Grant Slevin, a solicitor with the Christchurch Lawlink firm of Wynn Williams & Co, discusses the High Court decision that forced the Minister of Conservation to reconsider his refusal of a permit for a marina development in Whangamata.

If people were surprised to learn, in March 2006, that the Minister of Conservation could effectively overturn an Environment Court decision to allow a marina development, they were perhaps less surprised when, in September 2006, the High Court told him to think again.

The basis of these extraordinary events is found in the Resource Management Act 1991, which reserves a process of ministerial review for decisions affecting coastal development, and in the High Court’s power of judicial review, by which it can decide whether decisions made by those in public office should be set aside because they have not been made in accordance with the law.

The development in question, first proposed by the Whangamata Marina Society Incorporated in 1992, would involve the construction of a 300 metre breakwater and control structures to contain four hectares of the coastal marine zone, dredging of a marina basin and channel to it, and the reclamation of 1.4 hectares of salt marsh for a hard stand and parking area. All of this is planned for the Moanaanuanu Estuary of the Whangamata Harbour.

The Minister of Conservation was required to consider the Environment Court’s report, which approved this plan, before deciding whether or not to issue a permit. The reason for that unusual provision, as Justice Fogarty observes in his decision, is because of the importance Parliament attaches to coastal development. The Minister is said to deal with about 25 such permit applications each year.

In the course of reaching this decision the Minister held meetings with interested parties and reviewed the evidence presented to the Environment Court. Focusing exclusively on the issues of whether Tangata Whenua and ecological values would be unduly compromised by the development, the Minister disagreed with Court’s findings and decided to reject the application.

The Minister’s decision was immediately controversial. Bitterly opposed by local iwi, conservationists and surfers alike, the development proposal had cost the Society almost $1m to drive through the planning and Environment Court processes. Many questioned whether any faith or confidence could be placed in a legal process that could be so simply overturned by an apparently political decision.

It then came to light, in a blaze of publicity, that on 1 March 2006 there had been a telephone call from the Minister’s office to the Mayor of Waitakere, Bob Harvey, a known opponent of the development. On the same day Mr Harvey had sent an email to one of the lobbyists opposed to the development, asking him "to assemble for the Minister a range of spokesmen to support him in his decision on the Whangamata bar." Allegations were then made that the whole process undertaken by the Minister was a charade, his mind having been made up from the outset.

While the Act does not provide for an appeal against the Minister’s decision, the law does allow an alternative course of action. Another Act of Parliament recognises a longstanding right for the High Court to review almost any significant decision by a public body, whether made by a cabinet minister or a humble official.

The Court will not decide whether any particular decision made by a public official is correct, but whether it was arrived at in accordance with the law and through a proper process. A decision-maker must consider all matters made relevant by the Act and exclude all matters that are irrelevant, as well as acting fairly towards the parties and adhering to the rules under which the decision must be made.

Most such applications fail, and even the few that succeed do not always result in a different outcome. The result of a successful application will usually be an instruction from the Court to do it again, but properly.

Mindful of the need to let governments govern, the Court will not interfere in decisions that are purely political in nature, or in those that do not affect the applicant’s rights in some substantive way. Nor will it interfere with a legitimate exercise of discretion.

The first question for the Court in this case was accordingly to decide whether the Minister’s decision was a purely political matter, reserved to him as a policy maker on behalf of the government, or an administrative task to be performed in accordance with Parliament’s instructions as set out in the Resource Management Act.

Policies affecting coastal development are contained in a range of national and regional policy statements, to which both the Environment Court and the Minister must have regard. These are not subject to unilateral alteration by the Minister, even if he doesn’t agree with their contents, so it was apparent that his decision could not be a matter of policy.

The Minister’s power to decide whether a restricted coastal activity should be permitted or not is provided by sections 119 and 104 of the Resource Management Act. By closely studying those sections and deciding what they oblige the Minister to do, the Court was able to conclude that the discretion conferred on him is relatively confined, and therefore amenable to its review. Having made that decision, the Court was able to look at what the Minister had actually done and contrast that with what the law required of him. He was found to have made three procedural errors.

First, he set about the task of reconsidering the evidence before the Environment Court. That was a highly specialised task and not one which Parliament had entrusted to him. It was not open to him to disagree with the Court’s conclusions based on the evidence it had heard.

Secondly, the Minister reviewed those materials over only the last few days of the period available to him, and did so without reference to the parties’ lawyers. That was unfair and accordingly in breach of the common law standards of natural justice.

Thirdly, by meeting with interested parties before reaching his decision, the Minister was found to have considered matters that had not been considered by the Environment Court. He should have referred those matters back to the Environment Court for their consideration – a procedure specifically provided for in the Act – but did not do so. Instead he chose to declare, in his decision, that he had not considered any matters that would have required that step and had disregarded the comments made to him during the meetings held at Whangamata. That was not enough. The possibility that he had received additional information, which may have influenced him, was enough to create a risk of prejudice to the Society, which had not been given an opportunity to respond.

The most serious claim made by the Marina’s developers, that the Minister had predetermined his decision and was biased, did not succeed. Although it was clear from a letter dated 22 February 2006 that the Minister had already formed tentative views, that did not amount to predetermination. The controversial communications with Mr Harvey did not amount to proof that a decision had already been made by 1 March, the Court accepting the evidence of Mr Harvey that he did not know what the ultimate decision would be at that stage and similarly the Minister’s evidence that he did not make his decision until 7 March.

Having found that the Minister erred nonetheless, the Court then had to consider whether it should exercise its discretion to set aside his decision. In this case, the errors were of a serious character and the Court was not satisfied that the same outcome would have been reached if a proper process had been followed. Indeed, the early memoranda of the Minister’s staff pointed to a decision the other way.

Having set aside the decision, the Court directed the Minister to recommence the decision making exercise afresh, while also refusing a request for an order that he should delegate the task to another Minister, who would not be affected by the earlier errors.

Having won its case, the applicant Society was awarded costs in line with ordinary principles. It has reported its actual costs at $250,000. Whether it wins the ultimate prize, in the form of a permit, remains, at the time of writing, to be seen.

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