COURT OF APPEAL OF NEW ZEALAND

TE KŌTI PĪRA O AOTEAROA

31 August 2016

MEDIA RELEASE

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED V MINISTER OF CONSERVATION AND HAWKE’S BAY REGIONAL INVESTMENT COMPANY LIMITED

(CA 118/2016) [2016] NZCA 411

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

1. The Court of Appeal has found the Director-General of Conversation was not entitled to revoke the special conservation status of a small portion of the Ruahine Forest Park (RFP) in order to facilitate a land swap making way for the proposed Ruataniwha Water Storage Scheme (the Scheme).

2. In a judgment released today a majority of the Court of Appeal (Harrison and Winkelmann JJ) has allowed an appeal by the Royal Forest and Bird Protection Society of New Zealand Inc (the Society) against a decision of the High Court regarding judicial review of the Director-General of the Department of Conservation (the Department).

3. The land in question forms part of a conservation park held for recreational purposes under the Conservation Act 1987 (the Act). The principal issue under appeal was whether the decision to revoke the classification was done in accordance with the law. The majority of the Court found that under the Act the Director-General would have

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had to be convinced in his assessment that the intrinsic values of the land in question were no longer worth permanent protection as envisaged by the Act. He was not entitled, as the High Court had ruled, to base his decision on a broad assessment of the merits of the proposed land swap for the conservation estate as a whole.

4. The Court has directed the Director-General to set aside the decision and reconsider the application of the second respondent to exchange the land.

5. Ellen France P would have dismissed the appeal for the reasons given by Palmer J in the High Court.

Background

6. The second respondent Hawke’s Bay Regional Investment Company Ltd (HBRIC) has been formed by the Hawke’s Bay Regional Council to implement the Scheme, which involves the construction of a dam across the Makaroro River to allow irrigation of the Ruataniwha Plains. Creation of the reservoir behind the dam requires the flooding of 22 hectares of the RFP. However, as a conservation park under the Act, the RFP is subject to a statutory prohibition against disposal or exchange. The same prohibition does not apply to land separately designated as a stewardship area. In order to resolve this difficulty, HBRIC made a proposal to the Department to exchange the 22 hectares for a block of 170 hectares of land known as the Smedley Block, which is adjacent to the RFP.

7. The Director-General decided to accept HBRIC’s proposal following a public hearing and inquiry. He made three separate but interrelated decisions for this purpose: first, formally declaring the 22 hectares to be held for conservation purposes; second, revoking the conservation park purpose of the 22 hectares and substituting its designation as a stewardship area; and, third, exchanging the 22 hectares for the Smedley Block.

8. The Society challenged the lawfulness of the revocation decision in the High Court on the grounds that the decision must be confined to assessment of the land’s intrinsic values, not by reference to whether it will result in a net gain to the conservation estate; and that in the present case the decision was made for the sole purpose of downgrading the designation of the 22 hectares from a specially protected conservation park to a stewardship area, thereby freeing it to be exchanged.

9. In February 2016 Palmer J declined the Society’s application for judicial review on the basis that the Director-General acted lawfully by reference to broad conservation purposes. The Society appealed to the Court of Appeal.

Majority judgment

10. On appeal, the central inquiry was to identify the purpose or purposes for which the Act has conferred the powers to declare and revoke special protection.

11. The majority was satisfied that when deciding to exercise the statutory discretion to revoke the status of a specially protected area the Director-General is required to ask whether land which has satisfied the statutory criteria for special protection is no longer required for conservation purposes; for example, if its intrinsic values have been undermined by natural or external forces. In the case of conservation parks, account must be taken of the purpose of special protection — to permanently maintain its intrinsic values, provide for its appreciation and recreational enjoyment by the public, and safeguard the options of future generations — as well as the emphasis on recreation which distinguishes conservation parks from other specially protected areas.

12. A proposal to exchange specially protected land will only be relevant to the revocation inquiry if the Director-General is first satisfied that the specially protected area no longer merits its particular designation — in this case, a conservation park held for park purposes — and should be reclassified as a stewardship area. Because the Director-General did not exercise his discretion to revoke by focussing on the land’s intrinsic values, but rather took into account the objective of exchanging the land and the net gain to the conservation estate, the decision was unlawful.

13. The decision to revoke the special protection designation of the 22-hectare component of the RFP is set aside, with a direction that the Director-General reconsiders the application made by HBRIC.

Dissenting judgment

14. Ellen France P would have dismissed the appeal on the basis that the Director-General was not limited to consideration of the conservation values of the 22 hectares. Rather, the Director-General could consider conservation purposes more broadly. While the Judge was in agreement with the majority that the revocation and exchange decisions must be separate, the purpose of promoting conservation placed appropriate focus on the RFP as a whole, which would be expanded by the ultimate land exchange. The revocation power is not specifically constrained other than by reference to the need for public notification.

15. In short, Ellen France P accepted the finding of Palmer J in the High Court that the Director-General properly directed himself in terms of broader conservation considerations and by reference to the values of the 22 hectares.

Judgment: 2016NZCA411FB.pdf

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