Mt Messenger Bypass

ELI is challenging decisions to grant a permit and a consent authorising the incidental killing of wildlife during the Mt Messenger bypass project.

The Mt Messenger Bypass Project involves the construction of a new section of State Highway 3 in North Taranaki. Construction on the Project began earlier this year.

In July 2023, ELI filed for a judicial review of the Department of Conservation (DOC) decision to grant the Wildlife Act Authority to Waka Kotahi for the works at the Mt Messenger bypass project site under section 53 of the Wildlife Act.

This permit allows Waka Kotahi to kill protected wildlife, including a number of endangered species (such as kiwi) during the course of the bypass works. In ELI’s view this Authority is contrary to the Wildlife Act's protective purpose, making it beyond DOC’s powers to grant. We also view the almost complete lack of conditions attached to the authority and the use of environmental offsetting in the decision making to be unlawful.

Prior to filing the claim in July 2023, ELI had attempted to engage with DOC on this issue for close to a year with little result.

After ELI had filed its case, in August 2023, DOC provided a briefing to the Ministers of Conservation and Transport (in conjunction with the Ministry of Transport) which advised that “It has subsequently transpired that the joint consent of the Minister of Conservation and the Minister of Transport is required under s 71 of the Wildlife Act in place of the authority under s 53.” In the view of the Ministry of Transport and of DOC, without this s 71 consent, the Project cannot proceed.

Despite our ongoing litigation, DOC only told ELI about the new consent in November 2023.

After a review of the s 71 consent and supporting material, ELI has amended its statement of claim to also challenge the issuing of this consent. In ELI’s view, the s 71 consent is unlawful, in part, on the basis that:

• the consent was not issued prior to the Project commencement (despite clear statutory wording on “prior consent”)

• the supporting briefing to Ministers provides misleading advice on the route selection and protection of Wildlife

Our case was originally due to be heard in the Wellington High Court on 16 and 17 April 2024. 

The amendment of the statement of claim now means it will be heard later in the year.