Modification of a notice of requirement
Modification of a notice of requirement
Friday 31 July, 2020
The case of Director-General of Conservation v New Zealand Transport Agency[1] concerned a notice of requirement (NOR) by the NZTA for a new state highway between Ashhurst and Woodville to replace the previous route through the Manawatu Gorge. Prior to hearing appeals on the NOR the Court was asked to determine whether the Court had jurisdiction to modify the NOR to include a new northern alignment lying outside the area originally identified in the NOR.
In respect of the power to modify a NOR the Court found that:
(a) The discretion afforded by s174(4) to modify a requirement is broad, and is a “flexible power” which should not be narrowly interpreted.[2]
(b) The power to modify a NOR is different to the power granted to consent authorities when dealing with resource consents.[3]
(c) The scope of the power to modify a NOR is not limited by the boundaries of the notified proposal, but is rather determined by asking the question whether or not the proposed modification changes a proposal so as to alter its essential nature or character. This will be a question of fact in any given instance.[4]
In the present case, the Court found that the proposed modification did not alter the essential nature or character of the proposal for the following key reasons:[5]
(a) The proposal, being a replacement road for the Manawatu Gorge, was essentially the same;
(b) Only 13% of the modified route fell outside the original boundaries;
(c) It did not enter into new land holdings; and
(d) The adverse effects were reduced by the realignment.
Having decided that the modification of the NOR was within the Court’s jurisdiction, the Court went on to consider whether or not it should allow the hearing to proceed on the basis of the modified NOR.
This question comes down to issues of fair process involving a consideration of whether it is plausible that any person who did not lodge a submission on the NOR would have done so if the NOR had incorporated the northern alignment, and whether the northern alignment affected the landowners in a different way. In this case, the Court was satisfied that the landowners affected by the northern alignment had either consented to the modification or were parties to the appeal. As the northern alignment reduced the adverse effects and was an outcome that was considered at the first instance hearing it was not plausible that any member of the public who had not submitted on the NOR would have done so had it incorporated the northern alignment when initially notified.[6]
The Court’s decision on jurisdiction clears the way for a substantive hearing on the appeals, and shows that the Court’s power to modify a NOR for a designation is substantially greater than that applying to a resource consent, provided no issues of fairness arise.
