R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, 21 August 2018
- Court
- Court of Appeal
- Judgment
- 21 August 2018
- Neutral
- [2018] NZCA 316
Areas of law
Judgment analysis
AI-generated summary
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Facts
The R J Davidson Family Trust applied for resource consent to establish and operate a 7.372-hectare mussel farm in Beatrix Bay, Pelorus Sounds. The application was classified as a non-complying activity under the Marlborough Sounds Resource Management Plan (the Sounds Plan). The Council, acting on a commissioner's decision, declined the application. The Trust appealed to the Environment Court, which upheld the refusal. The Environment Court found the proposal would have significant adverse effects on the natural character of the bay and the habitat of the King Shag, a nationally endangered species. Crucially, the Environment Court held that the Supreme Court's decision in *Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd* meant it did not need to refer directly to Part 2 of the Resource Management Act 1991, as the relevant planning documents (the Sounds Plan and the New Zealand Coastal Policy Statement 2010) were not invalid, incomplete, or uncertain. The Trust appealed this point of law to the High Court, which upheld the Environment Court's approach. The Trust was then granted leave to appeal to the Court of Appeal.
Held
- The phrase 'subject to Part 2' in s 104(1) of the Resource Management Act 1991 confirms that a consent authority must have regard to Part 2 when considering a resource consent application. The Supreme Court's decision in *King Salmon* does not prohibit this recourse in the resource consent context.
- However, the role of Part 2 is not to override or render ineffective competently prepared planning documents that already give effect to its principles. Where a plan has been properly prepared in accordance with Part 2, a genuine application of the plan's provisions may leave little room for Part 2 to influence the outcome.
- A consent authority must directly consider Part 2 where it is not assured that the relevant plan appropriately reflects Part 2's provisions, or where it is otherwise in doubt.
Orders
The appeal is dismissed. The Court of Appeal answered the first question 'Yes, but because there were no reasons in this case to depart from pt 2’s expression in the relevant planning documents, the error was of no consequence.' The second question was answered 'No'.
Key passages7
The position of the words 'subject to Part 2' near the outset of s 104(1) and preceding the list of matters to which the consent authority is required to have regard, clearly show that a consent authority must have regard to the provisions of pt 2 when it is appropriate to do so.
“we are satisfied that the position of the words 'subject to Part 2' near the outset and preceding the list of matters to which the consent authority is required to have regard, clearly show that a consent authority must have regard to the provisions of pt 2 when it is appropriate to do so.”
The instructions in sections 6, 7 and 8 of the Act must be complied with when disposing of a resource consent application, a conclusion underlined by the words 'subject to Part 2' in s 104(1).
“We consider those instructions must be complied with in an appropriate way in disposing of any application for a resource consent, and indeed it is untenable to suggest to the contrary. That conclusion would apply even without the words 'subject to Part 2' in s 104(1); but they underline the conclusion.”
The Supreme Court's decision in King Salmon, which limited recourse to Part 2, should not be interpreted as prohibiting consideration of Part 2 in the context of resource consent applications, as the statutory and factual context of that case (plan changes implementing the NZCPS) was different.
“Given the particular factual and statutory context addressed by the Supreme Court, we do not consider it can properly be said the Court intended to prohibit consideration of pt 2 by a consent authority in the context of resource consent applications.”
If a plan has been competently prepared having regard to Part 2 with clear environmental outcomes, the result of a genuine process of having regard to those policies should be to implement them. Reference to Part 2 in such a case would likely not add anything and could not justify a contrary outcome.
“If it is clear that a plan has been prepared having regard to pt 2 and with a coherent set of policies designed to achieve clear environmental outcomes, the result of a genuine process that has regard to those policies in accordance with s 104(1) should be to implement those policies in evaluating a resource consent application. Reference to pt 2 in such a case would likely not add anything. It could not justify an outcome contrary to the thrust of the policies.”
If it appears a plan has not been prepared in a manner that appropriately reflects Part 2, the consent authority will be required to give emphasis to Part 2.
“Equally, if it appears the plan has not been prepared in a manner that appropriately reflects the provisions of pt 2, that will be a case where the consent authority will be required to give emphasis to pt 2.”
While a consent authority may feel assured there is no need to refer to Part 2 if a plan is competently prepared, 'absent such assurance, or if in doubt, it will be appropriate and necessary to do so.'
“it may be that in many cases the consent authority will feel assured in taking the view that there is no need to refer to pt 2 because doing so would not add anything to the evaluative exercise. Absent such assurance, or if in doubt, it will be appropriate and necessary to do so. That is the implication of the words “subject to Part 2” in s 104(1), the statement of the Act’s purpose in s 5, and the mandatory, albeit general, language of ss 6, 7 and 8.”
It would be inconsistent with the scheme of the Act to allow regional or district plans to be rendered ineffective by general recourse to Part 2 in deciding resource consent applications.
“it would be inconsistent with the scheme of the Act to allow regional or district plans to be rendered ineffective by general recourse to Part 2 in deciding resource consent applications.”
Cases mentioned in judgment
Legislation mentioned
- Resource Management Act 1991, Part 2, s 5, s 6, s 7, s 8, s 55, s 57, s 58, s 59, s 63(1), s 67(3), s 72, s 104, s 104(1), s 104D(1), s 105, s 171(1), s 274, Schedule 4
- Resource Management Amendment Act 2013, s 125
- Resource Legislation Amendment Act 2017