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New Zealand Forest Owners Association Inc v Wairoa District Council - appeal

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New Zealand Forest Owners Association Inc v Wairoa District Council - judgment

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The New Zealand Forest Owners Association Inc (NZFOA) represents forestry owners who between them own a substantial portion of the total forestry land in the Wairoa District. 

In 2021, the Wairoa District Council (Council) overhauled its rating system and introduced five categories of land use to which various differential rates would apply. This resulted in substantial rates increase for the NZFOA members. NZFOA say that the rating decision was unfair and unreasonable, failed to take into account mandatory relevant considerations, namely environmental wellbeing and climate change, as well as making mistakes of fact. 

On April 28, 2022 the High Court dismissed the application. In relation to climate change, it was argued that there had been a failure to take into account mandatory relevant considerations, namely environmental wellbeing and climate change, both of which were said to be relevant to the rating decision. NZFOA submitted that climate change and the need to mitigate the effects of climate change and environmental wellbeing for future communities needed to be considered in setting the rates differentials ([194]). NZFOA argued that the Council failed in that it (a) failed to take into account the different emissions profiles of the proposed categories of land for differential rating; (b) failed to take into account the way in which each of the proposed categories of land for differential rating would mitigate or exacerbate the manifestations of climate change; and (c) expressly considered only the best interests of the Wairoa District, despite acknowledging the benefits of forestry at a regional or national level. NZFOA argued that the issue of climate change was a significant issue and was recognised as such in the Wairoa District through its various planning documents. The Council’s long-term plan noted climate change would affect the district within this lifetime and action needed to be prioritised to achieve a vision for a prosperous community. NZFOA submitted that despite having a climate change commitment the local authority failed to consider that issue in setting the rates differential.

The Court differentiated from Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council, where Palmer J concluded that decisions about climate change deserved heightened scrutiny on judicial review, holding the challenged decision in that was was a fundamentally different decision to the present rating decision ([206]). Instead, the Court held that “while climate change is an important issue, it is not a mandatory consideration in every decision made by the Council, nor is the Council required to specifically address climate change, in every decision it makes” ([206]). Instead, while climate change is an important issue for any local authority, including the Wairoa District Council, how the council addresses it is a decision for it. Grice J held that in the present context the issue was not of such significance that it was a mandatory consideration - in a rating decision, climate change was only indirectly if at all related, and as such the Council was not required to take it into consideration as a mandatory consideration ([210]). 

NZFOA unsuccessfully appealed the High Court decision to the Court of Appeal. The climate change ground was not pursued in the Court of Appeal. 