Environmental Defence Society Incorporated and Sustain Our Sounds v The New Zealand King Salmon Company Ltd

• Jurisdiction: New Zealand
• Judge: Dobson J
• Judgment Date: 08 August 2013
• Neutral Citation: [2013] NZHC 1992
• Docket Number: CIV-2013-406-056
• Court: High Court
• Date: 08 August 2013

Under the Resource Mangement Act 1991

In The Matter OF appeals under s 149V of the Act against a decision of a Board of Inquiry into requests for plan changes and applications for resource consents by The New Zealand King Salmon Company Ltd

Between

Environmental Defence Society Incorporated

Sustain Our Sounds

Appellants

and

The New Zealand King Salmon Company Limited

Respondent

[2013] NZHC 1992

Dobson J

CIV-2013-406-056

CIV-2013-406-057

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

Appeal on questions of law from a decision of a Board of Inquiry into respondent's requests for plan changes and applications for resource consents for aquaculture activities — decision made changes to Combined Regional District and Coastal Plan and granted resource consents for four salmon farms in the Marlborough Sounds—the Council had opposed the proposal on the basis that the appropriate balance was struck by existing zones in the plan which respectively permitted (on a discretionary basis) and prohibited aquaculture activities—whether the Board had incorrectly applied the legal test under s149P RMA (consideration of matter by Board) — whether the Board's reliance on constraints on activity imposed by means of conditions was an irrelevant consideration—whether the application of the precautionary principle required the Board to refuse consent if it had found a realistic scientific uncertainty on the potential adverse effects of the activity—whether purpose of sustainable management under s5 RMA (purpose) had to incorporate social and economic well-being — whether the obligation in s67(3)(b) RMA for a regional plan to “give effect to” the Coastal Policy Statement was a mandatory obligation.

Counsel:

R B Enright, B McDonald and N de Wit for Environmental Defence Society Incorporated

M S R Palmer and J Ironside for Sustain Our Sounds

D A Nolan, J D K Gardner-Hopkins and D Minhinnick for The New Zealand King Salmon Company Limited

S F Quinn for Marlborough District Council (Interested Party) P A McCarthy and E Jamieson for Minister of Conservation and Ministry for Primary Industries (Interested Parties)

RESERVED JUDGMENT OF Dobson J

Dobson J

Contents	Introduction	………………………………………………………………………………………………………………………	[1]
The parties	………………………………………………………………………………………………………………………..	[2]
The legislative structure	……………………………………………………………………………………………………	[10]
King Salmon's applications	………………………………………………………………………………………………	[19]
The Board's decision	………………………………………………………………………………………………………..	[23]
The planning documents	…………………………………………………………………………………………………..	[32]
The SOS appeal	……………………………………………………………………………………………………………….	[39]
The alleged sequential error	……………………………………………………………………………………………..	[42]
Substantive errors	……………………………………………………………………………………………………………	[72]
Failure to apply the precautionary approach	…………………………………………………………………….	[73]
Incorrect application of legal test	…………………………………………………………………………………….	[86]
Decisions contrary to the evidence	…………………………………………………………………………………..	[90]
Unlawful delegation and restriction on MDC's on-going discretion	……………………………………	[114]
EDS appeal	…………………………………………………………………………………………………………………….	[129]
Failure to give effect to the NZCPS?	………………………………………………………………………………	[131]
A hierarchy of importance in the NZCPS?	………………………………………………………………………	[139]
Failure to assess alternatives	………………………………………………………………………………………..	[157]
Summary	……………………………………………………………………………………………………………………….	[175]
Costs	……………………………………………………………………………………………………………………………..	[176]

Introduction

1 This judgment determines two appeals alleging that errors of law were made by a Board of Inquiry (the Board) in a combined decision dated 22 February 2013. 1 That decision made determinations under the Resource Management Act 1991 (the RMA) making changes to the Marlborough District Council's Combined Regional District and Coastal Plan (the Sounds Plan), and granting resource consents for four salmon farms at specified locations in the Marlborough Sounds (the Sounds).

The parties

2 The respondent to both appeals is The New Zealand King Salmon Company Limited (King Salmon), which was the initiator of the request for a plan change, and the applicant for resource consents for nine salmon farms at various locations in the Sounds. At the time of its applications, it operated six salmon farms in the Sounds, producing approximately 7,000 to 7,500 tonnes of king salmon per annum. The resource management initiatives were undertaken to pursue King Salmon's intention to significantly increase its production.

3 Sustain Our Sounds (SOS) is an unincorporated interest group representing residents and recreational users of amenities in the Sounds, concerned with the on-going quality of the environment in the Sounds. SOS was represented at the Board hearings. Its appeal sought the quashing of the Board's decision on all aspects of the plan changes, to deprive King Salmon of the prospect of resource consents being granted at any of the four sites.

4 Environmental Defence Society Incorporated (EDS) was established in 1971 and focuses on policy and regulatory issues that are of regional and national significance. It was represented at the Board hearing and called evidence in relation to the impact of the proposed salmon farms on the landscape and natural character of the Sounds. EDS supports aquaculture in appropriate locations but is opposed to salmon farms being located in areas of outstanding landscape and natural character.

5 EDS sought the quashing of the plan change decision in respect of sites at Port Gore and Waitata, with the consequence that if the plan changes were not introduced, then there could be no issue of resource consents for salmon farming activities at those two locations.

6 The Marlborough District Council (MDC) is a unitary authority with responsibilities as both a regional and district council. In 1995, it had prepared the Sounds Plan, which came into effect in 2003. Given the statutory procedure adopted for considering King Salmon's applications, as described below, the MDC had no responsibility as a decision-maker and instead was represented at the Board hearings as a submitter. The MDC opposed King Salmon's proposal on the basis that the existing zones in the Sounds Plan that respectively permitted (on a discretionary basis) and prohibited aquaculture activities struck the appropriate balance. That zoning had allowed 576 marine farms (the vast majority being mussel farms) to operate whilst still excluding commercial marine farming activities from large parts of the Sounds.

7 The MDC confined its submissions on the appeals to support for certain of the appellants’ arguments on alleged errors of law, appropriately acknowledging its on-going responsibilities to administer whatever extent of plan change and resource consents survive the appeal process.

8 The Minister of Conservation had a role in initiating the Board's inquiry, and advanced an interest essentially in support of the Board's decision. Similarly, the Director-General of the Ministry for Primary Industries acknowledged an interest and made confined submissions on certain of the arguments raised by the appellants. In all respects, submissions presented on behalf of the Minister and the Director-General by Crown Law were supportive of the Board's decision. I will refer to those submissions as simply those on behalf of the Crown interests.

9 The Board of Inquiry was served with the appeals. The Board appointed counsel but, appropriately, counsel for the Board did not appear at the hearing of the appeals.

The legislative structure

10 In 2011, the RMA was amended in a legislative initiative that contemplated more streamlined decisions on resource management applications to authorise marine farming.

11 The amendments reflected a desire to “kick start” further investment in aquaculture. 2 The explanatory note on introduction of what began as the Aquaculture Legislation Amendment Bill (No 3) included the following:

The current law provides that aquaculture activities can take place only within aquaculture management areas identified in regional coastal plans. This regime has not worked well because of its complexity and poor incentives for councils and industry to plan for and invest in aquaculture. The Bill removes the requirement for aquaculture management areas. This change normalises aquaculture within the Resource Management Act framework by enabling applicants to apply directly for a resource consent in any part of the coastal marine area, subject to the provisions of the relevant regional coastal plan.

The Bill makes changes to streamline planning and consenting processes, reduce costs to industry, and provide stronger incentives for industry

development, while maintaining existing processes for ensuring environmental limits are respected.

12 Apparently as a result of submissions made on behalf of King Salmon to the Primary Production Committee, additional provisions were added to the Bill to enable resource consents to be sought concurrently with a request for a plan change. This recommendation was made earlier in a 2009 report by the Aquaculture Technical Advisory Group. 3

13 The 2011 amendments also provided that such resource management initiatives could be lodged with the Environmental Protection Authority ( EPA), which has a preliminary role in assessing whether the proposals are complete, and whether they involve matters of national significance. The EPA has a role in recommending to the Minister of Conservation how the applications should be determined.

14 In this case, King Salmon anticipated the introduction of these amendments to the Act on 1 October 2011. Having lodged draft applications in considerable detail before the amendments came into force, on...