Wellington Scoop

What it means: the EPA recommendations and its attack on the Environment Court

The recommendation from the Environmental Protection Agency to refer the Basin flyover resource consent to a board of inquiry seems to reflect a rift between the Agency and the Environment Court. It also undermines the reputation of the Court.

The EPA recommendation is in effect a direct attack on the court, implying that it is incompetent.

Projects of National Significance can be referred either to the Environment Court or to a board of inquiry. The EPA must recommend its preference to the Minister, and must provide reasons for that preference. Because this recommendation has chosen from two alternatives, the reasons for preferring one (a board of inquiry) make an unavoidably direct statement on the competence of the other (the Environment Court). If you consider these reasons (in bold), then what the EPA is in effect saying could be explained as follows (italics):

(a) We consider that the matters are a proposal of national significance

The relevant territorial authority can be by-passed and the proposal could be referred to either a board of inquiry or to the Environment Court

(b) Directing this proposal to a board of inquiry recognises the importance of the proposal to the Government

· The Environment Court is not competent to consider something which is of great importance to the Government; or
· The Environment Court cannot be relied on to deliver the outcome preferred by the Government

(c) A board of inquiry process will provide for comprehensive assessment of the matters within a streamlined process

The Environment Court cannot provide for comprehensive assessment of the matters, and does not have streamlined processes.

(d) A board of inquiry process will provide greater certainty for all parties as a decision is required within nine months of notification. The Environment Court and the relevant local authorities are not subject to this timeframe. This certain timeframe will also allow the Government to plan for other sections of the Wellington Northern Corridor (in particular the proposed second Mount Victoria tunnel);

The greater certainty referred to is the 9 month timeframe. The timeframe can however be extended by the Minister if necessary (i.e. if the 9 months are not sufficient to ensure a full hearing and consideration of the issues). From a legal perspective, this might then be considered a valid basis for recommending a board of inquiry. It however suggests the Environment Court cannot operate in a timely manner (or is insufficiently resourced to do so). In reality of course, both boards of inquiry and the Environment Court are required to ensure a full hearing of the matter. The only difference is that in the case of the board, the Minister can decide whether a full and adequate hearing has been held rather than the Court. In other words, in the case of the board there is a political decision determining whether a legal process has been fair and equitable, while in the case of the Environment Court, the decision is a legal one.

(e) A nine month timeframe for a decision will enable alignment of construction works (if granted) with completion of the National War Memorial Park (Pukeahu) in time to commemorate the centenary of the commencement of the Gallipoli Campaign of the First World War on ANZAC Day 2015.

Integration with other NZTA roading projects is more important than ensuring a full and fair hearing on the proposal. The Environment Court might be more likely to provide a full and fair hearing, but this would mean the alignment of construction projects might be undermined.

(f) A board of inquiry process is consistent with that used for the Transmission Gully, Mackays to Peka Peka and Peka Peka to North Ōtaki Expressway proposals (previous sections of the Wellington Northern Corridor).

A board of inquiry is more likely to rule in favour of the proposal because other boards of inquiry have done so in the past. On the other hand the Environment Court might be expected to be more independent and therefore less certain to rule in favour of the proposal.

(g) You [i.e. the Minister] can appoint members to a board of inquiry who, between them, have the necessary skills and expertise relevant to this proposal.

· Members of the Environment Court do not have the necessary skills and expertise relevant to this proposal (even though proposals of this nature are the very reason the Environment Court was established); and

· The Minister cannot influence the appointment of the specific members of Environment Court, and can therefore not be certain the project will be considered in a way which is biased to government preferences.

(h) The NZTA and the Greater Wellington Regional Council support the proposal being referred to a board of inquiry.

NZTA and the GWRC are complicit with the EPA in undermining the Environment Court. The EPA quotes NZTA and GWRC, but is silent on the Wellington City Council’s preference for referral to the Environment Court. The EPA does though note the WCC preference elsewhere in its report. However, it simply records the WCC position, and does not advise the Minister on the merit of the reasons put forward by WCC – i.e. that “the Environment Court would provide the considerable resource management expertise and resources of the Court to the decision making process, and that this would benefit the process and enhance the ability of the Wellington community to participate in the process.” Given its role in advising the Minister, I would expect the EPA to comment on the WCC reasons and to explain why they were not accepted. Instead, the EPA has chosen to ignore the WCC position.

In June this year, several bodies (EDS, the Green Party, and the Environmental Defence Society raised concerns that the government was going to abolish the Environment Court. Judith Collins denied that was the case. The government’s preference to appoint boards of inquiry and thereby to undermine the role of the Environment Court speaks more clearly of the Government intentions than the comments of the Minister of Justice.


  1. Michael Gibson, 8. July 2013, 9:52

    The Environment Court showed that it was capable of finding against the Wellington City Council in its decision against the City Council in favour of Waterfront Watch. It also showed that it was capable of ripping into the Council for failures such as pre-determination & non-consultation.
    The supporters of referring the flyover decision to the Environment Court were remarkably quiet about this. If they had made these points they would have had more chance.

  2. Iona Pannett, 8. July 2013, 20:21

    A good piece, the National Government have never fully explained why it was necessary to establish a parallel process to the Environment Court. This reasoning needs to be made very clear.

  3. Peter K., 10. July 2013, 1:47

    The whole city is tired of Ms Panic crying “Save the Mount Vic Precinct”. We all know that’s her real agenda – just another nimby !!

  4. Digby, 10. July 2013, 12:31

    Could you publish your address, Peter K: perhaps NZTA could put a road through your backyard instead?

  5. Mary Lewis, 10. July 2013, 12:59

    The EPA is a sham organisation used to railroad projects through which dont stack up. If these clowns had any interest in the environment they would be attempting to stop cars coming into the city rather than encouraging them through road building. This government is full of dishonest snakes.

    Peter K, you dont speak for anyone other than yourself here. If you want to call people names like nimby go back to kindy.

  6. Nora, 10. July 2013, 15:35

    Not sure about the whole city Peter K. As a two car household, who also use public transport and live in the Western suburbs , we can see no justification – not just as ratepayers but also as taxpayers – for this incredible cost of $millions.
    In the last week I have driven to Houghton Bay, Hataitai and Seatoun at busy times and I have been happy to travel along the waterfront along Kent Terrace and either through the tunnel or round the Basin through Newtown – I seem to “hit” the green lights more than the red! So what’s the “panic”.

  7. JC, 11. July 2013, 13:30

    Mary – Peter K speaks for me and countless others. Please don’t presume that you are in the majority just because you comment on a left-wing website.

  8. CC, 11. July 2013, 15:30

    JC – Mary only spoke for herself unlike you and Peter who seem to think you have a right to represent ‘countless others’. Perhaps you would now like read the article then argue a case for the government utilising an anti-democratic process to circumvent the Environment Court.

  9. Peter K., 11. July 2013, 15:40

    I live in the eastern suburbs and have done so for over 20 years. Luckily I have alternative ways of getting to the city, but for most, the only real option is through the Mt Vic Tunnel. That is where the congestion is. For almost 3 years this City Council has procrastinated, and the real power is not with Ms. Wade-Brown, but Iona Pannett (Panic, as she is referred to in Council circles). Either we do something positive, or we sit still, and stagnate. Christchurch, because of the re-build is going ahead. Auckland, as a SuperCity, under Len Brown, not John Banks as originally devised, is also progressing. So what do we do? Don’t just sit there, wishful thinking. Provide positive solutions. One thing we cannot do, is have another 3 years of a dysfunctional Council, led by a do-nothing Mayor !!

  10. Mike, 11. July 2013, 20:58

    JC – Mary and Nora speak for me and countless others. Please don’t presume that you are in a majority, either!

  11. Digby, 12. July 2013, 12:07

    I laughed at Peter K’s ludicrous, misogynist comments about Iona Pannett being the real ‘power’ on council. Are there any female politicians he approves of, or should they all be home looking after the kids? If the sole Green councillor is really astute enough to dominate WCC’s current, chaotic bunch of megalomaniacs then I would have expected more genuine progress on an environmental agenda – including stopping the flyover.

  12. Mike Mellor, 12. July 2013, 17:33

    Peter K – “the only real option is through the Mt Vic tunnel” is nonsense. Leaving aside the obvious (and well-used) route round the bays, the bus tunnel carries many people to/and from town – and could carry many more if the regional council marketed the excellent express bus services through it.

    But astonishingly, as central government is committing eye-watering amounts of money to increasing road capacity to the eastern suburbs, the regional council is proposing to slash parallel bus services by a third, cutting out all the fastest off-peak services. Bizarre…

  13. Kirsten, 11. August 2013, 20:53

    I also live in the eastern suburbs and commute by bus to town every day, either through Newtown or Hataitai. No drama at all. Planning for the future needs a long term no regrets approach. To me, public transport fits the bill. Not 100s of millions on this flyover.