Supreme Court Backs Forest & Bird in Major Infrastructure Appeal of NZTA’s East West Link

The New Zealand Transport Agency (NZTA) applied for resource consent to the Environmental Protection Agency (EPA) in 2016, citing the East West Link (EWL) as a project of national significance. A Board of Inquiry (the Board) was appointed by the EPA to assess the project's environmental impact and public interest aspects.

Despite objections from groups such as Royal Forest and Bird and Ngāti Whātua Ōrākei Whai Maia Limited (Ngāti Whātua Ōrākei), the Board approved the resource consents, subject to strict consent conditions.

Following this decision, Royal Forest and Bird, along with Ngāti Whātua Ōrākei, appealed to the High Court, challenging the Board's interpretation and application of planning policies. Several mana whenua groups including Ngāti Maru Rūnanga Trust, Te Ākitai Waiohua Waka Taua Incorporated, Ngāi Tai ki Tāmaki Trust and Ngāti Tamaoho Trust also participated as interested parties to the appeal.

The appeal to the High Court was unsuccessful, and as such, a further appeal was made to the Supreme Court of New Zealand.

The Supreme Court Decision

The Supreme Court, in a majority ruling, agreed with Royal Forest and Bird, directing the Board to reassess its decision in light of their findings. The majority held that the EWL's environmental effects on indigenous biodiversity trigger ‘avoid’ policies under the Auckland Unitary Plan (AUP) and the New Zealand Coastal Policy Statement (NZCPS).

They criticised the Board's methodology and emphasised the high threshold required for such projects to proceed despite policies requiring avoidance of activities with certain adverse effects.

However, a dissenting opinion argued that the relevant provisions allowed flexibility in considering avoidance policies and saw no flaw in the Board's approach.

The Supreme Court further ruled that assessing matters relating to mana whenua issues based solely on Ngāti Whātua Ōrākei's withdrawal of appeal grounds in the High Court was inappropriate and therefore not within the scope of the Supreme Court process.

What does this mean going forward?

The Supreme Court's decision has significant implications for the EWL project and sets a precedent for future infrastructure developments with regional and national significance. It underscores the growing importance of environmental considerations in major projects and signals the need for thorough compliance with environmental policies and frameworks.

For NZTA and the EWL project, next steps include reassessment by the Board or exploring alternative pathways such as the new Fast Track Approvals Bill (FTA). The FTA is a new framework designed to streamline the consenting process for infrastructure and development projects with significant regional and national benefits. However, this approach would be met with heavy criticism given this would be a clear attempt to circumvent the standard process.

Overall, the ruling underlines the delicate balance between infrastructure requirements and environmental protection, highlighting the need for comprehensive assessments and robust mitigation strategies in large-scale projects. Additionally, it sets out a pathway for projects of national significance, even those triggering 'avoid' policies in national planning documents, albeit at a high threshold.

Get in touch

Our Te Taiao Team is able to assist with all resource management-related pātai that you may have. We are also available to discuss any resource consent matters and any other bespoke environmental queries.

Tipene is a Senior Solicitor in our Te Taiao Team and can be contacted on 07 958 7430.