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

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,William Young,Glazebrook,Arnold JJ
Judgment Date17 April 2014
Neutral Citation[2014] NZSC 41
Docket NumberSC 82/2013
Date17 April 2014

[2014] NZSC 41

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 82/2013

SC 84/2013

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
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

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

Held: Section 14 Supreme Court Act 2003 (SA) (No direct appeal from court other than Court of Appeal unless exceptional circumstances established) provided that, where an appeal was to be made directly against a decision of a Court other than the Court of Appeal (CA), in addition to being satisfied that it was necessary in the interests of justice to hear the appeal, the Court had to be satisfied that there were exceptional circumstances justifying the direct appeal. In the context of s149V RMA, s13 (Criteria for leave to appeal) and s14 SA meant that, where the SC was satisfied that it was in the interests of justice to hear a proposed appeal, it would normally remit the proposed appeal to the CA unless satisfied that exceptional circumstances existed that meant that the SC should hear the appeal.

In both the EDS and the SOS appeals, leave was granted to appeal to this Court, rather than remitting the issue to the Court of Appeal under s 149V(7) (court may remit the proposed appeal to the CA). In both cases, the appeals concerned a major aquaculture development that had been determined by the Minister of Conservation to involve matters of national significance and referred to a Board of Inquiry.

In relation to the EDS appeal, the proposed appeal concerned an important issue as to 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. This issue had not been previously considered by the SC and had the potential to affect all decisions under the RMA.

In terms of the SOS application, the proposed appeal concerned the appropriate response of decision-making bodies when presented with 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. This also was a matter of major significance and one that had not been considered before by the SC.

Exceptional circumstances existed to require that appeal to be heard by the SC.

A decision maker could not appear before the SC as of right and generally, any assistance that could be rendered by a decision maker will be of little value. This was because all the issues would be adequately developed by the respective parties.

In rare cases a decision maker may be of assistance, for example, where there was a need for a contradictor or where it was important that the Court have a wider perspective than the parties might be able to provide. If a decision maker did appear, it should as far as possible act in a non-partisan fashion.

All issues were fully argued by the respective parties to the two appeals. Further, while the Board claimed that its submissions were non-partisan and there merely to assist the Court, numerous parts of the Board's submissions appeared to be entering the fray.

Application for leave to appeal granted.

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...

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