Implications for Resource Consent Applications

NZ KING SALMON SUPREME COURT DECISION: IMPLICATIONS FOR RESOURCE CONSENT APPLICATIONS

Quentin Davies, Gascoigne Wicks

4 December 2014

1. The Supreme Court’s decision Environmental Defence Society Incorporated v New Zealand King Salmon Co Limited [2014] 1 NZLR 593 is the first opportunity the Supreme Court has had to address fundamental concepts under the Resource Management Act 1991. Much has been written about the NZ King Salmon decision including an excellent summary and analysis by Helen Atkins and Sarah Dawson (referenced below).

2. A number of people have said that NZ King Salmon is a Plan Change case and has little relevance when considering resource consent applications. There is a strong case for that:

Plan Change

Resource Consent

A regional council shall prepare and change any regional plan in accordance with its functions under s 30, the provisions of part 2, a direction given under s 25A(1), its duty under s 32 and any regulations (s 66(1)).

A Regional Plan must “give effect to” any National Policy Statement, any New Zealand Coastal Policy Statement and any Regional Policy Statement (s 66(3)).

The consent authority must, subject to part 2 “have regard to” any actual and potential effects on the environment of allowing the activity, relevant provisions of National Environmental Standards, National Policy Statements, New Zealand Coastal Policy Statement, Regional Policy Statements, plans and regulations and any other matter the consent authority considers relevant (s 104(1)).

3.The NZ King Salmon case concerned the combination of a directive policy under the NZCPS and a duty to give effect to the NZCPS. The Supreme Court found that salmon farming, which was contrary to two directive policies, could not be enabled by a Plan Change. The Supreme Court noted limited exceptions where effects were minor or transitory [145].

4.There is different statutory language with regard to resource consent. The NZ King Salmon decision itself makes repeated reference to differences in language resulting in differences in the consequence (see for example [127]). If words matter and differences in words matter then a different legal approach must have been intended when it came to resource consents. The argument is that in resource consent cases, the NZCPS is important but does not determine the outcome.

5.On the other hand that interpretation results in an illogical outcome. The Supreme Court found that the Board of Inquiry had no choice but to make salmon farming a prohibited activity in Port Gore. However, if the Plan historically permitted salmon farming as a discretionary activity, then it might be possible to grant a resource consent for that activity. In the context of resource consent applications the NZCPS would not act as a veto.

6.Secondly, the Supreme Court makes repeated criticism of the High Court’s decision in NZ Rail Limited v Marlborough District Council [1994] NZRMA 70 (HC). That case was a resource consent case in respect of Shakespeare Bay. The repeated discussion of that case would tend to suggest that a similar approach to a plan change should be taken to resource consent applications.[1]

7.In practical terms, however, the Court’s other findings about the approach to be taken to resource management will mean that there are very few cases where a resource consent could be granted for an activity which is contrary to a directive policy such as those in the NZCPS. This is because:

a. Section 5 is to be read as an integrated whole. The wellbeing of people in communities is to be enabled at the same time as matters in s 5(2) are to be achieved [24(c)];

b. Words mean what they plainly say – language is important, as are differences in wording [127];

c. Prescriptive policies should be awarded more weight than flexible ones [129];

d. A thorough attempt should be made to reconcile apparent differences between policies, so as to minimise interpretation of policies as pulling in different directions [130].[2]

e. Section 5 is not a section under which particular planning decisions are made [151]. Where there is a conflict between part 2 and the other relevant factors in section 104(1) then part 2 will prevail.[3] Such circumstances will be rare. Part 2 may also assist in resolving conflicts between s 104(1)(a) to (c) considerations.[4] As Dawson and Atkins say “where plan provisions are settled and relevant, and have been tested in relation to the higher order planning documents (including part 2), the focus should be on consideration of the particular plan provisions and the reconciliation or weighting of the direction provided by those provisions”.

Further Reading

a.Environmental Defence Society Inc v New Zealand King Salmon Co Limited [2014] 1 NZLR 593.

b.Sustain Our Sounds Incorporated v New Zealand King Salmon Co Limited [2014] 1 NZLR 673.

c.Atkins H. Dawson S. “The King Salmon Decision – A Think Piece for Planners 2014”. 

 

 

[1] There is additional support for this proposition in KPF Investments Limited v Marlborough District Council [2014} NZEnvC 152 at [197].

[2] Taylor v Dunedin City Council [2014] NZEnvC 221 [23].

[3 C &J Clark Limited v Inland Revenue Commissioner [1973] 1 WLR 905 at 911 (Ch D) affirmed [1975] All ER 801 (EWCA) cited Burrows, J. S., “Statute Law in New Zealand”, Fourth Edition, Wellington, Lexis Nexis, 2009.

[4] KPF Investments Limited v Marlborough District Council [2014] NZEnvC 152 at [15].