Environment Defence Society Incorporated v The New Zealand King Salmon Company Ltd

• Jurisdiction: New Zealand
• Judge: Elias CJ,McGrath,William Young,Glazebrook,Arnold JJ
• Judgment Date: 17 April 2014
• Neutral Citation: [2014] NZSC 41
• Docket Number: SC 82/2013
• Court: Supreme Court
• Date: 17 April 2014

Between

Environment Defence Society Incorporated

Appellant

and

The New Zealand King Salmon Company Limited

First Respondent

Sustain Our Sounds Incorporated

Second Respondent

Marlborough District Council

Third Respondent

Minister Of Conservation And Director-General Of Ministry For Primary Industries

Fourth Respondents

Between

Sustain Our Sounds Incorporated

Appellant

and

The New Zealand King Salmon Company Limited

First Respondent

Environmental Defence Society Incorporated

Second Respondent

Marlborough District Council

Third Respondent

Minister Of Conservation And Director-General Of Ministry For Primary Industries

Fourth Respondents

[2014] NZSC 41

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 82/2013

SC 84/2013

IN THE SUPREME COURT OF NEW ZEALAND

Reasons for granting of two applications under s149V Resource Management Act 1991 (RMA) (Appeal from decisions only on question of law) for leave to directly appeal a decision of the High Court which dismissed an appeal on questions of law from a decision of a Board of Inquiry — Inquiry had granted plan changes and resource consents in relation to four salmon farms in the Marlborough Sounds — first proposed appeal concerned the relationship between Part 2 RMA (Purpose and principles), and s5 (Purpose) in particular, and the hierarchy of instruments provided for in the RMA, including the New Zealand Coastal Policy Statement — second proposed appeal concerned the scientific uncertainty and the interrelationship between the precautionary principle (as recognised in Policy 3 of the New Zealand Coastal Policy Statement) and an adaptive management approach — SC refused to hear from or take into account the submissions of the Board of Inquiry — whether there were exceptional circumstances justifying a direct appeal to the SC — whether the submissions of the decision maker should be taken into account

Counsel:

D A Kirkpatrick, R B Enright and N M de Wit for Environmental Defence Society Incorporated

D A Nolan, A S Butler and D J Minhinnick for The New Zealand King Salmon Company Limited

M S R Palmer and K R M Littlejohn for Sustain Our Sounds Incorporated

P A McCarthy for Minister of Conservation and Director- General of Ministry for Primary Industries

S F Quinn for Marlborough District Council

P T Beverley and D G Allen for the Board of Inquiry

JUDGMENT OF THE COURT

• A. The application under s 149V of the Resource Management Act 1991 by the Environmental Defence Society for leave to appeal the decision of the High Court dated 8 August 2013 is granted. The questions of law for determination on the appeal are:

  • (a) Was the Board of Inquiry's approval of the Papatua plan change one made contrary to ss 66 and 67 of the Act through misinterpretation and misapplication of Policies 8, 13, and 15 of the New Zealand Coastal Policy Statement? This turns on:

    • (i) Whether, on its proper interpretation, the New Zealand Coastal Policy Statement has standards which must be complied with in relation to outstanding coastal landscape and natural character areas and, if so, whether the Papatua Plan Change complied with s 67(3)(b) of the Act because it did not give effect to Policies 13 and 15 of the New Zealand Coastal Policy Statement.

    • (ii) Whether the Board properly applied the provisions of the Act and the need to give effect to the New Zealand Coastal Policy Statement under s 67(3)(b) of the Act in coming to a “balanced judgment” or assessment “in the round” in considering conflicting policies.

  • (b) Was the Board obliged to consider alternative sites or methods when determining a private plan change that is located in, or results in significant adverse effects on, an outstanding natural landscape or feature or outstanding natural character area within the coastal environment? This question raises the correctness of the approach taken by the High Court in Brown v Dunedin City Council [2003] NZRMA 420 and whether, if sound, the present case should properly have been treated as an exception to the general approach. Whether any error in approach was material to the decision made will need to be addressed if necessary.

• B. The application under s 149V of the Resource Management Act 1991 by Sustain Our Sounds Incorporated for leave to appeal the decision of the High Court dated 8 August 2013 is granted. The question of law for determination on the appeal is:

• Was the conclusion of the Board of Inquiry that the key environmental effects of the plan change in issue would be adequately managed by the maximum feed discharge levels set in the plan and the consent conditions it proposed to impose in granting the resource consent to King Salmon one made in accordance with the Act and open to it?

REASONS

1 On 18 October 2013, this Court granted leave to appeal against a judgment of Dobson J 1 to the Environment Defence Society Inc (EDS) in SC 82/2013 and to Sustain Our Sounds Inc (SOS) in SC 84/2013. 2 Dobson J had dismissed an appeal on questions of law from a decision of a Board of Inquiry, which had granted plan changes and resource consents to the New Zealand King Salmon Company Ltd in relation to four salmon farms in the Marlborough Sounds. 3 The questions on which leave to appeal to this Court were granted are set out above.

2 The appeals were heard together from 19 to 22 November 2013 and judgments have been issued today in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd 4

(the “EDS appeal”) and Sustain our Sounds Inc v The New Zealand King Salmon Company 5 (the “SOS appeal”)

3 As indicated in our judgment on the EDS appeal, 6 this judgment deals with:

• (a) the reasons leave was granted; and

• (b) why the Court did not hear oral submissions from the...