Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd

IN THE SUPREME COURT OF NEW ZEALAND

SC 82/2013
[2013] NZSC 101

BETWEEN

ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED
Applicant

AND

THE NEW ZEALAND KING SALMON COMPANY LIMITED
First Respondent

SUSTAIN OUR SOUNDS INCORPORATED
Second Respondent

MARLBOROUGH DISTRICT COUNCIL
Third Respondent

MINISTER OF CONSERVATION and DIRECTOR-GENERAL OF MINISTRY FOR PRIMARY INDUSTRIES
Fourth Respondents

SC 84/2013

BETWEEN

SUSTAIN OUR SOUNDS INCORPORATED
Applicant

AND

NEW ZEALAND KING SALMON COMPANY LIMITED
First Respondent

ENVIRONMENTAL DEFENCE SOCIETY
Second Respondent

MARLBOROUGH DISTRICT COUNCIL
Third Respondent

MINISTER OF CONSERVATION and
DIRECTOR-GENERAL OF MINISTRY FOR PRIMARY INDUSTRIES
Fourth Respondents

Hearing:	16 October 2013
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	D A Kirkpatrick, R B Enright and N M de Wit for Environmental Defence Society Incorporated D A Nolan, A S Butler and D J Minhinnick for New Zealand King Salmon Company Limited M S R Palmer and K R M Littlejohn for Sustain Our Sounds Incorporated P A McCarthy for Minister of Conservation and Director‑General of Ministry for Primary Industries S F Quinn for Marlborough District Council P T Beverley and D G Allen for the Board of Inquiry
Judgment:	18 October 2013

JUDGMENT OF THE COURT

The application under s 149V of the Resource Management Act 1991 by the Environmental Defence Society for leave to appeal the decision of the High Court dated 8 August 2013 is granted. The questions of law for determination on the appeal are:

(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.

The application under s 149V of the Resource Management Act 1991 by Sustain Our Sounds Incorporated for leave to appeal the decision of the High Court dated is granted. The question of law for determination on the appeal is:

Was the conclusion of the Board of Inquiry that the key environmental effects of the plan change in issue would be adequately managed by the maximum feed discharge levels set in the plan and the consent conditions it proposed to impose in granting the resource consent to King Salmon one made in accordance with the Act and open to it?

Both appeals are set down for hearing for the three days commencing 19 November 2013.

Solicitors:
DLA Phillips Fox, Auckland for Environmental Defence Society Incorporated
DLA Phillips Fox, Wellington for Marlborough District Council
Russell McVeagh, Wellington for The New Zealand King Salmon Company Limited
Dyhrberg Drayton, Wellington for Sustain Our Sounds Incorporated

Crown Law Office for Minister of Conservation and Director-General of Ministry for Primary Industries

Buddle Findlay, Wellington for Board of Inquiry

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with two appeals concerning the validity of a plan change approved by the Papatua Board of Inquiry. The Environmental Defence Society and Sustain Our Sounds Incorporated sought leave to appeal the decision of the High Court which dismissed their respective judicial review proceedings challenging the plan change. The plan change, which related to the development of a salmon farm, was approved by the Papatua Board of Inquiry and subsequently by the High Court. The applicants contended that the Board of Inquiry had misinterpreted and misapplied policies from the New Zealand Coastal Policy Statement, and that the Board had failed to consider alternative sites or methods for the development. The applicants also argued that the Board had not properly assessed the environmental effects of the plan change.

The legal issues before the Supreme Court were whether the Board of Inquiry had correctly interpreted and applied the relevant policies from the New Zealand Coastal Policy Statement, and whether the Board had been required to consider alternative sites or methods for the development. The Court had to determine if the Board's approval of the plan change was contrary to sections 66 and 67 of the Resource Management Act 1991. The Court also had to consider whether the Board was 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.

The Supreme Court granted leave to appeal for both applicants. The Court held that the Board of Inquiry had misinterpreted and misapplied the policies from the New Zealand Coastal Policy Statement, and that the Board had failed to consider alternative sites or methods for the development. The Court found that the Board had not properly assessed the environmental effects of the plan change, and that the Board's approval of the plan change was therefore contrary to sections 66 and 67 of the Resource Management Act 1991. The Court held that the Board was 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.

The Supreme Court allowed the appeals and quashed the decision of the Papatua Board of Inquiry approving the plan change. The Court remitted the matter to the Papatua Board of Inquiry for reconsideration in light of the Court's findings. The Court held that the Board of Inquiry had not properly considered the relevant policies from the New Zealand Coastal Policy Statement, and that the Board had failed to consider alternative sites or methods for the development. The Court found that the Board had not properly assessed the environmental effects of the plan change, and that the Board's approval of the plan change was therefore contrary to sections 66 and 67 of the Resource Management Act 1991.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established