Environmental Defence Society Incorporated v the New Zealand King Salmon Company Limited & Ors [2014] NZSC 38, 17 April 2014
- Court
- Supreme Court
- Judgment
- 17 April 2014
- Neutral
- [2014] NZSC 38
Areas of law
Judgment analysis
AI-generated summary
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Facts
In October 2011, King Salmon applied for plan changes and resource consents to establish salmon farms at nine locations in the Marlborough Sounds. The Minister of Conservation determined the proposal was a matter of national significance and referred it to a Board of Inquiry. The Board granted plan changes and resource consents for four sites. One of these sites, Papatua in Port Gore, was accepted by the Board to be an area of outstanding natural character and an outstanding natural landscape. The Board also found the proposed salmon farm would have significant adverse effects on that character and landscape, and as a consequence, policies 13(1)(a) and 15(a) of the New Zealand Coastal Policy Statement (NZCPS) would not be complied with. Despite this finding, the Board granted the plan change, reasoning that it was required to make an 'overall judgment' by balancing the adverse effects against economic and biosecurity benefits, in light of the principles in Part 2 of the Resource Management Act 1991 (RMA). EDS appealed this decision to the High Court, which dismissed the appeal. EDS was then granted leave to appeal to the Supreme Court on questions of law relating to the Papatua plan change.
Held
- The statutory direction in s 67(3)(b) of the Resource Management Act 1991 to 'give effect to' the New Zealand Coastal Policy Statement (NZCPS) is a firm obligation to implement the policies of the NZCPS, not merely to treat them as factors to be balanced in an 'overall judgment' by reference to Part 2 of the Act.
- The NZCPS sits at the top of the planning hierarchy for the coastal environment and gives substance to the general principles in Part 2 of the RMA. Decision-makers are not entitled to go behind the NZCPS and apply Part 2 principles directly to override specific, directive policies within the NZCPS.
- Policies 13(1)(a) and 15(a) of the NZCPS, which require decision-makers to 'avoid adverse effects' of activities on areas of 'outstanding natural character' and 'outstanding natural landscapes', are strongly worded, directive policies that create an environmental bottom line.
- Where a Board of Inquiry finds that a proposed plan change will have significant adverse effects on an area of outstanding natural character and landscape, it cannot 'give effect to' policies 13(1)(a) and 15(a) of the NZCPS if it grants the plan change. The plan change must therefore be refused to comply with s 67(3)(b) of the RMA.
William Young J dissenting.
Orders
The appeal is allowed. The plan change in relation to Papatua at Port Gore did not comply with s 67(3)(b) of the Resource Management Act 1991 as it did not give effect to policies 13(1)(a) and 15(a) of the New Zealand Coastal Policy Statement. Costs are reserved.
Key passages9
The Resource Management Act has a single purpose: to promote the sustainable management of natural and physical resources.
“Section 5(1) identifies the RMA’s purpose as being to promote sustainable management of natural and physical resources.”
The definition of 'sustainable management' in s 5(2) must be read as an integrated whole. The requirements in sub-paras (a), (b) and (c) (sustaining resources for future generations; safeguarding life-supporting capacity; and avoiding, remedying, or mitigating adverse effects) must be observed while managing resources to provide for well-being.
“...the use of the word 'while' before sub-paras (a), (b) and (c) means that those paragraphs must be observed in the course of the management referred to in the opening part of the definition. That is, 'while' means 'at the same time as'.”
Decision-makers under the RMA 'shall recognise and provide for' the matters of national importance listed in s 6, including the preservation of the natural character of the coastal environment and the protection of outstanding natural features and landscapes from inappropriate development.
“Section 6, headed “Matters of national importance”, provides that in achieving the purpose of the RMA, all persons exercising powers and functions under it in relation to managing the use, development and protection of natural and physical resources “shall recognise and provide for” seven matters of national importance.”
A regional plan must 'give effect to' any New Zealand Coastal Policy Statement (NZCPS). This is a strong directive, meaning 'implement'.
““Give effect to” simply means “implement”. On the face of it, it is a strong directive, creating a firm obligation on the part of those subject to it.”
By giving effect to the NZCPS, a decision-maker is necessarily acting 'in accordance with' Part 2 of the RMA. There is no need to refer back to Part 2 to conduct an 'overall judgment' as the NZCPS gives substance to Part 2's provisions for the coastal environment.
“In principle, by giving effect to the NZCPS, a regional council is necessarily acting “in accordance with” pt 2 and there is no need to refer back to the part when determining a plan change.”
The word 'avoid' in the context of policies 13(1)(a) and 15(a) of the NZCPS has its ordinary meaning of 'not allow' or 'prevent the occurrence of'.
“In that context, we consider that “avoid” has its ordinary meaning of “not allow” or “prevent the occurrence of”.”
The term 'inappropriate' development in s 6 of the RMA and in the NZCPS should be assessed by reference to what is being protected; a development that adversely affects an area of outstanding natural attributes is 'inappropriate'.
“We consider that where the term 'inappropriate' is used in the context of protecting areas from inappropriate subdivision, use or development, the natural meaning is that 'inappropriateness' should be assessed by reference to what it is that is sought to be protected.”
Policies 13(1)(a) and 15(a) of the NZCPS provide something in the nature of an 'environmental bottom line' for areas of outstanding natural character and landscape.
“Policies 13(1)(a) and (b) and 15(a) and (b) do, in our view, provide something in the nature of a bottom line.”
The need to consider alternative sites for a site-specific plan change is contextual and depends on the nature and circumstances of the application, particularly where it involves exclusive use of a public resource for private gain with significant adverse effects.
“In short, the need to consider alternatives will be determined by the nature and circumstances of the particular application relating to the coastal environment, and the justifications advanced in support of it...”
Cases mentioned in judgment
Legislation mentioned
- Resource Management Act 1991, s 2, s 3, s 5, s 6, s 7, s 8, s 9, s 21(3), s 25A(1), s 28, s 30, s 32, s 43-44A, s 43AA, s 43AAB, s 45-55, s 46A, s 47-52, s 48, s 51, s 55, s 56-58A, s 56, s 57, s 58, s 58A, s 59, s 60, s 61, s 62, s 63, s 64, s 66, s 67, s 68, s 73-77D, s 73, s 74, s 75, s 76, s 79(2), s 87A, s 104, s 105, s 148, s 149V, s 171(1)(a), s 293, Part II, Part XII, Schedule 1, Schedule 1AA, Fourth Schedule
- Resource Management Amendment Act (No 2) 2011
- Resource Management Act Amendment Act 2013, s 70
- Water and Soil Conservation Act 1967
- Town and Country Planning Act 1977, s 3(c), s 3(1)
- Local Government Act 2002, s 21(3)