Pelorus Wildlife Sanctuaries Ltd v Marlborough District Council

 
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[2012] NZEnvC 059

BEFORE THE ENVIRONMENT COURT

Court:

Alternate Environment Judge FWM McElrea, sitting alone pursuant to s 279 of the Act

In the Matter of an appeal under Section 120 of the Resource Management Act 1991

BETWEEN
Pelorus Wildlife Sanctuaries Limited (ENV-2009-CHC-152)
Appellant
and
Marlborough District Council
Respondent

and

The New Zealand King Salmon Company Limited
Applicant
Submissions:

Mr J Ironside for the appellant

Ms MJ Radich for the respondent

Mr BA Fletcher for the applicant

Result: this Court cannot hear this appeal further now that the resourse consent under appeal has been surrendered

Reasons for decision on whether the Environment Court had jurisdiction to determine the substantive merits of an appeal if the resource consent under appeal has been surrendered by the applicant — respondent granted applicant consent to establish a salmon farm — appellant argued area was not an Aquaculture Management Area and therefore application breached s12A(1) Resource Management Act 1991 (“RMA”) (restrictions on aquaculture activities in coastal marine area and on other activities in aquaculture management areas) — applicant surrendered resource consent — whether it was possible to surrender a resource consent that was under appeal pursuant to s138 RMA (surrender of consent) or that was yet to come into effect — whether the Court had any discretion to prevent or ignore the surrender of the consent.

The issues were: whether it was possible to surrender a resource consent that was under appeal under s138 RMA (surrender of consent) or that was yet to come into effect; and, whether the EC had any discretion to prevent or ignore the surrender of the consent.

Held: Section 138 RMA did not depend for its legal effect on the motives of the person surrendering a resource consent, or the purpose of that action. Under s138(2) RMA (consent authority may refuse to accept the surrender) a surrender could be refused on a number of grounds, none of which related to the purpose relied on by Pelorus Wildlife.

The EC had previously found that a resource consent could be surrendered before it had commenced to have effect ( Fordye Farms Ltd v Queenstown Lakes District Council). Under s116 RMA (when a resource consent commences) a resource consent that had been granted commenced when the time for lodging appeals against its grant had expired. The wording presupposed that the granting and commencement of a resource consent were two separate stages. It followed that the resource consent could be surrendered even though it had not commenced to take effect.

The EC did not have any discretion in this case. Section 138 RMA granted an absolute right to the holder of a resource consent to surrender that consent by giving written notice to the consent authority. The only qualification on that right was where it sought to only surrender part of a consent. While a withdrawal or abandonment could be set aside or otherwise prevented in the case of an abuse of process ( Mullen v Parkbrook Holdings Ltd), this did not apply to the exercise of a statutory right to surrender a resource consent. The alleged abuse of process did not need to be decided because the EC had no discretion to deal with such issues and therefore the views would be obiter dicta.

King Salmon had surrendered the resource consent under appeal so there was nothing left for the EC to decide in relation to the appeal apart from the issue of costs which was reserved.

DECISION OF ALTERNATE ENVIRONMENT JUDGE Fwm McElrea [AS TO JURISDICTION OF THE ENVIRONMENT COURT TO ISSUE A DECISION ON THE SUBSTANTIVE MERITS OF THIS APPEAL]

REASONS FOR DECISION
Introduction and essential point at issue
1

The appellant is pressing the Court to give a decision on the merits of its appeal, while the applicant is opposing that course because of developments relating to a Board of Inquiry with jurisdiction in the same area, and may have prevented the Court from issuing such decision on the merits by surrendering the resource consent now under appeal.

2

This raises what is essentially a question of law only, which I have determined as an Environment Judge sitting alone pursuant to s 279(1)(e) of the Resource Management Act 1991(“the Act”).

3

This decision has been reached on the papers after all parties have been given an opportunity to make written submissions.

4

The essential point in issue is whether the Court has any jurisdiction to determine the substantial merits of the appeal if the resource consent under appeal has been surrendered by the applicant.

Background — the resource consent under appeal
5

On 29 July 2009, the respondent granted new coastal and discharge permits to the applicant to enable it to establish a salmon farm at White Horse Rock within the Waitata Reach of the coastal marine area in the outer Pelorus Sound, Marlborough. Such permits are types of resource consent as defined by s 87 of the Act.

6

The area which was the subject of the resource consent had a previous approval as a mussel farm, the legality of which is not disputed. The coastal permit for that mussel farm was granted under s 67J of the Fisheries Act 1983 for species which did not include salmon.

7

Whilst it was admitted that the area in question was an aquaculture management area (“AMA”), for the purposes of mussel farming, the appellant argued successfully that it was not an AMA for the purpose of salmon farming and therefore the application was not made within an AMA as required by s 12A(1) of the Act, inserted in 2004.

History of the Appeal
8

On 2 December 2010, this Court (comprising myself and Environment Commissioners WR Howie and DJ Bunting) gave an interim decision dealing with the jurisdictional issue and, after hearing submissions on the point, issued a final decision on 28 January 2011 allowing the appeal and quashing the resource consent, on the grounds of the appellant's jurisdictional argument upheld in the interim decision.

9

On 21 December 2010, the applicant filed a Notice of Appeal in the High Court against this Court's interim decision. Before that appeal was heard, Parliament enacted s 47D of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2011, the affect of which was to change the law upon this Court had relied in giving its interim and final decisions.

10

Accordingly, by a Minute dated 16 November 2011, Mallon J made orders of the High Court by consent allowing the appeal and remitting the matter back to this Court “for a further decision on the substantive merits of the appeal”. (This result was inevitable once the parties had agreed to defer the hearing of the appeal until the new legislation was in place: the appeal to the High Court is by way of “rehearing”, which means that the appeal is decided on the basis of the law as it is at the time the appeal is heard.)

11

In the normal course a decision on the merits would then have been given by this Court — although if it was proposed to confirm the resource consent but subject to more stringent conditions, the Court's decision would normally have been an interim decision so as to allow for submissions on behalf of the parties as to conditions of consent. However, the 2011 legislation, which effectively reversed the decision of this Court in regard to AMAs for new species, also made provision for applications to be made to the Environmental Protection Authority (“ EPA”) for new marine farming areas. Apparently the applicant had made such an application on 3 October 2011 in respect of numerous sites as part of its Sustainably Growing King Salmon Proposal. This proposal appears to have been advanced under Part 6AA of the Act (“Proposals of national significance”) and comprised two plan change requests and nine specific resource consent applications. By direction of the relevant Minister, a Board of Inquiry was appointed to deal with this proposal.

12

As a result of publicity concerning the appointment of a Board of Inquiry, I took the precaution of enquiring of counsel by minute dated 19 December 2011:

… whether there is any overlap between this application and the Board of Inquiry appointed to deal with several proposed salmon farming sites in the Marlborough Sounds, and if so, what the implications of that are (if any) for this Court's decisionmaking process in this appeal.

A timetable was given for the filing of memoranda on this point.

13

By memorandum dated 26 January 2012, counsel for the applicant confirmed that it had applied to the EPA for resource consents for nine sites in the Marlborough Sounds, and continued:

Five of those sites are in the vicinity of Waitata Reach. One site (“Waitata”) is immediately offshore the White Horse Rock site [the subject of this appeal]. Consent has also been sought for the White Horse Rock site as a part of that process.

14

The applicant's rationale for undertaking that step was stated to be:

  • [a] The Waitata and White Horse Rock farms would need to be managed as a single unit;

  • [b] The conditions of consent for all farms would need to be consistent.

(A fuller explanation was offered in a later memorandum.)

15

That memorandum further advised that to avoid duplication in process between the White Horse Rock application and the Board of Inquiry processes:

4…. NZ King Salmon is minded to withdraw its...

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