Kpf Investments Ltd v Marlborough District Council

• Jurisdiction: New Zealand
• Judge: J R Jackson,K Prime,I Buchanan
• Judgment Date: 02 July 2014
• Neutral Citation: [2014] NZEnvC 152
• Court: Environment Court
• Docket Number: ENV-2012-CHC-000080
• Date: 02 July 2014

In The Matter Of The Resource Management Act 1991

In The Matter Of Appeals Under Section 120 Of The Act

BETWEEN

Kpf Investments Limited (Env-2012-Chc-80)

Pelorus Wildlife Sanctuaries Limited, J & R Buchanan & H T Elkjngton (Env-2012-Chc-68)

Appellants

and

Marlborough District Council

Respondent

Decision No. [2014] NZEnvC 152

Court:

Environment Judge J R Jackson

Environment Commissioner K Prime

Environment Commissioner I Buchanan

ENV-2012-CHC-000080

BEFORE THE ENVIRONMENT COURT

Appeals against a decision granting resource consent to farm salmon in cages at Danger Point in outer Pelorus Sound (Te Hoiere) — site was currently developed for mussel farming — appellant proposed to convert the existing mussel farm (in part) for salmon farming — applicant appealed against conditions imposed — Pelorus Wildlife Sanctuaries Ltd appealed against the whole decision — definition of “landscape” — whether existing salmon farms were part of the environment to be considered — whether the adverse effects on the environment would be more than minor.

Appearances:

M J Hunt, M Hardy-Jones and K M Lawson for KPF Investments Limited

M Radich for Marlborough District Council

J Ironside for Pelorus Wildlife Sanctuaries and Others and for Friends of Nelson Haven & Tasman Bay Incorporated (s 274 party)

DECISION

• A: Under section 290(2) of the Resource Management Act 1991, the Environment Court cancels the decision of the Marlborough District Council in respect of coastal permit application U1105 19.

• B: Under section 290(1) of the Act, the Environment Court refuses the application (U110519) by KPF Investments Limited.

• C: Costs are reserved. Any application is to be lodged and served by 30 July 2014 and any reply by 27 August 2014.

Table of Contents

		Para
1.	Introduction	[1]
	1.1. The issue	[1]
	1.2. The proposal by KPF to farm salmon at Danger Point	[2]
	1.3. The Council decision and the appeals	[10]
	1.4. The status of the applications, and the matters to be considered	[13]
	1.5. The Supreme Court decision on applications by The New Zealand King Salmon Company Limited	[20]
2.	The setting: Danger Point, the Waitata Reach and Port Ligar	[27]
	2.1. The Danger Point Marine Farm in its environment	[27]
	2.2. The landscape setting	[44]
	2.3. Are the New Zealand King Salmon consents part of the environment?	[57]
3.	What are the relevant statutory documents?	[62]
	3.1. The Marlborough Sounds Resource Management Plan	[62]
	3.2. The Marlborough Regional Policy Statement	[82]
	3.3. The New Zealand Coastal Policy Statement (2010)	[89]
4.	What are the predicted effects of the proposal?	[97]
	4.1. Effects on the wider community: profit and employment	[97]
	4.2. What are the effects on the marine ecology?	[103]
	4.3. Effects on amenities and natural character	[142]
	4.4. Effects on the Area of Outstanding Value	[156]
	4.5. Effects on tangata whenua	[160]
	4.6. Effects on navigation and access	[167]
	4.7. Proposed conditions (and adaptive management)	[169]
5	Weighing the relevant factors	[179]
	5.1. Section 104 RMA: the environmental effects and the planning framework	[179]
	5.2. Sections 105 and 107 RMA	[188]
	5.3. The Council's decision	[190]
	5.4. Consideration under Part 2 RMA	[194]
6.	Result	[214]

1. Introduction

1.1 The issue

1 Should resource consent to farm salmon in cages at Danger Point in outer Pelorus Sound (Te Hoiere) be granted to the applicant, KPF Investments Ltd (“KPF”)? If it is to be granted, what are the appropriate conditions of consent?

1.2 The proposal by KPF to farm salmon at Danger Point

2 The site is located at the entrance to Port Ligar and is currently developed for mussel farming so this is not a proposal for a new marine farm. Rather, KPF proposes to convert an existing mussel faim (in part) for salmon farming.

3 Existing resource consents U041475 and U991142 for the marine farm at Danger Point (site 8080) provide for the farming of green shell mussels Perna canaliculus, blue mussels Mytilus galloprovincialis, dredge oysters Tiostrea chilensis, and scallops Pectin novaezelandiae, using conventional long line methods.

4 KPF applied to the Marlborough District Council on 3 October 2011 for resource consents to:

• add king salmon ( Oncorhyncus tshawytscha) and the activity of farming king salmon to the list of consented species to be farmed at the site;

• establish 11 circular marine farm cages (maximum diameter 38 metres) anchored to the seabed by screw or wedge anchor;

• discharge up to 2,500 tonnes of salmon feed;

• discharge coastal water and biodegradable organic matter associated with cleaning predator nets; and

• disturb the seabed with anchoring devices.

5 The applications — numbered U110519 — were assessed by the Council as complete on 7 October 2011 and date-stamped on 10 October 2011.

6 The proposal is to farm salmon in net-cages which are suspended from a torus comprised of two floating metal rings about 2 metres apart and with an internal diameter of 32 or 38 metres. The rings will be joined by a 2 metre circular walkway. The outer ring will have stanchions which will protrude above the water by 1.5 metres 1 and from which a predator net will be suspended to keep out seals and sharks. A lighter net will (if necessary) be suspended over the farm to keep out birds. The stanchions will support a net to prevent predators such as fur seals from accessing the cages.

7 For at least the first three years of operation a maximum of 1,500 metric tonnes of feed will be introduced to the cages to feed the salmon. If certain environmental standards are met underneath and around the sites, then the feed will be increased, incrementally to a total over time of 2,500 metric tonnes per annum. Each tonne of food produces on average about 0.8 tonnes of salmon.

8 The existing consent is not to be cancelled. The farm may revert back to mussels if that is more profitable than growing salmon.

9 A copy of a plan showing “Existing Mussel Farm Activity and Proposed Salmon Farming” 2 is annexed to this decision marked “A”. This plan also shows the location of the farm between Danger Point and Beach Point at the entrance to Port Ligar.

1.3 The Council decision and the appeals

10 The Council's Hearings Committee granted the application 3 (in part) to discharge up to 1,500 tonnes of feed per annum, to add king salmon as a species permitted to be farmed, to establish 11 polar circle cages and to undertake the activity of growing and harvesting salmon — all the consents being subject to an extensive suite of conditions.

11 KPF, as applicant, lodged an appeal against the part of the decision concerning the quantity of food to be discharged, and the conditions on the baseline survey, structures, reporting and environmental standards.

12 Pelorus Wildlife Sanctuaries Ltd, James Ross and Rea Buchanan, and Hori Elkington (“the appellants”) lodged an appeal 4 against the whole of the decision. The reasons for appeal include alleged failure by the Council to apply relevant planning provisions and to make proper assessment of effects. This appeal was supported by the Friends of Nelson Haven and Tasman Bay Inc (“FNH&TB”) as a s 274 party.

1.4 The status of the applications, and the matters to be considered

13 The applications are for discretionary activities because the site is in the Coastal Marine Zone 2 (CMZ2) of the Marlborough Sounds Resource Management Plan. Marine farming in the CMZ2 is a discretionary activity when located within 200 metres of the shore, and there is a portmanteau rule 5 which makes all the activities applied for discretionary.

14 Since the completed application(s) were accepted by the Council on 7 October 2011, the RMA in its form prior to the Resource Management Amendment Act 2013 applies 6.

15 Section 104(1) of the RMA identifies the matters we are to have regard to. Our understanding of section 104(1)(1) and the introductory words “… subject to Part 2 …” is, as stated in re Skydive Queenstown Ltd 7 that:

… the local authority, or on appeal …, the Environment Court must make a broad judgment weighing four sets of consideration. The first two are compulsory:

• (a)any actual and potential effects on the environment of allowing the activity; and

• (b)any relevant provisions of [the listed hierarchy of statutory instruments].

  The third and fourth considerations are to be considered if necessary. They are:

• (c)any other matter the consent authority considers … relevant; and

• (d)Part 2 of the Act.

It is well-established that the words “subject to” show that Part 2 of the Act only needs to be resorted to if there is a conflict in or between any of the other three sets of considerations in section 104(1) of the Act: Minister of Conservation v Kapiti Coast District Council 8 relying on an earlier decision of the Court of Appeal — Environmental Defence Society v Mangonui County Counci 9 (on the Town and Country Planning Act 1977) where Cooke J stated “…the qualification “subject to” [is] a standard method of making clear that the other provisions referred to are to prevail in the event of a conflict”.

We consider that decision is not quite accurate. First, the reference to a “broad judgment” needs to be read subject to a recent Supreme Court decision — Environmental Defence Society v The New Zealand King Salmon Company Limited 10 — which we discuss in some detail later in this decision. Second, we observe that a further, potentially important difference between the RMA and the earlier statute

is that the “subject to” formula is now used not merely to resolve a conflict between provisions in the statutory documents, but also to resolve a conflict between section 104(l)(a) to (c) considerations if...