Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd
[2014] NZSC 38
•17 April 2014
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 82/2013 [2014] NZSC 38 |
| BETWEEN | ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED |
| AND | THE NEW ZEALAND KING SALMON COMPANY LIMITED SUSTAIN OUR SOUNDS INCORPORATED MARLBOROUGH DISTRICT COUNCIL MINISTER OF CONSERVATION AND DIRECTOR-GENERAL OF MINISTRY FOR PRIMARY INDUSTRIES |
| Hearing: | 19, 20, 21 and 22 November 2013 |
Court: | Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ |
Counsel: | D A Kirkpatrick, R B Enright and N M de Wit for Appellant |
Judgment: | 17 April 2014 |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe plan change in relation to Papatua at Port Gore did not comply with s 67(3)(b) of the Resource Management Act 1991 as it did not give effect to policies 13(1)(a) and 15(a) of the New Zealand Coastal Policy Statement.
CCosts are reserved.
____________________________________________________________________
REASONS
Elias CJ, McGrath, Glazebrook and Arnold JJ [1] William Young J [175]
ELIAS CJ, MCGRATH, GLAZEBROOK AND ARNOLD JJ
(Given by Arnold J)
Table of Contents
Para No
Introduction................................................................................................ [1]
The RMA: a (very) brief overview........................................................... [8]
Questions for decision.............................................................................. [17]
First question: proper approach............................................................. [18]
Statutory background – Pt 2 of the RMA.............................................. [21]
New Zealand Coastal Policy Statement................................................. [31]...... (i) General observations.................................................................... [31]
...... (ii) Objectives and policies in the NZCPS.......................................... [45]
Regional policy statement........................................................................ [64]
Regional and district plans...................................................................... [69]
Requirement to “give effect to” the NZCPS.......................................... [75]
Meaning of “avoid”.................................................................................. [92]
Meaning of “inappropriate”................................................................... [98]
Was the Board correct to utilise the “overall judgment” approach? [106]...... (i) The NZCPS: policies and rules.................................................. [112]
...... (ii) Section 58 and other statutory indicators.................................. [117]
...... (iii) Interpreting the NZCPS............................................................. [126]
Conclusion on first question.................................................................. [150]
Second question: consideration of alternatives................................... [155]
Decision................................................................................................... [174]
Introduction
In October 2011, the first respondent, New Zealand King Salmon Co Ltd (King Salmon), applied for changes to the Marlborough Sounds Resource Management Plan[1] (the Sounds Plan) so that salmon farming would be changed from a prohibited to a discretionary activity in eight locations. At the same time, King Salmon applied for resource consents to enable it to undertake salmon farming at these locations, and at one other, for a term of 35 years.[2]
[1]Marlborough District Council Marlborough Sounds Resource Management Plan (2003) [Sounds Plan].
[2]The proposed farms were grouped in three distinct geographic locations – five at Waitata Reach in the outer Pelorus Sound, three in the area of Tory Channel/Queen Charlotte Sound and one at Papatua in Port Gore. The farm to be located at White Horse Rock did not require a plan change, simply a resource consent. For further detail, see Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2013] NZHC 1992, [2013] NZRMA 371 [King Salmon (HC)] at [21].
King Salmon’s application was made shortly after the Resource Management Act 1991 (the RMA) was amended in 2011 to streamline planning and consenting processes in relation to, among other things, aquaculture applications.[3] The Minister of Conservation,[4] acting on the recommendation of the Environmental Protection Agency, determined that King Salmon’s proposals involved matters of national significance and should be determined by a board of inquiry, rather than by the relevant local authority, the Marlborough District Council.[5] On 3 November 2011, the Minister referred the applications to a five member board chaired by retired Environment Court Judge Gordon Whiting (the Board). After hearing extensive evidence and submissions, the Board determined that it would grant plan changes in relation to four of the proposed sites, so that salmon farming became a discretionary rather than prohibited activity at those sites.[6] The Board granted King Salmon resource consents in relation to these four sites, subject to detailed conditions of consent.[7]
[3]Resource Management Amendment Act (No 2) 2011. For a full description of the background to this legislation, see Derek Nolan (ed) Environmental and Resource Management Law (looseleaf ed, LexisNexis) at [5.71] and following.
[4]The Minister of Conservation deals with applications relating to the coastal marine area, the Minister of the Environment with other applications: see Resource Management Act 1991 [RMA], s 148.
[5]The Marlborough District Council is a unitary authority with the powers, functions and responsibilities of both a regional and a district council. The Board of Inquiry acted in place of the Council: see King Salmon (HC), above n 2, at [10]–[18].
[6]Board of Inquiry, New Zealand King Salmon Requests for Plan Changes and Applications for Resource Consents, 22 February 2013 [King Salmon (Board)].
[7]At [1341].
An appeal from a board of inquiry to the High Court is available as of right, but only on a question of law.[8] The appellant, the Environmental Defence Society (EDS), took an appeal to the High Court as did Sustain Our Sounds Inc (SOS), the appellant in SC84/2013. Their appeals were dismissed by Dobson J.[9] EDS and SOS then sought leave to appeal to this Court under s 149V of the RMA. Leave was granted.[10] We are delivering contemporaneously a separate judgment in which we will outline our approach to s 149V and give our reasons for granting leave.[11]
[8]RMA, s 149V.
[9]King Salmon (HC), above n 2.
[10]Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2013] NZSC 101 [King Salmon (Leave)].
[11]Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 41.
The EDS and SOS appeals were heard together. They raise issues going to the heart of the approach mandated by the RMA. The particular focus of the appeals was rather different, however. In this Court EDS’s appeal related to one of the plan changes only, at Papatua in Port Gore. By contrast, SOS challenged all four plan changes. While the SOS appeal was based principally on issues going to water quality, the EDS appeal went to the protection of areas of outstanding natural character and outstanding natural landscape in the coastal environment. In this judgment, we address the EDS appeal. The SOS appeal is dealt with in a separate judgment, which is being delivered contemporaneously.[12]
[12]Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 40.
King Salmon’s plan change application in relation to Papatua covered an area that was significantly greater than the areas involved in its other successful plan change applications because it proposed to rotate the farm around the area on a three year cycle. In considering whether to grant the application, the Board was required to “give effect to” the New Zealand Coastal Policy Statement (NZCPS).[13] The Board accepted that Papatua was an area of outstanding natural character and an outstanding natural landscape and that the proposed salmon farm would have significant adverse effects on that natural character and landscape. As a consequence, policies 13(1)(a) and 15(a) of the NZCPS would not be complied with if the plan change was granted.[14] Despite this, the Board granted the plan change. Although it accepted that policies 13(1)(a) and 15(a) in the NZCPS had to be given considerable weight, it said that they were not determinative and that it was required to give effect to the NZCPS “as a whole”. The Board said that it was required to reach an “overall judgment” on King Salmon’s application in light of the principles contained in pt 2 of the RMA, and s 5 in particular. EDS argued that this analysis was incorrect and that the Board’s finding that policies 13(1)(a) and 15(a) would not be given effect if the plan change was granted meant that King Salmon’s application in relation to Papatua had to be refused. EDS said that the Board had erred in law.
[13]Department of Conservation New Zealand Coastal Policy Statement 2010 (issued by notice in the New Zealand Gazette on 4 November 2010 and taking effect on 3 December 2010) [NZCPS].
[14]King Salmon (Board), above n 6, at [1235]–[1236].
Although the Board was not named as a party to the appeals, it sought leave to make submissions, both in writing and orally, to assist the Court and deal with the questions of law raised in the appeals (including any practical implications) on a non-adversarial basis. The Court issued a minute dated 11 November 2013 noting some difficulties with this, and leaving the application to be resolved at the hearing. In the event, we declined to hear oral submissions from the Board. Further, we have taken no account of the written submissions filed on its behalf. We will give our reasons for this in the separate judgment that we are delivering contemporaneously in relation to the application for leave to appeal.[15]
[15]Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 11.
Before we address the matters at issue in the EDS appeal, we will provide a brief overview of the RMA. This is not intended to be a comprehensive overview but rather to identify aspects that will provide context for the more detailed discussion which follows.
The RMA: a (very) brief overview
The enactment of the RMA in 1991 was the culmination of a lengthy law reform process, which began in 1988 when the Fourth Labour Government was in power. Until the election of the National Government in October 1990, the Hon Geoffrey Palmer MP was the responsible Minister. He introduced the Resource Management Bill into the House in December 1989. Following the change of Government, the Hon Simon Upton MP became the responsible Minister and it was he who moved that the Bill be read for a third time. In his speech, he said that in formulating the key guiding principle, sustainable management of natural and physical resources,[16] “the Government has moved to underscore the shift in focus from planning for activities to regulating their effects …”.[17]
[16]As contained in s 5 of the RMA.
[17](4 July 1991) 516 NZPD 3019.
The RMA replaced a number of different Acts, most notably the Water and Soil Conservation Act 1967 and the Town and Country Planning Act 1977. In place of rules that had become fragmented, overlapping, inconsistent and complicated, the RMA attempted to introduce a coherent, integrated and structured scheme. It identified a specific overall objective (sustainable management of natural and physical resources) and established structures and processes designed to promote that objective. Sustainable management is addressed in pt 2 of the RMA, headed “Purpose and principles”. We will return to it shortly.
Under the RMA, there is a three tiered management system – national, regional and district. A “hierarchy” of planning documents is established. Those planning documents deal, variously, with objectives, policies, methods and rules. Broadly speaking, policies implement objectives and methods and rules implement policies. It is important to note that the word “rule” has a specialised meaning in the RMA , being defined to mean “a district rule or a regional rule”.[18]
[18]RMA, s 43AA.
The hierarchy of planning documents is as follows:
(a)First, there are documents which are the responsibility of central government, specifically national environmental standards,[19] national policy statements[20] and New Zealand coastal policy statements.[21] Although there is no obligation to prepare national environmental standards or national policy statements, there must be at least one New Zealand coastal policy statement.[22] Policy statements of whatever type state objectives and policies,[23] which must be given effect to in lower order planning documents.[24] In light of the special definition of the term, policy statements do not contain “rules”.
(b)Second, there are documents which are the responsibility of regional councils, namely regional policy statements and regional plans. There must be at least one regional policy statement for each region,[25] which is to achieve the RMA’s purpose “by providing an overview of the resource management issues of the region and policies and methods to achieve integrated management of the natural and physical resources of the whole region”.[26] Besides identifying significant resource management issues for the region, and stating objectives and policies, a regional policy statement may identify methods to implement policies, although not rules.[27] Although a regional council is not always required to prepare a regional plan, it must prepare at least one regional coastal plan, approved by the Minister of Conservation, for the marine coastal area in its region.[28] Regional plans must state the objectives for the region, the policies to implement the objectives and the rules (if any) to implement the policies.[29] They may also contain methods other than rules.[30]
(c)Third, there are documents which are the responsibility of territorial authorities, specifically district plans.[31] There must be one district plan for each district.[32] A district plan must state the objectives for the district, the policies to implement the objectives and the rules (if any) to implement the policies.[33] It may also contain methods (not being rules) for implementing the policies.[34]
[19]Sections 43–44A.
[20]Sections 45–55.
[21]Sections 56–58A.
[22]Section 57(1).
[23]Sections 45(1) and 58.
[24]See further [31] and [75]–[91] below.
[25]RMA, s 60(1).
[26]Section 59.
[27]Section 62(1).
[28]Section 64(1).
[29]Section 67(1).
[30]Section 67(2)(b).
[31]Sections 73–77D.
[32]Section 73(1).
[33]Section 75(1).
[34]Section 75(2)(b).
New Zealand coastal policy statements and regional policy statements cover the coastal environment above and below the line of mean high water springs.[35] Regional coastal plans operate below that line out to the limit of the territorial sea (that is, in the coastal marine area, as defined in s 2),[36] whereas regional and district plans operate above the line.[37]
[35]Sections 56 (which uses the term “coastal environment”) and 60(1) (which refers to a regional council’s “region”: under the Local Government Act 2002, where the boundary of a regional council’s region is the sea, the region extends to the outer limit of the territorial sea: see s 21(3) and pt 3 of sch 2). The full extent of the landward side of the coastal environment is unclear as that term is not defined in the RMA: see Nolan, above n 3, at [5.7].
[36]RMA, ss 63(2) and 64(1).
[37]Section 73(1) and the definition of “district” in s 2.
For present purposes we emphasise three features of this scheme. First, the Minister of Conservation plays a key role in the management of the coastal environment. In particular, he or she is responsible for the preparation and recommendation of New Zealand coastal policy statements, for monitoring their effect and implementation and must also approve regional coastal plans.[38] Further, the Minster shares with regional councils responsibility for the coastal marine area in the various regions.[39]
[38]Section 28.
[39]Section 30(1)(d).
Second, the scheme moves from the general to the specific. Part 2 sets out and amplifies the core principle, sustainable management of natural and physical resources, as we will later explain. Next, national policy statements and New Zealand coastal policy statements set out objectives, and identify policies to achieve those objectives, from a national perspective. Against the background of those documents, regional policy statements identify objectives, policies and (perhaps) methods in relation to particular regions. “Rules” are, by definition, found in regional and district plans (which must also identify objectives and policies and may identify methods). The effect is that as one goes down the hierarchy of documents, greater specificity is provided both as to substantive content and to locality – the general is made increasingly specific. The planning documents also move from the general to the specific in the sense that, viewed overall, they begin with objectives, then move to policies, then to methods and “rules”.
Third, the RMA requires that the various planning documents be prepared through structured processes that provide considerable opportunities for public consultation. Open processes and opportunities for public input were obviously seen as important values by the RMA’s framers.
In relation to resource consents, the RMA creates six categories of activity, from least to most restricted.[40] The least restricted category is permitted activities, which do not require a resource consent provided they are compliant with any relevant terms of the RMA, any regulations and any plan or proposed plan. Controlled activities, restricted discretionary activities, discretionary and non-complying activities require resource consents, the difference between them being the extent of the consenting authority’s power to withhold consent. The final category is prohibited activities. These are forbidden and no consent may be granted for them.
Questions for decision
[40]See s 87A.
In granting EDS leave to appeal, this Court identified two questions of law, as follows:[41]
(a) Was the Board of Inquiry’s approval of the Papatua plan change one made contrary to ss 66 and 67 of the Act through misinterpretation and misapplication of Policies 8, 13, and 15 of the New Zealand Coastal Policy Statement? This turns on:
(i) Whether, on its proper interpretation, the New Zealand Coastal Policy Statement has standards which must be complied with in relation to outstanding coastal landscape and natural character areas and, if so, whether the Papatua Plan Change complied with s 67(3)(b) of the Act because it did not give effect to Policies 13 and 15 of the New Zealand Coastal Policy Statement.
(ii) Whether the Board properly applied the provisions of the Act and the need to give effect to the New Zealand Coastal Policy Statement under s 67(3)(b) of the Act in coming to a “balanced judgment” or assessment “in the round” in considering conflicting policies.
(b) Was the Board obliged to consider alternative sites or methods when determining a private plan change that is located in, or results in significant adverse effects on, an outstanding natural landscape or feature or outstanding natural character area within the coastal environment? This question raises the correctness of the approach taken by the High Court in Brown v Dunedin City Council [2003] NZRMA 420 and whether, if sound, the present case should properly have been treated as an exception to the general approach. Whether any error in approach was material to the decision made will need to be addressed if necessary.
We will focus initially on question (a).
First question: proper approach
[41]King Salmon (Leave), above n 10, at [1].
Before we describe those aspects of the statutory framework relevant to the first question in more detail, we will briefly set out the Board’s critical findings in relation to the Papatua plan change. This will provide context for the discussion of the statutory framework that follows.
The Board did not consider that there would be any ecological or biological impacts from the proposed farm at Papatua. The Board’s focus was on the adverse effects to outstanding natural character and landscape. The Board said:
[1235] 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.
[1236] 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 [New Zealand] Coastal Policy Statement would not be given effect to.
…
[1241] 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.
[1242] 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.
[1243] 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, [weighs] heavily in favour. We find that the proposed Papatua Zone would be appropriate.
As will be apparent from this extract, some of the features which made the site outstanding from a natural character and landscape perspective also made it attractive as a salmon farming site. In particular the remoteness of the site and its location close to the Cook Strait made it attractive from a biosecurity perspective. King Salmon had grouped its nine proposed salmon farms into three distinct geographic areas, the objective being to ensure that if disease occurred in the farms in one area, it could be contained to those farms. This approach had particular relevance to the Papatua site because, in the event of an outbreak of disease elsewhere, King Salmon could operate a separate salmon supply and processing chain from the southern end of the North Island.
Statutory background – Pt 2 of the RMA
Part 2 of the RMA is headed “Purpose and principles” and contains four sections, beginning with s 5. Section 5(1) identifies the RMA’s purpose as being to promote sustainable management of natural and physical resources. The use of the word “promote” reflects the RMA’s forward looking and management focus. While the use of “promote” may indicate that the RMA seeks to foster or further the implementation of sustainable management of natural and physical resources rather than requiring its achievement in every instance,[42] the obligation of those who perform functions under the RMA to comply with the statutory objective is clear. At issue in the present case is the nature of that obligation.
[42]BV Harris “Sustainable Management as an Express Purpose of Environmental Legislation: The New Zealand Attempt” (1993) 8 Otago L Rev 51 at 59.
Section 5(2) defines “sustainable management” as follows:
In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—
(a)sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b)safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c)avoiding, remedying, or mitigating any adverse effects of activities on the environment.
There are two important definitions of words used in s 5(2). First, the word “effect” is broadly defined to include any positive or adverse effect, any temporary or permanent effect, any past, present or future effect and any cumulative effect.[43] Second, the word “environment” is defined, also broadly, to include:[44]
(a)ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) amenity values; and
(d)the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters …
The term “amenity values” in (c) of this definition is itself widely defined to mean “those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”.[45] Accordingly, aesthetic considerations constitute an element of the environment.
[43]RMA, s 3.
[44]Section 2.
[45]Section 2.
We make four points about the definition of “sustainable management”:
(a)First, the definition is broadly framed. Given that it states the objective which is sought to be achieved, the definition’s language is necessarily general and flexible. Section 5 states a guiding principle which is intended to be applied by those performing functions under the RMA rather than a specifically worded purpose intended more as an aid to interpretation.
(b)Second, as we explain in more detail at [92] to [97] below, in the sequence “avoiding, remedying, or mitigating” in sub-para (c), “avoiding” has its ordinary meaning of “not allowing” or “preventing the occurrence of”.[46] The words “remedying” and “mitigating” indicate that the framers contemplated that developments might have adverse effects on particular sites, which could be permitted if they were mitigated and/or remedied (assuming, of course, they were not avoided).
(c)Third, there has been some controversy concerning the effect of the word “while” in the definition.[47] The definition is sometimes viewed as having two distinct parts linked by the word “while”. That may offer some analytical assistance but it carries the risk that the first part of the definition will be seen as addressing one set of interests (essentially developmental interests) and the second part another set (essentially intergenerational and environmental interests). We do not consider that the definition should be read in that way. Rather, it should be read as an integrated whole. This reflects the fact that elements of the intergenerational and environmental interests referred to in sub-paras (a), (b) and (c) appear in the opening part of the definition as well (that is, the part preceding “while”). That part talks of managing the use, development and protection of natural and physical resources so as to meet the stated interests – social, economic and cultural well-being as well as health and safety. The use of the word “protection” links particularly to sub-para (c). In addition, the opening part uses the words “in a way, or at a rate”. These words link particularly to the intergenerational interests in sub-paras (a) and (b). As we see it, the use of the word “while” before sub-paras (a), (b) and (c) means that those paragraphs must be observed in the course of the management referred to in the opening part of the definition. That is, “while” means “at the same time as”.
(d)Fourth, the use of the word “protection” in the phrase “use, development and protection of natural and physical resources” and the use of the word “avoiding” in sub-para (c) indicate that s 5(2) contemplates that particular environments may need to be protected from the adverse effects of activities in order to implement the policy of sustainable management; that is, sustainable management of natural and physical resources involves protection of the environment as well as its use and development. The definition indicates that environmental protection is a core element of sustainable management, so that a policy of preventing the adverse effects of development on particular areas is consistent with sustainable management. This accords with what was said in the explanatory note when the Resource Management Bill was introduced:[48]
The central concept of sustainable management in this Bill encompasses the themes of use, development and protection.
[46]The Environment Court has held on several occasions, albeit in the context of planning documents made under the RMA, that avoiding something is a step short of prohibiting it: see Wairoa River Canal Partnership v Auckland Regional Council [2010] 16 ELRNZ 152 (EnvC) at [15]; Man O’War Station Ltd v Auckland Council [2013] NZEnvC 233 at [48]. We return to this below.
[47]See Nolan, above n 3, at [3.24]; see also Harris, above n 42, at 60–61. Harris concludes that the importance of competing views has been overstated, because the flexibility of the language of ss 5(2)(a), (b) and (c) provides ample scope for decision makers to trade off environmental interests against development benefits and vice versa.
[48]Resource Management Bill 1989 (224-1), explanatory note at i.
Section 5 is a carefully formulated statement of principle intended to guide those who make decisions under the RMA. It is given further elaboration by the remaining sections in pt 2, ss 6, 7 and 8:
(a)Section 6, headed “Matters of national importance”, provides that in achieving the purpose of the RMA, all persons exercising powers and functions under it in relation to managing the use, development and protection of natural and physical resources “shall recognise and provide for” seven matters of national importance. Most relevantly, these include:
(i)in s 6(a), the preservation of the natural character of the coastal environment (including the coastal marine area) and its protection from inappropriate subdivision, use and development; and
(ii)in s 6(b), the protection of outstanding natural features and landscapes from inappropriate subdivision, use and development.
Also included in ss 6(c) to (g) are:
(iii)the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna;
(iv)the maintenance and enhancement of public access to and along the coastal marine area;
(v)the relationship of Maori and their culture and traditions with, among other things, water;
(vi)the protection of historical heritage from inappropriate subdivision use and development; and
(vii)the protection of protected customary rights.
(b)Section 7 provides that in achieving the purpose of the RMA, all persons excising powers and functions under it in relation to managing the use, development and protection of natural and physical resources “shall have particular regard to” certain specified matters, including (relevantly):
(i)kaitiakitanga and the ethic of stewardship;[49]
(ii)the efficient use and development of physical and natural resources;[50] and
(iii)the maintenance and enhancement of the quality of the environment.[51]
(c)Section 8 provides that in achieving the purpose of the RMA, all persons exercising powers and functions under it in relation to managing the use, development and protection of natural and physical resources “shall take into account” the principles of the Treaty of Waitangi.
[49]RMA, ss 7(a) and (aa).
[50]Section 7(b).
[51]Section 7(f).
Section 5 sets out the core purpose of the RMA – the promotion of sustainable management of natural and physical resources. Sections 6, 7 and 8 supplement that by stating the particular obligations of those administering the RMA in relation to the various matters identified. As between ss 6 and 7, the stronger direction is given by s 6 – decision-makers “shall recognise and provide for” what are described as “matters of national importance”, whereas s 7 requires decision-makers to “have particular regard to” the specified matters. The matters set out in s 6 fall naturally within the concept of sustainable management in a New Zealand context. The requirement to “recognise and provide for” the specified matters as “matters of national importance” identifies the nature of the obligation that decision-makers have in relation to those matters when implementing the principle of sustainable management. The matters referred to in s 7 tend to be more abstract and more evaluative than the matters set out in s 6. This may explain why the requirement in s 7 is to “have particular regard to” them (rather than being in similar terms to s 6).
Under s 8 decision-makers are required to “take into account” the principles of the Treaty of Waitangi. Section 8 is a different type of provision again, in the sense that the principles of the Treaty may have an additional relevance to decision-makers. For example, the Treaty principles may be relevant to matters of process, such as the nature of consultations that a local body must carry out when performing its functions under the RMA. The wider scope of s 8 reflects the fact that among the matters of national importance identified in s 6 are “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga” and protections for historic heritage and protected customary rights and that s 7 addresses kaitiakitanga.
It is significant that three of the seven matters of national importance identified in s 6 relate to the preservation or protection of certain areas, either absolutely or from “inappropriate” subdivision, use and development (that is, ss 6(a), (b) and (c)). Like the use of the words “protection” and “avoiding” in s 5, the language of ss 6(a), (b) and (c) suggests that, within the concept of sustainable management, the RMA envisages that there will be areas the natural characteristics or natural features of which require protection from the adverse effects of development. In this way, s 6 underscores the point made earlier that protection of the environment is a core element of sustainable management.
The use of the phrase “inappropriate subdivision, use or development” in s 6 raises three points:
(a)First, s 6(a) replaced s 3(c) of the Town and Country Planning Act, which made “the preservation of the natural character of the coastal environment, and the margins of lakes and rivers, and the protection of them from unnecessary subdivision and development” a matter of national importance.[52] In s 6(a), the word “inappropriate” replaced the word “unnecessary”. There is a question of the significance of this change in wording, to which we will return.[53]
(b)Second, a protection against “inappropriate” development is not necessarily a protection against any development. Rather, it allows for the possibility that there may be some forms of “appropriate” development.
(c)Third, there is an issue as to the precise meaning of “inappropriate” in this context, in particular whether it is to be assessed against the particular features of the environment that require protection or preservation or against some other standard. This is also an issue to which we will return.[54]
[52]Emphasis added.
[53]See [40] below.
[54]See [98]–[105] below.
As we have said, the RMA envisages the formulation and promulgation of a cascade of planning documents, each intended, ultimately, to give effect to s 5, and to pt 2 more generally. These documents form an integral part of the legislative framework of the RMA and give substance to its purpose by identifying objectives, policies, methods and rules with increasing particularity both as to substantive content and locality. Three of these documents are of particular importance in this case – the NZCPS, the Marlborough Regional Policy Statement[55] and the Sounds Plan.
New Zealand Coastal Policy Statement
General observations
[55]Marlborough District Council Marlborough Regional Policy Statement (1995).
As we have said, the planning documents contemplated by the RMA are part of the legislative framework. This point can be illustrated by reference to the NZCPS, the current version of which was promulgated in 2010.[56] Section 56 identifies the NZCPS’s purpose as being “to achieve the purpose of [the RMA] in relation to the coastal environment of New Zealand”. Other subordinate planning documents – regional policy statements,[57] regional plans[58] and district plans[59] – must “give effect to” the NZCPS. Moreover, under s 32, the Minister was obliged to carry out an evaluation of the proposed coastal policy statement before it was notified under s 48 for public consultation. That evaluation was required to examine:[60]
(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 way for achieving the objectives.
…
[56]The 2010 version of the NZCPS replaced an earlier 1994 version: see [45] below.
[57]RMA, s 62(3).
[58]Section 67(3)(b).
[59]Section 75(3)(b).
[60]Section 32(3) (emphasis added), as it was until 2 December 2013. Section 32 as quoted was replaced with a new section by s 70 of the Resource Management Act Amendment Act 2013.
In developing and promulgating a New Zealand coastal policy statement, the Minister is required to use either the board of inquiry process set out in ss 47 to 52 or something similar, albeit less formal.[61] Whatever process is used, there must be a sufficient opportunity for public submissions. The NZCPS was promulgated after a board of inquiry had considered the draft, received public submissions and reported to the Minister.
[61]Section 46A.
Because the purpose of the NZCPS is “to state policies in order to achieve the purpose of the [RMA] in relation to the coastal environment of New Zealand”[62] and any plan change must give effect to it, the NZCPS must be the immediate focus of consideration. Given the central role played by the NZCPS in the statutory framework, and because no party has challenged it, we will proceed on the basis that the NZCPS conforms with the RMA’s requirements, and with pt 2 in particular. Consistently with s 32(3), we will treat its objectives as being the most appropriate way to achieve the purpose of the RMA and its policies as the most appropriate way to achieve its objectives.
[62]NZCPS, above n 13, at 5.
We pause at this point to note one feature of the Board’s decision, namely that having considered various aspects of the NZCPS in relation to the proposed plan changes, the Board went back to pt 2 when reaching its final determination. The Board set the scene for this approach in the early part of its decision in the following way:[63]
[76] Part II is a framework against which all the functions, powers, and duties under the RMA are to be exercised for the purposes of giving effect to the RMA. There are no qualifications or exceptions. Any exercise of discretionary judgment is impliedly to be done for the statutory purpose. The provisions for the various planning instruments required under the RMA also confirm the priority of Part II, by making all considerations subject to Part II – see for example Sections 51, 61, 66 and 74. The consideration of applications for resource consents is guided by Sections 104 and 105.
…
[79] We discuss, where necessary, the Part II provisions when we discuss the contested issues that particular provisions apply to. When considering both Plan Change provisions and resource consent applications, the purpose of the RMA as defined in Section 5 is not the starting point, but the finishing point to be considered in the overall exercise of discretion.
[80] It is well accepted that applying Section 5 involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. The RMA has a single purpose. It also allows for the balancing of conflicting considerations in terms of their relative significance or proportion in the final outcome.
[63]King Salmon (Board), above n 6. Emphasis in original, citations omitted.
The Board returned to the point when expressing its final view:
[1227] 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.
We will discuss the Board’s reliance on pt 2 rather than the NZCPS in reaching its final determination later in this judgment. It sufficient at this stage to note that there is a question as to whether its reliance on pt 2 was justified in the circumstances.
There is one other noteworthy feature of the Board’s approach as set out in these extracts. It is that the principles enunciated in pt 2 are described as “sometimes competing”.[64] The Board expressed the same view about the NZCPS, namely that
the various objectives and policies it articulates compete or “pull in different directions”.[65] One consequence is that an “overall broad judgment” is required to reach a decision about sustainable management under s 5(2) and, in relation to the NZCPS, as to “whether the instrument as a whole is generally given effect to”.[66]
[64]King Salmon (Board), above n 6, at [1227].
[65]At [1180], adopting the language of Ms Sarah Dawson, a planning consultant for King Salmon. This paragraph of the Board’s determination, along with others, is quoted at [81] below.
[66]At [1180].
Two different approaches to s 5 have been identified in the early jurisprudence under the RMA, the first described as the “environmental bottom line” approach and the second as the “overall judgment” approach.[67] A series of early cases in the Planning Tribunal set out the “environmental bottom line” approach.[68] In Shell Oil New Zealand Ltd v Auckland City Council, the Tribunal said that ss 5(2)(a), (b) and (c):[69]
… may be considered cumulative safeguards which enure (or exist at the same time) whilst the resource … is managed in such a way or rate which enables the people of the community to provide for various aspects of their wellbeing and for their health and safety. These safeguards or qualifications for the purpose of the [RMA] must all be met before the purpose is fulfilled. The promotion of sustainable management has to be determined therefore, in the context of these qualifications which are to be accorded the same weight.
In this case there is no great issue with s 5(2)(a) and (b). If we find however, that the effects of the service station on the environment cannot be avoided, remedied or mitigated, one of the purposes of the [RMA] is not achieved.
In Campbell v Southland District Council, the Tribunal said:[70]
Section 5 is not about achieving a balance between benefits occurring from an activity and its adverse effects. … [T]he definition in s 5(2) requires adverse effects to be avoided, remedied or mitigated, irrespective of the benefits which may accrue … .
[67]See Jim Milne “Sustainable Management” in DSL Environmental Handbook (Brookers, Wellington, 2004) vol 1.
[68]Shell Oil New Zealand Ltd v Auckland City Council W8/94, 2 February 1994 (PT); Foxley Engineering Ltd v Wellington City Council W12/94, 16 March 1994 (PT); Plastic and Leathergoods Co Ltd v The Horowhenua District Council W26/94, 19 April 1994 (PT); and Campbell v Southland District Council W114/94, 14 December 1994 (PT).
[69]Shell Oil New Zealand Ltd v Auckland City Council, above n 68, at 10.
[70]Campbell v Southland District Council, above n 68, at 66.
The “overall judgment” approach seems to have its origin in the judgment of Grieg J in New Zealand Rail Ltd v Marlborough District Council, in the context of an appeal relating to a number of resource consents for the development of a port at Shakespeare Bay.[71] The Judge rejected the contention that the requirement in s 6(a) to preserve the natural character of a particular environment was absolute.[72] Rather, Grieg J considered that the preservation of natural character was subordinate to s 5’s primary purpose, to promote sustainable management. The Judge described the protection of natural character as “not an end or an objective on its own” but an “accessory to the principal purpose” of sustainable management.[73]
[71]New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC).
[72]At 86.
[73]At 85.
Greig J pointed to the fact that under previous legislation there was protection of natural character against “unnecessary” subdivision and development. This, the Judge said, was stronger than the protection in s 6(a) against “inappropriate” subdivision, use and development:[74] the word “inappropriate” had a wider connotation than “unnecessary”.[75] The question of inappropriateness had to be determined on a case-by-case basis in the particular circumstances. The Judge said:[76]
It is “inappropriate” from the point of view of the preservation of natural character in order to achieve the promotion of sustainable management as a matter of national importance. It is, however, only one of the matters of national importance, and indeed other matters have to be taken into account. It is certainly not the case that preservation of the natural character is to be achieved at all costs. The achievement which is to be promoted is sustainable management and questions of national importance, national value and benefit, and national needs, must all play their part in the overall consideration and decision.
This Part of the [RMA] expresses in ordinary words of wide meaning the overall purpose and principles of the [RMA]. It is not, I think, a part of the [RMA] which should be subjected to strict rules and principles of statutory construction which aim to extract a precise and unique meaning from the words used. There is a deliberate openness about the language, its meaning and its connotations which I think is intended to allow the application of policy in a general and broad way. Indeed, it is for that purpose that the Planning Tribunal, with special expertise and skills, is established and appointed to oversee and to promote the objectives and the policies and the principles under the [RMA].
In the end I believe the tenor of the appellant’s submissions was to restrict the application of this principle of national importance, to put the absolute preservation of the natural character of a particular environment at the forefront and, if necessary, at the expense of everything except where it was necessary or essential to depart from it. That is not the wording of the [RMA] or its intention. I do not think that the Tribunal erred as a matter of law. In the end it correctly applied the principles of the [RMA] and had regard to the various matters to which it was directed. It is the Tribunal which is entrusted to construe and apply those principles, giving the weight that it thinks appropriate. It did so in this case and its decision is not subject to appeal as a point of law.
[74]Town and Country Planning Act 1977, s 3(1).
[75]New Zealand Rail Ltd, above n 71, at 85.
[76]At 85–86.
In North Shore City Council v Auckland Regional Council, the Environment Court discussed New Zealand Rail and said that none of the ss 5(2)(a), (b) or (c) considerations necessarily trumped the others – decision makers were required to balance all relevant considerations in the particular case.[77] The Court said:[78]
We have considered in light of those remarks [in New Zealand Rail] the method to be used in applying s 5 to a case where on some issues a proposal is found to promote one or more of the aspects of sustainable management, and on others is found not to attain, or fully attain, one or more of the aspects described in paragraphs (a), (b) and (c). To conclude that the latter necessarily overrides the former, with no judgment of scale or proportion, would be to subject s 5(2) to the strict rules and proposal of statutory construction which are not applicable to the broad description of the statutory purpose. To do so would not allow room for exercise of the kind of judgment by decision-makers (including this Court — formerly the Planning Tribunal) alluded to in the [New Zealand Rail] case.
…
The method of applying s 5 then involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. That recognises that the [RMA] has a single purpose. Such a judgment allows for comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome.
[77]North Shore City Council v Auckland Regional Council (1996) 2 ELRNZ 305 (EnvC) at 345–347; aff’d Green & McCahill Properties Ltd v Auckland Regional Council [1997] NZRMA 519 (HC).
[78]North Shore City Council v Auckland Regional Council, above n 77, at 347 (emphasis added). One commentator expresses the view that the effect of the overall judgment approach in relation to s 5(2) is “to render the concept of sustainable management virtually meaningless outside the facts, circumstances and nuances of a particular case”: see IH Williams “The Resource Management Act 1991: Well Meant But Hardly Done” (2000) 9 Otago L R 673 at 682.
The Environment Court has said that the NZCPS is to be approached in the same way.[79] The NZCPS “is an attempt to more explicitly state the tensions which are inherent within Part 2 of the [RMA]”.[80] Particular policies in the NZCPS may be irreconcilable in the context of a particular case.[81] No individual objective or policy from the NZCPS should be interpreted as imposing a veto.[82] Rather, where relevant provisions from the NZCPS are in conflict, the court’s role is to reach an “overall judgment” having considered all relevant factors.[83]
[79]See, for example, Te Runanga O Ngai Te Rangi Iwi Trust v Bay of Plenty Regional Council [2011] NZEnvC 402 and Man O’War Station, above n 46.
[80]Ngai Te Rangi Iwi Trust, above n 79, at [257].
[81]At [258].
[82]Man O’War Station, above n 46, at [41]–[43].
[83]Ngai Te Rangi Iwi Trust, above n 79, at [258].
The fundamental issue raised by the EDS appeal is whether the “overall judgment” approach as the Board applied it is consistent with the legislative framework generally and the NZCPS in particular. In essence, the position of EDS is that, once the Board had determined that the proposed salmon farm at Papatua would have high adverse effects on the outstanding natural character of the area and its outstanding natural landscape, so that policies 13(1)(a) and 15(a) of the NZCPS would not be given effect to, it should have refused the application. EDS argued, then, that there is an “environmental bottom line” in this case, as a result of the language of policies 13(1)(a) and 15(a).
The EDS appeal raises a number of particular issues – the nature of the obligation to “give effect to” the NZCPS, the meaning of “avoid” and the meaning of “inappropriate”. As will become apparent, all are affected by the resolution of the fundamental issue just identified.
Objectives and policies in the NZCPS
Section 57(1) of the RMA requires that there must “at all times” be at least one New Zealand coastal policy statement prepared and recommended by the Minister of Conservation following a statutorily-mandated consultative process. The first New Zealand coastal policy statement was issued in May 1994.[84] In 2003 a lengthy review process was initiated. The process involved: an independent review of the policy statement, which was provided to the Minster in 2004; the release of an issues and options paper in 2006; the preparation of the proposed new policy statement in 2007; public submissions and board of inquiry hearings on the proposed statement in 2008; and a report from the board of inquiry to the Minister in 2009. All this culminated in the NZCPS, which came into effect in December 2010.
[84]“Notice of the Issue of the New Zealand Coastal Policy Statement” (5 May 1994) 42 New Zealand Gazette 1563.
Under s 58, a New Zealand coastal policy statement may state objectives and policies about any one or more of certain specified matters. Because they are not mentioned in s 58, it appears that such a statement was not intended to include “methods”, nor can it contain “rules” (given the special statutory definition of “rules”).[85]
[85]In contrast, s 62(e) of the RMA provides that a regional policy statement must state “the methods (excluding rules) used, or to be used, to implement the policies”. Sections 67(1)(a) to (c) and 75(1)(a) to (c) provide that regional and district plans must state the objectives for the region/district, the policies to implement the objectives and the rules (if any) to implement the policies. Section 43AA provides that rule means “a district or regional rule” Section 43AAB defines regional rule as meaning “a rule made as part of a regional plan or proposed regional plan in accordance with section 68”.
As we discuss in more detail later in this judgment, Mr Kirkpatrick for EDS argued that s 58(a) is significant in the present context because it contemplates that a New Zealand coastal policy statement may contain “national priorities for the preservation of the natural character of the coastal environment of New Zealand, including protection from inappropriate subdivision, use and development”. While counsel were agreed that the current NZCPS does not contain national priorities in terms of s 58(a),[86] this provision may be important because the use of the words “priorities”, “preservation” and “protection” (together with “inappropriate”) suggests that the RMA contemplates what might be described as “environmental bottom lines”. As in s 6, the word “inappropriate” appears to relate back to the preservation of the natural character of the coastal environment: it is preservation of natural character that provides the standard for assessing whether particular subdivisions, uses or developments are “inappropriate”.
[86]The 1994 version of the New Zealand coastal policy statement did contain a number of national priorities.
The NZCPS contains seven objectives and 29 policies. The policies support the objectives. Two objectives are of particular importance in the present context, namely objectives 2 and 6.[87]
[87]It should be noted that the NZCPS provides that the numbering of objectives and policies is for convenience and is not to be interpreted as an indication of relative importance: see NZCPS, above n 13, at 8.
Objective 2 provides:
Objective 2
To preserve the natural character of the coastal environment and protect natural features and landscape values through:
·recognising the characteristics and qualities that contribute to natural character, natural features and landscape values and their location and distribution;
·identifying those areas where various forms of subdivision, use, and development would be inappropriate and protecting them from such activities; and
·encouraging restoration of the coastal environment.
Three aspects of objective 2 are significant. First, it is concerned with preservation and protection of natural character, features and landscapes. Second, it contemplates that this will be achieved by articulating the elements of natural character and features and identifying areas which possess such character or features. Third, it contemplates that some of the areas identified may require protection from “inappropriate” subdivision, use and development.
Objective 6 provides:
Objective 6
To enable people and communities to provide for their social, economic, and cultural wellbeing and their health and safety, through subdivision, use, and development, recognising that:
·the protection of the values of the coastal environment does not preclude use and development in appropriate places and forms, and within appropriate limits;
·some uses and developments which depend upon the use of natural and physical resources in the coastal environment are important to the social, economic and cultural wellbeing of people and communities;
·functionally some uses and developments can only be located on the coast or in the coastal marine area;
·the coastal environment contains renewable energy resources of significant value;
·the protection of habitats of living marine resources contributes to the social, economic and cultural wellbeing of people and communities;
·the potential to protect, use, and develop natural and physical resources in the coastal marine area should not be compromised by activities on land;
·the proportion of the coastal marine area under any formal protection is small and therefore management under the [RMA] is an important means by which the natural resources of the coastal marine area can be protected; and
·historic heritage in the coastal environment is extensive but not fully known, and vulnerable to loss or damage from inappropriate subdivision, use, and development.
Objective 6 is noteworthy for three reasons:
(a)First, it recognises that some developments which are important to people’s social, economic and cultural well-being can only occur in coastal environments.
(b)Second, it refers to use and development not being precluded “in appropriate places and forms” and “within appropriate limits”. Accordingly, it is envisaged that there will be places that are “appropriate” for development and others that are not.
(c)Third, it emphasises management under the RMA as an important means by which the natural resources of the coastal marine area can be protected. This reinforces the point previously made, that one of the components of sustainable management is the protection and/or preservation of deserving areas.
As we have said, in the NZCPS there are 29 policies that support the seven objectives. Four policies are particularly relevant to the issues in the EDS appeal: policy 7, which deals with strategic planning; policy 8, which deals with aquaculture; policy 13, which deals with preservation of natural character; and policy 15, which deals with natural features and natural landscapes.
Policy 7 provides:
Strategic planning
(1) In preparing regional policy statements, and plans:
(a)consider where, how and when to provide for future residential, rural residential, settlement, urban development and other activities in the coastal environment at a regional and district level; and
(b)identify areas of the coastal environment where particular activities and forms of subdivision, use and development:
(i)are inappropriate; and
(ii)may be inappropriate without the consideration of effects through a resource consent application, notice of requirement for designation or Schedule 1 of the [RMA] process;
and provide protection from inappropriate subdivision, use, and development in these areas through objectives, policies and rules.
(2)Identify in regional policy statements, and plans, coastal processes, resources or values that are under threat or at significant risk from adverse cumulative effects. Include provisions in plans to manage these effects. Where practicable, in plans, set thresholds (including zones, standards or targets), or specify acceptable limits to change, to assist in determining when activities causing adverse cumulative effects are to be avoided.
Policy 7 is important because of its focus on strategic planning. It requires the relevant regional authority to look at its region as a whole in formulating a regional policy statement or plan. As part of that overall assessment, the regional authority must identify areas where particular forms of subdivision, use or development “are” inappropriate, or “may be” inappropriate without consideration of effects through resource consents or other processes, and must protect them from inappropriate activities through objectives, policies and rules. Policy 7 also requires the regional authority to consider adverse cumulative effects.
Objective 6 of the NZCPS provides:
Objective 6
To enable people and communities to provide for their social, economic, and cultural wellbeing and their health and safety, through … use, and development, recognising that:
·the protection of the values of the coastal environment does not preclude use and development in appropriate places and forms, and within appropriate limits;
·some uses and developments which depend upon the use of natural and physical resources in the coastal environment are important to the social, economic and cultural wellbeing of people and communities;
·functionally some uses and developments can only be located on the coast or in the coastal marine area;
…
·the protection of habitats of living marine resources contributes to the social, economic and cultural wellbeing of people and communities;
…
·the proportion of the coastal marine area under any formal protection is small and therefore management under the [RMA] is an important means by which the natural resources of the coastal marine area can be protected; and
…
Policy 8 provides:
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 8 gives effect to objective 6, just as policies 13 and 15 give effect to objective 2. There is no suggestion in the NZCPS that objective 2 is to take precedence over objective 6, and there is likewise no indication that policies 13 and 15 take precedence over policy 8. Viewed solely through the lens of policy 8 and on the findings of the Board, Port Gore is an appropriate location for a salmon farm. On the other hand, viewed solely through the lens of policies 13 and 15, it is inappropriate. On the approach of the majority, the standards for determining what is “appropriate” under policy 8 are not the same as those applicable to determining what is “inappropriate” in policies 13 and 15.[172]
[172]At [98]–[105] of the majority’s reasons.
I disagree with this approach. The concept of “inappropriate … use [or] development” in the NZCPS is taken directly from ss 6(a) and (b) of the RMA. The concept of a “use” or “development” which is or may be “appropriate” is necessarily implicit in those subsections. There was no point in the NZCPS providing that certain uses or developments would be “appropriate” other than to signify that such developments might therefore not be “inappropriate” for the purposes of other policies. So I simply do not accept that there is one standard for determining whether aquaculture is “appropriate” for the purposes of policy 8 and another standard for determining whether it is “inappropriate” for the purposes of policies 13 and 15. Rather, I prefer to resolve the apparent tension between policy 8 and policies 13 and 15 on the basis of a single concept – informed by the NZCPS as a whole and construed generally in light of ss 6(a) and (b) and also s 5 – of what is appropriate and inappropriate. On the basis of this approach, the approval of the salmon farm turned on whether it was appropriate (or not inappropriate) having regard to policies 8, 13 and 15 of the NZCPS, with ss 5 and 6(a) and (b) of the RMA being material to the interpretation and application of those policies.
I accept that this approach requires policies 13 and 15 to be construed by reading into the first two bullets points of each policy the word “such” to make it clear that the polices are directed to the adverse effects of “inappropriate … use, and development”. By way of illustration, I consider that policy 13 should be construed as if it provided:
13 Preservation of natural character
(1)To preserve the natural character of the coastal environment and to protect it from inappropriate … use, and development:
(a)avoid adverse effects of such 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 such activities on natural character in all other areas of the coastal environment; …
The necessity to add words in this way shows that my interpretation of the policies is not literal. That said, I do not think it is difficult to construe these policies on the basis that given the stated purpose – protection from “inappropriate … use, and development” – what follows should read as confined to activities which are associated with “inappropriate … use, and development”. Otherwise, the policies would go beyond their purpose.
The majority avoid the problem of the policies going beyond their purpose by concluding that any use or development which would produce adverse effects on areas of outstanding natural character is, for this reason, “inappropriate”. That, however, is not spelt out explicitly in the policies. As I have noted, if it was the purpose of the Minister to require that activities with such effects be specified as prohibited, that would have been provided for directly and pursuant to s 58(e). So I do not see their approach as entirely literal either (because it assumes a determination that adverse effects equates to “inappropriate”, which is not explicit). It is also inconsistent with the scheme of the NZCPS under which decisions as to what is “appropriate” or “inappropriate” in particular cases (that is, by reference to specific locations and activities) is left to regional councils. The approach taken throughout the relevant objectives and policies of the NZCPS is one of shaping regional coastal plans but not dictating their content.
We are dealing with a policy statement and not an ordinary legislative instrument. There seems to me to be flexibility given that (a) the requirement is to “give effect” to the NZCPS rather than individual policies, (b) the language of the policies, which require certain effects to be avoided and not prohibited,[173] and (c) the context provided by policy 8. Against this background, I think it is wrong to construe the NZCPS and, more particularly, certain of its policies, with the rigour customary in respect of statutory interpretation.
Overbroad consequences
[173]Compare the discussion and cases cited in [92]–[97] of the majority’s reasons.
I think it is useful to consider the consequences of the majority’s approach, which I see as overbroad.
“Adverse effects” and “effects” are not defined in the NZCPS save by general reference to the RMA definitions.[174] This plainly incorporates into the NZCPS the definition in s 3 of the RMA:
[174]The NZCPS, above n 166, at 8 records that “[d]efinitions contained in the Act are not repeated in the Glossary”.
3 Meaning of effect
In this Act, unless the context otherwise requires, the term effect includes—
(a) any positive or adverse effect; and
(b) any temporary or permanent effect; and
(c) any past, present, or future effect; and
(d)any cumulative effect which arises over time or in combination with other effects—
regardless of the scale, intensity, duration, or frequency of the effect, and also includes—
(e) any potential effect of high probability; and
(f)any potential effect of low probability which has a high potential impact.
On the basis that the s 3 definition applies, I consider that a corollary of the approach of the majority is that regional councils must promulgate rules which specify as prohibited any activities having any perceptible adverse effect, even temporary, on areas of outstanding natural character. I think that this would preclude some navigation aids and it would impose severe restrictions on privately-owned land in areas of outstanding natural character. It would also have the potential generally to be entirely disproportionate in its operation as any perceptible adverse effect would be controlling irrespective of whatever benefits, public or private, there might be if an activity were permitted. I see these consequences as being so broad as to render implausible the construction of policies 13 and 15 proposed by the majority.
The majority suggest that such consequences can be avoided.[175] They point out that the s 3 definition of “effect” does not apply if the context otherwise requires. They also, rather as I have done, suggest that the literal words in which the policies are expressed can be read down in light of the purposes stated in each policy (in essence to the protection of areas of outstanding natural character). There is the suggestion of a de minimis approach. They also point out that a development might enhance an area of outstanding character (presumably contemplating that beneficial effects might outweigh any adverse effects).
[175]At [144] of the majority’s reasons.
I would like to think that a sensible approach will be taken to the future application of the NZCPS in light of the conclusions of the majority as to the meaning of policies 13 and 15 and I accept that for reasons of pragmatism, such an approach might be founded on reasoning of the kind provided by the majority. But I confess to finding it not very convincing. In particular:
(a)I think it clear that the NZCPS uses “effects” in its s 3 sense.
(b)While I agree that the policies should be read down so as not to go beyond their purposes,[176] I think it important to recognise that those purposes are confined to protection only from “inappropriate” uses or developments.
(c)Finally, given the breadth of the s 3 definition and the distinction it draws between “positive” and “adverse” effects, I do not see much scope for either a de minimis approach or a balancing of positive and adverse effects.
My conclusion as to the first issue
[176]See above at [195].
On my approach, policies 13 and 15 on the one hand and policy 8 on the other are not inconsistent. Rather, they required an assessment as to whether a salmon farm at Papatua was appropriate. Such assessment required the Board to take into account and balance the conflicting considerations – in other words, to form a broad judgment. A decision that the salmon farm at Papatua was appropriate was not inconsistent with policies 13 and 15 as I construe them and, on this basis, the s 67(3)(b) requirement to give effect to the NZCPS was not infringed.
This approach is not precisely the same as that adopted by the Board. It is, however, sufficiently close for me to be content with the overall judgment of the Board on this issue.
Solicitors:
DLA Phillips Fox, Auckland for Appellant
Russell McVeagh, Wellington for First Respondent
Dyhrberg Drayton, Wellington for Second Respondent
DLA Phillips Fox, Wellington for Third Respondent
Crown Law Office, Wellington for Fourth Respondents
Buddle Findlay, Wellington for Board of Inquiry
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