Pelorus Wildlife Sanctuaries Ltd v Marlborough District Council
Jurisdiction | New Zealand |
Judge | Alternate Environment Judge FWM McElrea |
Judgment Date | 27 March 2012 |
Neutral Citation | [2012] NZEnvC 59 |
Court | Environment Court |
Date | 27 March 2012 |
In the Matter of an appeal under Section 120 of the Resource Management Act 1991
and
[2012] NZEnvC 059
Alternate Environment Judge FWM McElrea, sitting alone pursuant to s 279 of the Act
BEFORE THE ENVIRONMENT COURT
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.
Mr J Ironside for the appellant
Ms MJ Radich for the respondent
Mr BA Fletcher for the applicant
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]
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.
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”).
This decision has been reached on the papers after all parties have been given an opportunity to make written submissions.
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.
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.
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.
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.
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.
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.
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.)
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.
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.
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.
The applicant's rationale for undertaking that step was stated to be:
(A fuller explanation was offered in a later memorandum.)
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[a] The Waitata and White Horse Rock farms would need to be managed as a single unit;
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[b] The conditions of consent for all farms would need to be consistent.
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 resource consent application for consent of [sic] White Horse Rock which is currently on appeal before this Court, [emphasis added]
5. NZ King Salmon will confirm that withdrawal at the point that the Board of Inquiry has made the decision whether to accept the plan change component of the proposal lodged with the EPA. NZ King Salmon expects this to occur by mid-February.
This memorandum was not in fact received by the Court until 1 February 2012 (having been sent to a wrong address) and was followed by a memorandum in opposition on behalf of the appellant which, although dated 7 February 2012, did not reach me until 13 February due to a change of personnel in the Court Registry. By that stage I was on leave and unavailable until 27 February 2012, but issued a Minute dated 13 February 2012 asking whether the applicant was still proposing to “withdraw” the resource consent application under appeal. The Minute continued:
If the answer is Yes, then I require legal authority on the ability to withdraw an application made to a Council after the application has been granted and appealed, and the Council is arguably functus officio. Secondly, it is pertinent to know whether leave is required from the Council or Court to withdraw an application, both before and after it is granted — and if so what principles apply to the exercise of that discretion …
A timetable for submissions on these points was then given.
Pursuant to that timetable, counsel for the applicant filed a brief memorandum dated 22 February 2012 as follows:
1. The Board of Inquiry has accepted New Zealand King Salmon Co Limited's request for a plan change.
2. The New Zealand King Salmon Co Limited surrenders the consent subject to this appeal pursuant to s 138(1) of the Resource Management Act.
3. The Environment Court in Fordyce Farms Limited v Queenstown [sic] District Council Env Christchurch C208/2001, 21 November 2001 at [12] is authority for the proposition that surrender of consent in these circumstances brings the appeal to an end. That follows from the Environment Court no longer having any lis before it. 1
Upon returning to my duties, on 28 February 2012 I saw this memorandum and issued a Minute of that date, reading as follows:
1. Mr Fletcher's Memorandum of 22 Feb appears to treat this Court as the consent authority. As the Court has not granted any consent, the consent authority must be the Council. The applicant should therefore give written notice to the Council and obtain a “notice of acceptance of the surrender” under s 138(4).
2. The timetable previously granted is...
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