Data source
Date of text
29 Sep 2011
Original language


Type of text
Reference number
NZHC 1262
Court name
High Court of New Zealand
customary law, indigenous peoples, spatial planning

For more than a decade, Te Whanau Moana and Te Rorohuri, the hapu of Ngati Kahu with mana whenua on Karikari Peninsula, have fought to protect Te Ana o Taite (the large and ancient burial cave of Taite and other tupuna) against development. In 1999 they asked all the other hapu of Ngati Kahu for support. Over the years the Runanga has had to use much of its operational budget, as well as rely on hapu members mortgaging their homes, and on koha from various Ngati Kahu marae to fund a raft of objections and appeals necessitated by Carrington’s and Council’s refusal to stick to the terms of an out of court settlement agreement reached in 2001 between them, the Runanga and the Environmental Defence Society (EDS). That agreement specifies no development within a perimeter of 800 metres from the high water mark which includes the cave.
But in 2007, six years after signing the agreement, and without notifying the Runanga or EDS, Carrington sought and was granted a non-notified consent by the Council to build 12 houses right on top of the burial cave.However in 2009, when Carrington applied to subdivide the site into 12 lots in order to facilitate their sale at a later date, Council finally notified Ngati Kahu of what was going on. Only then did the Runanga learn of the earlier non-notified consent to build the 12 houses. To make matters worse, it also discovered that Carrington had secured an order from the Historic Places Trust allowing the destruction of any archaeological finds during development. The Trust failed to consult Ngati Kahu, work started and damage to Te Ana o Taite took its toll on Te Whanau Moana and Te Rorohuri.
In the first of a series of objections and appeals, the Runanga immediately opposed the subdivision application because it clearly breached the 2001 out of court settlement agreement. However Council claimed the agreement wasn’t legally binding on it or Carrington and that, having already granted Carrington consent to build the 12 houses, it had no option but to also allow the subdivision. The Runanga then appealed to the Environment Court who expressed sympathy for Ngati Kahu but agreed with the views of the Council and Carrington.
In the High Court,Judge J White found that the 2001 out of court settlement agreement is legally binding.Judge White also ruled that Carrington was wrong to have sidestepped the agreement by first getting non-notified consent in 2007 from the Council to build on the burial cave, and then getting notified consent in 2009 to subdivide the land for later sale. He also found that Council was wrong to have allowed both applications to proceed separately, and he ruled that Council should have notified the Runanga of both applications. But even more importantly, he ruled that under the 2001 out of court agreement, neither application should have proceeded let alone been granted.
During the hearing the Council and Carrington had argued that, even if it found the 2001 agreement were legally binding, the High Court could not quash the consents that had already been granted. Carrington also argued that Ngati Kahu should have lodged appeals with the Environment and High Courts at the same time.In his decisions, Judge White rejected both those arguments. He noted that the Runanga was not wealthy enough to mount concurrent appeals, and nor was it legally obliged to do so. He ruled that both consents were quashed, and directed that if Carrington resubmits them, Council is to consider them together. He reminded Council and Carrington that they are legally bound by the 2001 out of court agreement they signed up to. And finally he ruled that the Runanga can seek costs against both Carrington and Council.