WAIPAPA BAY PROTECTION SOCIETY INCORPORATED v ARIKI TAHI SUGARLOAF WHARF LTD [2023] NZHC 3379

WAIPAPA BAY PROTECTION SOCIETY INCORPORATED v ARIKI TAHI SUGARLOAF WHARF LTD[2023] NZHC 3379 [29 November 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2022-419-306[2023] NZHC 3379UNDER COVID-19 Recovery (Fast-trackConsenting) Act 2020IN THE MATTER OF an appeal under clause 44 of Schedule 6 ofthe Act against the final decision of anExpert Consenting Panel appointed under theActBETWEEN WAIPAPA BAY PROTECTION SOCIETYINCORPORATEDAppellantAND ARIKI TAHI SUGARLOAF WHARF LTDRespondentHearing: 27 July 2023Appearances: B S Carruthers KC for AppellantB J Matheson and J Inns for RespondentR H Ashton for Third Interested PartyJudgment: 29 November 2023JUDGMENT OF ANDERSON JThis judgment was delivered by me on 29 November 2023 at 4.00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors: Oceanlaw New Zealand, NelsonMcCaw Lewis, HamiltonBrookfields, AucklandAND COROMANDEL MARINE FARMERSASSOCATION INCORPORATEDFirst Interested PartyNGATI WHANAUNGA INCORPORATEDSOCIETYSecond Interested PartyTHAMES COROMANDEL DISTRICT COUNCILThird Interested PartyTABLE OF CONTENTSParagraphNoIntroduction [1]Statutory context [6]Grounds of Appeal [12]Issues [16]Ariki Tahi and the proposed upgrade [18]The consent process and Panel decision [24]The test on appeal [30]Did the Panel fail to consider whether to apply "bundling" andconsequently apply the wrong test to the application? [33]Did the Panel fail to correctly apply Policy 10? [53]Should I refer the matter back to the Panel for reconsideration? [78]Was the Panel's conclusion on "no more than minor" effects insupportableon the evidence? [93]Result [112]Introduction[1] Ariki Tahi is a shared commercial and recreational wharf facility constructedon reclaimed land at the western end of Waipapa Bay, a short drive from Coromandeltown. It is the primary wharf for the thriving aquaculture industry in the Hauraki Gulf.Residents opposed consent to the wharf in the early 1990s.[2] The present facility is not fit to continue to meet the needs of the growingindustry or of recreational users. In addition to capacity, a key issue is that separationof commercial and recreational use currently relies on measures such as signage andtemporary traffic management equipment.[3] The Waipapa Bay Residents Society is opposed to a proposed upgrade to thefacility by Ariki Tahi Sugarloaf Wharf Ltd,1 a joint venture company formed to carryout the upgrade.2 The upgrade would establish five commercial berths and a separaterecreation facility with dual boat ramps. The size of the existing facility will bedoubled.[4] The Society acknowledges the economic importance of the aquacultureindustry for the region, but says that it should be serviced, instead, from a plannedmarine servicing and business precinct at Kōpū. The Society is concerned at theamenity, noise and traffic effects associated with the proposed upgrade to Ariki Tahi.[5] Under the COVID-19 Recovery (Fast-track Consenting) Act 20203 theMinister for the Environment referred ATSWL's application for resource consents forthe upgrade to a three-member Expert Consenting Panel convened under that Act. ThePanel granted the application. In this appeal, the Society says that the Panel madeerrors of law in its decision.4 It asks the Court to refer the matter back to the Panel forreconsideration.1 ATSWL.2 ATSWL is a joint venture company owned by the Thames-Coromandel District Council, theCoromandel Marine Farmers Association, and Crown Regional Holdings Ltd in equal shares.3 FTCA. The FCTA was repealed on 8 July 2023, by FTCA s 3(1) subject to savings provisions.4 Under sch 6, cl 44(1)(d) of the FTCA, a party who provided comments in response to an invitationmay appeal the decision of the panel to the High Court.Statutory context[6] The purpose of the FTCA is to provide a fast and simplified decision-makingprocess for resource consents to urgently promote employment to support NewZealand's recovery from the economic and social impacts of COVID-19, whilecontinuing to promote the sustainable management of natural and physical resources.5A resource consent granted under the FTCA is the same as if it were granted under theResource Management Act 1991.6[7] Under the FTCA, the public notifications and hearing process is replaced by astreamlined notice and comments process. 7 The provisions of the RMA otherwiseapply to the extent they are relevant and with any necessary modifications. ThePanel's consideration of a referred project is almost identical to the usualconsiderations of a consent authority under the RMA.8 The only substantivedifference is the requirement for the Panel's consideration to be subject to the purposeof the FTCA as well as the purpose of the RMA. Nothing turns on that in this appeal.[8] The upgrade to Ariki Tahi requires land use consent under the ProposedThames-Coromandel District Plan9 for use of the land that is to be reclaimed for theupgrade. This is a "non-complying" activity under the RMA. As relevant to the appealthe rest of the activities for which consents are required are "discretionary" or"restricted discretionary" activities.[9] Obviously, use of the land to be reclaimed will only occur because of thatreclamation. Given this interrelationship, there is no dispute that the entire projectshould be "bundled" as a non-complying activity. In short, this means that eventhough the other activities have a less restrictive status, the application should beassessed as if the entire project is a non-complying activity, not just the use of thereclaimed land.5 FTCA, s 4.6 RMA.7 Te Korowai O Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810, (2022) 24 ELRNZ269 at [27]–[58] provides a full exposition of the process for referred projects under the FTCAthat is summarised in this paragraph.8 FTCA, s 12(10).9 Proposed Plan.[10] By s 104D of the RMA a consent authority can only grant a resource consentfor a "non-complying activity" if it is satisfied either that the adverse effects of theactivity on the environment will be minor; or the application is for an activity that willnot be contrary to the objectives and policies of the relevant plan(s).10 Here that isthe Proposed Plan. These are known as the "effects gateway" and the "policygateway".11[11] If either the "effects gateway" or "policy gateway" in s 104D are passed or arenot required, the consent authority makes the general substantive and evaluativeassessment of the application under s 104 of the RMA.Grounds of Appeal[12] As its first two grounds of appeal, the Society says the Panel failed to considerwhether bundling was required, and that it consequently applied the wrong legal testwhen considering the s 104D gateway tests. The consequence of the error goes to thePanel's conclusion that the s 104D threshold was met. The Society says I should referthe application back to the Panel for reconsideration applying the correct approach.[13] As a third ground, the Society says that the Panel reached a conclusion that theeffects gateway was met for the non-complying activity (land use of the reclaimedland) when its conclusion that the effects were no more than minor was not supportedby the evidence.[14] Having passed through the gateway in s 104D to the s 104 assessment, thePanel was required to have regard to Policy 10 of the New Zealand Coastal PolicyStatement 2010.12 This requires reclamation of land to be avoided in the coastalmarine area unless certain factors are met. Where reclamation is considered suitable,the policy stipulates matters that are to be considered in considering the form anddesign of the reclamation. As a fourth ground of appeal the Society says the Panelfailed to apply Policy 10 correctly.10 FTCA, sch 6, cl 32 confirms that s 104D applies.11 Also referred to as the "threshold" test.12 Clause 31(1)(c) requires the Panel to have regard to any relevant provisions of the documentslisted in cl 29(2). Listed in cl 29(2) is the New Zealand Coastal Policy Statement (NZCPS).[15] ATSWL rejects that the Panel substantively erred in any of the ways contended.Alternatively, it says that any reconsideration by the Panel would inevitably lead tothe same outcome, and the interests of justice would not be served by referring thematter back. The Thames-Coromandel District Council,13 as interested party, supportsand adopts ATSWL's submissions. No other interested parties sought to be heard onthe appeal.Issues[16] In the order in which I propose to consider them, the issues are:(a) Did the Panel fail to consider whether to apply "bundling" andconsequently apply the wrong test to the application?(b) Did the Panel fail to correctly apply Policy 10?(c) If there is an error, should I refer the matter back to the Panel?(d) Was the Panel's conclusion on "no more than minor" effectsunsupportable on the evidence?[17] I first need to provide some further factual context.Ariki Tahi and the proposed upgrade[18] Ariki Tahi presently handles 25,000 tonnes of harvested aquaculture perannum. This comprises approximately 90 per cent of the mussels harvested in theNorth Island. Harvest volumes at Ariki Tahi are predicted to increase 68 per cent toapproximately 42,000 tonnes per annum by 2040.[19] Ariki Tahi is located on reclaimed land that was authorised by resourceconsents granted in 1993 and 1999. At the outset, the challenges associated with alack of separation of commercial and recreational use at the facility were recognised.When approving reclamation in 1992, the decision-making committee contemplated13 The District Council.that an increase in the use of the facility by commercial users would require provisionof an alternative site. This was premised on the need for there to be separation of thetwo types of use that the existing facility did not provide.[20] Over time, the challenges of the lack of separation have been exacerbated byAriki Tahi's steadily increasing use. Notwithstanding mitigating measures such assignage and temporary traffic management equipment there remain health and safetyissues associated with the joint use.[21] Ariki Tahi currently consists of one recreational boat ramp, a sharedrecreational/commercial boat ramp, two commercial vessel berths, land-basedfacilities (vehicle parking, storage of aquaculture equipment and a kiosk/toilet block).It is a prominent feature in the bay. The activities at the wharf also create noise andtraffic impacts. The natural character of the bay has been affected.[22] In mid-2020 ATSWL was formed as the vehicle for an upgrade. As the Panelrecorded, the purpose of the upgrade is:14 to provide for the predicted increase in harvested aquaculture in theCoromandel/Hauraki Gulf over the coming decades and to address the lack ofseparation of the commercial and recreational users on [Ariki Tahi] whichcreates health and safety risks.[23] The proposed upgrade establishes five commercial berths and a separaterecreation facility with dual boat ramps. This would require the reclamation of anadditional 6,900 square metres of seabed. Dredging of the seabed would provide anall-tide approach channel and need periodic maintenance dredging. The size of theexisting facility will be doubled. What was a prominent feature of the bay will becomemore so.14 Record of decision of the Expert Consenting Panel under clause 37, schedule 6 of the COVID-19Recovery (Fast-track Consenting) Act 2020, concerning the Ariki Tahi Wharf, Waipapa Bay,Coromandel, 20 September 2022 [Panel Decision] at [45].The consent process and Panel decision[24] ATSWL applied for resource consent in June 2022. The application wasaccompanied by an Assessment of Environmental Effects and its appendices. I willrefer to this as the AEE.[25] On 13 July 2022, the application was referred to the Panel under the FTCAafter the Minister for the Environment had determined that the purposes of the Actwould be met by the upgrade. The Society and the District Council were two partiesentitled or invited to comment.[26] The Panel received comments which included some expert peer review andresponse to the AEE expert reports. ATSWL responded to this. The Panel visited thesite and held meetings. The Panel also considered draft consent conditions andsubsequent iterations following comments on these.[27] The Panel issued its decision on 20 September 2022, shortly outside thetruncated fast-track time frame of 25 working days after the date specified forreceiving initial comments on the proposal.15[28] I come back to findings of the Panel on matters specific to appeal points below.For now, it is enough to say that the Panel concluded that:(a) Ariki Tahi is a suitable location to establish a service wharf tocater for the future growth of the aquaculture industry in theHauraki Gulf/Tīkapa Moana;(b) Noise and traffic effects can be avoided, remedied orappropriately mitigated through measures included in theApplication and by the conditions of consent;(d) Due to its location, the aquaculture industry would havecontinued to utilise the existing facilities at Ariki Tahi,regardless of whether or not consents were granted for itsupgrade;(e) Traffic mitigation measures from the Application shouldoverall, result in safer traffic road conditions.15 Subject to extension in limited circumstances.[29] In its conclusion the Panel recorded that:262. Having considered the Applicant's assessment of this proposal in theAEE against the purpose of the FTA and the sustainable managementprinciples in Part 2 of the RMA, the comments received from variousparties, and taking into account the proposed conditions that willcontrol activities on the wharf, the Panel is satisfied the upgrade ofAriki Tahi will meet the purpose of the FTA and will promote thesustainable management of natural and physical resources inaccordance with the s 5 of the RMA.The test on appeal[30] An appeal under the FTCA is limited to questions of law.16 An error of lawmay exist where a decision maker:17(a) applied the wrong legal test;(b) reached a factual finding that was "so insupportable – so clearlyuntenable – as to amount to an error of law";(c) came to a conclusion that it could not reasonably have reached on theevidence before it; or(d) took into account irrelevant matters; or failed to take into accountmatters that it should have considered.[31] It is not the role of the Court in an appeal on a question of law to undertake abroad reappraisal of factual findings or the exercise of the decision-maker's evaluativejudgements.18 An assessment of whether there has been an error of law cannot beoverly technical or semantic.19 When a decision has been made by an expert tribunal(or here the Panel), "[d]eference to expertise where appropriate must be accorded".20[32] I now turn to address the grounds of appeal.16 FTCA sch 6, cl 44(2).17 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd, above n 7, at [28] citing Bryson v ThreeFoot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 (footnotes omitted).18 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112].19 At [112].20 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd, above n 7, at [32].Did the Panel fail to consider whether to apply "bundling" and consequentlyapply the wrong test to the application?Consents required[33] The consents required under the Waikato Regional Coastal Plan were for thefollowing activities in Waipapa Bay: for reclamation, for dredging (capital andmaintenance) and deposit of material; for the erection, placement, use and occupationof space by structures; for the discharge of water and contaminants duringconstruction; and for the discharge of water and contaminants as part of the operationand maintenance of Ariki Tahi. All these were for discretionary activities apart fromthe consent for discharge of contaminants during construction (which was anon-complying activity).[34] Under the Waikato Regional Plan, a land use consent was required to undertakesoil disturbance activities within a high-risk erosion area, as was a discharge permit todischarge clean fill to land in that area. Both were discretionary activities.[35] Ariki Tahi is zoned for marine services which provides for marine-relatedindustrial and commercial activities and marine-related industrial services facilities.Under the Proposed Plan, land use consent was required to authorise the upgrade,operation and maintenance of Ariki Tahi for commercial and recreational purposeswithin and outside of the marine services zone. The activities within the current zonewere restricted and discretionary. The activities outside the zone were non-complying.[36] The two different activity statuses for land use consents reflects that theplanned reclamation is on an area that is not yet part of the district and therefore notyet zoned. As such, the use of the (to be reclaimed) land is a non-complying activity.[37] Where an application is made for a resource consent for an activity which anapplicant intends to undertake within the district once the proposed location of theactivity has been reclaimed, the application is treated as if it relates to an activitywithin the district (ie as if it has already been reclaimed).21 The Panel noted that therelevant provisions of the Proposed Plan apply on that basis.2221 RMA, s 89.22 Panel Decision, above n 14, at [56].Bundling[38] The Society says the Panel failed to consider whether the resource consentsshould be bundled and treated as having a non-complying activity status, andconsequently applied the wrong legal test. "Bundling" is a rule of practice under theRMA and its predecessor legislation.23 It refers to considering the "bundle of uses"proposed in an application and determining whether the most restrictive activity statusof any use should be applied to the project overall.[39] Bundling is a practice that can have substantive effects. It may result in aproposal which largely complies with all relevant standards and rules being considereda non-complying activity overall because of one aspect that is central to the proposal.24The question as to whether or not to bundle is discretionary and turns on the degree ofoverlap between the effects of the relevant activity.25 Commonly the issue of whetherto bundle consents first arises at the point of considering whether notification isrequired, but here notification requirements were displaced under the FTCA.[40] There is no dispute in the appeal that bundling was appropriate given theoverlap between the reclaiming of land/upgrade overall and the non-complyingactivity of use of the land to be reclaimed.26 Bundling required the Panel to evaluatethe project on a holistic basis, looking over the entire application and a range of effects.Specifically, bundling required the following approach to the threshold tests ins 104D:27(a) Effects gateway: the adverse effects of the proposal are to be consideredto assess whether they are no more than minor to determine whether theproposal as a whole passes through the effects gateway, not just thoserelated to the non-complying activity of land use of the area to bereclaimed outside the marine services zone.23 Project Aotea v Auckland Council [2021] NZEnvC 140 at [22].24 At [20].25 Day v Manawatu-Wanganui Regional Council [2012] NZEnvC 182 at [3-111] and [3-134].26 The present facts have some similarity to those in Urban Auckland v Auckland Council [2015]NZHC 1382, [2015] NZRMA 235 involving extension of port facilities in Auckland.27 Consent for a coastal permit to discharge water and contaminants during construction is the othernon-complying activity under the Waikato Regional Coastal Plan. The Society does not contendthat the Panel's approach to this activity has consequence, so I do not consider it further.(b) Policy gateway: the entire project must be assessed through the lens ofthe objectives and policies of the plan or policy against which part ofthe proposal is non-compliant. In this case, that involves assessing theproject against the objectives and policies of the Proposed Plan, as it isunder that plan that there is a non-complying activity.[41] Mr Matheson for ATSWL submitted that the practice of bundling is moredirected at assessing effects than whether a project meets objectives or policies. Hepointed to older cases like Locke v Avon Motor Lodge Ltd as an example of this.28I did not understand his argument to be that bundling does not or cannot apply toaspects other than effects. I consider bundling does have a broader application andapplies to the policy gateway.The approach in the AEE[42] The AEE adopted a bundled approach. There was a specific section dedicatedto and entitled "Section 104D Assessment." This addressed each of the s 104Dgateways and in doing so was focussed on considering effects across the entire projectand also addressed the entire project against the policies and objectives of the ProposedPlan.The approach taken by the Panel[43] In Part G the Panel carried out an effects assessment. As Ms Carruthers KCfor the Society submitted, there are a number of references to "acceptable" and"reasonable" in this section. 29 This suggests the Panel in this section was notaddressing the question of whether such effects were "no more than minor" for thepurpose of the effects gateway on a bundled basis in s 104D. It was carrying out thebroader evaluation required under s 104.28 Locke v Avon Motor Lodge Ltd (1973) 5 NZTPA 17 (SC).29 Panel Decision, above n 14, at [122], the Panel concluded the impact on natural character,surrounding landscape and visual effects will be "acceptable". In its conclusions on the proposedconditions, at [255] the Panel addressed the Waikato Regional Coastal Plan direction that the noisemust not exceed a "reasonable level", and concluded that the condition would address this. Thissection concluded, at [260], that the Panel was confident that the conditions "will appropriatelymanage any adverse effects that may arise".[44] In Part D the Panel set out the regional and district planning context and theconsents required. In Part I the Panel returned to each of the regional and districtplanning documents including the Proposed Plan in a section entitled "Regional andDistrict Planning Considerations". Here, the Panel went through the relevantobjectives and policies of each of the policies and plans in order of hierarchy. It madeseparate conclusions on each. This included conclusions on the Proposed Plan.[45] On the Proposed Plan, the Panel referred to the zoning of the Ariki Tahi areaas Marine Service Zone. It noted that the proposed upgrade was consistent with thepurpose of the zone but that the activities and the effects for which land use consentswere being sought needed to be considered against the other objectives and policies inthe Proposed Plan. It went on to do that by considering all relevant policies:bio-diversity management, management of activities in the coastal environment,protection of historic heritage, recognition of tangata whenua interests, trafficmanagement, and noise levels. It made conclusions on each.[46] At the end of the section (Part I) the Panel said:246. Finally, we note that under the [Proposed Plan] a number of the wharfrelated activities that are to take place on the newly reclaimed area ofthe wharf and therefore fall outside the Marine Service Zone. Theseactivities are to be considered as non-complying activities. In our view,those activities are not inconsistent with the overall objectives andpolicies in the [Proposed Plan].[47] The Panel then concluded:Panel Findings:248. Overall, having considered the hierarchy of national, regional anddistrict and planning documents that are engaged by this Project, thePanel is satisfied the construction and operation of the upgraded wharfwill not run counter to the relevant objectives and policies in thosedocuments.Non-complying Activities:249. We are satisfied the effects from those activities that have the status ofnon-complying activities will be no more than minor and accordinglypass the gateway test in s 104D of the RMA.Was the Panel's approach in error?[48] Mr Matheson submitted that the Panel must have taken the holistic approachrequired for bundling because that was the only approach taken in the AEE. Therewas no other material taking a different approach before the Panel. Because there wasnothing analysing effects or policies in terms of non-complying activities alone,Mr Matheson says that when considering and relying upon the AEE, the Panel was infact alive to the issue of bundling and did not fail to consider whether to do so.[49] I agree that the AEE approached the application holistically as was required.However, Ms Carruthers is correct that only paragraphs [246] and [249] of the decisionare directed at the policy and effects gateways in s 104D.[50] Given how the Panel has worded these paragraphs by reference tonon-complying activities alone, the Panel was not consciously taking a bundledapproach to either of the gateways (thresholds) in s 104D. Rather at [246] the Panelwas considering whether the activities that are non-complying are contrary to arelevant proposed plan (s 104D(1)(b)); and at [249] whether the effects of thenon-complying activities were no more than minor (s 104D(1)(a)). [248] was a moregeneral assessment under s 104. That is, the Panel addressed the effects gateway andpolicy gateway by reference to non-complying activities only.[51] I find that the Panel was in error to the extent that it did not specifically applya bundled approach to the s 104D gateway tests. However, in [248] set out above, thePanel's overall conclusion on the project was that the upgraded wharf will not runcounter to the relevant objectives and policies in any of the various documents that ithad just traversed, which included those of the Proposed Plan. So, while notreferenced to s 104D, this is a finding that the entire project is not contrary to thepolicies and objectives of the Proposed Plan.[52] Mr Matheson argued that while the decision was poorly worded and itsstructure was not well set out, the Panel did consider all relevant elements in asubstantively legally correct manner. He is correct that the Panel did form and expressa substantive conclusion on a bundled basis, at least on the policy threshold. In myview that submission goes to whether I should refer the matter back, rather than theexistence of an error. I turn to that issue later.Did the Panel fail to correctly apply Policy 10?[53] The Panel concluded that the proposal was not contrary to Policy 10 of theNZCPS. As an alternate ground of appeal, the Society says the Panel did not correctlyapply Policy 10.What is Policy 10?[54] Policy 10 directs to avoid reclamation of land in the coastal marine area unlessprescribed thresholds are met. Policy 10(1) states:(1) Avoid reclamation of land in the coastal marine area, unless:(a) land outside the coastal marine area is not available for theproposed activity;(b) the activity which requires reclamation can only occur in oradjacent to the coastal marine area;(c) there are no practicable alternative methods of providing theactivity; and(d) the reclamation will provide significant regional or nationalbenefit.[55] Where reclamation is considered a suitable use of coastal marine area (that is,when those thresholds are met), Policy 10(2) requires regard to be had to certainmatters in considering the form and design of the reclamation:(a) the potential effects on the site of climate change, includingsea level rise, over no less than 100 years;(b) the shape of the reclamation, and, where appropriate, whetherthe materials used are visually and aesthetically compatiblewith the adjoining coast;(c) the use of materials in the reclamation, including avoiding theuse of contaminated materials that could significantlyadversely affect water quality, aquatic ecosystems andindigenous biodiversity in the coastal marine area;(d) providing public access, including providing access to andalong the coastal marine area at high tide where practicable,unless a restriction on public access is appropriate asprovided for in policy 19;(i) the ability to remedy or mitigate adverse effects on the coastalenvironment;(f) whether the proposed activity will affect cultural landscapesand sites of significance to tangata whenua; and(g) the ability to avoid consequential erosion and accretion, andother natural hazards.What did the Panel do?[56] The relevant part of the Panel's decision needs to be reproduced to address themulti-pronged arguments for the Society:216. The Applicant has undertaken in the AEE a detailed planning analysisof the Project against the relevant provisions of the NZCPS.217. We generally agree with that assessment and its conclusion that theproposal can be undertaken in a manner that is consistent with thesustainable management outcomes sought for the coastal environmentin the NZCPS.218. We have had particular regard to Policy 10 which requiresreclamations to be avoided unless prescribed thresholds are metincluding that there are no practical alternative methods of providingthe activity.219. In doing so, firstly, we consider the location of the reclamation to beappropriate being an extension of an existing reclamation that can beundertaken outside any identified outstanding natural character orlandscape areas and without adverse effects on key species protectedby Policy 11 of the NZCPS.220. As to whether there are other ways to upgrade the wharf withoutreclaiming the seabed, we are satisfied pontoon or pile structureswould not be practical options given the nature of the commercialoperation.222. Overall, the Panel considers the Project is not contrary to any of therelevant objectives and policies of the NZCPS.Was the Panel in error in failing to satisfy itself that there are no "practicablealternative methods of providing the activity"?[57] Policy 10 requires reclamation to be avoided unless there are "no practicablealternative methods of providing the activity". The "activity" here is the enhancedrecreational and commercial use of the current landing facility (the wharf upgrade); ormore generally, provision of a landing facility for aquaculture in the Hauraki Gulf.[58] The Society's primary challenge to the Panel's decision on Policy 10 is that thePanel failed to satisfy itself that there are "no practicable alternative methods". TheSociety says that the Kōpū Marine Precinct offered a potential "alternative method".The Panel is said to be in error as it made no finding on its viability.[59] The Society interprets "alternative methods" as encompassing "alternativesites or locations". I do not accept that interpretation. The Policy statement wouldhave included reference to location if that is what was intended, particularly given thatthe RMA and the Policy does this elsewhere.30 The sub-clause is addressing whetherreclamation can be avoided, not where it takes place. That is, the issue is whetherthere are methods other than reclamation that can be used for the activity.[60] I also accept Mr Ashton's submission, for the District Council, that theSociety's interpretation would place an unworkable burden on a consenting authorityto exclude other locations. That is a further reason it is unlikely to have been intendedthat "methods" encompasses "locations".[61] Ms Carruthers is correct that in [218] and [219] of its decision the Panel itselfappears to have viewed the wording as encompassing location. However, the Panelwent on to make a clear finding that pontoon or pile options would not be practicablealternative methods given the nature of the commercial operation.31 No one suggestsalternative methods could be used. That is enough to dispose of this issue.[62] ATSWL submitted that even if the wording encompassed location, the Panelwas sufficiently explicit in its view that Kōpū Marine Precinct was not a viablealternative. It said that in substance, the Society is seeking to challenge the merits ofthat decision. For completeness, I outline below why I agree.30 RMA, s 171(1)(b) "alternative sites, route, or methods" and sch 4, cl 6(1)(a) "alternative locationsor methods"; Policy 23(2)(b)(i) requires there to be "adequate consideration of alternativemethods, sites and routes for undertaking the discharge".31 Panel Decision, above n 14, at [220].[63] The Society submitted to the Panel that an expanded facility at Ariki Tahi wasnot the appropriate manner in which to meet the recognised needs of the aquacultureindustry. Its core position was that the "obvious alternative" was provision for alanding facility at Kōpū within the currently planned marine and business precinctthere. The Society's position was that issues previously identified with developmentat Kōpū were "not insurmountable". In this appeal, Ms Carruthers characterised theSociety's position to the Panel as being that "[Ariki Tahi] is not a suitable site forfurther expansion. The Kōpū Marine Precinct is."[64] Reflecting the Society's focus, in its executive summary of the decision thePanel listed suitability of Ariki Tahi as a key issue of contention and recorded itsconclusion that it was a suitable location.[65] The Panel dedicated a section to "Other Options Considered" in which itrecorded that other wharf sites were considered by various prior reports. It recordedthat: "A number of [other sites] were discounted for different reasons including thelack of all-tide access that would require extensive dredging, such as at Kōpū.32[66] The Kōpū planned marine precinct is for marine servicing which does notrequire all-tide access for operational commercial barges that need to leave earlyirrespective of the tide. The Panel was advised that at Kōpū dredging out to a distanceof six kilometres was recognised as required to create all-tide access for commercialvessels. The Panel stated that in consideration of options, Ariki Tahi was chosen asthe preferred option, among other things, because it has all-tide access.33[67] At [52], the Panel explicitly addressed the Society's identification of KōpūMarine Precinct as a suitable alternative. The Panel recorded that:The [Society] comment refers to the Kōpū Marine Precinct as a suitablealternative location for an aquaculture landing facility but as we have notedthat site has been considered and discounted due to its lack of all-tide access,its location is near a sensitive ecological area, and it would involve greatertravelling time for vessels between the wharf at [Kōpū], and marine farms inthe Hauraki Gulf.32 At [48].33 At [49].[68] The Panel then concluded at [53] that:Overall, we are satisfied the Applicant has adequately considered alternativelocations. We find that Ariki Tahi is a suitable site for an upgraded aquaculturelanding facility to accommodate the future growth in that industry. It is anexisting facility with all-tide access and is located in reasonable proximity tomarine farms in the Hauraki Gulf.There is an evident symmetry in this paragraph [53] between the matters the Panel hadjust identified in [52] as causing Kōpū to be discounted and Ariki Tahi to be consideredsuitable.[69] Later in its decision the Panel recorded that it had particular regard to Policy10, and the requirement that reclamations be avoided unless prescribed thresholds aremet, including that "there are no practical alternative methods of providing theactivity". In that context the Panel stated that it considered the location at Ariki Tahito be "appropriate".[70] Ms Carruthers submits that references in the decision to Ariki Tahi as the"preferred option", as a "suitable site", and to the site being "appropriate" fall short ofa finding that there were no viable alternative locations.[71] In context I disagree. As outlined above, in the "Other Options Considered"section the Panel had twice stated that Kōpū had been "discounted". On the secondoccasion, the Panel was plainly addressing the Society's submission that issues withKōpū were "not insurmountable". The Panel's Policy 10 conclusions are framed bythis earlier discussion. The Panel was alive to the "practical alternative" requirement.Having regard to these matters, it is plain that the Panel did not accept the Society'ssubmission that Kōpū was a viable alternative.Other challenges to the Panel's findings on Policy 10[72] Ms Carruthers submits that in accepting that the proposal was not contrary toPolicy 10, the Panel was also in error in failing to:(a) turn its mind to whether each of the conjunctive parts of Policy 10(1)are met;(b) consider the form and design of the proposed reclamation as requiredby Policy 10(2); and(c) consider whether it was appropriate in light of Policy 10 to grantconsent.[73] These points are based on lack of detail in the Panel's decision in articulatingall of these matters. I reject these criticisms. The Society is requiring of the Panel agreater level of detail and precision in the decision than is warranted, having regard tothe short time frame in which it was required to be produced for the purpose of theFTCA and the reliance of the Panel on the core planning assessment before it in theAEE.[74] Importantly, and unsurprisingly given the time frames in the FTCA process,the Panel relied heavily on the AEE in its conclusions, particularly where there was nocontrary material. The Panel did this in its conclusions on Policy 10.[75] The AEE undertook a detailed planning analysis of the project against therelevant provisions of the NZCPS. The Panel referred to this analysis and said:34217. We generally agree with that assessment and its conclusion that theproposal can be undertaken in a manner that is consistent with thesustainable management outcomes sought for the coastal environmentin the NZCPS.218. We have had particular regard to Policy 10 which requiresreclamations to be avoided unless prescribed thresholds are metincluding that there are no practical alternative methods of providingthe activity.[76] Reference to the "prescribed thresholds" is clearly to the matters inPolicy 10(1). The Panel concluded the section by stating that: "Overall, the Panelconsiders the Project is not contrary to any of the relevant objectives and policies ofthe NZCPS."35 By necessary implication, the Panel has considered the matters asteased out more fully in the AEE which it has accepted. That included the matters34 At [216].35 At [222].identified in this ground of appeal as to both Policy 10(1) (threshold) and 10(2) (formand design).[77] In short, the Panel's economy of expression in having regard to Policy 10 doesnot undermine the robustness of its conclusions that the project was not, in its view,contrary to the objectives in that Policy. The Panel's findings confirm that it didconsider that it was appropriate in light of Policy 10 of the NZCPS to grant consent.I do not accept that an error of law has been demonstrated.Should I refer the matter back to the Panel for reconsideration?[78] I found that the Panel was in error in not specifically applying a bundledapproach. That does not conclude the matter in favour of the Society. If the resultwould inevitably be the same if reconsidered by the consent authority then, as Greig Jsaid in Donald v Wellington City Council, it "would be a vain exercise to remit thematter and would, I think, then be contrary to common sense and to justice." 36[79] To recap, an applicant who passes through the policy gateway moves throughto the broader s 104 enquiry even if they do not pass through the effects gateway.[80] Here, the Society's primary challenge and the focus for most of the argumentin the appeal and also in response to the original application was directed to the effectsof the project (that is, the effects gateway). Assessing the activities against the policyobjectives of the Proposed Plan was not such a focus. Indeed, Mr Matheson says withsome justification that reflecting this, the policy aspect is not even raised in the appealdocuments.[81] For the reasons below, I have concluded that the panel would inevitably reachthe same decision on the policy gateway if the matter was referred back to it. I do notneed to consider the position on the effects gateway, as my conclusion on the policygateway is sufficient to determine this ground of appeal.36 Donald v Wellington City Council (1989) 14 NZTPA 33 at 40. See generally, ResourceManagement (online ed, Thomson Reuters) at [A299.12].[82] The s 104D(1)(b) policy gateway asks whether the activities are "contrary" tothe objectives and policies of the Proposed Plan. It has been held that the word"contrary" in s 104D(1)(b) contemplates being opposed to in nature; different;opposite to.37 The question is whether the activities are contrary to the objectives andpolicies of the document overall.38[83] I described what the Panel actually did earlier:39 the Panel went through eachof the relevant plans including the Proposed Plan; it found the project to be consistentwith each; in [248] the Panel concluded that the construction and operation of theupgraded wharf (as a whole) "will not run counter" to the relevant objectives andpolicies in all of the planning documents engaged by the project.[84] The Society has not challenged these substantive assessments of the Panel.I tested with Ms Carruthers why these conclusions were not also a conclusion onwhether the project runs counter to the objectives and policies of the Proposed Plan,being one of the documents considered first individually, then encompassed in the[248] conclusion. A project that does "not run counter to" a policy or objective is "notcontrary" to it.[85] Ms Carruthers' answer was to reiterate that the Panel made no decision on thepolicy gateway applying a bundled approach. She says that to get through the policygateway to the broader s 104 assessment, there must first be a decision that theapplication passes the gateway. The only finding on that is the [246] finding that using37 New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC) at 80. In RoyalForest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2021]NZHC 390, [2021] NZRMA 303 at [24], the High Court interpreted "not contrary" as being"repugnant and antagonistic" in reliance on New Zealand Rail Ltd, albeit with counsel not beingin dispute on that.38 Refer generally Resource Management, above n 36, at [A104D.05] referring to Akaroa Civic Trustv Christchurch City Council [2010] NZEnvC 110; Man O'War Station Ltd v Auckland CityCouncil [2010] NZEnvC 248; Man O'War Station Ltd v Auckland Regional Council [2011]NZRMA 235 (HC); and Re P & I Pascoe Ltd [2014] NZEnvC 255. In Brial v Queenstown LakesDistrict Council [2021] NZHC 3609 in the context of s 104 the High Court rejected an argumentthat after Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC38, [2014] 1 NZLR 593 an overall approach should not be taken. See also RJ Davidson FamilyTrust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 where the Court ofAppeal implicitly accepted that s 104D requires an assessment of objectives and policies of a planas a whole.39 Refer [43]-[48] above.the reclaimed area is not inconsistent with the Proposed Plan. That is not a findingthat the entire proposal is not inconsistent with the Proposed Plan.[86] She suggested it was conceivable that if the Panel just examined the projectthrough the lens of the Proposed Plan there may be a conflict with policies andobjectives, whereas looked at in terms of the broad range of planning documents asshe said occurred at [248], that conflict has less weight. She submitted that is why thedistinction is important between a decision about the policy gateway in s 104D andthen the broader assessment under s 104.[87] While I acknowledge the distinction Ms Carruthers is making in principle, I donot consider it carries this appeal given the substantive assessments that were made bythe Panel, the way the Panel approached these, and the material before it.[88] First, it is evident from the way the Panel addressed each of the policy andplanning documents in a self-contained way, that in fact it was not applying someoverall weighing or overall evaluative assessment of the various policies. That is alsoconfirmed in the way [248] is expressed. This undercuts Ms Carruthers' submissionthat conflicts with the Proposed Plan may potentially have had less weight in theanalysis that was undertaken.[89] Second, while the Panel's conclusion in [246] on the policy gateway isconfined to non-complying activities (activities on the newly reclaimed area), itssubstantive scope needs to be viewed in the context of the source of this conclusion.In its section on the gateway tests in s 104D, the AEE had outlined how the "upgradeof Ariki Tahi" would align with relevant policies and objectives of the Proposed Planand concluded that: "Overall, it is also considered that the proposal is consistent with,and not contrary to, the objectives and policies of the Proposed Plan." This conclusionwas related to the entire project.[90] More generally, the AEE and responses to it did not split out non-complyingactivities of the proposal and consider the Proposed Plan's objectives and policies onlyrelative to those. The fact that there is no differentiation in the AEE or responses incomments to the Panel between the non-complying use and the entire project supportsthat if the Panel is asked to reconsider applying a bundled approach, inevitably therewill be the same outcome.[91] In these circumstances, I accept Mr Matheson's submission that if I referredthe matter back to the Panel, it would inevitably come to the same conclusion onwhether the application passed the policy gateway.[92] Conceivably, it would be open to the Panel to call for additional informationor reports if the matter was referred back.40 I do not see that this impacts myconclusion in the present case. The AEE did apply the right test. It wascomprehensive. The Society does not say there is information missing nor does itchallenge the substantive assessments made by the Panel on policies and objectives.It would be wrong to refer the matter back on the basis of the Panel's right to call forfurther information or reports, when the gist of the appeal is about the Panel'sapproach, not deficiencies in the material before it or its assessments.Was the Panel's conclusion on "no more than minor" effects insupportable on theevidence?[93] As a further ground of appeal, the Society submits that even on the Panel'sunbundled approach of considering only the non-complying activity (use of thereclamation) the Panel was wrong to conclude the adverse effects were no more thanminor under the effects gateway in s 104D(1)(a) because that conclusion was notsupported by the evidence.[94] I have left this ground of appeal to last because my decision on it is academicgiven my conclusions on the alternative policy gateway. I have found that I would notrefer the application back to the Panel for reconsideration notwithstanding its error oflaw regarding bundling because the conclusion on the policy gateway in s 104D wouldbe the same. Any error impacting the alternative effects gateway is irrelevant.However, I consider this for completeness and in deference to a focus on the issue inargument.40 The FTCA remains in force until determination of the appeal and, as the case requires, theremaking of the decision (sch 1, pt 1, cl 1(3)(c)). By sch 6, cl 25(1) the Panel has power before itissues its final decision to direct the Environmental Protection Authority to request information orprepare and commission a report on relevant issues.[95] This ground of appeal relies on the proposition that "a conclusion of afact-finding body can sometimes be so insupportable – so clearly untenable – as toamount to an error of law".41 An appellant faces a very high hurdle to establish this.[96] Ms Carruthers submitted that the high threshold for this appeal ground is metbecause, in summary, she says that on ATSWL's own evidence referred to by the Panel,visual effects were assessed as more than minor; the Panel assessed noise effects weremore than minor; and because the Panel did not carry out any analysis or considerationof the broader effects of the land use on amenity values in terms of landscape valuesand natural character.The Panel's approach and conclusions[97] In Part G, "Assessment of Effects", the Panel identified and then individuallyassessed all potential effects from the project. These were amenity, ecological,archaeological, management of hazardous substances, coastal processes, traffic, noise,cultural and positive benefits.42 The Panel identified the key issues in contention forresidents and road users as traffic and noise.43 That reflected the focus in the Society'scomments on the proposal.44 The Panel emphasised that in considering effects, it wasmindful that the proposal is an upgrade of an existing facility that has been in operationfor 20 years.[98] The Panel recorded that the Waikato Regional Council had reviewed the AEEthrough its own experts and that except for some minor issues it mainly agreed withthe AEE conclusions. The Panel then went through each of the various effects,summarising the AEE, any invited comments, any response from ATSWL and thenmade findings.[99] For amenity effects (embracing landscape, natural character, and visual effects)the Panel had expert evidence on behalf of ATSWL from Isthmus Group Ltd whichapplied an established rating system. In this system, effects rated at "moderate" or41 Bryson v Three Foot Six Ltd, above n 17, at [26]. Applied in the context of the FTCA in Te Korowaio Ngāruahine Trust v Hiringa Energy Ltd, above n 7.42 Panel Decision, above n 14, at [109].43 It also identified cultural effects as key, which is an issue no longer live but which was a significantfocus in the Panel's decision.44 The Society addressed visual amenity and amenity effects in only a few paragraphs.higher equate to more than minor effects. Isthmus rated all four assessed landscapeand natural character effects as no more than minor.45 Isthmus rated adverse effectson visual amenity as "very low" to "moderate" from a range of six viewpoints and fornight-time visibility. Those that reached "moderate" were from viewpoints for usersof the Sugarloaf headland and for local private residences on Puriri Road which sitsabove and to the south-east of Ariki Tahi. The initial Isthmus report made no overallconclusion on visual amenity.[100] Isthmus re-confirmed its rating for Puriri Road in a response to an expert peerreview on behalf of the Waikato Regional Council. The Isthmus response alsoaddressed comments from the Society. Isthmus concluded the response by recordingthat the proposal would result in no more than moderate effects on the visual amenityvalues in the area.[101] The Panel set out the Isthmus Report ratings and conclusions, summarisedcomments received and Isthmus' response. The Panel recorded that the site was notlocated within any specific natural character or visual amenity overlay area. Itaccepted the conclusions reached in the Isthmus report. The Panel went on to say thatit found the impact of the project on amenity effects will be "acceptable."46[102] For traffic effects the Panel recorded that overall the traffic and controlmeasures proposed would improve the safety of Te Kouma Road including for theadditional traffic generated from the upgrade.[103] For noise effects, the Panel's analysis discussed competing night-timebackground noise assessments undertaken for ATSWL by Marshall Day Associatesand for the Society by Styles Group. The Panel recorded that it preferred the noiseassessment of Marshall Day. It concluded that ATSWL's proposed noise levelstogether with observance of mitigation measures in a proposed OperationalManagement Plan would "likely achieve a balance of allowing for the continuation of45 "Low" or "very low" other than "natural character of the site", which was assessed as moderate-low). I note that the "natural character of the site assessment" was itself comprised of threeindividual assessments for biotic effects, abiotic effects and experiential effects, with the formertwo being rated "low" and the third being rated "moderate".46 At [122].commercial aquaculture on the upgraded facility without causing unreasonableobtrusive noise to nearby residents."47[104] In its conclusions on the proposed conditions, the Panel addressed the WaikatoRegional Coastal Plan direction that the noise emissions from operations in the coastalmarine area must not exceed a "reasonable" level and concluded that the OperationalNoise Management Plan conditions would address this.[105] Later in its decision the Panel found: "We are satisfied the effects from thoseactivities that have the status of non-complying activities will be no more thanminor."48Was the Panel's finding insupportable?[106] The Society submits that the Panel's conclusions that visual effects were"acceptable" and assessing noise as not "unreasonable" cannot be reconciled with thePanel's summary conclusion later in its decision that effects will be no more thanminor.[107] In this earlier part of the decision addressing "Assessment of Effects" the Panelappears to have been considering effects against the more general assessment requiredin s 104 and against Waikato Regional Coastal Plan requirements not the "no morethan minor" test in s 104D.[108] Evaluation of whether there will be "no more than minor" adverse effectsrequires a holistic assessment looking over the entire application and the range ofeffects, not individual effects.49 This means that some effects may individually bemore than minor, such as visual amenity from certain properties, but the overallconclusion across the range of effects may be that the effects are no more than minor.47 At [203]. Refer also [255] when conditions are considered when the Panel noted that conditionsin the proposed Operations Management Plan would ensure the Waikato Regional Coastal Plandirection that noise in the coastal marine area does not exceed a reasonable level.48 At [249].49 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA76 at [265] citing SKP Inc v Auckland Council [2018] NZEnvC 81 at [49].In assessing the degree of effect, regard must be had to the ameliorating effect ofconditions. 50[109] I do not consider the conclusions are incompatible with an overall conclusionlater in the report that the Panel considered effects to be no more than minor. In thelatter conclusion the Panel was addressing the different standard and was notconsidering individual effects but making an overall conclusion. I note that inassessing s 104D(1)(a), the AEE had summarised the assessments and drawn thosetogether under a conclusion that the effects gateway can be satisfied. The AEE was acornerstone document considered by the Panel.[110] On the particular effects referred to by Ms Carruthers:(a) Isthmus assessed the visual amenity affects as moderate (ie more thanminor) from only two viewpoints, being from the houses on Puriri Roadand the Sugarloaf headland. The conclusion in the Isthmus report thatvisible amenity effects were no more than moderate needs to be viewedin that context.(b) Marshall Day predicted peak wharf operations to be similar in noiselevel to existing operations. The conclusion on noise effects waspremised on noise effects remaining the same or of similar character,intensity and scale to those that exist already with noise mitigationmeasures in the coastal marine area managed by the OperationalManagement Plan.(c) The Society submitted that the Panel gave no consideration or analysisof amenity effects other than visual effects. I do not accept this. ThePanel explicitly accepted the Isthmus report, which included findingson amenity levels that on its scale were no more than minor.[111] In the fast track under the FTCA, time frames required for the Panel to provideits decision are tight. A hyper-critical analysis or dissection of the decision is not50 SKP Inc v Auckland Council, above n 49, at [48].appropriate. The conclusion of "no more than minor effects" was an overall evaluativeassessment by a Panel of experienced resource management experts. It is clear thatthe Panel considered all relevant material and in particular the AEE and its annexures.The finding was open to the Panel on that material, including the specific areas reliedon by the Society discussed above. I reject that this is a rare case where an error oflaw is established on the basis that the finding is insupportable.Result[112] In summary:(a) I find that the Panel made an error of law in failing to specifically applya bundled approach to the test under s 104D.(b) The other contended errors of law are not established.(c) I decline to refer the matter back to the Panel for reconsiderationbecause, if remitted, the Panel would inevitably come to the conclusionthat the threshold in s 104D(1)(b) (policy gateway) is met.[113] I ask the parties participating in the hearing to file any joint memorandum oncosts within 14 days. If a joint memorandum is not possible, I will receive submissionson costs as follows:(a) submissions for ATSWL within 14 days; and(b) any submissions by the Society and the District Council within a further14 days.Anderson J