Environmental 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 38
Docket NumberSC 82/2013
Date17 April 2014

[2014] NZSC 38

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 82/2013

Between
Environmental 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
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 appeal is allowed.

  • B The plan change in relation to Papatua at Port Gore did not comply with s 67(3)(b) of the Resource Management Act 1991 as it did not give effect to policies 13(1)(a) and 15(a) of the New Zealand Coastal Policy Statement.

  • C Costs are reserved.

REASONS

Elias CJ, McGrath, Glazebrook and Arnold JJ [1]

[1]

William Young J

[175]

ELIAS CJ, MCGRATH, GLAZEBROOK AND ARNOLD JJ

(Given by Arnold J)

Table of Contents

Para No

Introduction

[1]

The RMA: a (very) brief overview

[3]

Questions for decision

[17]

First question: proper approach

[18]

Statutory background – Pt 2 of the RMA

[21]

New Zealand Coastal Policy Statement

[31]

(i) General observations

[331]

(ii) Objectives and policies in the NZCPS

[45]

Regional policy statement

[64]

Regional and district plans

[69]

Requirement to “give effect to” the NZCPS

[75]

Meaning of “avoid”

[92]

Meaning of “inappropriate”

[98]

Was the Board correct to utilise the “overall judgment” approach?

[106]

(i) The NZCPS: policies and rules

[112]

(ii) Section 58 and other statutory indicators

[117]

(iii) Interpreting the NZCPS

[126]

Conclusion on first question

[150]

Second question: consideration of alternatives

[115]

Decision

[174]

Introduction
1

In October 2011, the first respondent, New Zealand King Salmon Co Ltd (King Salmon), applied for changes to the Marlborough Sounds Resource Management Plan 1(the Sounds Plan) so that salmon farming would be changed from a prohibited to a discretionary activity in eight locations. At the same time, King Salmon applied for resource consents to enable it to undertake salmon farming at these locations, and at one other, for a term of 35 years. 2

2

King Salmon's application was made shortly after the Resource Management Act 1991 (the RMA) was amended in 2011 to streamline planning and consenting processes in relation to, among other things, aquaculture applications. 3 The Minister of Conservation, 4 acting on the recommendation of the Environmental Protection Agency, determined that King Salmon's proposals involved matters of national significance and should be determined by a board of inquiry, rather than by the relevant local authority, the Marlborough District Council. 5 On 3 November 2011, the Minister referred the applications to a five member board chaired by retired Environment Court Judge Gordon Whiting (the Board). After hearing extensive evidence and submissions, the Board determined that it would grant plan changes in relation to four of the proposed sites, so that salmon farming became a discretionary rather than prohibited activity at those sites. 6 The Board granted King Salmon resource consents in relation to these four sites, subject to detailed conditions of consent. 7

3

An appeal from a board of inquiry to the High Court is available as of right, but only on a question of law. 8 The appellant, the Environmental Defence Society (EDS), took an appeal to the High Court as did Sustain Our Sounds Inc (SOS), the appellant in SC84/2013. Their appeals were dismissed by Dobson J. 9 EDS and SOS then sought leave to appeal to this Court under s 149V of the RMA. Leave was granted. 10 We are delivering contemporaneously a separate judgment in which we will outline our approach to s 149V and give our reasons for granting leave. 11

4

The EDS and SOS appeals were heard together. They raise issues going to the heart of the approach mandated by the RMA. The particular focus of the appeals was rather different, however. In this Court EDS's appeal related to one of the plan changes only, at Papatua in Port Gore. By contrast, SOS challenged all four plan changes. While the SOS appeal was based principally on issues going to water quality, the EDS appeal went to the protection of areas of outstanding natural character and outstanding natural landscape in the coastal environment. In this judgment, we address the EDS appeal. The SOS appeal is dealt with in a separate judgment, which is being delivered contemporaneously. 12

5

King Salmon's plan change application in relation to Papatua covered an area that was significantly greater than the areas involved in its other successful plan change applications because it proposed to rotate the farm around the area on a three year cycle. In considering whether to grant the application, the Board was required to “give effect to” the New Zealand Coastal Policy Statement (NZCPS). 13 The Board accepted that Papatua was an area of outstanding natural character and an outstanding natural landscape and that the proposed salmon farm would have significant adverse effects on that natural character and landscape. As a consequence, policies 13(1)(a) and 15(a) of the NZCPS would not be complied with

if the plan change was granted. 14 Despite this, the Board granted the plan change. Although it accepted that policies 13(1)(a) and 15(a) in the NZCPS had to be given considerable weight, it said that they were not determinative and that it was required to give effect to the NZCPS “as a whole”. The Board said that it was required to reach an “overall judgment” on King Salmon's application in light of the principles contained in pt 2 of the RMA, and s 5 in particular. EDS argued that this analysis was incorrect and that the Board's finding that policies 13(1)(a) and 15(a) would not be given effect if the plan change was granted meant that King Salmon's application in relation to Papatua had to be refused. EDS said that the Board had erred in law.
6

Although the Board was not named as a party to the appeals, it sought leave to make submissions, both in writing and orally, to assist the Court and deal with the questions of law raised in the appeals (including any practical implications) on a non-adversarial basis. The Court issued a minute dated 11 November 2013 noting some difficulties with this, and leaving the application to be resolved at the hearing. In the event, we declined to hear oral submissions from the Board. Further, we have taken no account of the written submissions filed on its behalf. We will give our reasons for this in the separate judgment that we are delivering contemporaneously in relation to the application for leave to appeal. 15

7

Before we address the matters at issue in the EDS appeal, we will provide a brief overview of the RMA. This is not intended to be a comprehensive overview but rather to identify aspects that will provide context for the more detailed discussion which follows.

The RMA: a (very) brief overview
8

The enactment of the RMA in 1991 was the culmination of a lengthy law reform process, which began in 1988 when the Fourth Labour Government was in power. Until the election of the National Government in October 1990, the Hon Geoffrey Palmer MP was the responsible Minister. He introduced the Resource Management Bill into the House in December 1989. Following the change of Government, the Hon Simon Upton MP became the responsible Minister and it was

he who moved that the Bill be read for a third time. In his speech, he said that in formulating the key guiding principle, sustainable management of natural and physical resources, 16 “the Government has moved to underscore the shift in focus from planning for activities to regulating their effects …”. 17
9

The RMA replaced a number of different Acts, most notably the Water and Soil Conservation Act 1967 and the Town and Country Planning Act 1977. In place of rules that had become fragmented, overlapping, inconsistent and complicated, the RMA attempted to introduce a coherent, integrated and structured scheme. It identified a specific overall objective (sustainable management of natural and physical resources) and established structures and processes designed to promote that objective. Sustainable management is addressed in pt 2 of the RMA, headed “Purpose and principles”. We will return to it shortly.

10

Under the RMA, there is a three tiered management system – national, regional and district. A “hierarchy” of planning documents is established. Those planning documents deal, variously, with objectives, policies, methods and rules. Broadly speaking, policies implement objectives and methods and rules implement policies. It is important to note that the word “rule” has a specialised meaning in the RMA, being defined to mean “a district rule or a regional rule”. 18

11

The hierarchy of planning documents is as follows:

  • (a) First, there are documents which are the responsibility of central government, specifically national environmental standards, 19 national policy statements 20 and New Zealand coastal policy statements. 21 Although there is no obligation to prepare national environmental standards or national policy statements, there must be at least one New Zealand coastal policy statement. 22 Policy statements of

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