BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO O AOTEAROA Decision No. [2019] NZEnvC IN THE MATTER of the Resource Management Act 1991 AND of an application for orders for rehearing of proceedings under s294 of the Act BETWEEN SKP INCORPORATED (ENV-2018-AKL-000174) Applicant AND AUCKLAND COUNCIL Respondent AND KENNEDY POINT BOATHARBOUR LIMITED Consent Holder Court: Principal Environment Judge L J Newhook Environment Commissioner A C E Leijnen Environment Commissioner I M Buchanan Hearing: At Auckland on 18 - 20 September 2019 Appearances: J Gardner-Hopkins for Applicant M Allan and R Abraham for Respondent P Majurey and V Morrison-Shaw for Consent Holder Date of Decision: / ~ Dec e/V") &vDate of Issue: / 3 Dec .e rvi ~ 2-01c, -Z..01 7 DECISION OF ENVIRONMENT COURT ON APPLICATION FOR REHEARING, AND FINAL DECISION ON APPLICATIONS FOR APPOINTMENT OF A MAORI LAND COURT JUDGE TO SIT, ADJOURNMENT, AND WAIVER APPLICATION BY TRUST BOARD A: Application for rehearing refused. 2 B: Appointment of MLC Judge finally refused. C: Adjournment finally refused. D: Costs reserved. REASONS Introduction [1] The applicant, SKP Incorporated (SKP) applied on 31 August 2018 (amended a second time on 23 August 2019) for a rehearing under s294 RMA of the decision of the Court in the proceedings entitled SKP Incorporated v Auckland Counci/1 (the decision). 2 [2] The present hearing occurred at the end of a significant passage of time in the life of these proceedings, the detail of which we shall return shortly. The latest stage prior to this hearing was the hearing by the Judge the day before (17 September 2019) of certain urgent interlocutory applications made by SKP, in which oral indications were given on the day of refusal of a request for recusal and conditional refusal of applications for adjournment and the appointment of a MLC Judge. Reasons in writing confirming these indications followed on 5 October 2019.3 [3] Section 294 RMA provides as follows: 294 Review of decision by [Environment Court] (1) Where, after any decision has been given by the [Environment Court], new and important evidence becomes available or there has been a change in circumstances that in either case might have affected the decision, the [Environment Court] shall have power to order a rehearing of the proceedings on such terms and conditions as it thinks reasonable. (2) Any party may apply to the [Environment Court] on any of those grounds for a rehearing of the proceedings; and in any such case the [Environment Court]. after notice to the other parties concerned and after hearing such evidence as it thinks fit, shall determine whether and (if so) on what conditions the proceedings shall be reheard. (3) 1 The decision of the [Environment Court] on any such proceedings shall have the same effect [2018) NZEnvC 81 . application on 23 August 2019 was the second amended application for rehearing, the first amendment to which was on 12 August 2019. A moderate amount of the time between the original application and the first amended one saw the proceedings on hold at the request of the parties while discussions were undertaken, but not the entirety of ii. 3 Decision [2019) NZEnvC 165. We have noted that the Court was described as Principal Environment Judge L J Newhook sitting alone under s729(1) RMA; the section of course was s279(1) RMA. (The Act has become very substantial over the years but has not reached anything like 729 provisions!). 2 The 3 as a decision of the [Environment Court] on the original proceedings. [4] The application for rehearing as it stood prior to 23 August 2019, was in the following terms: A: That the proceedings SKP Incorporated v Auckland Council (2018] NZEnvC 81 be reheard. B: That any rehearing ordered be on the following terms and conditions, or other such terms and conditions that the Court considers reasonable: (i) The Court receive evidence from the Ngati Paoa Trust Board in support of SKP's case; and (ii) The Court rehear the issue of cultural effects and all issues reasonably informed or affected by cultural issues, including: • Landscape • Ecology • Social effects • Planning issues [5] In the second ("further") amended application for rehearing on 23 August 2019, the applicant sought to add further topics, in summary mainly relating to coastal processes, and traffic parking and transportation. The first aspect related to some alleged changes in design of the marina since consent had been granted, and the second related to a collection of allegedly new information about a new bus network, a new tenyear Transport Plan on Waiheke, changes in freight services at the Kennedy Point Port, reconstruction works on a boat ramp and wharf at Kennedy Point, changes in parking restrictions in the locality and new information from traffic counts on the adjoining access road. Affidavits were filed containing tentative early expressions of opinion about these things. [6] In a memorandum of counsel for the applicant on 27 August 2019, a description was offered of research undertaken by the applicant into these new matters, accompanied by a suggestion that the hearing date for the application for rehearing might need to be vacated and further directions made in respect of the new grounds, in part to allow the applicant time for further research and specialist advice about them . [7] The structure of s294 is essentially that for a rehearing to be granted, one of two preconditions must exist: 4 a) That new and important information has become available; b) Or that there has been a change in circumstances ... . .. that in either case might have affected the decision. If one or both of those is found to have been met, the Court then has a discretion as to whether to grant a rehearing. A helpful, and with respect accurate, description of how these things work was offered by the Environment Court in a recent decision re Queenstown Airport Corporation Limitec/4: On an application being rnade, the Environment Court is required to consider whether one of the preconditions might have affected the decision. The requirement to consider the preconditions, as Heath J has held, "invokes the concept of materiality rather than one of miscarriage or interests of justice"; per Shepherd v Environment Court at [36]. The preconditions, which he describes as being "prescriptive", are justified because the Court's decisions typically affect both the immediate parties and the public generally. Thus s294(1) is focussed on the establishment of the preconditions and the assessment of materiality. 5 [8] The key issue raised in the application involves a dispute between two entities of Ngati Paoa lwi, the Ngati Paoa lwi Trust (lwi Trust), and the Ngati Paoa Trust Board (Trust Board). We will discuss the dispute in greater detail, but for introductory purposes record in summary that the consent holder Kennedy Point Boatharbour Limited consulted the lwi Trust during preparation of its resource consent application, and not the Trust Board. SKP alleges based on information from the Trust Board, that the wrong entity has been consulted due to misconceptions about mandate, with consequent alleged misunderstandings on the part of the consent holder and decision-makers including this Court as to effects on the environment, particularly matters of importance to iwi. The factual background: a chronology [9] It is relevant for present purposes to analyse not only the course of the present proceedings since KPBL commenced preparation of its consent application in mid-2016, but also key events in the mandate dispute between the 4 [2018] NZEnvC 52, at [9] (Judge Borthwick). The references in the Queenstown decision are to Shepherd v Environment Court (NZHC) Auckland CIV2011-404-3091, at paragraphs [36] and [37]. 5 5 lwi Trust and the Trust Board; because the latter are at the heart of the present allegations. [1 OJ It will save many words if we here set out a chronology in summary form . The chronology is drawn largely from one proffered by counsel for KPBL at our hearing, which we have critically compared with all relevant evidence, and altered appropriately. 6 Trust Board/lwi Trust Events Date KPBL Application 1. 26 November 2009 2. September 2013 3. November/ December 2013 4. 25 July 2014 5. 17 December 2015 6. 24 December 2015 7. April - August 2016 Trust Board secures s.30 Te Ture Whenua Act Order from Maori Land Court. 6 Trust Board resolved on 7 September 2013 to transfer the day to day management operations and assets of the Trust Board to lwi Trust once ratified. That ratification occurred soon after. 7 Council updates its website and iwi contact list to record lwi Trust as the representative body for Ngati Paoa for RMA matters.8 lwi Trust granted party status to Matiatia marina application.9 Environment Court refuses Matiatia marina application; lwi Trust recognised by Court as mana whenua authority for Ngati Paoa in reliance on agreement of joint cultura l experts in the Matiatia case. 10 Kitt Littlejohn (representing Tony Mair of proposing applicant entity) meets with Morehu Wilson and consultation with lwi Trust begins. 11 KPBL (now incorporated) commences public and stakeholder consultation, Re Ngati Paoa Whanau Trust and Ngati Paoa Trust Board [2009] 141 Waikato MB 271. Affidavit G Thompson, 13 June 2019, at [15]. 8 Affidavit AT R Ormsby 1 August 2019, at [16]. 9 Re Waiheke Marinas Limited [2014] NZEnvC 1 63, at [22] and [35]. 10 Re Waiheke Marinas Limited (2015] NZEnvC 218, at (435]. 11 First Affidavit AG Mair, 13 June 2019 at [7] and [8]. 7 6 8. 17 May 2016 9. 19 September 2016 10. 14 October 2016 11. 19 November 2016 12. 16 December 2016 13. March 2017 14. 3-7 April 2017 15. 18 May 2017 16. 9 June 2017 17. 19. 26 February 2 March 2018 "Around April 2018" 30 May 2018 20. 20 June 2018 18. including writing to all other Auckland mana whenua (listed on Council's website) in July 2016.12 KPBL pre-application meeting with Council. KPBL lodges resource consent application. High Court decision on application that the Trust Board has failed to meet obligations and charter to maintain a register of Ngati Paoa members and to have a properly constituted board .13 KPBL consent application publicly notified. Public submission period closes. Trust Board completes election and reconstitutes its Board of Trustees. 14 Council hearing for KPBL application on Waiheke Island. Council decision approving KPBL application released. Appeals filed against Council decision by SKP Inc and R Walden. Environment Court hears appeals. Trust Board becomes aware of the l