Much of the discussion following last Friday’s High Court decision, NZTA v Architectural Centre Inc & Ors (21 August 2015), has focussed on the consequences for the Basin Reserve flyover, but the appeal was not so much about the flyover. It did not examine the merits of the Board’s decision regarding the flyover. Instead it was about the Board of Inquiry’s interpretation and application of the law. Consequently the decision has broader ramifications for our built environment.

The judge dismissed the NZTA appeal and found that none of the issues raised by NZTA demonstrated errors of law in the Board’s decision.

The issues raised by NZTA were largely dismissed because of one of the following reasons:

1. the matters raised related to matters of fact, not matters of law, and so were outside the scope of what the High Court could consider
2. NZTA did not provide evidence that showed that the Board reached an insupportable conclusion
3. the matters raised incorrectly stated what the Board did
4. the judge disagreed with the NZTA’s interpretation and application of case law (e.g. Queenstown Airport and King Salmon)

More detail about the decision is below.  The numbers in square brackets [] refer to paragraph numbers in the High Court decision. A brief Glossary and Timeline follows this summary.  GreenwoodRocheChisnall have written a complementary summary which addresses the issues related to questions of law, and the relevance of the King Salmon decision to Notice of Requirements.

ADEQUATE CONSIDERATION OF ALTERNATIVE OPTIONS TO THE FLYOVER

The Board of Inquiry had to decide whether NZTA had adequately considered alternative options to the flyover and it concluded that their consideration of alternatives was inadequate. NZTA disagreed and appealed on this matter to the High Court. This aspect of the appeal included questions regarding:

1. the application of the Queenstown Airport decision
2. whether adequate consideration must be transparent and the decision-making process be able to be repeated by others (i.e. replicable)
3. the role of Part 2 of the RMA
4. whether the decision to underground Buckle St (to create the National War Memorial Park) required a re-examination of options (i.e. tunnel options)

Queenstown Airport decision: is closer scrutiny of alternative options needed when there are greater adverse effects?

One of the triggers which required the Board to consider whether or not NZTA’s examination of different options was adequate was that the flyover was likely to “have a significant adverse effect on the environment.” The Board of Inquiry accepted the Architectural Centre’s argument that “”the more significant the adverse effects … the more careful the assessment of alternatives that is required.”” [133] This extended an aspect of the Queenstown Airport decision.

NZTA contested this argument, proposing that the triggers are thresholds which “do not give rise to a need for “closer” scrutiny”” [136].

In the High Court, the judge disagreed with the NZTA position, finding that the logic of the Queenstown Airport decision could be extended, but he also noted that a “more careful consideration of alternatives may or may not be required: it will be very much circumstances dependent” [142].

Queenstown Airport decision: non-suppositious options

Another finding from the Queenstown Airport decision which was applied to the Basin Bridge Board of Inquiry, was that if an “”alternative is not merely suppositious or hypothetical, then the Court must have particular regard to whether it was adequately considered”” [145]. This related to the Board’s finding that NZTA’s consideration of alternative options was inadequate because NZTA had failed “to adequately assess non-suppositious options, particularly those with potentially reduced environment[al] effects” [149].

NZTA’s appealed this, stating that the Board had wrongly required it to consider all non-suppositious options, and suggesting that to require this would be unreasonable. The judge found that the Board had not required NZTA to demonstrate this. He referred to part of the Board’s decision which had stated that: “It is not incumbent on a requiring authority to demonstrate that it has considered all possible alternatives … Rather, it is for the requiring authority to establish an appropriate range of alternatives and properly consider them” [154].

NZTA also argued that it had adequately considered all of the identified options, particularly: Option X, the at-grade option known as BRREO, and Option F (the long tunnel option). The judge noted that he was restricted in how he could address these questions because he could only consider questions of law, and that “on a challenge of this nature an appellant faces a very high hurdle” [162]. He found NZTA did not demonstrate that a different conclusion to the Board’s findings regarding Option X, BRREO and Option F was “the true and only reasonable conclusion” [171], [164], [174]. This phrasing (“the true and only reasonable conclusion”) comes from a 1956 English case: Edwards v Bairstow.

Requirement for transparency and replicability

NZTA also argued that the Board was wrong to find that adequacy required consideration of alternatives to be “”transparent and replicable”” [180]. The judge commented that he did not consider that the Board indicated that all cases would require the consideration of alternatives to be replicable [182]. Instead he noted that, in this case:

“The Board’s complaint was that the selection process is in effect opaque in the absence of information about the different weightings applied. Given the Board’s perception that NZTA’s preference for Option A had become entrenched, the Board was not satisfied that the consideration of other non-suppositious options had been adequate. It felt the need to state that it viewed its obligation “seriously”” [183].

The judge referred to the observation by the Architectural Centre’s lawyer, Philip Milne, that the NZTA’s approach was “”trust us … measure adequacy by the volume of paper we produce not the quality of the process”” [184]. He noted that the Board’s concern was that “”it was not possible to determine that adequate consideration had been given to relevant alternative options”” [185]. The judge considered that the Board’s approach was not unreasonable and that “cases will inevitably be circumstances dependent” [186]. He also noted that he perceived that:

“this is another instance where NZTA is in effect inviting the Court, under the guise of a question of law, to second-guess the Board’s conclusions” [187].

Part 2 of the RMA

The NZTA process for evaluating different alternatives to the flyover involved assessing the different options against a range of criteria and giving some criteria (e.g. urban design, social impacts) more weight than others (e.g. built heritage). Historic heritage is a matter of national importance, which the RMA recognises and provides for (s 6). Urban design and social impacts are not matters referred to in the RMA, though amenity value is a matter that decision-makers “shall have particular regard” to (s 7). Sections 5-8 make up Part 2 (Purposes and principles) of the RMA.

The Board noted in its decision that “”Part 2 considerations should be reflected in any weight given to a particular evaluation criteria (sic) over another”” [188]. NZTA disagreed with this. It also pointed to what it considered to be a contradiction in the Board’s decision because the Board had also stated that “”each alternative does not need to be assessed against Part 2″” [188]. In the High Court, the judge said that “The Board’s statement needs to be read in context” [195]. He interpreted the decision as saying that “if a range of alternatives are to be the subject of evaluation by criteria which are to be variably weighted, then the selection of the different weightings should “reflect” part 2 considerations” [197]. He did not consider the decision to be in error on this point [198].

Consideration of alternative options following the decision to underground Buckle st

At the Board of Inquiry, the Architectural Centre argued that because the decision to underground Buckle St to create the NWMP was a significant change of context for the Basin, options, which had previously been discarded because of the cost of undergrounding Buckle St (including Option X), needed to be properly examined given this new context. Our lawyer, Philip Milne, argued that this was not done adequately, and that the key NZTA evidence (a letter dated 3 July 2012) was insufficient. The Board similarly found that this July 2012 letter was cursory.

NZTA argued at the High Court that this conclusion was an error of law, and that the July 2012 letter was not cursory. The judge noted that “It is apparent that the Board regarded the letter as superficial” and that “There was ample basis for the Board’s assessment of the situation” [213], [214].

There were other questions of law raised by NZTA regarding the consideration of alternative options. Most of these were not considered to be questions of law by the High Court, or that NZTA did not establish that the Board’s view was insupportable. There were no matters raised in which the judge found that the Board had made an error of law.

ENABLING EFFECTS

NZTA defined “enabling effects” as “an effect of a proposal that facilitates or creates an opportunity for the achievement of an outcome” [253].  It described the specific enabling effect in the Basin Bridge project as “how the Project facilitates (will not frustrate) the development and potential implementation of related projects, particularly the Mt Victoria Tunnel duplication and the Public Transport Spine Study … it is the fact that this Project enables/facilitates/provides the opportunity for those other projects to be implemented” [253]. The NZTA appeal was that the Board of Inquiry had not appropriately taken into account the benefits of enabling effects.

This aspect of the appeal included questions regarding whether the Board:

1. had treated enabling effects as a benefit of the flyover proposal
2. had considered enabling effects with particular regard to planning documents (which anticipated improvements at the Basin Reserve and related projects)
3. had considered enabling effects with particular regard to the NZTA objectives for the project
4. was wrong to require enabling effects to be unique to the project
5. was wrong to require NZTA to demonstrate the certainty of these benefits.
6. was wrong to consider the definition of the future environment in relation to enabling effects

The Board’s decision acknowledged “”that the Project enabling element may arguably be viewed as a potential positive future effect,”” but it concluded that, in this case, “”any such benefit can be given little (if any) weight”” [256]. The Board’s reasons why this effect could be given little weight included that the enabling effect was not unique to the flyover project and that there was no guarantee that the related projects (the Mt Victoria tunnel duplication and the Public Transport Spine Study) would go ahead [256].  The Board concluded that it would take any enabling effect into account under sections 171(1)(a) and (d), and section 5 of the RMA [256], [257].

NZTA argued at the High Court that the Board had “failed to treat enabling effects as separate and identifiable positive effects of the Project,” and that it had failed to appropriately take into account “the fact that the Project is part of a programme of works” anticipated in planning documents, and that these enabling effects related to the NZTA project objectives [259].  These are all matters for the Board to consider under s171(1) of the RMA.  NZTA also claimed that the Board was wrong to require the enabling effects to be unique, and to require NZTA to demonstrate the certainty of these benefits [259].

In the High Court, the judge found that “The enabling effect or benefits of a project will inevitably be circumstances specific” and agreed that “a project’s enabling effect “can” constitute an effect to be taken into account under s 171(1) and/or s 5″ [265].  He also found that the Board took “the enabling element into account … in the manner which counsel had agreed was acceptable” [264].  He distinguished between the Board’s decision to take enabling effects into account from the issues that the Board had used to determine how much weight to give enabling effects [269].  The judge also found that the definition of the future environment “is likely to be material to, and even influential on, the way in which a decision-maker considers and weighs a project’s enabling elements” [277].

In considering these issues, the judge found that there were no errors of law in the Board’s approach to enabling effects in the questions raised by NZTA. There was one question (Qu 31(b)) that the judge considered was concerned with issues of weight, which meant that it was not a question of law, and so was outside the scope of the appeal [267].

TRANSPORT BENEFITS

With respect to Transport Benefits, NZTA’s appeal was concerned that the Board had:

1. required the project to have benefits which were outside of the NZTA project objectives (e.g. mode shift and a long-term eastbound solution).
2. required too high a standard of proof to be demonstrated
3. not appropriately assessed immediate transport benefits

With regard to the Board incorrectly requiring NZTA to demonstrate benefits beyond its objectives, NZTA referred to mode shift (stating that its objectives did not include an objective to “actually … achieve mode shift”) as well as to the Board’s references to the proposal not providing a long-term solution for eastbound SH1 traffic (NZTA stating that the project objectives only referred to westbound SH1). The judge considered that the NZTA’s description of its role as being “”to provide infrastructure which assists or facilitates such outcomes rather than providing them directly”” as identifying an “excessively fine” distinction [317], [318]. He also considered that, because NZTA’s own case was that the project was a “multi-modal solution,” it was difficult to criticise the Board for considering whether or not the project was “multi-modal” [319]. In addition, as our lawyer, Philip Milne, argued, the Board was obliged to consider planning documents which identify increased pedestrian and cyclist mode shares as desired outcomes. It was therefore necessary for the Board to consider “the extent to which the Project would contribute to mode shift” [320].

Regarding the issue of an eastbound long-term solution, the judge found that the Board’s reference to a long-term solution was in the nature of a post-script, and was a response to “NZTA’s frequent references to the project being a long term and enduring solution” [326]. The judge considered that the Board did not require NZTA to demonstrate a long-term eastbound SH1 solution as “a prerequisite for the approval of the NoR” [327].

The judge examined a number of instances where NZTA considered that the Board had required too high a standard of proof of NZTA. The judge disagreed with NZTA and found that the Board applied a conventional civil standard of proof [301]. NZTA also argued that the Board did not give proper weight to congestion, bus priority and economic criteria. Opposing parties argued that these matters were issues of weight, and not questions of law, to which the judge in the High Court agreed.

There were no matters related to transport benefits in which the judge found the Board to have made an error of law.

HERITAGE

A number of questions raised in the NZTA appeal, which related to heritage, referred to aspects of last year’s King Salmon decision.  The judge had found this decision not to be relevant earlier in his judgment, which he summarised at [399]: “The [Basin Bridge] Board’s role under s 171(1) was different from that in King Salmon where the obligation … was to give effect to the NZCPS [New Zealand Coastal Policy Statement].”

In contrast to these questions, the judge described Qu 45D as “one of the more difficult issues in the case” [382]. Qu 45D was “Did the Board correctly apply the definition of ‘historic heritage’ under s 2?” [367ff].

The judge’s analysis of this question identified NZTA’s concern that the Board of Inquiry had inappropriately extended the RMA’s definition of “historic heritage” [367], [368].  The NZTA argued that “it was not open to the Majority to conclude that the wider Project area is a heritage precinct/landscape. … the Majority has purported to confer s 6(f) protection over the entire landscape rather than the particular heritage items within it” [369].  NZTA also argued that “the RMA does not envisage protection being extended under s 6(f) to a central city urban landscape of the scale determined by the Board” [372]. Section 6(f) protects historic heritage “from inappropriate subdivision, use, and development.”

Opposing arguments at the High Court pointed to the broad definition of “historic heritage” in the RMA, and argued that the Board’s reference to an area of historic heritage was not a reference to a formal heritage precinct [373].  The judge also quoted excerpts from the Board’s decision which referred to opposition arguments distinguishing the NZTA’s use of “built heritage” from “historic heritage” as defined in the RMA [374].

The judge then noted the difficulty of attributing a particular interpretation of the definition of “historic heritage” to the Board.  This, he noted, was due to:

1. the extensive discussion and analysis of heritage undertaken by the Board [376],
2. heritage protection not being confined to the District Plan [377], and
3. the requirement for the Board to consider the Minister’s reasons for referring the application to a Board of Inquiry, which included issues of “recreational, memorial, and heritage values associated with this area of national significance” [3], [378].

The judge observed that: “There is force in the respondents’ submission that it is difficult to see how the Board could have complied with its obligation to have regard to the reasons of the Minister in referring the proposal to it without taking the approach it did to the “area” of historic heritage” [379]. He did not accept NZTA’s submission that “in its application of the definition the Board “went well beyond the surrounds and settings of historic heritage”” [382].  In his summary on Heritage and Amenity at paragraph [399], the judge stated “On a s 171(1) application a District Plan is not exhaustive concerning items of historic heritage … The Board did not err … in its interpretation of the definition of “historic heritage” …”

There were no matters raised related to heritage in which the judge found the Board to have made an error of law.

REFERENCES

Basin Bridge Board of Inquiry Final Report and Decision
NZTA v Architectural Centre Inc & Ors [High Court decision]
Resource Management Act

GLOSSARY

Appellant: the person/group who appeals (e.g. in this case NZTA)
BRREO: acronym for Basin Reserve Roundabout Enhancement Option which was an option which Mt Victoria Residents Association and Save the Basin supported.
Board of Inquiry [or Board]: the board who examined the NZTA’s application to build a flyover in 2014.  The full name is Basin Bridge Board of Inquiry, and the board constituted Judge Whiting (chair), James Baines, David Collins, David McMahon
Majority: This reflects the fact that the Board’s decision was a majority decision of three of the four Board members.  Reference to the Majority is a reference to the Board of Inquiry’s decision.
Notice of Requirement: the application for a designation (e.g. the provision in a District Plan which allows for work of a Requiring Authority (e.g. a road))
Option F (or the long tunnel option): This option proposed a tunnel under Buckle St which surfaced at its eastern end at Paterson St.
Option X: This option was proposed by the Architectural Centre and extends the Buckle Street underpass to Sussex St.
Part 2: Part 2 of the RMA states the Act’s Purpose and principles and includes sections 5-8. Section 171(1), which describes the matters that the Board of Inquiry had to have particular regard to in coming to its decision, includes the phrase “subject to Part 2.“
Requiring Authority: defined by the RMA, a Minister, a local authority or an approved utility operator (e.g. NZTA).
Respondents: groups/people who respond to the appeal (e.g. in this case the Architectural Centre)
RMA: Resource Management Act
s 3: the section in the RMA which defines “effects”
s 6(f): the section in the RMA which identifies historic heritage as a matter of national importance to be recognised and provided for by the RMA
s 171(1): the section in the RMA which describes what a Territorial Authority or Board of Inquiry must have particular regard to when considering a Notice of Requirement.

TIMELINE

17 June 2013: NZTA gives notice of requirement and applies for associated resource consents for the Basin Bridge Proposal
7 July 2013: Amy Adams, Minister for the Environment refers the Basin Bridge Proposal to a Board of Inquiry for determination
6 September 2013: public submissions close
3 February 2014: the Basin Bridge Board of Inquiry hearing commences
14 March 2014: The Minster for the Environment grants a time extension of 3 calendar months, requiring the decision to be due on Saturday 30 August 2014
4 June 2014: the Basin Bridge Board of Inquiry hearing concludes
30 June 2014: the National War Memorial Park (Pukeahu) Empowering Act 2014, Order in Council issued
22 July 2014: Basin Bridge Board of Inquiry Draft Decision issued
29 August 2014: Basin Bridge Board of Inquiry Report and Final Decision issued
24 September 2014: NZTA files a notice of appeal at the High Court
early October 2014: the Architectural Centre, Mt Victoria Historical Society, Mt Victoria Residents’ Asssociation, Save the Basin Campaign, and Wellington City Council all file intentions to appear at the NZTA appeal hearing
20 July 2015: High Court appeal hearing commences
31 July 2015: High Court appeal hearing concludes
21 August 2015: NZTA v Architectural Centre Inc. & Ors decision