Environmental Defence Society Inc v New Zealand King Salmon Co Ltd

[2013] NZHC 1992

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2013-406-056

CIV-2013-406-057 [2013] NZHC 1992

UNDER  the Resource Mangement Act 1991

IN THE MATTER OF       appeals under s 149V of the Act against a decision of a Board of Inquiry into requests for plan changes and applications

for resource consents by The New Zealand
King Salmon Company Ltd

BETWEEN  ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED

SUSTAIN OUR SOUNDS Appellants

ANDTHE NEW ZEALAND KING SALMON COMPANY LIMITED

Respondent

Hearing:                   27-30 May 2013

Counsel:                  R B Enright, B McDonald and N de Wit for Environmental

Defence Society Incorporated
M S R Palmer and J Ironside for Sustain Our Sounds
D A Nolan, J D K Gardner-Hopkins and D Minhinnick for The
New Zealand King Salmon Company Limited
S F Quinn for Marlborough District Council (Interested Party)
P A McCarthy and E Jamieson for Minister of Conservation and

Ministry for Primary Industries (Interested Parties) Judgment:  8 August 2013

RESERVED JUDGMENT OF DOBSON J

ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED and SUSTAIN OUR SOUNDS v THE NEW ZEALAND KING SALMON COMPANY LIMITED [2013] NZHC 1992 [8 August 2013]

Contents

Introduction ....................................................................................................................................... [1] The parties ......................................................................................................................................... [2] The legislative structure.................................................................................................................. [10] King Salmon’s applications ............................................................................................................ [19] The Board’s decision ....................................................................................................................... [23] The planning documents................................................................................................................. [32] The SOS appeal ............................................................................................................................... [39] The alleged sequential error ........................................................................................................... [42] Substantive errors ........................................................................................................................... [72] Failure to apply the precautionary approach ............................................................................... [73] Incorrect application of legal test................................................................................................. [86] Decisions contrary to the evidence............................................................................................... [90] Unlawful delegation and restriction on MDC’s on-going discretion ..........................................[114] EDS appeal..................................................................................................................................... [129] Failure to give effect to the NZCPS? .......................................................................................... [131]

A hierarchy of importance in the NZCPS? ................................................................................. [139] Failure to assess alternatives ..................................................................................................... [157] Summary ........................................................................................................................................ [175] Costs ............................................................................................................................................... [176]

Introduction

[1]      This judgment determines two appeals alleging that errors of law were made by a Board of Inquiry (the Board) in a combined decision dated 22 February 2013.1

That decision made determinations under the Resource Management Act 1991 (the RMA) making changes to the Marlborough District Council’s Combined Regional District and Coastal Plan (the Sounds Plan), and granting resource consents for four salmon farms at specified locations in the Marlborough Sounds (the Sounds).

The parties

[2]      The respondent to both appeals is The New Zealand King Salmon Company Limited (King Salmon), which was the initiator of the request for a plan change, and the applicant for resource consents for nine salmon farms at various locations in the Sounds.  At the time of its applications, it operated six salmon farms in the Sounds, producing approximately 7,000 to 7,500 tonnes of king salmon per annum.   The resource management initiatives were undertaken to pursue King Salmon’s intention to significantly increase its production.

[3]      Sustain Our Sounds (SOS) is an unincorporated interest group representing residents and  recreational users of amenities in  the Sounds, concerned  with the on-going quality of the environment in the Sounds.   SOS was represented at the Board hearings.  Its appeal sought the quashing of the Board’s decision on all aspects of the plan changes, to deprive King Salmon of the prospect of resource consents being granted at any of the four sites.

[4]      Environmental Defence Society Incorporated (EDS) was established in 1971 and focuses on policy and regulatory issues that are of regional and national significance.  It was represented at the Board hearing and called evidence in relation to the impact of the proposed salmon farms on the landscape and natural character of the Sounds.   EDS supports aquaculture in appropriate locations but is opposed to salmon farms being located in areas of outstanding landscape and natural character.

[5]      EDS sought the quashing of the plan change decision in respect of sites at Port Gore and Waitata, with the consequence that if the plan changes were not introduced, then there could be no issue of resource consents for salmon farming activities at those two locations.

[6]     The Marlborough District Council (MDC) is a unitary authority with responsibilities as both a regional and district council.  In 1995, it had prepared the Sounds Plan, which came into effect in 2003.  Given the statutory procedure adopted for considering King Salmon’s applications, as described below, the MDC had no responsibility as a decision-maker and instead was represented at the Board hearings as a submitter.   The MDC opposed King Salmon’s proposal on the basis that the existing zones in the Sounds Plan that respectively permitted (on a discretionary basis) and prohibited aquaculture activities struck the appropriate balance.   That zoning had allowed 576 marine farms (the vast majority being mussel farms) to operate whilst still excluding commercial marine farming activities from large parts of the Sounds.

[7]      The MDC confined its submissions on the appeals to support for certain of

the appellants’ arguments on alleged errors of law, appropriately acknowledging its

on-going responsibilities to administer whatever extent of plan change and resource consents survive the appeal process.

[8]      The Minister of Conservation had a role in initiating the Board’s inquiry, and advanced an interest essentially in support of the Board’s decision.   Similarly, the Director-General of the Ministry for Primary Industries acknowledged an interest and made confined submissions on certain of the arguments raised by the appellants. In   all   respects,   submissions   presented   on   behalf   of   the   Minister   and   the Director-General by Crown Law were supportive of the Board’s decision.   I will refer to those submissions as simply those on behalf of the Crown interests.

[9]      The Board of Inquiry was served with the appeals.   The Board appointed counsel but, appropriately, counsel for the Board did not appear at the hearing of the appeals.

The legislative structure

[10]     In 2011, the RMA was amended in a legislative initiative that contemplated more  streamlined  decisions  on  resource  management  applications  to  authorise marine farming.

[11]    The amendments reflected a desire to “kick start” further investment in aquaculture.2     The  explanatory  note  on  introduction  of  what  began  as  the Aquaculture Legislation Amendment Bill (No 3) included the following:

The current law provides that aquaculture activities can take place only within aquaculture management areas identified in regional coastal plans. This regime has not worked well because of its complexity and poor incentives for councils and industry to plan for and invest in aquaculture. The Bill removes the requirement for aquaculture management areas.  This change normalises aquaculture within the Resource Management Act framework by enabling applicants to apply directly for a resource consent in any part of the coastal marine area, subject to the provisions of the relevant regional coastal plan.

The Bill makes changes to streamline planning and consenting processes, reduce  costs  to  industry,  and  provide  stronger  incentives  for  industry

development,    while    maintaining    existing    processes    for    ensuring environmental limits are respected.

[12]     Apparently as a result of submissions made on behalf of King Salmon to the Primary Production  Committee,  additional  provisions  were  added  to  the  Bill  to enable resource consents to be sought concurrently with a request for a plan change. This  recommendation  was  made  earlier  in  a  2009  report  by  the  Aquaculture Technical Advisory Group.3

[13]     The  2011  amendments  also  provided  that  such  resource  management initiatives  could  be  lodged  with  the  Environmental  Protection Authority  (EPA), which has a preliminary role in assessing whether the proposals are complete, and whether  they  involve  matters  of  national  significance.    The  EPA has  a  role  in recommending to the Minister of Conservation how the applications should be determined.

[14]     In this case, King Salmon anticipated the introduction of these amendments to the Act on 1 October 2011.   Having lodged draft applications in considerable detail before the amendments came into force, on 3 October 2011 King Salmon lodged its request for a plan change and its application for resource consents with the EPA.  On 10 October 2011, the EPA recommended to the Minister of Conservation that the King Salmon proposals involved matters of national significance, and that they should be considered by a Board of Inquiry.  On 3 November 2011, the Minister of  Conservation  referred  the  matter  to  the  Board  appointed  by  the  Minister  to

determine the concurrent applications.4   Consistently with the statutory requirements

for  the  composition  of  such  a  Board  of  Inquiry,  it  was  chaired  by  retired Environment Court Judge Gordon Whiting, who was joined by four other appointed Board members including Environment Commissioner Helen Beaumont.

[15]     No issue is taken with the decision to appoint the Board, or any aspect of its composition.  The decision-making powers that the Board was exercising are set out

in s 149P of the Act which relevantly provides as follows:

3      Re-Starting Aquaculture: Report of the Aquaculture Technical Advisory Group, October 2009 at

[2.6].

4      Acting under ss 147(1), 149J and 149K of the Resource Management Act 1991 (RMA).

149P    Consideration of matter by board

(1)      A board of inquiry considering a matter must—

(a)       have regard to the Minister's reasons for making a direction in relation to the matter; and

(b)       consider any information provided to it by the EPA under section 149G; and

...

[16]     Section 149P also provides that where the Board is considering an application for a resource consent, the Board must apply those sections that usually apply to such  applications  (ss 104  to  112  and  s 138A)  as  if  the  Board  were  a  consent authority.  Similarly, subs (6) provides:

(6)       A board of inquiry considering a  matter  that is  a variation to a proposed regional plan, a proposed regional plan, or a change to a regional plan—

(a)       must apply clause 10(1) to (3) of Schedule 1 as if it were a local authority; and

(b)      may exercise the powers under section 293 as if it were the

Environment Court; and

(c)       must apply sections 66 to 70B and 77A to 77D as if it were a regional council.

[17]     As  to  the  appropriate  sequence  of  decisions,  s 149P  also  provides,  in subss (8) to (10) as follows:

(8)       A  board  of  inquiry  considering  a  plan  change  request  and  its concurrent application made under subpart 4 of Part 7A must—

(a)       firstly,  determine  matters  in  relation  to  the  plan  change request; and

(b)      secondly, determine matters in relation to the concurrent application, based on its determination of matters in relation to the plan change request.

(9)       For  the  purposes  of  subsection  (8)(b),  a  board  of  inquiry  must process, consider, and determine the concurrent application as if it were a regional council acting under section 165ZW and that section applies accordingly with all necessary modifications.

(10)      A board of inquiry must decline a concurrent application if, as a result of the board's determination on the plan change request, the

aquaculture activity that the concurrent application relates to remains a prohibited activity.

[18]   As the Board itself recognised, the legislative initiatives to incentivise aquaculture streamlined the process by which resource consents might be obtained, without altering the terms of the resource management tests that were to apply.5   The

2011 amendments streamlined the process by which resource consent applications could be dealt with and, where they raised a matter of national significance, introduced the prospect of the matters being determined by a different decision- maker.  It was quite likely within Parliament’s contemplation that a Board of Inquiry would   attribute   different   values   in   the   balance   between   preservation   of environmental attributes and enabling economic activities, than would be applied by a local authority that had provided for these different interests in its relevant plan. That was certainly the case here.

King Salmon’s applications

[19]     The resource management controls being administered by MDC at the time of  King  Salmon’s  applications  involved  two  coastal  marine  zones,  CMZ1  and CMZ2.   Marine farming was a prohibited activity in CMZ1.6     In CMZ2, marine farming was a discretionary activity and could be undertaken subject to MDC granting a resource consent on individual terms.  The 575 consented marine farms were in that zone.

[20]     King Salmon’s request for a plan change was pursued on the basis that the eight sites it had located, all of which were in CMZ1, should be spot zoned as a new CMZ3, specifying marine farming as a discretionary activity for which resource consents would be required on an individual basis.7

[21]     Annexed to this judgment as Appendix A is a plan of the relevant parts of the

Sounds, prepared for King Salmon, showing each of the sites in respect of which

5 Board decision at [107].

6      This was subject to some exceptions for marine farming activities that preceded the creation of the coastal marine zones.

7      King Salmon’s initial proposal was for the spot zones to have marine farming as a controlled activity which would not require individual resource consents, but that aspect was amended before the Board’s hearings began.

King Salmon requested spot zoning changes.  Moving across the Sounds from west to east, a first site was on the western shore of Waitata Reach (Waitata), and three of the sites were on the eastern shores of that water, at Kaitira, Tapipi and Richmond. Next, in the outer sounds at Gore Bay, King Salmon requested zoning for a larger site than all the others on the basis that any permitted farming activity would be rotated between areas within the new zone.  That site is also referred to as Papatua. Further east on the eastern shore of Queen Charlotte Sound, spot zone changes were sought in respect of sites at Kaitapeha and Ruaomoko.  Finally, adjoining the western shore of Tory Channel, at Ngamahau.

[22]     In addition to King Salmon’s zone change initiatives for those eight sites, it also applied for a resource consent for a site in the existing CMZ2 at White Horse Rock, adjoining the Waitata site.

The Board’s decision

[23]     The  Board  decided  to  make  zoning  changes  in  respect  of  the  Waitata, Richmond, Papatua and Ngamahau sites.  Consistently with that, it granted resource consents for King Salmon’s proposed marine farming operations at each of those four sites.  The Board declined to make zoning changes in respect of Kaitira, Tapipi, Kaitapeha and Ruaomoko sites.  In addition, it declined the resource consent sought for the White Horse Rock site.   I have had the outcomes at the respective sites marked on the plan at Appendix A, with ticks for those that were approved, and crosses for those that were not.

[24]     The Board conducted hearings over a period of 37 days in Blenheim, at the Waikawa Marae and at The Portage.  The Board read and, in the majority of cases, heard or received submissions from approximately 181 witnesses and submitters. The transcript of the hearings ran to more than 4,100 pages, and in addition there were 10,400 pages of evidence submitted.

[25]   The Board’s decision runs to 1,357 paragraphs over 372 pages and is accompanied by numerous appendices, including a sequence of proposals for the conditions  that  would  apply  to  resource  consents  if  granted,  together  with  the

Board’s final conditions of consent on an individual basis for each of the four sites

approved.

[26]     A   significant   issue   between   those   opposed   to   the   application   and King Salmon was the impact on the water column and the benthos or seabed, of the extent of fish feed pellets that would be used in the salmon farming operations. Numerous  variables  were  recognised  as  being  likely  to  influence  the  extent  of adverse effects, without data from existing experience that could be modelled to enable reliable conclusions in respect of each of the proposed sites.

[27]     Opponents argued that uncertainty over the extent of adverse effects required the Board to decline the request for a plan change.   King Salmon’s proposal was advanced on the basis that the plan change be approved in principle, subject to on-going monitoring to establish, as a result of actual experience at each of the approved sites, the extent of feed that could be released into cages without causing an unacceptable impact on the water column or benthos.  These opposing approaches were reflected in the contrasting emphasis on the concepts of a precautionary approach  for  the  opponents,  and  adaptive  management  for  King Salmon.    The appeals raised alleged errors of law in the way in which these two concepts were applied in the Board’s decision.

[28]     The  Board’s  decision  required  better  quality  baseline  information  to  be gathered at all the sites for at least a year before they could be stocked with any fish. That requirement was for two years at the Port Gore/Papatua site.8

[29]     The Board’s decision included extensive additions to the provisions in the Sounds Plan in respect of marine farming in its coastal marine zones, adding new spot zones as CMZ3, and substantially expanding the provisions in respect of discretionary activities in those zones.  Some of the new rules were generic to the new CMZ3, such as noise levels and the assessment criteria.   Others, such as maximum initial discharge of fish feed, and maximum increases in those tonnages,

were specified by reference to each site.  The rules for assessing the adverse effects

8      Board decision at [461], and condition 77 of the generic version of conditions. The Peer Review Panel that was provided for could extend the initial monitoring period to two years as well at Waitata and Richmond.

of discharges into the coastal water prescribed the nature of assessments that were required.9

[30]     Similarly, the resource consents for the four sites were issued  subject  to extensive  conditions,  many  of  which  fleshed  out  with  greater  specificity  the standards and controls set out in rules added to the Sounds Plan for CMZ3. The final conditions reflected an iterative process in which comments were received on draft terms, and changes made to reflect comments that were accepted as valid.

[31]     The decision reviews the evidence on diverse factual, scientific, cultural and navigational issues.  Any short summary of the effect of the findings would struggle to do justice to the comprehensive analysis, and is not in any event necessary when assessing the issues that arise on the appeals, which are confined to questions of

law.10      It  is  sufficient  to  introduce  the  specific  context  of  various  findings  in

describing the various grounds of appeal.

The planning documents

[32]     The context in which the Board had to consider the request for plan changes involved a hierarchy of planning documents of types that are provided for in the Act. First is the New Zealand Coastal Policy Statement 2010 (NZCPS).  It is provided for in ss 57 and 58 of the RMA, with the statutory purpose in s 56 of the RMA being to state policies in order to achieve the purpose of the RMA in relation to the coastal environment of New Zealand.  It comprises seven objectives and 29 policies.  The

Board observed in respect of it:11

The objectives of the Coastal Policy Statement are of a high and overarching level and are given more specific effect through the more detailed policies that follow.  The instrument addresses the characteristics, qualities and uses of the coastal environment, and the challenges that arise from the tension between development and maintaining the ecological integrity, natural character, cultural and recreational values of the coastal environment.

[33]     The  first  two  of  the  objectives  are  to  safeguard  the  integrity,  form, functioning and resilience of the coastal environment and sustain its ecosystems; and

9      See 35.4.2.10.3 of Appendix 3 to the Board decision.

10     RMA, s 149V.

11 Board decision at [83].

to preserve the natural character of the coastal environment.  The sixth objective is to enable people and communities to provide for their social, economic and cultural well-being through subdivision, use and development.

[34]     The  appellants  relied  particularly  on  Policy  3,  which  provides  for  a

“precautionary approach” in the following terms:

(1)       Adopt a precautionary approach towards proposed activities whose effects on the coastal environment are uncertain, unknown, or little understood, but potentially significantly adverse.

(2)       In particular, adopt a precautionary approach to use and management of coastal resources potentially vulnerable to effects from climate change, so that:

(a)       avoidable    social    and    economic    loss    and    harm   to communities does not occur;

(b)       natural adjustments for coastal processes, natural defences, ecosystems, habitat and species are allowed to occur; and

(c)       the natural character, public access, amenity and other values of the coastal environment meet the needs of future generations.

[35]     Of the other policies, 8, 13 and 15 were treated as material to the issues raised by the appeals. They provide as follows:

Policy 8: Aquaculture

Recognise the significant existing and potential contribution of aquaculture to the social, economic and cultural well-being of people and communities by:

a.including in regional policy statements and regional coastal plans provision  for  aquaculture  activities  in  appropriate  places  in  the coastal environment, recognising that relevant considerations may include:

i.        the need for high water quality for aquaculture activities; and ii.     the  need  for  land-based  facilities  associated  with  marine

farming;

b.taking account of the social and economic benefits of aquaculture, including any available assessments of national and regional economic benefits; and

c.ensuring that development in the coastal environment does not make water quality unfit for aquaculture activities in areas approved for that purpose.

Policy 13: Preservation of natural character

1.To preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use, and development:

a.avoid adverse effects of activities on natural character in areas of the coastal environment with outstanding natural character; and

b.avoid  significant  adverse  effects  and  avoid,  remedy  or mitigate  other  adverse  effects  of   activities  on  natural character in all other areas of the coastal environment; including by:

c.assessing the natural character of the coastal environment of the region or district, by mapping or otherwise identifying at least areas of high natural character; and

d.ensuring that regional policy statements, and plans, identify areas where preserving natural character requires objectives, policies and rules, and include those provisions.

...

Policy 15: Natural features and natural landscapes

To protect the natural features and natural landscapes (including seascapes) of the coastal environment from inappropriate subdivision, use, and development:

a.avoid adverse effects of activities on outstanding natural features and outstanding natural landscapes in the coastal environment; and

b.avoid significant adverse effects and avoid, remedy, or mitigate other adverse effects of activities on other natural features and natural landscapes in the coastal environment; including by:

c.identifying and assessing the natural features and natural landscapes of the coastal environment of the region or district, at minimum by land typing, soil characterisation and landscape characterisation and having regard to: [a series of considerations follow]

[36]     Beneath the NZCPS sits the Marlborough Regional Policy Statement (the MRPS).   The appellants did not criticise the parts of the  MRPS that had been identified by the Board as potentially relevant.   Rather,  criticisms were that  an insufficient level of respect was given to the policies in the MRPS, treated by the appellants as consistent with the national objectives set out in the NZCPS.   The

policies specifically identified by the Board from the MRPS were in the following areas:

[a]       That allocation of space for aquaculture will be based on marine habitat sustainability, habitat protection, landscape protection, navigation and safety, and compatibility with other adjoining activities – Policy 7.2.10(d);

[b]       The importance of public access to, and recreational use of, the marine resources of the district, for the wellbeing of its community – Policy 7.2.10; and

[c]      The importance of retaining the open, natural character of Marlborough’s coastal environment, including the land and water ecosystems of the coast – Policy 8.1.6.

[37]     From the appellants’ perspective, an objective in relation to the quality of the coastal marine water was also important.  That stipulated that water quality in the coastal  marine  area  was  to  be  maintained  at  a  level  which  provides  for  the sustainable management of the marine ecosystem.  Pursuant to that objective was a policy  to  avoid,  remedy  or  mitigate  the  reduction  of  coastal  water  quality  by

contaminants arising from activities occurring within the coastal marine area.12

[38]     These two policy statements are relevant because a regional plan is required to give effect to them.13    Thus, any changes to the Sounds Plan must give effect to the NZCPS and the MRPS.

The SOS appeal

[39]     The SOS challenge to the Board’s decision was the more wide-ranging of the two appeals in terms of the grounds of appeal raised, and also in terms of the relief sought.  SOS’s appeal raised challenges of three types.  First, that the Board erred in the sequence of its decision-making.   Section 149P(8) of the RMA required the respective decisions on a request for a plan change, and on applications for resource consent, to be made sequentially and in that order.  SOS argued that the Board failed to adhere to that sequence, in making both decisions together.  In terms of outcome, this arguably contributed to a decision on the plan change that depended on, or

anticipated, conditions on which specific resource consents might be granted.   In

12     See objective at 5.3.2 and the policy at 5.3.5 of the MRPS.

13     RMA, s 67(3).

terms of process, it allegedly caused a confusion of the criteria that ought separately to apply to the two stages if they had been kept distinct.

[40]     Secondly, SOS argued that the Board made a number of substantive errors in that components of the decision applied an incorrect legal test, that certain findings in its decision were made against the weight of evidence, or the Board’s conclusions were not open on the evidence as they found it to be.   Findings contrary to the evidence allegedly occurred to an extent that constituted an error of law on the

classic formulation  in  Edwards  v Bairstow.14      SOS  argued  that  the  conclusions

breached the precautionary approach that ought to have governed, and the outcomes failed the test that the Board had posed for itself on adaptive management.

[41]     A third category of challenge related to unlawful delegation of components of the Board’s decision, together with the unlawful restrictions on what ought to have been MDC’s discretion in monitoring the conditions of resource consents that were stipulated in the Board’s decision.

The alleged sequential error

[42]     The Board expressly acknowledged the sequence in s 149P(8) of the RMA, requiring it to first determine the matters in relation to the plan change request, and secondly to determine matters in relation to resource consents.  Notwithstanding that acknowledgement, SOS argued that both decisions were essentially made contemporaneously, with the Board’s view on the range of conditions that it could impose when granting resource consents being relied upon in reaching its decision to accede to some components of the request for a plan change.

[43]     SOS argued that the Board’s decision had conflated the separate tests that were required on the two determinations. This failure to apply the discrete legal tests for a plan change and a resource consent on a separate basis resulted in invalid and unlawful  decisions.     Further,  that  in  assessing  factual  matters  relevant  to  its decisions, the Board “jumbled together” its analysis of those factual matters that

were relevant in relation to plan changes, resource consents and consent conditions.

14     Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL). See also Bryson v Three Foot Six

Ltd [2005] NZSC 34, [2005] 3 NZLR 721.

[44]     Mr Palmer emphasised the importance of maintaining the proper sequence because a decision-maker at the plan change stage had to have regard to the full range of activities that a proposed plan change could subsequently permit.   The decision-maker risked being “blinkered” by the proposed specific activities to which a contemporaneous resource consent application related, if the two were evaluated together.

[45]     EDS did not raise this criticism as a ground of its own appeal, but supported SOS’s arguments.  EDS submitted that conflating considerations on the plan change that had been requested with resource consent conditions constituted error by the Board in the present circumstances.

[46]     The MDC also supported SOS’s first ground of appeal.  The MDC contended that the Board had adopted an approach of considering individual sites in terms of the request for a plan change, leading it to consider those on a “consent by consent” basis.   This epitomised the inappropriate anticipation of conditions of resource consents when considering whether to grant the request for a plan change.   The MDC criticised this as being particularly inappropriate for the coastal environment, and inadequate to give due respect to the objectives and policies in the NZCPS and the MRPS.   It was submitted that reliance on specific conditions that might be imposed pursuant to resource consents when granting a plan change was likely to leave the Sounds Plan in a form that was inadequate to meet the overall purposes of that plan.  In addition, the MDC cited concerns for the adverse consequences for it in on-going administration of the terms of resource consents as granted.

[47]     Mr Quinn’s submissions for MDC referred to procedural concerns about the sequence in which issues were going to be dealt with that had been raised before the Board, but which he stated “were not remedied by the Board”.  Mr Nolan contested this  procedural  criticism,  submitting  that  the  procedural  concerns  had  been responded to by a memorandum on behalf of  King Salmon, and that the Board convened a hearing in chambers, following which an agreed process was adopted.  I do not perceive a material criticism as to process that can advance the case for an alleged sequential error in the Board’s decision-making.

[48]     King Salmon’s  response  to  SOS’s  first  ground  of  appeal  was  that  the determinations were made in the correct sequence, and took into account the relevant legal criteria at each stage.   The Board’s combined analysis of contested factual matters was permissible and practical, given that the same factual matters were relevant to both decisions.   The extent of cross-over between matters taken into account in considering the request for a plan change, and the likely conditions on which  any  specific  resource  consents  could  be  granted,  was  appropriate  in  the context of this case and there were no respects in which the appellants could make out reliance on irrelevant legal considerations at either stage.

[49]     The  submissions  on  behalf  of  the  Crown  interests  also  supported  the lawfulness of the approach adopted by the Board.

[50]     From the outset of the Board’s analysis, it was appropriate and legitimate for it to approach the broad issue of whether any additional salmon farms should be permitted in the Sounds by focusing on the nature and extent, location and intended mode of operation of the salmon farms and their associated structures.  The nature and extent of any adverse effects would depend on the location and scale of the salmon farming activities.   There was therefore a close link between constraints, however imposed, on the nature and extent of any such operations, and decisions on both the request for a plan change and on specific resource consents to operate in any newly created zones.

[51]     In the Board’s review of, and conclusions on, the contested effects of any further salmon farms, the factual matters traversed clearly had potential relevance to both types of determination the Board had been asked to make.   This part of the report extended to some 227 pages. The Board’s review of the evidence it had heard, and the factual findings it made on the contested effects of further salmon farming,

were set out under the following headings:

Assessment of actual and potential economic effects

Ecology

Natural character, natural features and landscapes

Māori cultural issues

Amenity effects (noise, air quality and odour)   Social effects

Tourism and recreation

Navigation

Engineering

In each section, the Board reviewed the competing contentions and made findings.

[52]     Parts of that analysis that SOS cited as demonstrating the allegedly jumbled consideration of matters that ought to have been kept separate were in the following:

(Emphasis reflecting that used in submissions for SOS.)

[320]    We acknowledge that there are uncertainties in the modelling of the effects on the seabed particularly with respect to the exact size and shape of the depositional footprints.    However, these effects would be controlled by the conditions of consent and the proposed conditions are not dependent upon the outputs of the model.  If the effects have been underestimated then King  Salmon  would  be  required  to  reduce  the  level  of  effect  to  that authorised by the conditions.

…

[437]    We agree with the experts that the background data and information on water quality, as presented to the Board, is not an adequate description of the existing environment given the scale of the proposed increase in finfish farming and consequential release of nutrients into the marine environment. Some of this deficiency in information can be remedied through the conditions of consent requiring baseline monitoring.  Some is expected to be filled by the monitoring currently underway for the Council.  However there remains considerable uncertainty as to the nature of the receiving environment, including the trends in other nutrient sources, and consequently the ability of the Sounds to adequately assimilate a significant increase in nutrients.

[438]    We accept that the modelling of the nutrients introduced to the water column is conservative for the scenarios presented to us.   However those scenarios were generally for the initial feed rates for each farm and, for some of the modelling, the (higher) summer loadings.  The applications for each salmon farm seek almost double this feed level – the maximum conceivable feed levels as listed in the proposed conditions of consent.   The approach taken was in marked contrast to the modelling of effects on the benthos

which used these maximum feed levels.   This astonishing gap in the prediction of effects on the environment cannot be explained away by emphasising that the modelling is conservative and nor can it simply be filled by invoking adaptive management.  It is a fundamental failing in the assessment of effects on the environment that we would not expect to see in a project of this magnitude and importance.

[439]    Accordingly  we  can  only  consider  granting  consent  for  these graduated increases in feed discharge levels with any increases based on a more  robust  monitoring  and  adaptive  management  regime  than  that presented in the proposed conditions.

[53]     Given the scale of the Board’s task, reviewing the contested factual matters in the manner it did was clearly among the options open to the Board.  A combined factual analysis of the issues that were likely to be relevant to either or both of the decisions it had to make did not preclude the prospect of the Board applying those factual findings to the different legal considerations required at each stage.  Nothing in the analysis of effects undertaken under each of the headings set out in [51] above committed  the  Board  to  a  particular  outcome.     If  its  analysis  on  the  first determination  had  resulted  in  a  decision  that  no  plan change  request  would  be approved, then the matter would simply have ended there.

[54]     I  accept  Mr Nolan’s  submission  for  King Salmon  that  there  can  be  no justification for imposing on the Board a requirement for a repetitive analysis of the same factual matters.  These would need to be set out separately for the purposes of the first, and then potentially for the second, of the discrete decisions the Board had to make.

[55]     A possible rejoinder for SOS is that the Board’s combined analysis of factual matters for the purposes of both decisions created the risk that its combined factual analysis would cloud the different contexts in which those matters might need to be considered  for  the  separate  decisions,  leading  the  Board  into  legal  error.    That concern has to be tested against the reasoning processes adopted in the later components of the Board’s decision where it applied the factual findings to the separate legal tests for both decisions.  With one exception, there was no criticism that the Board had applied other than the standard provisions from the RMA, as

would have been the case had the request and applications been processed separately by the local authority in the usual way.15

[56]     An important aspect of SOS’s criticisms on sequence was that in the Board’s assessment of King Salmon’s request for a plan change, it relied on the constraints on the extent of salmon farming activity that could be imposed by means of conditions on any resource consents.   SOS argued that the Board could not have been satisfied that a plan change was warranted, without relying on conditions that it anticipated could be imposed in a subsequent decision, when granting site-specific resource consents.

[57]     Near the outset of part of the Board’s decision headed “Evaluation of Plan

Change”, the Board described this aspect of its task in the following terms:16

We are to apply the relevant Part II matters when balancing the findings we have made on the many contested issues.  Many of those findings relate to different and sometimes competing principles enunciated in Part II of the RMA.  We are required to make an overall broad judgment as to whether the Plan Change would promote the single purpose of the RMA – the sustainable management of natural and physical resources. As we have said earlier, Part II  is  not  just  the  starting  point  but  also  the  finishing  point  to  be considered in the overall exercise of our discretion.

[58]     Thereafter, the Board analysed the matters it considered to be relevant that were in favour of, or opposed to, the plan change that had been sought on behalf of King Salmon.

[59]     In undertaking an appropriate analysis under s 32 of the RMA, the Board determined  that  the  current  form  of the  relevant  plan, including the zoning for relevant purposes, did not adequately provide for the requirements for salmon farming.  The Board recognised that provisions for salmon farming in the Sounds was a resource management issue that needed to be addressed in the plan.  Those opposing the plan change sought retention of the status quo, but the Board did not consider that retaining the status quo was the most appropriate way of achieving the

objectives and policies of the plan.17  The Board then acknowledged:18

15 SOS criticised the way the Board articulated one test, considered at [86]-[89] below.

16 Board decision at [1227].

17     Board decision at [1204], [1205].

Our  analysis  of  findings  on  the  many contested  issues  is  effectively an evaluation of the various costs and benefits.  The conclusion we have come to with respect to the contested issues forms the basis of our evaluation.

[60]     The Board’s decision then summarised those findings.  Some were dealt with at a generalised level in relation to the impact on the Sounds of the proposed change to the Sounds Plan.   Other effects were necessarily site-specific and  they were considered by reference to individual sites.

[61]     SOS did not submit that the Board failed to have regard to the relevant statutory criteria in undertaking the analysis as to whether to accede to the request for a plan change.  I am satisfied that the Board did approach the request for a plan change by applying the relevant statutory considerations.

[62]   SOS drew particular attention to certain passages from the decision as demonstrating the Board’s confusion as to the sequence required in its decision- making.  These extracts come from the Board’s “Part 2 assessment” in considering the proposed plan change:19

Sustainable management is measured against the guiding principles set out in Part II of the RMA. We have given effect to the principles by:

…

[b]      Ensuring that adverse effects on the environment are avoided, or at least mitigated – Section 5.

Where we have identified adverse effects on the environment for a particular site that on balance weigh against the proposed plan change, we have denied the requests.  Where we have approved the request, we have done so aware of the conditions of consent that are designed to mitigate any adverse effects.  These matters have been evaluated in that part of this decision under the heading “Contested Effects;

…

We are satisfied, that for the reasons given throughout this decision, that the precepts enunciated in Part II of the RMA have been applied and balanced in the  final  analysis.   We  also  consider  we  have  appropriately applied  the precautionary principle.  In some instances we have been influenced by the degree of uncertainty, at least in part, to the extent that parts of the request have been denied, for example, the uncertainty regarding the King Shag in

18 At [1209].

19     Board decision at [1277] and [1278].

the Waitata Reach.  In other instances we have been comforted on matters of uncertainty by the strong proposed adaptive management conditions of consent.

[63]     The essence of SOS’s argument on this point was that the Board’s reliance on the  constraints  on  salmon  farming  activity that  could  be  imposed  by  means  of conditions  on  which  subsequent  resource  consents  might  be  granted  was  an irrelevant consideration.  I am not persuaded that it was.  The impact of any salmon farming activity that  could be conditionally provided for in a plan change as a discretionary activity will depend most importantly on the scale of the salmon farming activity, and the precise locations within the Sounds in which provision is made for it.

[64]     The Board was standing in the shoes of the MDC in considering the request for a plan change.   It would be somewhat artificial for the MDC to disregard the nature and extent of constraints on the scale of salmon farming activities that might be imposed, when  assessing a request for a plan change.   The evaluations and balancing of interests required under the Act would be hampered if the decision- maker was precluded from having regard to the reduction of the effects of salmon farming that might legitimately be achieved by means of conditions imposed on any resource consent subsequently granted.

[65]     I am not persuaded that the extracts from the Board’s decision quoted in [62] above demonstrate any confusion about the sequence of decision-making that was required.  In the context of an activity where its scale and location will be critical in an evaluation of its sustainability, I am satisfied that the Board’s analysis was lawful.

[66]     In  EDS’s  support  for  SOS’s  criticism  of  the  alleged  “sequential  error” committed by the Board, Mr Enright invited analogy with the reasoning of the Court of Appeal in a 2009 appeal about the scope of a local authority’s obligations in considering its discretion to require notification of a resource management application.20   The appeal involved a challenge to a local authority’s decision not to

notify.  The appropriateness of a local authority taking into account conditions that

20     Auckland Regional Council v Rodney District Council [2009] NZCA 99, [2009] NZRMA 453.

would impact on any adverse effects was a context-specific one.  The Court cited an earlier High Court decision in which the same Judge had observed:21

It would defy common sense if when making the s 93 decision [ie whether to notify an application] the consent authority could not have regard to the practical reality of what adverse effects on the environment would be.  To determine that self-evidently requires consideration of conditions that would affect such reality.

[67]     The pragmatism in that approach is compelling.  It reinforces the view I have come to that any absolute rule precluding the consent authority from anticipating the likely range of conditions pursuant to which resource consents might be issued, when  undertaking  the  Part  2  analysis  on  a  plan  change  application,  would  be counter-productive, and is certainly not warranted.

[68]     Accordingly, it was lawful for the Board to have regard to the range of conditions that might subsequently be imposed on a resource consent when considering the request for a plan change.  In this case, sequential decisions were to be made in light of extensive evidence.   It would risk an illogical outcome if the Board was precluded from considering the likely range of specific conditions it might impose when setting the parameters of the use that would be permitted, in the event that some or all components of the plan change request were granted.

[69]     I am not dissuaded from that view by Mr Palmer’s concern that an applicant in King Salmon’s position might get approval for a site-specific plan change, but then not commence the form of activity contemplated at the time, the scope of which was to be defined by conditions of a resource consent.  His concern was that a plan change might have made provision for a discretionary activity, being influenced by constraints that then do not govern subsequent activity.  This could arise if another operator subsequently applied for and was granted a resource consent for marine farming to be operated differently from that proposed by King Salmon and without the same constraints that were to attach to its resource consent.  That concern is not realistic  in  the  present  situation.     The  Board’s  decision,  including  numerous iterations of the extensive conditions on which resource consents would be available

to King Salmon, would remain available to the MDC.  The decision would no doubt

21     At [59] per Baragwanath J, citing from Montessori Pre-School Charitable Trust v Waikato

District Council [2007] NZRMA 55 (HC) at [12].

influence MDC’s approach to any other operator applying for a resource consent in relation to any of the sites to which the plan change approval related, in the unlikely event that King Salmon did not proceed with the activity for which it has now been given specific resource consents.

[70]     Whilst I accept that, conceptually, the concurrent process for analysing both types of application could give rise to the decision-maker being “blinkered”22 at the first stage by the specific proposals to be addressed at the second stage, I have not found any aspect in which the Board’s reasoning on the first stage involved error of this type.

[71]     SOS’s first ground of appeal cannot be made out.

Substantive errors

[72]     A second group of errors in the Board’s decision alleged by SOS related to potential substantive errors of law in the decision.  The first of them was the Board’s alleged failure to apply the precautionary principle or approach.23

Failure to apply the precautionary approach

[73]     The  Board’s  decision  acknowledged  that  the  precautionary  approach  is derived from international law, and cited principle 15 from the Rio Declaration on Environment and Development 1992.  The essence of it is stated in Policy 3 of the NZCPS.24

[74]     The Board reviewed the application of the precautionary approach as  its effect had been distilled in an Environment Court decision reflecting prior Environment Court and High Court decisions.  That summary reflected the following

points:25

22 As foreshadowed at [44] above.

23     King Salmon’s response on this point treated “precautionary principle” as a misnomer when it suggested it should more correctly be described as “the precautionary approach”.   The latter expression is used in the NZCPS and is accordingly adopted here.

24 As quoted at [34] above.

25     Board’s decision at [176], distilled from the summary in Sea-Tow Ltd v Auckland Regional

Council EnvC Auckland A066/06, 30 May 2006 at [462].

a careful balanced judgement is required; in some cases that may only be achieved by adopting a precautionary approach;

the precautionary approach may be applied to influence the exercise of a

discretion to the extent consistent with the purpose of the RMA;

even if there is a dispute of material fact, that does not necessarily mean that the precautionary approach must be adopted: rather, the obligation is

to consider the evidence; and

a precautionary approach should only be applied where there is scientific uncertainty or ignorance about the scope or nature of the relevant environmental  harm;  there  needs  to  be  a  plausible  basis,  not  just  a

suspicion or innuendo, for adopting the precautionary approach.

[75]     The Board followed this summary with its own observation:26

The measure of risk and its assessment and the acceptable degree of risk avoidance are matters of fact in each particular case.  The RMA is not a “no risk” statute and it is necessary to take a pragmatic approach to both the risk itself and its prevention.

[76]     The  argument  for  SOS  was  that  the  precautionary  approach  forbids  or prevents an activity where there is a scientific uncertainty as to its adverse effects. Mr Palmer argued that had the precautionary approach been upheld, then it would have required the Board to reject all components of the request for a plan change. Alternatively, even if the precautionary approach did not prevent the plan change being made, in any subsequent consideration of resource consents it should have led to their refusal.

[77]     An aspect of SOS’s criticisms of the Board’s approach on this point was that the Board had allegedly confused the precautionary approach with an adaptive management approach.  This was said to be reflected in the following paragraph of

the Board’s decision:27

26     At [177] (citations omitted).

27 At [179].

It is the precautionary approach that has, at least in part, given rise to what has become known as the “adaptive management” approach.  This provides for ongoing monitoring of the effects of an activity, in order to promote careful   and   informed   environmental   decision-making,   on   the   best information available.   It is a precautionary technique that provides a pragmatic way forward, enabling development while securing the ongoing protection of the environment, in complex cases where there are ecological or technological uncertainties as to the effects of the proposal.

Mr Palmer argued that the difference in the two concepts meant that the extent to which a precautionary approach required the decision-maker to find against an application could not be lessened by anticipating that the impact of scientific uncertainty could be managed by an adaptive management approach.

[78]     EDS and MDC supported this ground of  SOS’s appeal, but did not add materially to the arguments in support of it.

[79]     In  defending  the  way  in  which  the  Board  dealt  with  the  precautionary approach, King Salmon submitted that the Board did take it into account, and that the extent to which it had regard to it was a matter of weight for the Board, so that there  was  no  arguable  error  of  law.    Mr Nolan  characterised  the  utilisation  of adaptive management as a part of a precautionary approach as entirely conventional, it having been adopted in that way in a number of decisions, particularly in relation

to the marine environment.28   Mr Nolan pointed to the reasons for declining the plan

change request in relation to four sites as reflecting a precautionary approach where the level of uncertainty about potential adverse effects was relied on by the Board in its decision on those sites.

[80]     To constitute an error of law in the present context, SOS would have to make out an absolute obligation to apply the precautionary approach in given circumstances.  In practical terms, the effect of the argument for SOS was that once the Board found a realistic scientific uncertainty on the potential adverse effects of the salmon farming activity, then the Board was obliged to decline the aspect of the

request for a plan change in respect of which that uncertainty arose.  However, as

28     The Environment Court decisions he cited included Golden Bay Marine Farmers v Tasman District Council EnvC Christchurch W42/01, 27 April 2001; Golden Bay Marine Farmers v Tasman  District  Council  EnvC  Wellington  W19/03,  27  March  2003   and  Minister  of Conservation v Tasman District Council HC Nelson CIV-2003-485-1072, 9 December 2003.

with many important aspects of the Board’s decision-making tasks, the application of the precautionary approach was evaluative, and not definitive.

[81]     The essence of the Board’s approach was that the extent of adverse effects that could not be accurately modelled prior to commencement of a level of salmon farming activity was less important than it would otherwise be, because an adaptive management regime could be used to regulate the level of the activity, and thereby control the risk of unacceptable adverse effects.

[82]     SOS’s challenge to this approach  is essentially a parallel to Mr Palmer’s earlier argument that there was no lawful scope for the Board to have regard to the potential for constraints imposed as conditions of resource consents, when considering whether a plan change should be made.  There is no prohibition, as a matter of law, on a decision-maker dealing with a request for a plan change in reliance on the anticipated scope and utility of conditions pursuant to which resource consents might subsequently be granted.   In each case, it will be a question of whether that approach is valid and justified.  So, too, the level of concern a decision- maker is obliged to register because of a scientific uncertainty that triggers the precautionary approach can take into account the extent by which such concerns may be ameliorated by the utility of an adaptive management regime.

[83]     There are likely to be situations in which adaptive management conditions could not reasonably be treated as ameliorating concerns that arise because of uncertainty as to the nature and extent of unknowable adverse effects.   In such circumstances, it is to be expected that the precautionary approach would weigh very heavily against granting a resource management application.  However, it is for the decision-maker in each factual situation to assess the nature and possible extent of presently unquantified adverse effects, against the prospects that such adverse effects could be controlled sufficiently by an adaptive management regime.

[84]     In arguing that I could not interfere on this, or any of the other alleged substantive errors of law when the criticism went to the weight given by the Board to

various factors, Mr Nolan provided a relevant reminder of the narrowness of the task

I have, from the following observation by the Court of Appeal:29

… As in the Arrigato case, we consider that the decision of the High Court represents more of an independent assessment by the Judge than a consideration by him of whether the conclusion to which the Environment Court came was open to it in law.  The Judge did not interpret the objectives and policies and then identify the manner in which they had been misinterpreted or misunderstood by the Environment Court.   Rather he worked  backwards.     He  reasoned  that  because  the  proposal  was  not consistent with the objectives and policies, as he saw them, the Court must have misinterpreted or misunderstood them.  There is a difficulty with that reasoning.   The Environment Court may well have taken a different view from the Judge about whether the proposal was contrary to the objectives and policies.   It was not for the Judge to differ on an appeal limited to questions of law.

In  these  appeals,  the  decision  of  the  Board  is  the  equivalent  of  that  of  the

Environment Court in the situation the Court of Appeal was commenting on.

[85]     In the areas where uncertainty as to the projected effects of salmon farming triggered the potential application of the precautionary approach, it was open to the Board  to  assess  the  weight  that  should  be  given  to  it,  as  a  component  of  the influences on a lawful decision.  Each context-specific assessment would depend on the extent of the uncertainty, the potential range of adverse effects, and the extent to which the decision-maker was satisfied that the uncertainty of adverse effects could be dealt with by adaptive management.   I therefore agree with the response for King Salmon that the weight given by the Board to the precautionary approach was a matter within its decision-making discretion, and the weight it has decided to give it cannot constitute an error of law.

Incorrect application of legal test

[86]     The context in which SOS pursued these challenges included criticism of the Board as having incorrectly expressed the legal test it had to apply.   The Board’s assessment under Part 2 began with the following observations:30

Looking at the Proposed Plan Change we think that we have struck the right balance by allowing constrained development in the Sounds.   A balance

29     Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [13].

30 Board decision at [1276].

between providing for the social and economic well-being of the community and achieving sustainable management of the natural and physical resources of the Sounds.  (emphasis added)

[87]     Mr Palmer submitted that it misconstrues the statutory test to contemplate a balance between provision of social and economic well-being of communities on the one hand, and achieving sustainable management of the natural and physical resources on the other.   Rather, he argued that on the purpose of the RMA in s 5, sustainable management had to incorporate social and economic well-being.   The consequence of the error was alleged to be a balancing exercise undertaken on a legally incorrect premise.

[88]     Mr Nolan’s  response  to  this  for  King Salmon  was  to  the  effect  that  the Board’s analysis ought to be tested on its substance, and not by reference to a single expression of how it intended to undertake it.  It was urged for King Salmon that the substance of the analysis did undertake a balancing of interests on a lawful basis, applying an approach that was legally open to the Board.

[89]     Measuring the whole of the Board’s assessment under Part 2 of the RMA on the requests for a plan change, I am not satisfied that there was any error in the legal approach adopted.  The balancing of the interests to be reflected in the concept of “sustainable management” as defined in s 5(2) of the RMA is not narrowly defined. As always, context will be relevant to its application.  In the context of this proposed plan change, one form of balancing predictably undertaken was between the economic  and  social  advancement  of  the  affected  communities  from  increased salmon  farming  activities,  and  the  extent  of  adverse  effects  that  activity  might involve on the natural and physical attributes of the Sounds.   This evaluation is contemplated by s 5(2) in giving effect to the principle of sustainable management.

Decisions contrary to the evidence

[90]     SOS argued that material factual findings made by the Board prevented it lawfully deciding to approve any component of the plan change, and similarly prevented it from granting resource consents.  It was submitted that had the Board lawfully applied the purpose and principles of the RMA, as well as the NZCPS and the MRPS, then it could not have arrived at the decisions that it did.

[91]     Mr Palmer’s submissions referred to a series of conclusions made by the Board in the course of reviewing the contested effects, which he argued should have required the requests for a plan change to be declined.   These included the acknowledgement that it was difficult to evaluate the potential economic impact. Mr Palmer was critical of the Board’s conclusion that each of the farms would be of economic benefit, but to an unquantifiable extent.

[92]     The Board’s review of the evidence of economic impact concluded that the evidence of one witness for King Salmon, Dr Kaye-Blake was “somewhere close”. That projection had been done on the basis that all nine farms were approved.  The Board was conscious that the total impact might be affected by the scale of all operations but remained satisfied that each of the farms:31

… individually would have economic benefit at a local, regional, and to a much lesser extent, a national level.  We accordingly find that in exercising our judgement, each of the farms, both individually and collectively, would be of economic benefit.

[93]     A part of Mr Palmer’s criticism of the inadequate consideration of economic benefits that might follow from a plan change was the Board’s omission to factor in the contingent cost of dealing with a major ecological hazard or even ecological disaster.   His argument was that any thorough analysis of the economic benefits would include the full range of costs, and that had not been done unless an amount was included for the contingent costs of remediation and costs of claims against the operators  for  significant  environmental  damage.    Mr Palmer  argued  this  was  a necessary ingredient in light of the definition of “effect” in s 3 of the RMA, which includes adverse future effects regardless of their scale or intensity, and any potential effect of low probability, which has a high potential impact.

[94]     Mr Gardner-Hopkins responded to this criticism on behalf of King Salmon. He submitted that the way in which the Board considered economic benefits, and the components  of that  analysis,  were a matter  entirely for the Board.    He invited analogy  with  the  reasoning  in  Meridian  Energy  Ltd  v  Central  Otago  District Council, where a Full Court of the High Court had rejected the concept of any

mandatory  requirement  for  all  costs  and  benefits  to  be  quantified  in  economic

31     Board decision at [268], and see also [262] and [267].

terms.32   The Court in Meridian went on to observe that evaluations of the merits of proposals by consenting authorities involved such an evaluation as perceived by the decision-makers:33

A degree, even a relatively high degree, of subjectivity is virtually inevitable.

[…]

Parliament has not mandated that the decisions of consent authorities should be “objectified” by some kind of quantification process.   Nor does it disparage, as a lesser means of decision making, the need for duly authorised decision makers to reach decisions which are ultimately an evaluation of the merits of the proposal against relevant provisions of policy statements and plans and the criteria arrayed in Part 2.  That process cannot be criticised as “subjective”.  It is not inferior to a cost benefit analysis.  Consent authorities, be they councillors, commissioners or the Environment Court, and upon appeal the High Court Judges, have to respect that reality and approach decision making in accordance with the process mandated by the statute.  It is not a good or bad process, it simply is the statutory process.

[95]     It  is  understandable  that  opponents  of  such  a  proposal  would  urge  the decision-makers to view the economic benefits less positively, by virtue of the need to make some allowance for the contingency of the costs of the venture causing ecological harm.  However, if the decision-makers are not persuaded to incorporate such a factor in their analysis, then there is no way that an opponent can characterise its rejection as an error of law.

[96]     Mr Palmer also emphasised that the effects on the seabed below the farms would be adverse and likely to persist for some years.  The Board accepted that the area beneath the proposed salmon farms would be highly impacted, with greatly reduced biodiversity and significant changes in sediment chemistry.  Any recovery from excessive enrichment was found to be difficult at sites with a low tidal flow. SOS also focused on the Board’s acknowledgement of a “paucity of data” with “considerable uncertainty” about the existing water quality and “an astonishing gap

in the prediction of effects on the environment”.34    The Board commented that this

was a “fundamental failing in the assessment of effects on the environment that we would not expect to see in a project of this magnitude and importance”.35   However,

32     Meridian Energy Ltd v Central Otago District Council [2011] 1 NZLR 482 (HC) at [106].

33     At [110], [111] (citations omitted).

34     Board decision at [372], [437] and [438].

35 At [438].

the Board considered the inadequacies in data was a matter that could be managed through conditions imposed on the resource consents.36

[97]     The Board also acknowledged gaps in the information about the rare endemic King Shag, and the ability of those birds to adapt to additional salmon farming activities in the areas where they roost.  Again, ultimately the Board was satisfied that adverse impacts on its habitat could be managed through conditions on resource consents, and in particular a requirement for a King Shag management plan.37

[98]     Given these and other findings by the Board about potential adverse effects of the proposed salmon farms, SOS submitted that the overall purpose of the RMA in s 5  counted  heavily  against  granting  the  request  or  applications  for  resource consents, because of the explicit purpose of promoting the sustainable management

of natural and physical resources38  and safeguarding the life-supporting capacity of

water.39    To adequately counter-balance these adverse effects on a s 5 analysis, the proposals would have required a clear and robust extent of economic benefit.  SOS argued  that  assuming  the  existence  of  any  such  countervailing  advantage  was contrary to the evidence when the Board accepted that it could not quantify the extent of economic benefits.

[99]     SOS also argued that the inevitable outcome of a correct application of the s 5 criteria was supported by the considerations stipulated in ss 6 and 7 of the RMA. Section 6 required a decision-maker in the Board’s position to recognise and provide for the preservation of the natural character of the coastal environment and the protection of outstanding natural features and landscapes from inappropriate development.40   Matters to which the Board was required to have particular regard in terms  of  s 7  included  intrinsic  values  of  ecosystems,  the  maintenance  and enhancement  of  the  quality  of  the  environment  and  the  ethic  of  stewardship.

Although Mr Nolan was not specific about s 7 factors, King Salmon’s defence of the

36 At [439].

37 At [533].

38     RMA, s 5(1).

39     RMA, s 5(2)(b).

40     RMA, s 6(a) and (b).

Board’s  decision  could  have  cited  s 7  factors  including  the  efficient  use  and development of natural and physical resources.

[100]   I am not persuaded that the Board’s decision failed to comply with the s 6 obligation to recognise and provide for matters of national importance, or s 7 matters to which it was required to have particular regard.   In circumstances where it recognised and rationalised those factors, their influence on its decisions are a matter of weight, for the Board to determine.

[101]   SOS raised comparable arguments that the Board could not have arrived at the decisions it did, if it complied with its obligation to give effect to relevant provisions in the NZCPS and the MRPS.  Both planning documents attribute priority to avoidance of potentially serious environmental effects such as those identified by the Board.  The MRPS requires a precautionary approach to assessment of marine farming proposals  where they might  conflict  with  the environmental  objectives, deferring  activity  until  there  is  sufficient  information  about  the  impact  on  the relevant environment.

[102]   In supporting the SOS appeal, MDC raised an allied challenge in respect of the alleged failure by the Board to give effect to the planning documents in its decision.  The Board was required by s 67(3) of the RMA to ensure that any changes to the Sounds Plan give effect to the NZCPS, and any regional policy statement (ie the MRPS).  MDC argued that the decision failed to do so, constituting an error of law.   Predictably, the MDC focused most on the respects in which the Board’s decision failed to give effect to the MRPS.

[103]   MDC’s  submissions  highlighted  objectives  and  policies  from  its  MRPS. These included the visual amenity value of the Marlborough Sounds as identified in Objective 7.1.2 and Policy 7.1.7.   The Board’s analysis of contested effects had found that farming at each of the proposed sites would have actual, or at least potential, significant adverse effects on the current visual amenity of the coastal environment.  So, too, Objective 8.1.2 and Policies 8.1.3, 8.1.5 and 8.1.6, which seek to ensure that the diversity of Marlborough’s landscapes is recognised and not diminished  by  land  and  water-based  activities.     Mr Quinn  summarised  these

provisions as reflecting a theme that the natural character, landscape and recreational values were to take priority in public coastal space.   He submitted that the stark contrast between those provisions and the plan change approved, together with the resource consents granted, undermine those provisions so that the Board’s decision could not be said to give effect to the MRPS.

[104]   King Salmon responded to each of these criticisms by SOS and MDC by characterising them as matters of weight.  Depending on the level of abstraction at which the analysis was undertaken, the relevant components of the Board’s decision could be seen as giving effect to the planning documents, with those components under attack all having been arrived at by the Board taking into account the factors which SOS and MDC listed as counting against the plan change, and the subsequent resource consents granted.

[105]   Submissions for King Salmon pointed out that the Board appeared to have agreed with the planners who suggested that, in many respects, the MRPS gave little policy  direction  above  that  already  contained  in  the  RMA.41    King Salmon’s submissions also referred to a precautionary observation in a 2005 Environment Court decision involving the MRPS, where the lack, for example, of a “crisper set of objectives and policies” justified planners’ concerns that the MRPS “… tries to be all things to all people”.42

[106] King Salmon instanced the approach taken by the Board by citing extracts from its reasoning in respect of the Papatua (Port Gore) site. The first of those extracts is cited at [57] above. The remainder of the extracts cited by King Salmon were as follows:43

Port Gore, and in particular Pig Bay, is the site of the proposed Papatua farm. Port Gore, in the overall context of the Sounds, is a relatively remote bay. The land adjoining the proposed farm has three areas of different ecological naturalness ranked low, medium and high, within the Cape Lambert Scenic Reserve.  All the landscape experts identified part of Pig Bay adjoining the proposed farm as an area of Outstanding Natural Landscape.

41 Board decision at [1187].

42     Kuku Mara Partnership v Marlborough District Council (2005) 11 ELRNZ 466 (EnvC) at [86].

43     Board decision at [1235]–[1236] and [1241]–[1243].

We have found that the effects on natural character at a site level would be high, particularly on the Cape Lambert Reserve, which is recognised as an Area of Outstanding Natural Character. We have also found that there would be high to very high adverse visual effects on an Outstanding Natural Landscape.  Thus the directions in Policy 13(1)(a) and Policy 15(1)(a) of the Coastal Policy Statement would not be given effect to.

…

We  have,  also,  to  balance  the  adverse  effects  against  the  benefits  for economic   and   social   well-being,   and,   importantly,   the   integrated management of the region’s natural and physical resources.

In this regard, we have already described the bio-secure approach, using three  separate  groupings.   The  Papatua  site  is  particularly important,  as King Salmon could operate a separate supply and processing chain from the North Island.  Management of the biosecurity risks is critical to the success of aquaculture and the provision of three “biosecure” areas through the Plan Change is a significant benefit.

While  the  outstanding  natural  character  and  landscape  values  of  outer Port Gore count against the granting of this site the advantages for risk management and the ability to isolate this area from the rest of the Sounds is a compelling factor.   In this sense the appropriateness for aquaculture, specifically for salmon farming, weights [sic] heavily in favour. We find that the proposed Papatua Zone would be appropriate.

[107]   It was not argued on this ground of appeal that the Board overlooked, or failed to acknowledge, a statutory requirement or planning document that had to be taken into account in reaching its decisions.  Rather, SOS and MDC argued that the Board could not have reached the decisions it did if it had given proper regard to the planning documents which the Board did consider.

[108]   The Board’s analysis proceeded from two relevant premises.  First, that the MRPS made inadequate provision for marine farming activities.  Secondly, that the planning documents, and in particular the MRPS, contained objectives that were inconsistent, or least reflected potentially contradictory values.  It therefore followed that the Board’s decision could not uphold, in an absolute sense, every objective and policy in the MRPS.

[109]   This second premise is hardly novel.  As Mr McCarthy pointed out for the Crown interests, the Environment Court has previously approached such decisions recognising  that  different  policies  overlap,  and  at  times  can  conflict  or  pull  in different directions.   He cited the observations of the Environment Court in the

context of a development of a port that conflicted with identified Māori cultural and

spiritual values:44

Some of these policies might in the circumstances of a particular case be irreconcilable.  It may not be possible, for example, to preserve the natural character of the coastal environment while providing for the future infrastructural requirements of the Port.   Nevertheless, in reaching an integrated decision it is the Court’s duty to seek an outcome of sustainable management …

[110]   The approach relying on those two premises was, as a matter of law, at the very least open to the Board.   Once they are accepted, then it follows that the decisions arrived at by considering competing objectives and policies do reflect considerations of weight. A good deal of Messrs Palmer and Quinn’s submissions in this regard would obviously have had a quite different emphasis if this had been a general appeal.   I might relatively easily have been persuaded that greater weight ought to have been given to objectives intended to preserve the natural environment

of the Sounds.  However, the scope for finding error is confined to errors of law.45

[111]   The ultimate component of this part of SOS’s appeal was that the Board’s decisions were so starkly contrary to the evidence that they involved an error of law. As Mr Nolan submitted for King Salmon, making out a decision inconsistent with the evidence as an error of law requires a plaintiff to surmount a very high hurdle.46

In this context, the Supreme Court has adopted expressions from the House of Lords

that the state of affairs needs to be one “in which there is no evidence to support the determination” or “one in which … the evidence is inconsistent with and contradictory of, the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.47

[112]   The difficulty for SOS and MDC is that they have not criticised the Board, for example, for finding that there were no potentially severe adverse effects on the environment at a given location when the evidence would have forced the Board to

the conclusion that there were.  Rather, the criticism is that having found such severe

44     Te Runanga O Ngai Te Rangi Iwi Trust v Bay of Plenty Regional Council [2011] NZEnvC 402 at

[258].

45     See Court of Appeal comments in Dye v Auckland Regional Council quoted at [84] above.

46     Citing Bryson v Three Foot Six Ltd, above n 14, at [25]–[27].

47     Taken from Lord Radcliffe’s speech in Edwards (Inspector of Taxes) v Bairstow, above n 14, at

inconsistent with the purpose of the RMA and the evolved jurisprudence on consideration of proposed plan changes.

[145]   Mr Enright’s rejoinder to this point was to reject “veto” as a misnomer.  He urged that priority had to be given to the policies expressed in words that were nearer to the mandatory or directory end of a continuum, the opposite end of which was policies expressed in permissive terms.  He characterised Policy 13 as requiring an “avoidance approach” by reference to use of the verbs avoid, protect and preserve.

[146]   Mr Enright also argued that for areas of the coastal environment to which Policies 13 and 15 applied (ie in particular areas of outstanding natural character or outstanding natural landscapes), the objectives of those policies were paramount.  He contrasted their terms with those of Policy 8,  which required recognition of the contribution aquaculture could make only “… in appropriate places in the coastal environment …”.  On Mr Enright’s approach to interpreting the respective policies, those parts of the coastal environment protected by Policies 13 and 15 were, by definition, excluded from the “appropriate places” contemplated by Policy 8.

[147]   Mr Nolan’s response to EDS’s argument for narrowing the application of Policy 8 was that “appropriate places” were not to be assessed in that broad way so as to render “inappropriate” any parts of the coastal environment that other policies might suggest should be preserved.  Rather, he argued that the nature of places that were “appropriate” was to be interpreted in light of the context in which that expression was used in subpara a. of Policy 8.   Those considerations included the need for high water quality, and the need for land-based facilities associated with marine farming.  They suggest that “appropriateness” is to be measured relative to suitability to conduct marine farming at that location.

[148]   I   incline   to   Mr Nolan’s   approach   to   the   interpretation   of   what   are “appropriate places”.   If the drafters of the NZCPS intended to exclude areas of particular  natural  attributes  from  places  that  could  be  appropriate  for  Policy 8 purposes, then the scope of that exclusion might reasonably have been made explicit.

[149]   Further,  adopting  Mr Enright’s  approach  would  involve  excluding  some coastal environments from consideration for marine farming activities absolutely, solely by virtue of the quality of their existing natural attributes.   I consider that approach  would  be  inconsistent  with  the evaluative tenor of the NZCPS,  when assessed in the round.

[150]   I do not consider that consenting authorities need to approach their task in giving effect to the NZCPS by discerning a settled hierarchy between the objectives and policies contained in it.   In every case, there will be policies having greater relevance than others, and the terms in which particular policies are expressed most likely provide signposts to the relative importance of one policy or another.   The Board did not err when it declined to consider policies from the NZCPS by reference to some settled hierarchy.

[151]   However, that does not necessarily dispose of EDS’s more nuanced criticism that the evaluation undertaken here involved an error of law in relegating Policies 13 and 15 in light of the Board’s specific finding that the component of the plan change requested in relation to Port Gore did not give effect to those policies.  The essence of EDS’s concern is to question the rationale, in resource management terms, for designating coastal areas as having outstanding natural character or features, if that designation does not protect the area from an economic use that will have adverse effects.   An answer to that valid concern is that such designations do not afford absolute protection.  Rather, they require a materially higher level of justification for relegating  that  outstanding  natural  character  or  feature,  when  authorising  an economic use of that coastal area, than would be needed in other coastal areas.

[152] EDS’s concern was reflected in its argument that the preponderance of provisions in planning documents throughout the hierarchy down from the RMA required priority to be given at the Port Gore site to preservation of its natural features.   The Board’s  decision to relegate those  considerations, when  so many relevant propositions pointed to their being determinative in assessing any request for a plan change, could not be a reasonable exercise of the power to weigh them against countervailing considerations.

[153]   King Salmon’s   first   response   to   EDS’s   arguments   disputed   EDS’s characterisation of the Board’s decision as omitting any finding that salmon farming would be “appropriate”  at Port Gore.  King Salmon had advocated for a plan change at the Port Gore site because of its isolation from all the other proposed sites,57 which gave it significant advantages in terms of managing biosecurity risks.   The Board found that this feature of its location did make it “appropriate”.   The site-

specific analysis, after recognising the “abrupt incursion” that a salmon farm would make into the dramatic landscape in Port Gore, concluded its weighing of the pros and cons in the terms set out in the last three paragraphs of the extract at [106] above. That does indeed conclude that the proposed zone at Papatua (Port Gore) would be appropriate, relying on a decision that the particular advantages of the site outweighed the adverse effects which included the failure to give effect to Policies

13 and 15.

[154]   As with other criticisms of the Board, King Salmon’s ultimate justification is that the criticism of the Board’s reasoning goes to the weight it gave various relevant factors it considered.  As a matter of law it was open to the Board to have regard to each of the matters it did, and it was solely a matter for the Board to attribute weight as between those factors.

[155]   It can reasonably be inferred that the reasons why Parliament confined the right of appeal from the Board’s decision to questions of law was that no revisiting of factual determinations was justified.   In this case, the recently introduced amendment  to  the  RMA  provided  for  the  appointment  of  the  Board,  which comprised  substantial  expertise  in  evaluating  the  resource  management considerations that arose.  The Board of five, including a retired Environment Court Judge and the Environment Commissioner, conducted extensive hearings on all aspects of the issues for and against the proposed plan change.   They were substantially better placed to decide on the weight to be given to each of the relevant considerations than a judge could be.   The scope of the arguments on the appeal implicitly acknowledged that reality.

[156]   This ground of EDS’s appeal could not succeed unless I substantially altered the weight given to competing considerations, from that settled after exhaustive analysis by the Board in its decision.   I cannot do so, and accordingly am not satisfied that any error of law is made out on this first ground of EDS’s appeal.

Failure to assess alternatives

[157]   EDS argued that the Board ought to have assessed alternatives to granting plan changes for the specific sites, as an aspect of its assessment under s 32 of the RMA.  Section 32(3) and (4) provide:

32       Consideration of alternatives, benefits, and costs

…

(3)      An evaluation must examine—

(a)       the extent to which each objective is the most appropriate way to achieve the purpose of this Act; and

(b)       whether, having regard to their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives.

…

(4)      For the purposes of the examinations referred to in subsections (3)

and (3A), an evaluation must take into account—

(a)      the benefits and costs of policies, rules, or other methods;

and

(b)       the  risk  of  acting  or  not  acting  if  there  is  uncertain  or insufficient information about the subject matter of the policies, rules, or other methods.

[…]

[158]   The Board acknowledged that it had been urged by numerous submitters to consider alternatives. Alternatives were proposed by way of submission without any evidence, apart from cross-examination of witnesses for King Salmon.  The Board determined, as a matter of law, that the issue of alternatives did not form part of the evaluation of a private plan change proposal.  The Board’s decision applied that of the High Court in Brown v Dunedin City Council.58     That case involved a site-

specific proposed plan change seeking transformation of a private owner’s land from rural to residential.  Chisholm J decided:59

I am satisfied that the theme running through the Environment Court’s decision is legally correct: s 32(1) does not contemplate that determination of a site-specific proposed plan change would involve a comparison with alternative sites.

[159]   The Board’s decision went on to consider possible alternatives in the context of the resource consent applications.   It dismissed each of a range of suggested alternative means of pursuing additional salmon farming ventures as adversely affecting the entitlement of King Salmon to resource consents for each of the sites that had been the subject of plan change approval.

[160]   It was argued for EDS that either the decision in Brown was wrong, or that its circumstances  were  distinguishable  from  the  present.    Further,  that  because  the second “gateway” of resource consent applications involved far narrower considerations, there was little utility in considering alternatives in that context, whereas there was substantial utility in considering alternatives when undertaking the wider assessment at the initial “gateway” of a proposed plan change.

[161]   Mr Enright cited the Court of Appeal’s consideration of the differences in approach required at the first stage of initiating a plan change, and at any second stage  of  considering  an  application  for  resource  consent,  in  the  Coromandel Watchdog decision.60   It was there observed:

Plan changes require a different and more consultative process than that for applications for resource consent in relation to a discretionary activity or a non-complying activity.  In essence, the proponent of a plan change faces a higher hurdle. There is the potential for greater community involvement.

[162]   On the relevance of whether a matter such as alternatives was taken into account  at  the  first  or  second  gateway,  Mr Enright  distinguished  s 104(1)(b)(iv) where, in the context of an application for a resource consent, the consent authority has only to “have regard to” the NZCPS.  In contrast, when considering a request for

a plan change, s 67(3) required the decision-maker to “give effect to” the NZCPS.  It

59 At [16].

60     Coromandel Watchdog of Hauraki Inc v Ministry of Economic Development [2007] NZCA 473, [2008] 1 NZLR 562 at [16].

would follow that consideration of alternatives  at the second stage was not the equivalent of considering them at the first stage, if a legal obligation to do so arose.

[163]   Mr Enright argued that Brown was distinguishable because the application for a plan change in that case had originally been made by the owner of private land. The local  authority accepted the owner’s  request  and  proposed  to  adopt  it,  but opponents pursued the issue in the Environment Court.   The essential issue was whether the site should remain in a rural zone, or whether it should join a residential zone to which it was adjacent.   In contrast in this case, the plan change sought related to occupation of public space in the coastal marine area.  In the context of a request brought by the owner of private land, any assessment of the alternatives would focus on alternative sites to that proposed, for the zoning change sought.  In contrast, here, alternatives properly considered under s 32 would include alternative modes of carrying out the proposed commercial activity.

[164]   MDC’s   submissions   strongly   supported   EDS’s   argument.      Mr Quinn submitted that the Board’s rejection of the need to consider alternatives at the plan change stage amounted to a significant error of law.  He submitted that the decision in Brown was potentially wrong and was at least distinguishable, in circumstances where the relevant provisions in the RMA have been amended since that case was decided.61

[165]   The submissions for MDC characterised the proposed plan change involved in Brown to have been “Council initiated”.  The significance of this was said to be that different requirements apply where a plan change is requested other than by the local authority, as to the content of what has to be addressed.  Mr Quinn analysed the requirements in Schedules 1 and 4 of the RMA in support of his submission that, in determining requests for a plan change, the decision-maker had to have regard to alternatives to the plan change being sought.   Part 2 of Schedule 1 to the RMA provides, in cls 21 and 22, that any person may request a change to a district or regional plan, including a regional coastal plan, and that the request is to explain the

purpose of, and reasons for, the proposed change.  Clause 22(2) provides:

61     I am not persuaded that the change in cl 23 of Schedule 1 to the RMA since Brown was decided has any bearing on whether the Board was obliged to consider alternatives as an aspect of its evaluation of the request for a plan change.

22       Form of request

…

(2)       Where  environmental  effects  are  anticipated,  the  request  shall describe  those  effects,  taking  into  account  the  provisions  of Schedule 4,  in  such  detail  as  corresponds  with  the  scale  and significance of the actual or potential environmental effects anticipated from the implementation of the change, policy statement, or plan.

[166]   Treating this as a request for a plan change that did include environmental effects, an assessment of the type provided for in Schedule 4 had to be undertaken. That provision requires that an assessment of the effects on the environment should include:62

Where it is likely that an activity will result in any significant adverse effect on the environment, a description of any possible alternative locations or methods for undertaking the activity:

[167]   Accordingly, on MDC’s analysis, a proper request for a plan change should have addressed the alternatives.  Once they were addressed, they ought to have been evaluated by the decision-maker.

[168]   King Salmon submitted that these points were misconceived, and that the Board adopted a conventional and well-settled approach that does not require consideration of alternatives in the present circumstances.   It was submitted for King Salmon that, apart from the reference in the heading to s 32 to “consideration of alternatives”, the requirements of that section do not explicitly include a comparison of alternatives, in circumstances where that requirement is explicit in other contexts in the RMA.

[169]   Mr Nolan cited the Full Court decision in Meridian Energy Ltd v Central Otago District Council, which related to the absence of an explicit requirement to consider alternatives in s 7(b) of the RMA.63    Section 7(b) is a general provision requiring all persons exercising powers under the RMA in relation to managing the use, development and protection of natural and physical resources, to have particular

regard to “the efficient use and development of natural and physical resources”.  In

62     Schedule 4, cl 1(b).

63     Meridian Energy Ltd v Central Otago District Council, above n 32, at [77].

Meridian, the Full Court rejected the proposition that s 7(b) created an obligation for the consenting authority to consider specific alternatives to the resource consents sought in that case for wind farming activities.  Chisholm and Fogarty JJ contrasted the terms of s 7(b) against other provisions in the RMA where an obligation to consider alternatives was “carefully spelled out”.   In that case, the Environment Court was held to have been entitled to call for a consideration of alternative sites, but  had  erred  in  law  in  deciding  that  s 7(b)  required  an  analysis  of  alternative locations.

[170]   Mr Nolan submitted that, in the context of site-specific applications for plan changes, the requirement under s 32(3) to assess whether a proposed objective is the most appropriate way to achieve the purpose of the RMA, and whether, having regard to their efficiency and effectiveness, the policies, rules or other methods being proposed are the most appropriate for achieving the objectives, involves considerations relating just to the sites in issue.  He argued that there was nothing in the   wording   of   s 32   that   required   any   broader   evaluation   of   the   relative appropriateness of effecting the proposed plan change at other sites.  Mr Nolan cited the observation of this Court from another recent appeal on the “most appropriate”

test required by s 32:64

Section 32 requires a value judgment as to what on balance, is the most appropriate, when measured against the relevant objectives.  “Appropriate” means suitable, and there is no need to place any gloss upon that word by incorporating that it be superior.

That comment was made in dealing with an argument that an assessment of the “most appropriate way” had to be superior to others, rather than a consideration of whether  appropriateness  could  be  assessed  simply  by  reference  to  the  site  or locations involved, or had to involve a comparison of those with the prospects at other sites.

[171]   I  am  not  persuaded  to  adopt  a  different  interpretation  of  the  scope  of obligations  required  by  s 32.    I  respectfully  adopt  the  approach  taken  by  the

Full Court in Meridian,  where it distinguished  the absence of  any obligation to

64     Rational Transport Society Inc v New Zealand Transport Agency [2012] NZRMA 298 (HC) at

[45].

consider alternative locations as part of the efficiency analysis under s 7(b), from the appropriateness  in  given  circumstances  for  the  consenting  authority  to  do  so.65

Although the context is relevantly different from that in Brown, the same practical concerns arise in imposing an obligation on an applicant for a plan change to canvass all alternative locations.  If, in the course of contested consideration of a request for a plan change, a more appropriate means of achieving the objectives is raised, then there is nothing in s 32 or elsewhere in the RMA that would preclude the consenting authority having regard to that as part of its evaluation.  That is distinctly different, however, from treating such an assessment as mandatory under s 32.

[172]   Given that s 32, on its own, does not import such an obligation, there is a further issue as to whether other provisions in the schedules to the RMA elevate the consideration of alternatives to a mandatory consideration when dealing with a request for a plan change.  The form of request for a plan change required by cl 22 of Schedule  1  does  not  go  beyond  addressing  matters  that  are  required  for  the evaluation under s 32.  However, in those cases to which cl 22(2) applies (ie when environmental effects are anticipated), the request has to include an assessment of the effects on the environment, as provided for in Schedule 4, cl 1.  The relevance of such an analysis being included in the form of a request was acknowledged in

Brown.66     Mr Quinn emphasised the relative importance of it being included by

pointing out that a failure to adequately address this component in a request entitles the  local  authority  to  request  further  information.    If  such  information  is  not provided, the local authority can decide to not approve the plan change requested if, as a result, the local authority deems it has insufficient information to enable it to

consider or approve the request.67

[173]   The relative importance of provision of information about alternatives, as inferred  from  Mr Quinn’s  analysis  of  the  provisions  in  Schedules  1  and  4,  is distinguishable  from  the  mandatory  consideration  required  of  the  consenting authority in making a decision.  I am not satisfied that the provisions in the schedules

transform what is not otherwise a mandatory obligation, into one.

65     Meridian Energy Ltd v Central Otago District Council, above n 32, at [86].

66     Brown v Dunedin City Council, above n 58, at [14], [16].

67     RMA, Schedule 1, cl 23(6).

[174]   I am therefore not persuaded that the Board committed an error of law in rejecting a requirement to consider alternative locations.

Summary

[175]   For all these reasons, both appeals are dismissed.

Costs

[176]   I do not underestimate the effort required for King Salmon, supported in the limited way it has been by the submissions for the Crown interests, to defend the Board’s decision.

[177]   Nor would I criticise the appellants or MDC for the points they have taken on their appeals.  The legal concepts required to be applied by the Board in its decisions involve value judgements that introduce the prospect of malleable assessments of factual matters that competent resource management counsel exploit in a way that is, with  great  respect,  alien  to  black  letter lawyers.   The  appellants’ urgings  for  a contrary outcome fall short because critical contested findings involve an assessment of the weight of competing factors, all of which were within the legal parameters available to the Board.

[178]   In such circumstances, I am reluctant to order costs against the appellants. They have, both competently and responsibly, advanced legitimate public interests. If, notwithstanding this provisional indication, King Salmon wishes to pursue costs, then it should file a memorandum within 28 days of delivery of this judgment. Thereafter,  the  appellants  would  have  a  period  of  a  further  21  days  to  file submissions in opposition to any claim for costs.

[179]   Whilst I appreciate the limited contribution made on behalf of the Crown interests, my provisional view is not to order costs in their favour.

Dobson J

Solicitors:

DLA Phillips Fox, Auckland for Environmental Defence Society Incorporated
Fletcher Vautier Moore, Nelson for Sustain Our Sounds
Russell McVeagh, Wellington for The New Zealand King Salmon Company Limited
DLA Phillips Fox, Wellington for Marlborough District Council
Crown Law, Wellington for Minister of Conservation and Ministry for Primary Industries

Buddle Findlay, Wellington for Board of Inquiry

Appendix A