Implications of the NZ King Salmon Decision

Implications of the NZ King Salmon Decision

Introduction

Immediately prior to Easter, the Supreme Court issued its decisions on appeals against four new salmon farms granted to the New Zealand King Salmon Company.  One of those decisions, Environmental Defence Society of New Zealand v The New Zealand King Salmon Co. Limited & Others [2014] NZSC 38, is likely to have significant implications for all those involved in Resource Management Act processes.

Overview of the Decision

In the NZ King Salmon decision, the Environmental Defence Society argued that because one of the salmon farms granted by the Board of Inquiry would have an adverse effect on an ‘outstanding natural landscape’, the Board of Inquiry should not have granted consent for the farm. The argument was based on two policies of the New Zealand Coastal Policy Statement 2010 which state that adverse effects on areas of outstanding natural landscape and outstanding natural character should be avoided.

The Supreme Court ultimately overturned the Board of Inquiry’s decision that the two landscape policies of the New Zealand Coastal Policy Statement were just factors which could be balanced against other considerations in coming to a decision on a plan change. The Court held that the mandatory way the policies were worded, and a requirement under the Resource Management Act that the Court must ‘give effect to’ them, meant the policies gave rise to something of an ‘environmental bottom line’ requiring decline of the plan change. This approach fundamentally changes the traditional understanding of how policy documents such as the New Zealand Coastal Policy Statement should be taken into account by decision makers.

Implications for Local Planning Documents

The implications of the Supreme Court decision on local plans are likely to be significant. All regional policy statements, regional plans and district plans are required to give effect to the New Zealand Coastal Policy Statement, meaning they must similarly require the ‘avoidance’ of adverse effects on outstanding landscapes and areas of outstanding natural character. In areas such as the Marlborough Sounds, Central Otago and Coromandel, where vast tracts of land are potentially ‘outstanding’, owners of such land can expect severe controls to be introduced on their land use.

We are also likely to see policies which are written in strong language result in certain (and inflexible) results.  This is a different way of making decisions from the ‘overall broad judgment’ approach which as been used in resource management for the last 20 years.

Implications for Resource Consent Applications

Resource consent applications only require that decision makers “have regard to” the New Zealand Coastal Policy Statement, rather than “give effect to” it. This is a lower threshold. In saying that, as a result of the NZ King Salmon decision it is likely a greater focus will be put on landscape and natural character matters and decision makers may be more willing to decline projects on these bases.  Ultimately, as local plans are updated to become consistent with the New Zealand Coastal Policy Statement, the ability to obtain consent in areas of outstanding natural landscape and outstanding natural character will become more limited.