West Coast Ent Incorporated v Buller Coal Ltd

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J)
Judgment Date19 September 2013
Neutral Citation[2013] NZSC 87
Docket NumberSC75/2012

[2013] NZSC 87

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Chambers* and Glazebrook JJ

SC75/2012

BETWEEN
West Coast Ent Incorporated
Appellant
and
Buller Coal Limited
First Respondent
Solid Energy New Zealand Limited
Second Respondent
Royal Forest and Bird Protection Society of New Zealand Incorporated
Third Respondent

and

West Coast Regional Council and Buller District Council
Interveners
Counsel:

D M Salmon and D E J Currie for Appellant

J E Hodder QC and B G Williams for Respondent

A C Limmer Second Respondent

P D Anderson for Third Respondent

J M van der Wal for Interveners

Appeal from a High Court decision which held that s104(1)(a) Resource Management Act 1991 “RMA” (having regard to any actual and potential effects on the environment of allowing the activity for which consent was required) did not permit consideration of the release greenhouse gases into the atmosphere when deciding whether to grant resource consent for a coal mine — respondents had obtained resource consents to permit the mining of coal — coal mining was a restricted discretionary activity — appellants submitted that since the present applications did not seek consent to discharge contaminants into air, the consent authorities were required to address the climate change consequences of burning the coal under s104(1)(a) of RMA — whether s104(1)(a) RMA permitted consent authorities to take into consideration the discharge of greenhouse gasses when assessing resource consent applications — effect of the Resource Management (Energy and Climate Change) Amendment Act 2004 — whether a consent authority could take into account the climate change effects of indirect activities consequential on the activity for which consent was granted.

The issue was whether s104(1)(a) RMA permitted consent authorities to take into consideration the discharge of greenhouse gasses when assessing resource consent applications; and, whether a consent authority could take into account the climate change effects of indirect activities consequential on the activity for which consent was granted.

Held (per majority, Elias CJ dissenting): Under the Buller District Plan, coal mining was a restricted discretionary activity. Section s104C RMA (determination of applications for restricted discretionary activities) provided that when a consent authority was deciding whether to grant a consent for a restricted discretionary activity, it could only consider matters over which a discretion was restricted in national environmental standards, or other regulations, or over which it had restricted the exercise of its discretion in its plan or proposed plan. The matters in respect of which the District Plan restricted discretion in relation to coal mining did not include the climate change consequences of the burning of the coal which was mined. Climate change arguments were therefore irrelevant to whether consent should be granted to allow the mining of coal.

The climate change effects of burning coal were irrelevant to the applications to the extent to which they sought permission to mine coal. The issue only arose because aspects of the projects which were ancillary to the proposed mining were discretionary, controlled or non-complying under the relevant plans, such as proposals to put in roading associated with the mining proposal.

West Coast ENT's argument was that consent should be refused because of, inter alia, the climate change effects of the burning of the coal, the mining and export of which would be facilitated by the roading. It would be odd if climate change consequences which were irrelevant to the application for consent to mine the coal were relevant to an ancillary element of the mining proposal. As well, the eventual burning of the coal overseas was not closely associated with the construction of roading on the West Coast. And finally on this point, allowing climate change arguments to be advanced in relation to roading might be thought to be antithetical to the concept of a restricted discretionary activity and the rules in the District Plan.

Consent authorities had on occasion taken into account effects on the environment of activities that were consequential to the activity for which consent was sought. However questions of fact and degree were likely to arise.

National environmental standards were promulgated by the Governor-General in Council and they could prohibit or allow an activity. The scheme of the RMA was that such standards took priority over the rules made by regional or district councils. It was common ground that regulation and control of activities with a view to limiting or mitigating the discharge into the atmosphere of climate change gases could be effected through the use of national environmental standards.

West Coast ENT's case rested on a literal approach to the relevant provisions of the RMA. The general language of 104(1)(a) RMA appeared to be broad enough to at least permit West Coast ENT and Forest and Bird to lead evidence as to the effect on climate change of the burning of the coal. Arguments based on indirectness and immateriality involved questions of degree which were primarily factual and not legal in character. BCL and Solid Energy had not based their case on the Court of Appeal's approach in Dye v Auckland Regional Council or on the argument that allowing climate change arguments in relation to ancillary consents would undermine the statutory concept of restricted discretionary activity and the rules in the Buller Plan. Therefore to the extent to which the climate change argument West Coast ENT wished to raise was available on the language of s104(1)(a), BCL and Solid Energy had not pointed to anything in the operative provisions of the Amendment Act which was explicitly to the contrary.

Section 70 RMA (rules about discharges) did not preclude a regional council from making a rule concerning activities which were incidental to coal mining to take into account climate change effects of the burning of coal. However, that might fall foul of an implied and more general limitation on its competence in relation to climate change underlying the Amendment Act. If so, such a rule would be ultra vires a regional council. The most likely explanation for the form of the Amendment Act was that those responsible for its drafting assumed that climate change arguments could only be advanced in relation to rules and consents involving direct discharges.

The drafters had not envisioned that those same arguments could be made in relation to rules and consents relating to activities which indirectly resulted in, or facilitated the discharge of greenhouse gases. A literal interpretation of s104(1)(a) RMA would produce anomalous outcomes. It would allow arguments which were off limits in relation to the issues to which they were most closely related (namely, discharges to air) to come in, by the backdoor, in respect of ancillary issues (such as land use, roading and the like). This would subvert the scheme of the legislation which left climate change effects to the national government and would thus deprive s104E RMA (applications relating to discharge of greenhouse gases) of practical effect.

In s104(1)(a) RMA, the words “actual or potential effects on the environment” in relation to an activity which was under consideration by a local authority did not extend to the impact on climate change of the discharge into air of greenhouse gases that resulted indirectly from that activity. This limitation was consistent with the RMA on the whole and with the clear legislative policy that addressing effects of activities on climate change lie outside the functions of regional councils and, a fortiori, territorial authorities.

Elias CJ dissented, considering that contribution to the greenhouse effect was the sort of cumulative effect that the definition in s3 RMA (meaning of effect) permitted to be taken into account under s104(1)(a) RMA in requiring the consent authority to “have regard to any actual and potential effects on the environment of allowing the activity and that climate change was a matter to be weighed in the sustainable management required by s5 RMA (purpose) where it was an effect of the activities for which consents were sought was a decision only about relevance under the provisions of the RMA.

Appeal dismissed.

JUDGMENT OF THE COURT
  • A The appeal is dismissed.

  • B Costs are reserved. If sought, memoranda may be filed within 10 working days of the date of this judgment.

REASONS

Para No

Elias CJ

[1]

McGrath, William Young and Glazebrook JJ

[95]

ELIAS CJ
1

On application for land use consents and other associated consents required in connection with a proposed open-cast coal mine, does s 104(1)(a) of the Resource Management Act 1991 permit consideration of the acknowledged fact that the end use of the coal to be obtained will probably release greenhouse gases into the atmosphere, contributing to climate change? A declaration that the end use of the coal to be mined was irrelevant to the resource consents required in relation to the proposed mine was made under s 310 of the Resource Management Act by the Environment Court. 1 The declaration was upheld on appeal to the High Court. 2 Following leave of this Court to permit appeal directly from the High Court, 3 that determination is now challenged in the present appeal.

2

Section 104(1)(a) of the Resource Management Act requires a consent authority, “subject to Part 2” (which contains “the purpose and principles” of the Act), to have regard to “any actual and potential effects on the environment of allowing the activity” for which consent is required. “Effect” is defined to include “any positive or adverse effect” and “any cumulative effect which arises over time or in combination with other effects”. 4 That is “regardless of the scale, intensity, duration, or...

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