wahi tapu area, included Ngarara West A24C (where the urupā is located) and Ngarara West A24B Lot 1 DP 23875. It6 Section 30 has since been repealed. Registration is now provided for by s 32B.comprised approximately 19.2 hectares in total. The land on which the Maketu Burial Tree is located (which at that time was owned by the plaintiff but is now owned by the Kapiti Coast District Council) was however omitted from registration. This appears to have been an oversight. On 5 October 1995, registration of the area as wahi tapu was notified by the Kapiti Coast District Council.[26] The area was subsequently recorded in the Kapiti Coast District Council Heritage Register in 1999. The area of land registered as wahi tapu by Kapiti Coast District Council was in fact more extensive than that recorded by the New Zealand Historic Places Trust in its Register. Nothing however turns on that discrepancy, which appears to have caused no disquiet or demur.[27] In 1997, a notice of requirement under the RMA was issued by the Kapiti Coast District Council for the Western Link Road project. As this project would affect both the plaintiff's land and the Takamore wahi tapu area, all three parties appealed the notice to the Environment Court. This was in 2002. The appeal was dismissed and the designation confirmed. The parties then appealed to the High Court, where the decision of the Environment Court was quashed and referred back to the Court for reconsideration. In June 2003, the Environment Court again upheld the notice of requirement. The parties unsuccessfully appealed that decision in 2004. For the purposes of this judgment it is convenient to refer to these proceedings as "the court proceedings". It is also important to record here that considerable evidence was advanced by the parties during these proceedings in relation to the wahi tapu significance of the area. Bruce Stirling, a historian with specialist expertise in historical Māori land issues, who had been earlier engaged by the Trust to provide a report on the history of the Takamore urupā in 2001, gave evidence on behalf of the plaintiff at the 2002 Environment Court hearing, based on this report. It is not in issue that Mr Stirling has particular and relevant expertise and experience in this area of history.[28] As a result of the court proceedings, the Kapiti Coast District Council acquired 6.3 hectares of land from the plaintiff in 2008 for the purposes of the Western Link Road Project. This land included the site of the Maketu Burial Tree.[29] In 2010 the New Zealand Transport Agency (NZTA) proposed an expressway, with two options. One option would avoid the Takamore wahi tapu area. In February 2011, the Council made submissions indicating a preference for that option.[30] It was as a result of the NZTA's proposed action in relation to the expressway that the Trustees came to realise there were anomalies in the area of land they had sought to have registered as wahi tapu in 1995, a significant aspect of which was the non-inclusion of the Maketu Burial Tree. On 27 June 2011, the Trustees wrote to Te Kenehi Teira, the Kaihautū for the New Zealand Historic Places Trust, requesting a review of the existing registration with a view to expanding it. The letter, written by the solicitor for the Trustees, did not contain a legal description of any land that might be affected by such an extension. It simply set out the basis for requesting a review as follows:1. I have instructions from the Takamore Trustees. Thank you for making time with your Historic Places Trust colleagues to meet with Trust chairperson Ben Ngaia and the writer on 2 June 2011 to discuss the potential impacts of the proposed Expressway route on the Takamore waahi tapu area.2. The Trustees have instructed me to formally request from the Historic Places Trust a review of the waahi tapu area, with particular reference to the fact that the boundaries of the registered waahi tapu do not accord with oral tradition and archaeological evidence concerning the presence of kōiwi and taonga.3. In one particularly recent example, you have been provided with a report from archaeologist for the New Zealand Transport Agency, Ms Mary O'Keeffe which clearly evidences the presence of kōiwi in and around the Maketu tree area, which is outside the current boundaries of the registered waahi tapu. There are also other examples of similar anomalies.4. The Trustees would wish to participate in any review process and share the information that they have collated. The Trustees also reiterate that this process is an urgent one, given the fact that NZTA have publicly announced the preferred route for the Expressway.[31] The process that followed this letter of request from the Trustee's solicitor isimportant.[32] On 1 July 2011 the Council acknowledged receipt of the Trustees' request and on 5 July 2011 an internal registration project brief was prepared by Ms Collins, the Māori Heritage Registrations Co-ordinator of the Historic Places Trust, who has responsibility for managing and providing national coordination of wahi tapu and wahi tapu registrations. The parties are agreed that the aim was for a speedy process, so that if there were to be an extension of the wahi tapu area, this could be registered before the expressway was determined.[33] The project brief prepared by Ms Collins was detailed and covered all aspects of the exercise, including a proposal to engage Mr Stirling as an independent contractor, to carry out the necessary research and prepare a report for the Council'sconsideration.[34] On 8 July 2011, Ms Collins referred her project brief to three of the Council members for their consideration and comment. Feedback was provided by one of the Council members and the brief was approved.[35] On 12 July 2011, the Council engaged Mr Stirling to undertake a review of the Takamore wahi tapu area and the proposed extension. Mr Stirling was sent the project brief. His research was to include an assessment of the existing 1995 Takamore wahi tapu area registration and the sources of information for that which were contained in three volumes. He was asked to complete a draft report for the Council by 20 July 2011. Mr Stirling requested any other documentation included with the Takamore Trustees' request for an extension of the area and was advised there was none.[36] Ms Collins sent a formal Application for Review of a Registration for a Historic Place/Area to the Trustees on 14 July 2011 for completion.7 The Trustees returned the completed form on 20 July 2011. It expressly referred to a block of land with some glasshouses owned by the NZTA and to the Maketu Burial Tree but did not refer to land owned by the plaintiff. Nor did the form contain a legal description7 The Trustees' application was the first time a review of a wahi tapu area had been requested and there was no "prescribed form" of application for review at that time.of any land that might be included in an extension of the wahi tapu area. The grounds for review, as listed in the completed application form, were as follows:(1) The current boundaries of the registered wahi tapu are inaccurate in that they follow cadastral boundaries and do not accord with the boundaries of the wahi tapu as provided in the oral tradition of the kaitiaki.(2) One complete title block within the wahi tapu is excluded from theregistered wahi tapu boundary, being locally referred to as "the greenhouse block" now owned by NZTA.(3) The registered wahi tapu does not include the Maketu Tree, which is an important part of the cultural heritage landscape and the wahi tapu as known by the kaitiaki.[37] As there was no specific or legal description of land in the application Mr Stirling contacted the Trustees' solicitor to clarify the area of the proposedextension. Following that he met with Ben Ngaia and another of the Trustees on 16 July 2011 to discuss the extent of the land to be included in the review. The meeting was "on site" and was of about two hours duration, during which the party walked over some of the land in question although not over the plaintiff's land. The extent of the area to be included in the review was discussed and Mr Ngaia outlined to Mr Stirling the traditional history of the area and identified landscape features and locations associated with it. Mr Stirling included and referenced this information for inclusion in his report.[38] On 21 July 2011, Mr Stirling produced his report in draft.[39] On 25 July 2011, the Technical Review Committee of the Historic Places Trust, comprising Mr Teira and other members of the Trust, as well as Ms Collins, met to discuss the proposal to review the registration of the Takamore wahi tapu areaand Mr Stirling's draft report.[40] As a result of their discussions it was determined that further information was required and Mr Stirling should be asked to provide more information on how the boundaries for the Takamore wahi tapu area were to be determined. The Committee also suggested that it would be useful to include a map in his report showing thewahi tapu area boundaries at the date of registration in 1995 and the proposed extended boundaries.[41] Mr Stirling was contacted by Ms Collins and asked to comment on the issues identified by the Committee.[42] On 28 July 2011, Mr Stirling responded to the Committee's comments andmade some minor amendments to his draft report.[43] On 2 August 2011, a meeting of the Historic Places Trust Lead Team was held. It comprised Mr Teira and other members of the Lead Team. This was a wider group of persons than those who had participated in the Technical Review Committee meeting of 25 July. Mr Teira's evidence is that the proposal "to initiate areview of registration of the Takamore wahi tapu area, the response from Mr Stirlingand the progress that had been made by the Trust in this regard" was considered atthe meeting.[44] A formal discussion paper had been prepared for the meeting. The introduction to the paper highlighted:a. that the cultural and historic values of this registered wahi tapu area are again at risk following the announcement in June 2011 that the preferred route for the State Highway 1 Kapiti Expressway, a Central Government prioritised Road of National Significance (RoNs), will impinge on the wahi tapu area;b. as a consequence of this request the statutory obligation for time to completion and consultation under Section 37 of the Historic Places Act (1993);c. the need for clarification that NZHPT did not initiate this review andto separate out NZHPT's advocacy germane to the decision onroading options.[45] The paper recorded that the Council would continue to be a party to the process relating to the legal obligations of s 33 of the Act, which requires applications for consent to local authority, in respect of a wahi tapu area, to be referred to the Council for consultation with interested parties and possible recommendation.[46] The paper also recorded that the Technical Review Committee hadconsidered Mr Stirling's draft review report on 25 July 2011, and:22. ... were satisfied that the case for the significance of the Takamore wahi tapu area and the values associated with the area has been made. Following on from this TRC noted that the remaining Takamore area is a small remnant of a much wider cultural landscape and requested further explanation and clarification of the proposed boundaries within the report for consideration.23. TRC has approved that the proposal to initiate a review of registration go to the Maori Heritage Council. It is intended that this proceed to the August Council meeting and include the further clarification TRC requested. If the proposal is agreed by Council it is suggested that a consultation process on the review of registration is developed in discussion with Council.[47] Referring again to the Historic Places Trust's obligations under s 33 of theAct, the paper then advised:24. In a similar time period NZHPT continues to engage with the NZTA Alliance project team through the detailed design phase through to consent lodgement in 2012. During this time there must be an appropriate degree of separation of regulatory and statutory roles.[48] The paper concluded as follows:35. Following further clarification of the proposed enlarged boundaries the report will be further considered by TRC for approval to proceed to the Maori Heritage Council.36. If initiation of a review is agreed by Maori Heritage Council then a formal consultation process with stakeholders should be developed and implemented, as informed by Council.37. NZHPT respects the MOU in place with NZTA and commitments to other stakeholders, especially the Takamore Trustees and Kapiti Coast District Council, to continue dialogue on roading options in good faith.[49] On 5 August 2011, Mr Stirling provided his report. In it he set out in detail which land was to be assessed for an extension of registration. This included theplaintiff's land. A detailed review of the history of the area proposed was also included in the report. In brief summary, this outlined how Te Ati Awa had migrated to the land in around 1820-30 and had battled Ngati Raukawa for land ownership. This led to the Battle of Te Kuititanga in 1839. Some of the dead from that battle were said to have fallen in the Ngahuruhuru cultivation (within the proposedTakamore wahi tapu area) and were buried there. This rendered that tract of land tapu. The same land is part of the surrounding cultural landscape and contains many pa sites to the north, east and west. In 1840, Te Ata Awa left the area but some of the iwi later returned in 1848-49 and the Takamore urupā was then subject to more extensive use. The iwi moved on again in the 1890s, but left behind taonga buried in the urupā. The southern part of the urupā was marked by the Maketu Burial Tree. Mr Stirling recorded that not only had the original registration of the area as wahi tapu not included the Maketu Burial Tree, neither had it included other significant areas, including the Ngahuruhuru cultivation where kōiwi (human bones) had recently been located during the NZTA archaeological excavations. Mr Stirling referred to the evidence Robert Ngaia (the then Chairman of the Trustees) had given to the Environment Court in the 2002-2004 court proceedings that "many of ourdead lie in their lands" (a reference to the plaintiff's land including part of the Ngahuruhuru cultivation grounds) and to the recent opinion of the NZTA archaeologist, that further unrecorded sites will be located if the area is more thoroughly excavated. There was also reference to another significant wahi tapu omitted from the original registration, being two punawai (sacred springs) situated next to the glasshouses on the land owned by the NZTA.[50] Importantly, in the context of this judicial review proceeding, Mr Stirlingexpressly identified the plaintiff's land and the other potentially affected land in hisreport. The legal description of the plaintiff's land (highlighted below in yellow), as assessed for extended registration, was included in the following part of Mr Stirling'sreport:2. IDENTIFICATION2.1 Name of Wahi Tapu AreaName: Takamore2.2 Location InformationAddressFlaxmere Street, Gates Road, Weggery Drive, Waikanae River, Kauri Road and Puriri RoadWAIKANAE BEACHIwi/hapu: Otaraua hapu of Te Ati Awa ki WhakarongotaiLocal Authority: Kapiti Coast District CouncilNZAA Site Record Info: NZAA R26/273 midden; R26/274 midden, R26/275 midden; R26/276 midden; R26/277 midden; R26/278 hearth; R26/279 hearth; R26/280 hearths; R26/372 midden; R26/454 urupa (Maketu grave, Maketu tree, and associated graves)2.3 Current Legal DescriptionLot 1 DP88064 (CT 495921), Pt Ngarara West A24 B (SO 20313), Lots 1, 2, 6, 8, 9, 10 (CTs WN53A/520, WN53A/521, WN53A/522, WN53A/523, WN53A/524, WN53A/525. Lots 3, 4, 5, 7 (CTs WN53A/527, WN53A/528, WN53A/529, WN53A/530), Lots 8-10 DP 85160, Lots 3, 4 (CT 477307, WN56A/972), Ngarara West A Sec 24C Blk (CT 449350). Lot 1 DP 17617 (CT471722), Pt Lot 1 DP 24354, Lot 1 DP 27661, Pt Lot 1 DP 57749, Lots 1-2 DP 69476 (CT WN39D/372), Sec 1-2, 6-17 (CT 475586), Lot 3 DP 52593 (CT 81087) Wellington Land District.2.4 Physical Extent of Area Assessed for RegistrationLot 1 DP88064 (CT 495921), Pt Ngarara West A24 B (SO 20313), Lots 1, 2, 6, 8, 9, 10 (CTs WN53A/520, WN53A/521, WN53A/522, WN53A/523, WN53A/524, WN53A/525. Lots 3, 4, 5, 7 (CTs WN53A/527, WN53A/528, WN53A/529, WN53A/530), Lots 8-10 DP 85160, Lots 3, 4 (CT 477307, WN56A/972), Ngarara West A Sec 24C Blk (CT 449350). Lot 1 DP 17617 (CT471722), Pt Lot 1 DP 24354, Lot 1 DP 27661, Pt Lot 1 DP 57749, Lots 1-2 DP 69476 (CT WN39D/372), Sec 1-2, 6-17 (CT 475586), Pt Lot 3 DP 52593 (CT 81087) Wellington Land District. The wahi tapu area contains sites of cultural and historical importance, including wahi tapu, and interrelated cultural features such as the Takamore urupa, the Maketu tree and grave, whare kohanga, punawai, kōiwi, Ngahuruhuru area, and a range of archaeological sites.2.5 Identification EligibilityThere is sufficient information included in this report to identify this place.[51] A map showing the boundaries of the proposed extended wahi tapu area wasalso included in Mr Stirling's report. This showed, by way of comparison, the boundaries of the original 1995 registered wahi tapu area; the larger area of land registered by Kapiti Coast District Council as wahi tapu (see [26] above); and theextension proposed by the review. The map showing the extent of the proposedregistration contained the legal description of the plaintiff's land (as in [50] above).[52] Aerial maps were also included in Mr Stirling's report, showing features andboundaries. Also, included were search copies of the certificates of title of the landproposed to be affected, including a certificate of title for the plaintiff's land. Therewere also various visual aids to historical information about the area attached to the report, including New Zealand Archaeological Association pictorial records of archaeological sites within and adjacent to the Takamore wahi tapu area and the proposed extension.[53] In an affidavit filed in this review proceeding, Mr Stirling set out how he had determined the area to be included in the review and had incorporated this into a map showing the boundaries of the proposed extended wahi tapu area. He described the research upon which he had relied, in addition to the important oral history and traditions relating to the Takamore urupā and the adjacent land as given by "those people most familiar with them; the tangata whenua". His research had included examining and reviewing a number of primary and secondary sources in order to determine whether there was sufficient evidence to support the boundaries of the Takamore wahi tapu area being extended for the purpose of protecting and conserving Māori culture, taonga, and traditions within the Takamore ancestral lands. Of his researches, Mr Stirling said:4.3 ... The focus of the original registration was on the area associated with the Takamore urupa, which is only a small part of the Takamore wahi tapu area....5.3 It was important to determine whether there was sufficient evidence to support the need for the boundaries of the Takamore wahi tapu area to be extended to protect and conserve Maori culture, taonga, and traditions within their ancestral lands.5.4 This requires knowledge of the history of this area, historical research sources, and a familiarity with Maori culture. The skills and knowledge required to undertake the assessment are within my area of expertise.5.5 As part of my review of the Takamore wahi tapu area, I examined a number of primary and secondary sources. The primary sourcesincluded Native Land Court minute books, Maori land plans, the maps and manuscripts of the early ethnographer Adkin, recorded archaeological sites, and the relating of oral tradition in recent times by the Takamore people as part of the Environment and High Court proceedings. Secondary sources included local histories (notably that of Carkeek), Te Ara, and a range of expert evidence and archaeological reports relating to the Waikanae and Takamore area that have emerged as a result of statutory requirements linked to land development or proposals for development affecting the area from 1995 to the present....6.5 From the meeting with Ben Ngaia and my research, I determined that the area to be included in the review was [as set out in the draft report].6.6 I included a map in my draft report which showed the boundaries of the proposed extended wahi tapu area.6.7 It was apparent to me from the research I had done that the Takamore wahi tapu area was larger than the area registered in 1995. The focus of the previous registration was on the surveyed urupa and the wahi tapu adjacent to it. Residential development west of the surveyed urupa prompted the registering the wahi tapu area. It appears that the titles subject to development at that time influenced the shape of the wahi tapu area that was registered in 1995.6.8 Extending the wahi tapu area raised the issue of how to define the limits of the extended area. Research since 1995, including that undertaken for my report, shows the wahi tapu area extends to the south and southwest of the 1995 area. This includes the Maketu grave, an urupa associated with it, and Ngahuruhuru, a former cultivation area rendered tapu (sacred) when some of those who died during fighting in the area in 1839 were buried where they fell, on Ngahuruhuru.6.9 I considered whether the wahi tapu area should be extended beyond these limits. I found that it is not easy to define a rigid boundary for Ngahuruhuru in the west and southwest of the wahi tapu area. In addition, there are significant sites to the south, east, and north of the wahi tapu area that are broadly associated with the wahi tapu area. These include pa sites, village sites, and other occupation sites. I did not recommend extending the wahi tapu area to encompass these areas.6.10 In cultural terms, the ways in which the land has been traditionally managed and used helped determine the limits of the wahi tapu area. Lands to the south (across the Waikanae River), to east (the site of Tukurakau village), and the north (Taewapirau pa) are traditionally the responsibility of customary land owners other than those represented by the Takamore Trustees. Some or all of these sites may be found to constitute wahi tapu or wahi tapu areas in their own right, but they will be wahi tapu areas distinct from the Takamore wahi tapu area.[54] The above extracts are but a few passages from Mr Stirling's report.[55] On 25 August 2011, a Māori Heritage Council meeting was held. The meeting was chaired by Sir Tumu Te Heuheu and attended by other members of the Council and Board members of the Historic Places Trust. The meeting wasconvened to consider a paper circulated in advance by Ms Collins entitled "Proposal to Initiate Review". Mr Teira's evidence about the meeting and its outcome, which was to recommend that the review sought by the Takamore Trustees be initiated and notified, was as follows:8.3 The Council discussed the application to extend the boundaries of the Takamore wahi tapu area. The Council also discussed the issue of arbitrary lines for the wahi tapu area boundary and the need to create'softer lines' and access to the urupa via a proposed over-bridge. The Council wanted to be sure that the boundaries included any known burials and wahi tapu features within the registered area. The Council also considered access to the Takamore cemetery if the proposed expressway was to cut off the roadway to the cemetery.8.4 It concluded that the application was valid under section 37(2) of the Act and recommended that the review was initiated and approved the public notification of the review.[56] Following the meeting, Ms Collins emailed Mr Ngaia and the TakamoreTrustees' solicitor to advise that the Council had approved notification of the reviewand that public notices would be sent out and submissions invited. Formalnotification of a copy of Mr Stirling's report would also be sent to the Takamore Trustees and to other interested parties that same week.[57] On 5 September 2011, Mr Teira sent a letter of notification to the plaintiff, enclosing a copy of Mr Stirling's report, and informing it that the Council had received an application from the Takamore Trustees requesting a review of theregistration of the wahi tapu area and that the plaintiff's land was to be included inthis review, as Mr Stirling had identified Māori values associated with the plaintiff'sland. The plaintiff was advised that it had 20 working days in which to provide written submissions in response but that this period could be extended. In the event, the plaintiff sought an extension of the period to 40 working days, which was approved. Subsequently, the 40 day extension for submissions was extended to all interested parties, as a matter of fairness.[58] On 4 October 2011, the Trustees advised the Council that they accepted Mr Stirling's report as accurate. They also provided a Cultural Impact Assessment, a document that the Trustees had been preparing since the Court proceedings in 2002-2004 in relation to the potential impacts of the proposed expressway route on the Takamore wahi tapu area. This Cultural Impact Assessment had not, however, been relied on by Mr Stirling in preparing his report and nor was it part of theCouncil's consideration.[59] On 11 October 2011, the plaintiff requested from the Council an "assessmentof [the] evidence" submitted by the Trustees in support of their application. As there had been no evidence submitted by the Trustees, none was supplied.[60] On 28 October 2011, the plaintiff renewed its request and also made the same request direct to the Trustees. The Trustees provided the plaintiff with a copy of their Cultural Impact Assessment.[61] A spreadsheet listing all of the registered wahi tapu sites within Porirua, Horowhenua and Kapiti Coast was sent to the plaintiff by Ms Collins at its request. The plaintiff also sought a copy of the original 1995 registration application for registration by the Trustees, submitted by Robert Ngaia, which was provided to them on 31 October 2011.[62] Mr Teira's evidence is that at no stage was he aware of receiving a request, either orally or in writing, from the plaintiff, seeking a copy of the Trustees'application for a review of the Takamore wahi tapu boundaries (the application form referred to in [36] above).[63] On 4 November 2011, the plaintiff sent in its submissions opposing the extension of the wahi tapu area and expressing a number of concerns and asking to be heard. Amongst the concerns expressed were that the plaintiff's land value and its ability to exercise its rights over the property would be diminished; and that the historical evidence relied upon was unreliable and lacked clarity as to what land is wahi tapu. Mr Millard, on behalf of the plaintiff, set out in summarised form the following reasons for its opposition:(a) neither the notice nor the Stirling Report identified the exact location or nature of the wahi tapu within the extended area and, in particular,within the plaintiff's land and none was known;(b) it was not clear how the boundaries of the historical Ngarara West A24B Block related to the present day boundaries and the Maori Heritage Council had not responded to a request from the plaintiff for clarification;(c) no consideration had been given to the effect of registration on the plaintiff and its activities;(d) the use of the term "cultural landscape" to justify extended registrationwas too broad;(e) the location of the site of the battle of Kuititanga in 1839 and the Ngahuruhuru cultivation (where it was thought possible that some of the invading warriors may have been killed and left – but not bodies of the tangata whenua which were collected) was not as set out in the Stirling Report. The plaintiff relied on evidence in the Percy Smithbook "history and Traditions of the Maoris of the West Coast NorthIsland of New Zealand, Prior to 1840" first published in 1910;(f) based on a Waitangi Tribunal Research Document, it appeared that the Otaraua hapu and their descendants (from whom the second defendants are drawn) were not associated with what was the nowplaintiff's land (namely Ngarara West 15, 16 and 17);(g) the plaintiff's own experience in carrying out development of its site, involving the then recent installation of a substantial water infrastructure throughout the camp, had required extensive excavations during which no kōiwi or other archaeological sites had been found. Under the conditions for such work, the plaintiff was required to (and did) notify the relevant iwi organisation, specified to be Runanga o Te Ati Awa ki Whakeirongotai, and invited them to inspect the site while the work was being carried out;(h) registration would decrease the value of the plaintiff's land;(i) the proposal appeared discriminatory given there were other sites of extensive occupation by Maori as evidenced by the location of wharenui and other places of battles that were not the subject of wahi tapu registration. The plaintiff submission was that more should be required than a belief that a site may be the site of wahi tapu before registration;(j) the proposal appeared to be discriminatory in that the plaintiff's landwas perceived to be largely unoccupied or rural;(k) the plaintiff had asked for a copy of the applicant's evidence to theHPT and in apparent response had received the Cultural Impact Assessment done by Ben Ngaia. The plaintiff was critical of that Assessment.[64] At the Council's request, Mr Stirling prepared a memorandum on 16 November 2011 for the Council to respond to some of the plaintiff's concerns.[65] On 17 November 2011, the Council sent a letter of response to the plaintiff, incorporating some of Mr Stirling's comments. The Council advised the plaintiff there was no provision for oral submissions. However, they would consider further written submissions. Also, that registration of itself did not impact on the rights of a property owner and that a historical reference source,8 upon which the plaintiff was relying in its submission, had not formed part of Mr Stirling's report. This letter wasnot received by the plaintiff until 8 December 2011. The plaintiff replied to it on 12 December 2011.[66] Although the plaintiff asserts there was no chance for an oral hearing or visit by the Council to the plaintiff's land before the Council confirmed the proposed extension of the wahi tapu boundaries, Mr Teira's evidence is that he made a visit to the plaintiff at its property on 25 November 2011. He said he visited in response tothe plaintiff's invitation for someone from the Council to come and visit theproperty. He went in his role as Kaihautū. There he met with Anna Carter, the business manager of the plaintiff, who took him on a tour of the property. During themeeting he discussed with Ms Carter NZTA's proposed expressway, local Māorihistory, the boundaries of the proposed extended wahi tapu area, future aspirations of the plaintiff for the area, the relationship with the Trustees and the registration processes of the Trust and Council. There was also discussion about the Battle of Te Kuititanga and the lack of certainty as to where exactly that battle had taken place.[67] Following the receipt of submissions from interested persons, including the plaintiff, Ms Collins prepared a paper entitled Confirmation of Registration which she circulated to Council members.[68] I note here that the plaintiff was not the only submitter opposing the proposed extension of the wahi tapu boundaries; nor the only submitter challenging the8 Percy Smith History and traditions of the Maoris of the West Coast of the North Island of New Zealand, Prior to 1840 (Polynesian Society, New Plymouth, 1910).correctness of all material in the review report; nor the only submitter seeking to be heard on its submission. The paper referred to the implications of registration and to the consultations that had taken place with three of the submitters. In fact, four of the submitters requested the opportunity to make oral submissions to the Council and Mr Myer, on behalf of the Takamore Trustees, requested the right to respond to any submissions filed by others. It included a spreadsheet listing all submitters and noting the substance of their submissions and whether they opposed a review of the registration or not. The plaintiff's further submission of 12 December, although not listed on the spreadsheet, had been received by Ms Collins and she placed it before the Council for its consideration at the meeting.[69] The recommendation in the paper was for the Council to consider the issues raised in the submissions received, to confirm the registration proposals and to recommend to the territorial authority appropriate measures to assist in the conservation and protection of the wahi tapu area. All submissions and correspondence from submitters or their lawyers were appended to the paper.[70] On 14 December 2011, the Council met to consider whether it should confirm the registration of Takamore (Flaxmere Street, Gates Road, Weggery Drive, Waikanae River, Kauri Road, Puriri Road and Waikanae Beach) as a wahi tapu area. Ms Collins was in attendance at the meeting, as was Mr Teira.[71] Mr Teira's evidence as to the conduct and outcome of the Council meeting was as follows:10.1 ... Those members of the Council present at the meeting included Sir Tumu te Heuheu (Chair of the Council and Board member), Ms Naida Glavich (also a Board member), Mr Manos Nathan, Mr CheWilson, Mr Gerard O'Regan, and Mr Ian Athfield (also a BoardMember). Also present at the meeting were Mr Bruce Chapman, Ms Suzie Collins, Ms Anna Glassie, Mr Rei Kohere, Mr Dean Whiting, and myself....10.3 The Council reviewed and considered all submissions that the Trust had received. It noted that the following consultations had taken place:a I had met with Ms Carter on site and discussed the proposed review.b The Trust had met with Mr Watson and Mr Ngaia to discuss the review.c The Trust had met with the NZTA to discuss Mr Stirling'sreport and clarify any concerns.10.4 The Council had a lengthy discussion regarding the report received from Mr Stirling and the proposed boundaries of the Takamore wahi tapu area. A concern was raised regarding the extent of the registration boundary and the resistance that could be received with strict cadastral lines that follow a legal boundary as opposed to softer edges. In response to this concern, it was noted that under the Act all boundaries have to be identified by their legal title, and experience in the past with some old registration boundaries that were hand drawn on geographical maps proved difficult and affecting scheduling and protection.10.5 The Council discussed the submissions received by WCHP in detail and considered WCHP submissions that the proposed extension of the Takamore wahi tapu area would diminish its land value including its ability to exercise right of ownership, occupation, and property development The Council did not accept this comment as valid and noted that registration did not in itself diminish property rights.10.6 The Council confirmed that the boundaries of the registered Takamore wahi tapu area were to be extended to Takamore, Flaxmere Street, Gates Road, Weggery Drive, Waikanae River, Kauri Road, and Puriri Road. It also recommended that the Kapiti Coast District Council update their Council Operative 1999 Plan to reflect the amended area boundary.10.7 On 12 January, I notified all interested parties, including [the plaintiff], that the Council had confirmed the review of the Takamore wahi tapu area.[72] The Takamore wahi tapu area now includes:(a) the Maketu tree which is located on section 12 Survey Office Plan 407250 Wellington Land District (CT475586) owned by the Kapiti Coast District Council;(b) all of the plaintiff's land – Pt Lot 1 DP 24354, Pt Lot 1 DP 57749, Lot 1 DP 69476, Lot 1 DP 27661, and Lot 2 DP 69476;(c) land belonging to Kapiti Coast District Council; and(d) the area to the south-west of the Takamore wahi tapu area in whichkōiwi have been located.The Decision[73] The decision of the Council, as recorded in the minutes of the meeting on 14 December 2011, was as follows:TakamoreIt was resolved that(i) The Māori Heritage Council having considered the issues raised in the submissions received the response to those issues provided by NZHPT management the registration of the following:Takamore, Flaxmere Street, Gates Road, Weggery Drive, Waikanae River, Kauri Road and Puriri Road, WAIKANAE BEACH (Record no.7263) as a wahi tapu area be confirmed.(ii) The following recommendation be made to the territorial authority:To ensure the long-term conservation for Takamore wahi tapu area, that the Kapiti Coast District Council update their Kapiti District Council Operative 1999 Plan to reflect the amended Takamore Wahi Tapu Area boundary.Resolution 11/61Amenability to review[74] The parties are agreed that the Council's decision to extend the wahi tapuarea was a statutory power of decision and thus amenable to judicial review under the Judicature Amendment Act 1972. However, the justiciability of the decision in question is not simply to be determined by agreement between the parties. A number of aspects require consideration. Amongst these are the specialist composition of the decision-making body (the Council), the nature and purpose of its functions, the effect of a decision to confirm a variation to registration, and whether such a decision is determinative of anything. In terms of the latter, there is the consequential question of whether the plaintiff's challenge is premature.Membership of the Council[75] As is evident, the Council membership comprises persons appointed for their knowledge of te ao Māori (Māori worldview) and tikanga Māori (Māori protocol and culture) and other members appointed or elected for their specialist skills, knowledge or cultural background appropriate to the functions and powers of the Council.[76] The nature and composition of the Council and the purpose to which its decisions are directed are also relevant to the nature, purpose and effect of its decisions. The members are not appointed for their experience or expertise in litigation or adjudication. They come from varied but relevant backgrounds.[77] The chair of the Council, Sir Tumu Te Heuheu, is the paramount chief ofNgāti Tuwharetoa. Dr Apirana Mahuika is the chairman of Te Runanga O NgātiPorou and has been recognised for his commitment to the preservation and protection of historic places. Manos Nathan, a Council member, is a practising artist and educator in fine art in the tertiary sector. He has also been involved in researching and presenting evidence to the Waitangi Tribunal, including in relation to wahi tapu issues. Another member, Mr Ian Athfield, was elected by the other members for his architectural expertise. These examples illustrate the ambit ofexperience and expertise deemed necessary for the discharge of the Council'sfunctions, including its decision-making function.The effects of registration?[78] One of the grounds of review advanced by the plaintiff is that the Councilerred in law by treating the plaintiff's property rights as irrelevant. In this regard the plaintiff says the Council failed to "genuinely" consider the impact of registration onthe value of the plaintiff's land and on the diminution of its rights in connection withthe land. This particular ground begs an analysis of what, if any, the effects and/or consequences of registration of a wahi tapu area under the Act are? Therefore, what, if anything, is determined by registration?[79] The starting point is to revisit the purpose of registration under the Act. The primary object of the Act is to "promote" the identification, protection, preservation,and conservation of the historical and cultural heritage of New Zealand and in doing so to recognise the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga. The purpose and principles of the Act, as set out in [14] above, are directed to this outcome.[80] The purpose of registration is to identify and inform owners, members of the public, community organisations, government agencies and local authorities aboutsignificant heritage value; and, in terms of s 22(2)(c) of the Act, to "assist ... wahi tapu and wahi tapu areas to be protected under the Resource Management Act 1991".[81] However, the signification of heritage value through registration alone does not, of itself, restrict land use or otherwise impact on the legal rights of property owners. It does not impose any regulation on land use. As Mr Wilson submitted, registration simply confirms that there are wahi tapu values associated with the land: thus, it is a signifier of heritage value.[82] Mr Millard contended that the Act and the RMA make it clear that registration of a wahi tapu area "has significant consequences for the owners of private lands which are to be covered by the registered area". He argued that, for owners who desire to [re-]develop their lands, the consequences of these statutory restrictions, consequent upon registration of wahi tapu areas, are "severe".[83] It is correct that there are certain responsibilities and outcomes that flow as a result of registration of an area as wahi tapu. These are reflected, for instance, in ss 32D, 33 and 34 of the Act and under various provisions of the RMA.[84] For instance, under s 32D of the Act, district and regional councils must have particular regard to any recommendations the Council may make as to appropriate measures that should be taken to assist in the conservation and protection of a registered wahi tapu area. Under the RMA, territorial authorities must have regard to the register in preparing their district plans and regional policy statements.99 Resource Management Act 1991, ss 61(2)(c)(iia), 66(2)(c)(iia) and 74(2)(b)(iia).[85] Section 33 of the Act provides that where the Trust is advised by a local authority of an application for a resource consent in respect of any wahi tapu area; or is considering an application or proposal that affects any wahi tapu area; or proposes to take any action in respect of any wahi tapu area, the Trust must refer the matter to the Council. The Council is then required to consult the local territorial authority and regional council, relevant iwi or other Māori groups and the proposers of the wahi tapu area, before taking any action, and must advise the Trust of any comment or recommendation it wishes to make on any such application or proposal referred to it. This may cause a delay of up to three months in the resource consent process.[86] Section 34 requires the Trust to notify a territorial authority of the registration of a wahi tapu area, which must then be noted on a LIM report.10 This constitutes advice that there are or may be restrictions as to how the land or part of the land may be used.[87] Section 5 of the Building Act 2004 similarly requires such information to be included in any project information memorandum (PIM).11[88] The above provisions, however, are no more than vehicles for notifying or recording heritage value. They do not of themselves create legal rights, nor do they impose legal prohibitions on the subject land.[89] The plaintiff adduced evidence that a wahi tapu registration could have a 20 per cent impact or more on the value of land. The Council adduced evidence indicating something in the region of a 5 per cent impact. Without traversing the competing contentions in these valuations, what the calculations do indicate is something of a chilling effect as a consequence of heritage value and thus a practical as opposed to legal consequence.[90] The central purpose of the registration provisions, however, is confined to preservation and conservation, as per s 22(2)(c) of the Act, in which the operative10 Local Government Official Information and Meetings Act 1987, s 44A.11 A project information memorandum under s 35(1)(b) of the Building Act 2004 and a landinformation memorandum under s 44A(2)(g) of the Local Government Official Information andMeetings Act 1987.word "assist" underscores the fact that registration alone is no more than a signifier of heritage value.[91] Legal protection will only occur if and when a wahi tapu area becomes subject to a heritage order under the RMA. A heritage order is defined in s 187 of the RMA as "a provision made in a district plan to give effect to a requirement madeby a heritage protection authority". The jurisdiction for the making such orders lies with the territorial authorities and the process is governed by the RMA.[92] The heritage order process is triggered by s 5 in Part 1 of the Act, which provides for the Minister or the Historic Places Trust to have a discretion to give notice of a requirement to a territorial authority for a heritage order to protect a wahi tapu area and surrounding lands, "in accordance with" the provisions of the RMA. If such a notice is given under s 5 of the Act, the territorial authority must decide whether to issue a notice of requirement within its district.[93] There is no right of appeal from an exercise of the s 5 discretion by the Minister or the Trust to require a heritage order under the RMA. In contrast there are express rights of appeal to the Environment Court in relation to other decisions taken under Part 1 of the Act (relating to archaeological sites).[94] Under s 189(1) of the RMA, the purpose of a heritage order is to protect:(a) Any place of special interest, character, intrinsic or amenity value or visual appeal, or of special significance to the tangata whenua for spiritual, cultural, or historical reasons; and(b) Such area of land (if any) surrounding that place as is reasonably necessary for the purpose of ensuring the protection and reasonable enjoyment of that place.[95] Under s 189A of the RMA, if a territorial authority decides to issue a notice of requirement for a heritage order within its district for the purpose described in s 189(1)(a) and (b) above, the territorial authority must decide whether to notify the requirement. If the requirement is publicly notified, any person may make a submission about it to the territorial authority.[96] There are various procedural requirements stipulated in s 191(1), (2) and (3) of the RMA for a territorial authority considering a requirement for a heritage order. Section 191(1) directs the territorial authority to have regard to a number of matters,including "all submissions", and to have particular regard to:(a) whether the place merits protection; and(b) whether the requirement is reasonably necessary for protecting the place to which the requirement relates:(c) whether the inclusion in the requirement of any area of land surrounding the place is necessary for the purpose of ensuring the protection and reasonable enjoyment of the place;...[97] After giving due consideration to a requirement under s 189, a territorial authority has discretion to recommend that the requirement be confirmed, with or without modifications; or be withdrawn.[98] Significantly, in terms of powers, if a territorial authority recommends confirmation of a heritage order, the territorial authority may also recommend the imposition of:12(a) a condition that the heritage protection authority reimburse the owner of the place for any additional costs of upkeep of the place required as a result of the making of the heritage order:(b) such other conditions as the territorial authority considers appropriate.[99] Significantly, under s 191(4) a territorial authority is expressly required to give reasons for a recommendation made under s 191(2). This is in contrast to the absence of any such requirement in the Act, when a decision to register a wahi tapu area or to confirm a variation of a wahi tapu area is made.[100] The effect of a heritage order is set out in s 193 of the RMA. As is evident, it has tangible, legal consequences for affected property owners:12 Resource Management Act 1991, s 191(3).193 Effect of heritage orderWhere a heritage order is included in a district plan then, regardless of the provisions of any plan or resource consent, no person may, without the prior written consent of the relevant heritage protection authority named in the plan in respect of the order, do anything including –(a) Undertaking any use of land; and(b) Subdividing any land; and(c) Changing the character, intensity, or scale of the use of any land –[101] Significantly also, for judicial review purposes, s 195 of the RMA provides aright of appeal to:(1) Any person who—(a) Proposes to do anything in relation to land that is subject to a heritage order or requirement for a purpose which, but for the heritage order or requirement, would be lawful; and(b) Has been refused consent to undertake that use by a heritage protection authority under section 193 or section 194, or has been granted such consent subject to conditions—may appeal to the Environment Court against the refusal or the conditions.[102] Section 195(2) specifies what a notice of appeal under the section shouldcontain and the process.[103] Section 195(3) provides for the approach to be taken by the EnvironmentCourt in considering an appeal relating to land subject to a heritage order, as follows:(3) In considering an appeal under this section, the Environment Court shall have regard to—(a) Whether the decision appealed against has caused or is likely to cause serious hardship to the appellant; and(b) Whether the decision appealed against would render the land which is subject to the heritage order or requirement incapable of reasonable use; and(c) The extent to which the decision may be modified without wholly or partly nullifying the effect of the requirement or heritage order—and may confirm or reverse the decision appealed against or modify the decision in such manner as the Environment Court thinks fit.[104] Significantly again, under ss 295 and 296 of the RMA, decisions of the Environment Court are final and there is no right of review under Part 1 of the Judicature Amendment Act 1972, unless any right of appeal or reference to inquiry has first been exercised and the Environment Court has made a decision.Discussion[105] The point of the above analysis of the relevant legislative provisions is to establish two matters: first whether the signification of heritage value throughregistration under the Act affects any landholder rights or liabilities; and, if so,whether it is a final determination of those rights or liabilities?[106] Whilst a decision by the Council to register or confirm an area as wahi tapu is the exercise of a statutory power of decision, it does not determine anything. This is in contrast to the effect of a heritage order under the RMA. The only effect of theCouncil's decision in this case was to put on public record in the register its considered and expert opinion that a greater area of land in the Takamore wahi tapu area had been identified and notified as possessing "cultural, historical, ... spiritual, traditional significance or value".13[107] At most, in terms of legal impact on the plaintiff's land, the decision might trigger the exercise of discretion under s 5 of the Act for notification by the Minister or the Historic Places Trust to the Kapiti Coast District Council of a requirement for a heritage order under the RMA. That is an as yet unknown future contingency. In the event that it occurs, all of the procedural rights provided under the RMA, to make submissions and to be given reasons for any recommendation by the territorial authority, will be available to the plaintiff. In addition there is the possibility of reimbursement should there be any cost of upkeep in maintaining any site. The plaintiff will also have the right to appeal to the Environment Court in the event of a refusal by the territorial authority to consent to a particular land use.13 Historic Places Act 1993, s 23(1).Grounds of review[108] I turn now to summarise each of the six grounds of review advanced by the plaintiff.First ground of review[109] First, Mr Millard argued that the Council had erred in law, by breaching the requirements of ss 32 and 37, because the application for extension (the letter ofrequest by the Trustees' solicitor dated 27 June 2011 followed by the formal application of 20 July 2011) had not contained any legal description of the general area of the land affected; nor had it specifically tied that legal description to the general nature of wahi tapu in the area. Thus, Mr Millard said, the application was non-compliant and the Council acted in breach of s 37(7) in processing it. He said Mr Stirling himself had recorded in his report that the application had not provided sufficient detail as to the nature and extent of the review sought, and he had needed to clarify this with Ben Ngaia during their meeting of 16 July 2011, a meeting to which the plaintiff was not privy.[110] In terms of s 32(3), Mr Millard said the deficiencies in the application, relating to the general area of land affected and the details of the general nature of the wahi tapu, could not have satisfied the Council that the proposal was supported by sufficient evidence. The deficiencies did not enable the identification of individual owners, occupiers and interest holders affected by the proposed wahi tapu area sufficiently to provide them with "a proper opportunity to meet what is in effect a claim to an interest in their land".[111] Mr Millard said there is still no record anywhere in the documentation of the specific boundaries the Trustees sought for the wahi tapu extension they proposed and why those boundaries were justified; and there was a lack of specific evidence about the land in question being sacred to Māori. Without access to a clear statement of the specific boundaries the Trustees were seeking and why those specific boundaries were said to be justified, the plaintiff was "unable to determine the exactlocation and nature of the wahi tapu area within the extended area" identified by Mr Stirling in his report.[112] Mr Millard summarised the plaintiff's concerns in the following way:[The Act] requires the applicant proposing a wahi tapu area to define with precision in their application what specific boundaries they seek for their wahi tapu area and why those boundaries are justified. Clarity on these matters allows affected landowners to meaningfully respond to applications for the registration of a wahi tapu area, as Parliament envisaged they would be able to do under the Act.Second ground of review[113] The second ground of review has distinct overlap with the first ground of review. It alleges failure to disclose relevant documents to the plaintiff. In this regard the plaintiff relied on s 32A of the Act, as well as on the principles of natural justice. Specifically, Mr Millard argued, the plaintiff should have received a number of documents.[114] These included the Trustees' application on the form sent to them by Ms Collins. Instead, the Council disclosed the 1995 application.[115] It also included copies of relevant source documents which were not supplied to the plaintiff. These included Mr Stirling's interview notes from his 16 July 2011 meeting with Ben Ngaia, which was obviously important in determining the area to be included in Mr Stirling's review report.[116] Nor was Mr Stirling's memorandum of 16 November 2011 to the Council,responding to the plaintiff's submissions, disclosed to the plaintiff. Mr Millard submitted the Council must have taken this into account, and thus it should have been disclosed. Whilst accepting that some of Mr Stirling's comments wereincorporated into the Council's 17 November 2011 letter of response to the plaintiff, this response was not received until weeks later and the plaintiff's response of 12 December 2011 may not have been before the Council at the 14 December meeting when the decision was taken.[117] As a result of the omissions, Mr Millard said the plaintiff was prevented from being adequately informed and was thus unable to make meaningful submissions under s 32A.[118] Furthermore, the material non-disclosure was occasioned by the Council'sunlawful and inflexible policy.Third ground of review[119] The third ground of review alleges error of law by the Council in denying the plaintiff (and other submitters) an oral hearing. Whilst accepting there was no legal duty in this regard, Mr Millard argued there was no prohibition on the Council holding an oral hearing. He referred to s 86(1) of the Act, providing for the Council to have all such powers as are reasonably necessary or expedient to enable it to carry out its functions; and s 86(2)(a) which envisages that the Council may need to appoint committees. He said these provisions, combined with the principle in s 4(2)(b)(iv), that cultural sites should be fully researched where culturally appropriate, and Parliament's emphasis on transparency and accountability, indicate the Council has a discretion to hold an oral hearing consistent with natural justice.[120] The nature of the error here alleged is that the Council adopted an inflexible rule that it would never allow an oral hearing for a wahi tapu area application. The plaintiff says the Council should have at least considered the request.Fourth ground of review[121] The fourth ground of review is an alleged failure by the Council to give reasons for its decision. Mr Millard submitted that reasons are desirable in showing"openness in the administration of justice" and are "critical to the maintenance of public confidence in the system of justice", as they help people "to understand why[statutory] authority has been used in a particular way", thereby ensuring "accountability" for decisions.14[122] Mr Millard said, while there was no express requirement in the Act for the Council to give reasons, it is implicit in the statutory framework and for the reasons articulated in Lewis v Wilson & Horton Ltd, that the Council should report its findings with sufficient particularity to allow applicants and directly affected landowners to understand why a particular wahi tapu area is or is not to be14 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA), at [76] and [79] per Elias CJ.registered. He referred to the guiding principle in s 4(3)(b) of the Act, that identification of New Zealand's cultural heritage should be fully researched andrecorded where culturally appropriate. Further, that Parliament had indicated, during the third reading of the Historic Places Amendment Bill 2006 (which inter alia introduced the right for affected landowners to make submissions (s 32A)),15 thatParliament's intent was to provide for greater transparency and accountability and for more involvement by affected parties in the statutory processes for registering, reviewing and varying wahi tapu areas.[123] In Mr Millard's submission, there had been a complete failure to provide reasons in this case, to address a number of disputed facts and inferences, and to explain why the Council rejected the plaintiff's evidence on these matters.[124] Mr Millard suggested that part of the explanation for disputed facts and inferences not being resolved may have been the very short timeframes the Councilset itself for determining the Trustees' application, and that these resulted from "adesire to use an extension of the boundaries of the wahi tapu area as support for theCouncil's opposition to a NZ Transport Agency-preferred Expressway option". In this regard Mr Millard suggested there had been a blurring of advocacy and registration functions.[125] Compounding the failure to give reasons, was the alleged failure to test the contested facts and inferences through cross-examination at an oral hearing as requested. Mr Millard said the Council's preference not to hold an oral hearingprevented "competing evidence to be tested through a process of confrontation" and resulted in "important factual uncertainties, and contradictions remaining unresolved at the time of decision". Whilst the plaintiff concedes that Mr Teira did visit the plaintiff at its property, the plaintiff is unhappy that it was not "permitted to addressthe Council orally or to confront Mr Ben Ngaia 'in the presence of the Council'".[126] Overall, under this head of review, the plaintiff says there was a unique combination of circumstances that required the Council to explain why it rejected theplaintiff's evidence that contradicted the evidence in Mr Stirling's report. The failure15 (27 June 2006) 632 NZPD 19676.of the Council to address the plaintiff's evidence in its decision, or to otherwisedemonstrate that it had taken the plaintiff's evidence into account in reaching itsdecision, effectively denied the plaintiff a "fair crack of the whip".16Fifth ground of review[127] The fifth ground of review alleges that the Council should have considered the plaintiff's property rights. In this regard the plaintiff says the Council erred in taking the position that registration alone did not impact on property rights, as there was evidence there would be at least a 5–20 per cent decrease in land value, if the land were registered as a wahi tapu area.[128] The plaintiff's argument is that the Council's view that private property rights were irrelevant to its decision was plainly wrong. Mr Millard said the reality that registered wahi tapu areas will affect the value of privately owned land is a matter that should be taken into account in the interpretation and application of the Act. In particular, he referred to the presumption that confiscatory provisions in a statute should be given a narrow interpretation and application where appropriate, citingIn Re Horowhenua, Subdivision No 14.17Sixth ground of review[129] The final ground of review is one of cumulative impropriety, being the sum of errors, which are said to have rendered the Council's decision unsafe. In this regard the plaintiff relies on the alleged improprieties and misleading and delayed disclosures by the Council; the lack of response to the plaintiff's request forinformation in a timely manner; the short timeframe allowed; and the misleadingdisclosure of the Trustees' Cultural Impact Report which the Council had not relied upon.16 Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255 (HL) at 1265.17 In Re Horowhenua, Subdivision No 14 (1897) 16 NZLR 532 (SC) at 539–540.DiscussionFirst and second grounds of review[130] As there is a distinct overlap between the first and second grounds of review, it is convenient to deal with them together. Overall, they cover alleged deficiencies in the application itself and an alleged failure to disclose relevant documents.[131] For reasons I now set out, my view is that any alleged deficiencies or omissions in either respect were cured by Mr Stirling's report, which was madeavailable to the plaintiff in a sufficiently timely way. Additional to that report was the follow-up letter from the Council elucidating on matters of concern raised by the plaintiff, and Mr Teira's site visit to discuss the plaintiff's concerns.[132] The plaintiff alleges that the Council erred in law by accepting and processing a non-compliant application. Mr Wilson responded by submitting that the requirement for a legal description relates only to an application for registration and not to an application for review of an existing registration. While s 37(4) requires an application for review to be in the prescribed form (if any) and to state the grounds for review, the inclusion of a legal description of the land is not required. Section 37(7) is directed only to process, once the Council has decided to embark on a review, and is not directed to the form of an application.[133] It is not necessary to decide the point as I am satisfied that any deficiencies were cured by Mr Stirling's researches and by his identification of all of the landaffected, which he detailed in his report including all relevant legal descriptions and certificates of title.[134] As an observation, I would incline to the view that an application to vary a registration ought to contain a legal description of any land that might be affected, if the legal description is known. However, it is perfectly feasible, as in the present case, that information on which an application is based might originate from oral history and thus predate any documented history or system of land registration. In such a case, the application may require specialist research, such as that undertaken by Mr Stirling, in order to determine whether it has validity. In any event, theCouncil has a discretion to decline any application for review if it does not state any grounds for review or if it considers the grounds are insufficiently stated. Thus, a degree of flexibility in approach is envisaged by the legislation.[135] A further aspect is that s 37(7) provides for the Trust or the Council to initiate a review of a registration, in which case it will be for the Trust or the Council to ascertain the legal description of any land affected, as well as the specifics of the general nature of the wahi tapu in the area. By whichever avenue the inquiry is initiated, the process to be followed is then the same. In the present case, the processfollowed, once the Trustees' application was accepted, was fully compliant with allof the statutory requirements and it cannot be said that the application was not as thoroughly investigated and scrutinised as could reasonably have been expected.[136] Nor is there any indication that the process was any the less thorough or robust because of time constraints due to the construction of the proposed Expressway. The care with which the Historic Places Trust and its officials undertook their various responsibilities is apparent in the documentary trail and in their affidavit evidence filed in this proceeding. The absence of any blurring of roles is reflected in the reminder of the necessity to keep separate the Historic PlacesTrust's "advocacy germane to the decision on roading options".[137] Mr Stirling's research, which the Council relied upon, was conducted in accordance with the terms of reference in the project brief prepared by Ms Collins. The finalised report speaks for itself. Whilst there may be some differences of opinion in post-colonial literature on the specific location of events and of some wahi tapu areas, such as the location of the Battle of Te Kuititanga and where the Ngahuruhuru cultivation was located, these do not undermine the validity of Mr Stirling's conclusions. Any such differences are no more than differences ofexpert opinion.18[138] The Proposal to Initiate Review prepared by Ms Collins for the Council'sconsideration on 25 August was based on Mr Stirling's research, which was18 See, for example, paragraph 7.19–17.22 of the affidavit of Ben Ngaia sworn on 20 August 2012, and filed in this proceeding.competent, and on input from the Steering Group, the Technical Review Committee and the Historic Places Trust Lead Team. The Proposal contained all necessary information about land identification and about the specifics of the general nature of wahi tapu in the area.[139] As a result of this process, and through the development of these documents, adequate disclosure was ultimately made to the plaintiff and to the other interested parties through the provision of Mr Stirling's report. Given the depth of research andthe detail in that report, and the particularity of the legal descriptions set out in it, the plaintiff and other submitters were fully appraised of what was being proposed, what land was involved, and why. The report informed each interested party of the boundaries of the proposed extension and identified each certificate of title that would be affected. Following the provision of the report, the queries subsequently raised by the plaintiff were responded to by letter from the Council, and there wasalso the onsite visit of some two and a half hours' duration by Mr Teira to discuss the plaintiff's concerns.[140] Given the detail in Mr Stirling's report and the robustness of the process undertaken, the Council's decision on 25 August 2011 that the proposal was supported by "sufficient evidence" and that a review should be initiated and notified, cannot be brought into question.[141] Likewise, the ultimate decision of the Council on 14 December 2011, to confirm the variation of registration, was soundly based on the information before the Council and was clearly open to it.[142] The complaint that there is still no record anywhere in the documentation of the specific boundaries the Trustees sought for the wahi tapu extension theyproposed has no substance. It simply reflects the plaintiff's desire to unrealisticallylimit the application to the initiating letter of 27 June 2011 and formal application. In this regard it seems the plaintiff is arguing that if all relevant information was notcontained in the original application, the application was 'dead in the water'. This narrow focus overlooks the Council's ability to itself initiate a review of a registration, should it choose to exercise its discretion to do so. In addition, part ofthe process, by virtue of s 32(3), is the Council's discretion to "make any inquiries that it sees fit".[143] In respect of the alleged non-disclosure of relevant source documents, I am satisfied the Historic Places Trust fulfilled its obligation to provide sufficientmaterial to fully appraise the plaintiff of the proposed review. I accept Mr Wilson'ssubmission that the situation is not one where specific documentation, as part of a disclosure regime akin to discovery, needed to be provided. Furthermore, the documents that the plaintiff says should have been disclosed, were not withheld. Theplaintiff made no specific request for the Trustees' application, they simply asked for the evidence the Trustees submitted.19 In fact, the Trustees had submitted no evidence. The plaintiff specifically requested the original 1995 application, which is why the Council says it provided it. The plaintiff could have requested the information in the references to Mr Stirling's report, but it did not. Mr Stirling apparently did not make notes of his meeting with Ben Ngaia in any discoverable form.[144] In conclusion, under the first two heads of review, there was no error of lawby the Council in accepting the Trustee's application. Any deficiencies were cured by Mr Stirling's research and report. The plaintiff and the other submitters were provided with relevant information that was before the Council and upon which the Council based its decision.[145] These two grounds of review must therefore fail.Third ground of review[146] Under this head of review the plaintiff alleges the Council erred in law by denying it an oral hearing. The requirements of natural justice will, however, vary with context.[147] While there is a right for affected landowners to make written submissions on proposed wahi tapu areas in s 32A of the Act, and clearly a commensurate right to19 What they did "share" with the plaintiff, however, was the Cultural Impact Assessment they hadprepared in relation to the proposed expressway route.have those submissions duly considered, the Act does not contemplate an adversarial process. There is no standing required under the Act and "[a]ny person" maypropose a registration or apply for a review of a registration.20 Proposers, applicants and other submitters are not protagonists and the process is not a lis inter partes. Cross-examination would not have been appropriate, useful, or helpful. The Trustees were participants in the process, just as the other submitters were. They were not prosecutors of the process. Their position is exemplified in their solicitor's statementin his letter of 27 June 2011, that "[t]he Trustees would wish to participate in anyreview process and share the information that they have collated".[148] The plaintiff's contention that it should have been entitled to "confront" BenNgaia in a viva voce hearing and presumably also Mr Stirling, through cross-examination, is misconceived. The adversarial process for which the plaintiff contends would quickly assume all of the features of full blown litigation, which is not contemplated under the Act.[149] Credibility was not in issue and the plaintiff itself had relied on the evidenceof Robert Ngaia in the court proceedings and on Mr Stirling's expertise in thosesame proceedings. There was no legitimate expectation of an oral hearing and no necessity to read an implied provision into the legislation for an oral hearing. The plaintiff had the opportunity of putting its view forward in a written submission, which it did. There was follow-up on that and an onsite visit and consultation. The plaintiff's further submission was placed before the Council at the 14 December2011 meeting.[150] The nature and composition of the Council as earlier described and the purpose to which its decisions are directed also provide relevant context to this issue. As noted, the Council comprises persons appointed for their knowledge and skillsrelevant to the Council's functions. The members are not appointed for theirexperience or expertise in litigation or adjudication. Their role is administrative, rather than quasi judicial as the plaintiff seeks to contend.20 Historic Places Act 1993, ss 25(1) and 37(2)(a).[151] In conclusion I am satisfied the plaintiff was afforded an appropriate opportunity to be heard on the issues concerning it and that these were properly taken into account by the Council in reaching its decision.Fourth ground of review[152] There is overlap between this ground of review, alleging a failure by the Council to give reasons for its decision, and the previous ground concerning natural justice.[153] The starting point is that, in contrast to s 191(4) of the RMA, which requires a territorial authority to give reasons for a recommendation under s 191(2),21 there is no equivalent statutory provision in the Act requiring the Council to give reasons for any recommendation it makes or decision it reaches.[154] Once again, the particular specialist knowledge and expertise of the Council is relevant to this ground of review.[155] The paper prepared by Ms Collins, for the Council members to consider, fullyand fairly set out all relevant matters. It is clear from Mr Teira's evidence that theCouncil gave careful consideration to these matters and to Mr Stirling's report. Indoing so, it discharged its duties under the Act appropriately and reached its decision on an informed and considered basis. There was no necessity to give reasons and no requirement to do so.[156] I am therefore satisfied there was no error in the form of the decision, as notified by the Council and recorded in the register.[157] In any event, the basis on which the Council reached its decision to recommend confirmation of the boundary extensions is apparent from Mr Stirling'sreport, which all submitters, including the plaintiff, had.21 To recommend that a requirement for a heritage order be confirmed, with or without modifications; or that the requirement be withdrawn.[158] For additional reasons that I have already set out, and will refer to again, theCouncil's decision is not in any event a determination that affects the plaintiff'srights as a landowner or has any regulatory consequences. Relevantly also, as in the case of Riverside Casino v Moxon, there is no general appeal to the courts from a decision of the Council in relation to registration or variation.22[159] In terms of the effect or consequences of registration, a decision to determine that an area should be registered as wahi tapu has no more effect than that of identifying and informing owners, the public, community organisations, government agencies and local authorities about significant heritage value. Essentially it"assists" with the protection and conservation of a wahi tapu area. As Mr Teiradeposed, registration simply indicates there are wahi tapu values associated with particular land. That is not dependent on whether kōiwi or archaeological evidence has been located on the land. Nor does registration alone provide legal protection for wahi tapu or other features of heritage value. Legal protection occurs only if a heritage order is made under the RMA, in which case there will be consequences for a landowner who, for example, wishes to develop the subject land. However, until and unless that happens there are no regulatory consequences.[160] If the process for notification of a requirement for a heritage order is commenced, process rights under the RMA are triggered which include an express right to receive reasons for a decision and ultimately a right of appeal to the Environment Court. Decisions of the Environment Court are final except in certain proscribed circumstances. It is only after those rights have been exercised that an application for review under Part 1 of the Judicature Amendment Act 1972 may be made.23 Appeals from the Environment Court to the High Court are only permitted on a question of law.24[161] In observing thus, I have not overlooked the effects of ss 32D, 33 and 34 of the Act and the possibility of a chilling effect on land value from registration as a wahi tapu area, as recorded in paragraph [89] above.22 Riverside Casino v Moxon [2001] 2 NZLR 78 (CA).23 Resource Management Act 1991, ss 295 and 296.24 Section 299.Fifth ground of review[162] Under this head of review the plaintiff alleges that the Council should have considered its property rights in coming to a decision.[163] For the reasons I have already given in rejecting the previous four grounds of review, this ground of review must also fail. Again, the specialist nature of theCouncil and its functions are relevant. The members' expertise does not extend todetermination of land values and to evaluating any commercial effect on the land through signification of heritage value. Such considerations are not within the expertise of the Council members and are not envisaged by the legislation as relevant.[164] Issues of land use and property development are extrinsic to the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand, and to the recognition of the relationship of Māori and their culture and traditions with their ancestral lands, wahi tapu and other taonga.[165] As already stated, the Council's confirmation of the boundary extensions was not determinative of the plaintiff's land rights or land use. In effect, it determined nothing. In this regard it can be distinguished from a situation of compulsory acquisition or land confiscation as in In Re Horowhenua, Subdivision No 14.25 Any chilling effect on the value of land by the signification of heritage value is an unrelated by-product. It could not influence the Council's thinking. It is essentiallya practical consequence, albeit perhaps an unfortunate one for a landowner, depending on how it is viewed.Sixth ground of review[166] It follows from my findings in relation to the first five grounds of review that the sixth ground of review must fail.25 In Re Horowhenua, Subdivision No 14, above n 17.Conclusion[167] It is not this Court's function to consider what decision the Council shouldhave made. Countless authorities emphasise that judicial review is concerned with the decision-making process, not with the outcome of decision-making. Therefore itis not for the Court to examine the merits of the Council's decision; nor to revisit the particular weight the Council placed on relevant aspects, so long as it gave due consideration to those aspects. The Court's focus has been on the process that was undertaken and whether that process adequately met the requirements of the Act. The decision whether to vary the registration of the Takamore wahi tapu area was for the Council and the supervisory role of the Court is limited to ensuring that the Council acted within its powers and reasonably, in the sense of rationally.26[168] Taking all matters into account, I am satisfied the Council came to its decision to review and extend the boundaries of the Takamore wahi tapu area, so asto include the plaintiff's land, lawfully and in accordance with its statutory powersunder the Act.Result[169] The six grounds of review advanced by the plaintiff must fail.[170] The eighteen sub-issues listed in the Agreed Statement of Facts and Legal Issues are answered in an appendix to this judgment.Judgment[171] Judgment is entered for the defendants. Costs are awarded in favour of the first defendant on a category 2B basis.Goddard J26 Riverside Casino v Moxon, above n 22, at [93].APPENDIX 1Aerial map of registered and listed wahi tapu area and new area following reviewGreen line – boundary of the 1995 registered wahi tapu area.Purple line – boundary of scheduled wahi tapu area in the KCDC Operative Plan 1999.Red line – extended boundary following review of registration.APPENDIX 2Issues1 Q Has the Council breached the provisions of s 37 of the Act?A No. Any alleged deficiencies or omissions were cured by Mr Stirling'sreport.2 Q Did the Council accept for registration an application on behalf of the Takamore Trustees to vary the Takamore wahi tapu area that was not in the prescribed form?A There was at the time no prescribed form of application for review of an existing registration. The legislation recognised this in s 37(4) of the Act.3 Q Did the Council accept for registration on behalf of the Takamore Trustees an application to significantly extend the Takamore wahi tapu area which did not contain the legal description of the additional specific parcels of land the Trustees sought to have included?A Any alleged deficiencies or omissions were cured by Mr Stirling's report.4 Q Was the Council required to consider or should it have considered the appropriateness of a proposed wahi tapu area for registration on an individual, parcel by parcel, land basis, and if so did it fail to?A There is no such requirement under the Act. The purpose and effect of the legislation is the signification of wahi tapu values associated with a "general area of land affected".5 Q Was the Council required to identify or should it have identified the wahi tapu sites that were to be included within the Takamore wahi tapu area, and if so did it fail to?A These were sufficiently identified in Mr Stirling's report based on his primary and secondary research, which included the important oral history and traditions relating to the Takamore urupā and the adjacent land as givenby "those people most familiar with them; the tangata whenua".6 Q Did the Council adopt a wahi tapu area that was considerably larger in size than that needed to protect the identified wahi tapu?A On the basis of the relevant information before it, the Council appropriately exercised its discretion in relation to the extension of boundaries.7 Q Did the Council have any statutory or other obligation to consider whether the registration of a wahi tapu area would affect those land owners, on an individual, parcel by parcel basis, and if so did it fail to?A No. The Council's statutory duty is to determine whether a proposed review is supported by sufficient evidence identifying any historic area, historic place, wahi tapu or wahi tapu area associated with Māori heritage. The Council is not concerned with any commercial impact on the value ofland. The Council's role is to identify, protect, preserve and conserve thecultural heritage of New Zealand, recognising the relationship with Māoriand their culture and traditions with their ancestral lands, wahi tapu and other taonga.8 Q Was the Council required to take into account or should it have taken into account the fact that registration would negatively affect the value of theplaintiff's land, and if so did it fail to do so?A No, for the same reasons as set out in the answers to questions 4 and 7.9 Q Was the Council required to or should it have applied a level of proof of wahi tapu locations commensurate with the likely impact of registration on those whose land was affected, being persons who did not consent to the registration, and if so did it fail to?A This question misunderstands the purpose of signifying heritage value and the likely sources (for example, oral history) from which wahi tapulocations might be identified. Section 32(2) is directed to the "general area of land affected" and to the "general nature of wahi tapu included in the area". The statute does not require the consent of landowners toregistration. Registration signifying heritage value is intended to be for the benefit of all New Zealanders, not simply the owners of freehold title for the time being.10 Q Was the Council required to or should it have sought specific and reliable evidence in relation to the areas other than the Maketu tree, and if so did it fail to?A No. There was sufficient evidence in Mr Stirling's report on which theCouncil could reach its decision to initiate a review and notify it. The ultimate decision of the Council on 14 December 2011, to confirm the variation of registration, was soundly based on all of the information then before the Council.11 Q Was the Council required to or should it have given reasons for its decision?A No. The Act does not require this and the basis on which the Councilreached its decision is apparent from Mr Stirling's report.12 Q Was the Council required to or should it have taken into account, and if so did it fail to take into account:(a) the plaintiff's historical evidence that the site of Ngahuruhuru was not within the plaintiff's land?(b) the plaintiff's evidence that the Takamore Trustees were not associated with the plaintiff's land, which was supported by a map that was withina source referred to in the Stirling report (Wakahui Carkeek);(c) the plaintiff's evidence as to a lack of any findings of kōiwi on the plaintiff's land.A There is no evidence to suggest the Council did not take into account theplaintiff's evidence in these respects. Mr Teira's evidence is that the Council gave careful consideration to all submissions. There was sufficientdetail in Mr Stirling's report upon which the Council could exercise itsdiscretion appropriately to reach the decision it made.13 Q Does the Council decision imply a finding that plaintiff's land contained wahi tapu of kōiwi or taonga such as to justify its inclusion as part of the wahi tapu area?A Yes. It is clear from the Council's decision that it reached the view thatthere was sufficient evidence to recommend confirming the extension of the boundaries to include this land. Again, the evidence of Mr Teira makes it clear that wahi tapu values associated with an area of land do not depend on whether kōiwi or archaeological evidence has been located on the land. [See also the affidavit of Ben Ngaia referred to in footnote 18 above.]14 Q Was the Council required to or should it have included land parcels that were outside the titles referred to in the evidence of historical traditions despite there being no archaeological evidence of actual finds of kōiwi or taonga that justified that extension?A The answer to question 13 applies equally to this question.15 Q Was the Council required to or should it have taken into account the change in ownership of the land around the Maketu tree since the Environment Court decision?A No. The ownership of land is irrelevant to the signification of heritage value.16 Q Did the Council take into consideration that an extended wahi tapu area would be relevant to preventing Option 1 for the expressway, not because of any new wahi tapu, but because of the impact on existing wahi tapu and, if so, is that an irrelevant consideration?A The Historic Places Trust made it clear in documentary and affidavit evidence that it remained conscious of the separation of its functions relating to the signification of heritage value and its advocacy functions in relation to the expressway.17 Q Did the Council carry out the following acts or omissions and, if so, did it accordingly act in breach of natural justice by:(a) Not clearly setting out how the historic references to land claimed as being wahi tapu related to the then legal titles or to the physical land?(b) Failing to respond to requests from the plaintiff for a copy of the application seeking an extension of the Takamore wahi tapu area and failing to inform the plaintiff of the evidence supplied by the Takamore Trustees?(c) Failing to identify the evidence supplied by the Takamore Trustees in support of their application and filing to provide the plaintiff with a fair opportunity to respond to the evidence?(d) Allowing the plaintiff to be misled as to the evidence relied on by acquiescing in Ben Ngaia sending to the plaintiff his Cultural Impact Assessment when it was not relying on that document?(e) Failing to identify for the plaintiff how the evidence referred to in the Stirling report related to the lands referred to by the primary source documents referred to and relied on in the Stirling report?A The answers to all of these questions are contained within the body of my judgment. In relation to the allegation that the plaintiff was misled by theCouncil in acquiescing in Ben Ngaia sending the Takamore Trustees'Cultural Impact Assessment when that was not being relied upon has been answered in paragraph [143] and footnote 19 above and in Ms Collins'affidavit sworn 20 August 2012 at paragraph 14.18 Q Do any of the foregoing questions (if determined in favour of the plaintiff) amount to an error, and if so what are the implications or consequences of that error?A No.