Sustain Our Sounds Incorporated v The New Zealand King Salmon Company Ltd

JurisdictionNew Zealand
CourtSupreme Court
JudgeGlazebrook J
Judgment Date17 April 2014
Neutral Citation[2014] NZSC 40
Docket NumberSC 84/2013
Date17 April 2014

[2014] NZSC 40

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 84/2013

BETWEEN
Sustain Our Sounds Incorporated
Appellant
and
The New Zealand King Salmon Company Limited
First Respondent
Environmental Defence Society Incorporated
Second Respondent
Marlborough District Council
Third Respondent
Minister of Conservation and Director-General of Ministry for Primary Industries
Fourth Respondents
Counsel:

M S R Palmer and K R M Littlejohn for Appellant

D A Nolan, J D K Gardner-Hopkins, D J Minhinnick and A S Butler for First Respondent

D A Kirkpatrick, R B Enright and N M de Wit for Second Respondent

C R Gwyn and E M Jamieson for Fourth Respondents

P T Beverley and D G Allen for the Board of Enquiry

Appeal from a decision which allowed plan changes and resource consents for three salmon farms in the Marlborough Sounds — Minister of Conservation referred the matter to a Board of Inquiry — Board had concerns in respect of water quality matters — determined the matter on an adaptive management approach to make the Resource Management Act 1993 (RMA) workable and to give effect to s5 RMA (purpose — to promote sustainable management) stated that adaptive management approach arose in part from the precautionary approach which it described as being “inherent in the RMA” — whether an adaptive management approach was consistent with a precautionary approach — whether the plan changes were improperly predicated on the consent conditions — whether the parameters of the adaptive management regime (if available) should have been contained in the plan rather than through consent conditions.

The issues were: whether an adaptive management approach was consistent with a precautionary approach; whether the plan changes were improperly predicated on the consent conditions; and whether the parameters of the adaptive management regime (if available) should have been contained in the plan rather than through consent conditions.

Held: Although the Board did not refer to Policy 3 when it specifically discussed the precautionary approach, it had accepted that it was required to take a precautionary approach,. It recognised that the precautionary principle might require prohibition of activities. Where adaptive management was suitable, monitoring and regular review were required.

The issue for the Court was when an adaptive management approach could legitimately be considered a part of a precautionary approach. This involves the consideration of the following: what must be present before an adaptive management approach could be considered and what an adaptive management regime must contain in any particular case before it was legitimate to use such an approach rather than prohibiting the development until further information became available.

As to the threshold question of whether an adaptive management regime could even be considered, there had to be an adequate evidential foundation to have reasonable assurance that the adaptive management approach would achieve its goals of sufficiently reducing uncertainty and adequately managing any remaining risk. The Board had not explicitly consider this question but had seemed to assume that an adaptive management approach was appropriate. That might be, however, because there was clearly an adequate foundation in this case.

The secondary question of whether the precautionary approach required an activity to be prohibited until further information was available, rather than an adaptive management or other approach, depended on an assessment of a combination of factors including:

  • • the extent of the environmental risk (including the gravity of the consequences if the risk was realised);

  • • the importance of the activity (which could in some circumstances be an activity it was hoped would protect the environment);

  • • the degree of uncertainty; and

  • • the extent to which an adaptive management approach would sufficiently diminish the risk and the uncertainty.

The overall question was whether any adaptive management regime could be considered consistent with a precautionary approach.

Whether the risk and uncertainty would be diminished sufficiently for an adaptive management regime to be consistent with a precautionary approach depended on the extent of risk and uncertainty remaining and the gravity of the consequences if the risk was realised. In this case, while a change in trophic state would be grave, the experts were agreed it was unlikely. Further, the information deficit was effectively to be remedied before the farms were stocked and before feed levels were increased. Remedial action would be taken if there was any significant shift in water quality.

Given the uncertainty would largely be eliminated and the risk managed to the Board's satisfaction by the conditions imposed, it had been open to the Board to consider that the adaptive management regime it had approved was consistent with a proper precautionary approach.

The influence of the consent conditions on the Board's decision on the plan change was evident. It was also clear that the Board would not have granted the plan change request in the absence of the detailed consent conditions. The consent conditions that addressed the uncertainties that the Board had identified and contained the adaptive management regime were an essential component of the Board's decision.

It was important for the plan change process and the consents to be considered separately, with the different statutory provisions and the different roles of the decision maker firmly in mind: as a planning authority (for plan changes) and as a hearing authority with a quasi-judicial role (for consents). The Board had considered the plan changes and the consents separately and was well aware of the different roles and statutory provisions when considering water quality issues. It had also taken a proper regional approach to the issue of water quality, considering the effect of the farms on water quality on a Sounds-wide basis. A planning authority had to have regard to the full range of activities that a proposed plan change could subsequently permit. In this case, however, both the plan changes and the consent conditions related only to salmon farming.

Under s87A(4) RMA (classes of activities) if a resource consent was granted for a discretionary activity, the activity had to comply with the requirements, conditions and permissions, if any, of the RMA, regulations, plan or proposed plan.

The Board had been entitled to consider that the adaptive management regime, reflected in both the plan and the consent conditions, was consistent with a proper precautionary approach. The plan changes were not improperly predicated on the consent conditions and there was no need for the plan to contain more than it did on water quality, the plan containing in particular a reference to an adaptive management regime and to controls for water quality.

The appeal with regard to the Waitata, Richmond and Ngamahau sites was dismissed.

  • A The appeal with regard to the Waitata, Richmond and Ngamahau sites is dismissed.

  • B Costs are reserved.

JUDGMENT OF THE COURT

REASONS

(Given by Glazebrook J)

Table of Contents

Para No

Introduction

[1]

The water quality issue

[8]

The statutory framework

[14]

The New Zealand Coastal Policy Statement

[20]

The Marlborough Regional Policy Statement

[26]

The Sounds Plan

[33]

Plan change approved by the Board

[40]

Evidence and findings on water quality

[42]

Harmful algal blooms

[50]

Cumulative effects

[52]

Mitigation

[55]

Overall conclusion on effects on the water column

[56]

Board's approach to the plan change

[59]

Port Gore

[63]

Waitata Reach

[64]

Queen Charlotte Sounds and Tory Channel

[69]

Assessment approach

[70]

The consents

[75]

Modification of consent conditions in course of hearing

[76]

Overall decisions on consents

[84]

Consent conditions

[88]

The issues

[94]

Adaptive management

[95]

The parties' submissions

[96]

Precautionary approach under the Coastal Policy Statement

[100]

Board's consideration of the precautionary approach and adaptive management

[102]

Guidance notes on the Coastal Policy Statement

[107]

International commentary

[109]

New Zealand cases

[113]

Australian cases

[117]

Canadian cases

[122]

Was an adaptive management approach available in this case?

[124]

Relationship between the plan change and consent applications

[141]

The parties' submissions

[141]

Discussion

[143]

What should have been contained in the plan?

[148]

The parties' submissions

[148]

Discussion

[151]

Conclusion, result and costs

[159]

Introduction
1

New Zealand King Salmon applied to establish nine new salmon farms in the Marlborough Sounds. Under the Marlborough District Council's combined Regional, District and Coastal Plan (the “Sounds Plan”), 1 the Coastal Marine Area in the Marlborough Sounds is divided into two zones: Coastal Marine Zone 1 where marine farms are prohibited and Coastal Marine Zone 2 where marine farming is usually a discretionary activity. With regard to eight of the sites, the application asked for a plan change so that these sites would be re-zoned to a new zone, Coastal Marine Zone 3, where the farming of salmon would be a discretionary (rather than prohibited) activity. Resource consents for the salmon farms at those eight sites were also sought. In addition, there was a separate resource consent application for the White Horse Rock site, which was situated in Zone 2.

2

King Salmon's requested sites for spot zoning changes were in three different areas of the Sounds. Four were in Waitata...

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