Tangoio Developments Ltd v Hastings District Council

In 2024, Tangoio Developments Ltd (TDL) brought a suit against both the Hastings District Council and the Hawke's Bay Regional Council in the High Court of New Zealand, for negligence and for breach of statutory duty for the way the zoning and subdivision consent were dealt with. After Cyclone Gabrielle hit Tangoio Beach, Hawke's Bay, in February 2023, Plaintiff was no longer able to build on the 12 lots it retained from a 36-lot residential subdivision. According to the Plaintiff, the Regional Councils were negligent and breaching their statutory duty, as they did not put in sufficient care despite their knowledge of the subject’s risk of flooding. More specifically, one of the causes of action was that Hastings District Council owed a duty of care to TDL and any subsequent landowner within the coastal residential development to ensure that the relevant District Plan provisions were appropriate. TDL relied on the level of knowledge that Hastings District Council had regarding the flood risk of the coastal area, and Hastings District Council’s “ongoing awareness of the effects of climate change”, meaning that the District Council had an “obligation to revisit” the planning rules relating to the area, and breached that duty by not doing so. This argument was developed with reference to the District Council's “institutional knowledge” of the flooding risks of this land, alongside the Council’s “increased awareness of climate change”. Defendants applied for and obtained a strike-out of all causes of action against them. Associate Judge Lester of the High Court decided on December 8, 2025, that in the statutory context (being the Resource Management Act 1991 (RMA)) there was no obligation to carry out a review of the relevant planning rules. Section 79(1) of the RMA exempted the relevant rules from compulsory review because they were made within the previous 10 years. Further, while section 79(4) creates a discretionary power to review planning provisions at any time, this discretionary power cannot create a duty of care to review, in part because the decision of whether or not to review is a policy judgment, but also because of the ‘floodgates’ that this would create, holding at [50] that: “It is then said the significance of the adverse reports in respect of [the planning provisions] was reinforced by climate change. However, this would mean that ongoing risks created or exacerbated by climate change would impose on every council a duty to review zoning where flooding or inundation was a recognised hazard, even when met with mitigation conditions”. The Court found that if there were such a duty, it would be “owed to a potentially open-ended class”, to both current and subsequent landowners and councils would “be in a never-ending cycle of reviews, contrary to the 10-year scheme under s 79 of the RMA.” The Court applied the same reasoning to claims against the Hawke’s Bay Regional Council. In relation to the subdivision consent, the Court also noted that the relevant planning rules had flood-risk mitigation aimed at a “one in 100-year event”, and Cyclone Gabrielle was a “one in 1000-year event”, and that TDL’s subdivision consent was “granted on the basis of risk mitigation, not on the basis of risk elimination.”