Biodiversity Defence Society Inc v Solid Energy New Zealand Ltd

The Biodiversity Defence Society (BDS) appealed the Environment Court’s decision that Solid Energy New Zealand Limited (Solid Energy) had given effect to 15 resource consents for Cypress Mine. Solid Energy had applied for a suite of 22 resource consents under the Resource Management Act 1991 (RMA) for Cypress Mine. Seven of these were subject to a further application to extend the lapse period to 10 years. The remaining 15 had to be given effect to by 24 August 2012. By that date, no coal had been mined. The Environment Court found that all the consents had been given effect to and so had not lapsed. The BDS appealed this decision to the High Court. The key issues were what is the appropriate test to be applied in deciding whether consents have been “given effect to” in a situation where there are multiple consents for a project, including land use consents? And in determining whether the consents have been given effect to, is it permissible to “bundle” a suite of consents, in order to consider whether they have lapsed? The High Court held that the Environment Court’s approach to the application of s 125 of the RMA was not in error of law. It was appropriate to read the phrase “A resource consent lapses” in the plural rather than the singular. The Environment Court did not err in law in finding that effect had been given to the suite of consents for Cypress Mine. The appeal was dismissed.