New Zealand King Salmon Company Limited Limited v Marlborough District Council
[2018] NZHC 1357
•8 June 2018
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHARAKEKE ROHE
CIV-2017-406-4
[2018] NZHC 1357
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an Application for Judicial Review
BETWEEN
THE NEW ZEALAND KING SALMON COMPANY LIMITED
Applicant
AND
MARLBOROUGH DISTRICT COUNCIL
First Respondent
MARLBOROUGH AQUACULTURE LIMITED
Second Respondent
Hearing: 30 August 2017
(Further submissions filed 15, 18 and 19 September 2017
Appearances:
Q A M Davies for Applicant
M Radich for First Respondent
D J Clark for Second RespondentJudgment:
8 June 2018
JUDGMENT OF CLARK J
Introduction
[1] This application for judicial review arises in the context of a ‘turf war’ in the Marlborough Sounds between the applicant, New Zealand King Salmon Co Ltd and Marlborough Aquaculture Ltd, the second respondent.
[2] King Salmon wishes to expand its salmon fishing operations in Marlborough and has identified a site at Blowhole Point. Marlborough Aquaculture has an existing
THE NEW ZEALAND KING SALMON CO LIMITED v MARLBOROUGH DISTRICT COUNCIL [2018] NZHC 1357 [8 June 2018]
mussel farm at Blowhole Point adjoining the site. It too, wishes to expand. King Salmon intended to formally set in motion a process under s 360A of the Resource Management Act 1991 (RMA) which would enable it to circumvent the resource consent process by having regulations promulgated to allow salmon fishing activity at six new sites in the Marlborough Sounds, one of which was Blowhole Point. Before this could be achieved, however, Marlborough Aquaculture submitted a resource consent application for its proposed activity at the site and the Marlborough District Council accepted the application as complete under s 88 of the RMA. The consequence of the Council’s acceptance of Marlborough Aquaculture’s application is that King Salmon cannot progress its application for use of its proposed site until Marlborough Aquaculture’s application has been determined.
[3] King Salmon challenges the Council’s decision to accept, as complete under s 88 of the RMA, Marlborough Aquaculture’s resource consent application. King Salmon contends the Council erred in law in accepting Marlborough Aquaculture’s application when the information provided in support of the application was inadequate to meet the statutory requirements and therefore the application was incomplete and should have been returned. King Salmon pleads alternative formulations of its judicial challenge review but each centres on this same alleged error.
Issues
[4]Three issues are raised by the statement of claim:
(a)To what extent is the Council’s decision to accept as complete, an application for resource consent, discretionary in nature?
(b)Is the decision amenable to judicial review and, if it is, what standard of review should be applied?
(c)Did the Council err in accepting, as complete, Marlborough Aquaculture’s resource consent application?
[5] Before turning to the issues, I set out the relevant statutory provisions and then the relevant facts.
Statutory framework
[6] The Resource Management Act has been described as codifying the law bearing on access to natural resources.1 A person seeking resource consent for a marine farm in the Marlborough Sounds is required to apply to the Marlborough District Council. The Council is then required to deal with the application in accordance with Part 6 of the RMA. Part 6 sets out the requirements of an application for resource consent and the statutory responsibilities of a consent authority in relation to applications for resource consent.2
[7] A consent authority may receive an application for resource consent made under s 88 of the RMA. Section 88 reads:
88 Making an application
(1)A person may apply to the relevant consent authority for a resource consent.
(1A) …
(2)An application must—
(a)be made in the prescribed form and manner; and
(b)include the information relating to the activity, including an assessment of the activity’s effects on the environment, as required by Schedule 4.
(2A) …
(3)A consent authority may, within 10 working days after an application was first lodged, determine that the application is incomplete if the application does not—
(a)include the information prescribed by regulations; or
(b)include the information required by Schedule 4.
1 Central Plains Water Trust v Synlait Ltd [2009] NZCA 609, [2010] 2 NZLR 363 at [74].
2 A “consent authority” is defined in s 2 of the Resource Management Act 1991 as the regional council, territorial authority, or a local authority that is both a regional council and a territorial authority, whose permission is required to carry out an activity for which a resource consent is required under the RMA. The Marlborough District Council is both a regional council and territorial authority.
(3A) The consent authority must immediately return an incomplete application to the applicant, with written reasons for the determination.
(4)If, after an application has been returned as incomplete, that application is lodged again with the consent authority, that application is to be treated as a new application.
…
[8] A person whose application is determined to be incomplete has a right of objection to the consent authority and may appeal to the Environment Court against the decision on the objection.3 An applicant who first lodges a complete application is presumptively entitled to the first hearing.4
[9] If the consent authority does not determine under subs (3) that the application is incomplete it may request further information under s 92. Section 92 provides:
92 Further information, or agreement, may be requested
(1)A consent authority may, at any reasonable time before the hearing of an application for a resource consent or before the decision to grant or refuse the application (if there is no hearing), by written notice, request the applicant for the consent to provide further information relating to the application.
(2)At any reasonable time before a hearing or, if no hearing is to be held, before the decision is made, a consent authority may commission any person to prepare a report on any matter relating to an application, including information provided by the applicant in the application or under this section, if all the following apply:
(a)the activity for which the resource consent is sought may, in the authority's opinion, have a significant adverse environmental effect; and
(b)the applicant is notified before the authority commissions the report; and
(c)the applicant does not refuse, under section 92B(1), to agree to the commissioning of the report.
(3)The consent authority must notify the applicant, in writing, of its reasons for—
(a)requesting further information under subsection (1); or
3 Resource Management Act, ss 357(3) and 358(1).
4 Central Plains Water Trust v Synlait Ltd, above n 1, at [89].
(b)wanting to commission a report under subsection (2).
(3A) The information or report must be available at the office of the consent authority no later than 10 working days before the hearing of an application. This subsection does not apply if—
(a)the applicant refuses, under section 92A, to provide the further information; or
(b)the applicant refuses, under section 92B, to agree to the commissioning of the report.
…
[10] The information required by ss 88(2)(b) and 88(3)(b) to be included in applications for resource consents is specified in sch 4. Any information required by sch 4 must be specified in sufficient detail to satisfy the purpose for which it is required.5 The information to be included in all applications for resource consent is set out in cl 2 of sch 4:
2 Information required in all applications
(1)An application for a resource consent for an activity (the activity) must include the following:
(a)a description of the activity:
(b)a description of the site at which the activity is to occur:
(c)the full name and address of each owner or occupier of the site:
(d)a description of any other activities that are part of the proposal to which the application relates:
(e)a description of any other resource consents required for the proposal to which the application relates:
(f)an assessment of the activity against the matters set out in Part 2:
(g)an assessment of the activity against any relevant provisions of a document referred to in section 104(1)(b).
…
(3)An application must also include an assessment of the activity’s effects on the environment that—
(a)includes the information required by clause 6; and
5 Resource Management Act, sch 4, cl 1.
(b)addresses the matters specified in clause 7; and
(c)includes such detail as corresponds with the scale and significance of the effects that the activity may have on the environment.
Relevant background
[11] Marlborough Aquaculture submitted its application to the Council on 11 October 2016. A 14-page document containing the information required by sch 4 accompanied the application. The assessment of the activity’s effects on the environment required by cl 2(3) of sch 4 drew upon a report prepared by Davidson Environmental Ltd (the Davidson report). The Davidson report also accompanied the application.
[12] The Davidson report had been prepared for Marlborough Aquaculture in respect of a resource consent application in March 2014. It records the results of a survey of the previous proposed site and an assessment of the environmental effects of marine farming on that site. There is some overlap between that site and the site at issue although King Salmon says 6.8 hectares of the present 10.3-hectare site is not covered by the Davidson report. That area has not been surveyed.
[13] On receipt of the application on 11 October 2016, a Council officer commenced the process of checking the documents to ensure the application accorded with the requirement of s 88 and sch 4 of the RMA. The Council advised Marlborough Aquaculture that, within 10 working days, it would confirm acceptance of the application for processing or would return the application if it was not considered to be complete.
[14] Peter Johnson, the resource management officer in charge, began his assessment of the application on 13 October 2016. He completed his assessment and, on 19 October 2016, recorded in the Council’s document management system, that the application had been accepted and finalised. The following day Mr Johnson asked the Council’s coastal scientist, Dr Steve Urlich, for his input into the biological report specifically, whether it was necessary to have a benthic assessment covering the seaward extension area. Mr Johnson wrote:
For the most part the information provided is adequate to meet the requirements of s 88 and schedule 4 of the RMA.
My only misgiving is the adequacy of the 2014 Davidson report, specifically the coverage area of his sonar run and drop camera photographs. I attach a map illustrating his drop camera points in relation to the boundaries of the current proposal (“2016 proposed farm”). The area not covered by those camera points is about 7 hectares. However, typically in Pelorus Sound such seaward areas of a farm would comprise flat, featureless mud. The marine chart for the area indicates the sits is not flat, with a shallower area at the southern corner, but no other notable features.
In your view is it necessary to receive an additional benthic assessment covering the seaward extension area?
[15] On 25 October 2017, Dr Urlich replied. Dr Urlich viewed it as “essential that an additional (and comprehensive) benthic assessment covering the ~7ha extension be received”.
[16] On 26 October 2017, the Council confirmed to Marlborough Aquaculture the application had been accepted as complete under s 88 of the RMA. In the same letter the Council requested, pursuant to s 92, further information relating to the application, specifically:
(a)an additional and comprehensive benthic assessment covering the area not addressed by the Davidson report; and
(b)an assessment of the actual and potential effects of the proposal on the benthos within the extension area.
Issue 1: What is the nature of the decision to accept as complete a resource consent application?
Parties’ submissions
[17] King Salmon holds the view the Council could not have accepted the application as complete. Mr Johnson, the resource management officer who processed the application, recognised it was incomplete before the decision to accept it was made.
[18] Mr Davies, counsel for King Salmon, rejected the proposition consent authorities have a discretion to accept or reject an incomplete application. He submitted the word “may” in s 88(3) is to be read as “must” such that any application that is not objectively complete must be rejected. In support of his position Mr Davies referred to a series of decisions in which the word “may” has been held to be mandatory.6
[19] Referring to the legislative history Mr Davies noted the Resource Management Amendment Act 2013 amended s 88(3), inserted s 88(3A), and inserted the current version of sch 4. The Ministry for the Environment advised the amendment was intended to provide certainty for applicants by imposing absolute timeframes for decisions.7 The 2013 amendment was also aimed at clarifying the required content of an application, and strengthening the initial check for completeness of applications. Mr Davies referred also to the explanatory note to the Resource Management Reform Bill which stated the changes were intended “to require an application for a resource consent to include all information required by new Schedule 4”. In counsel’s submission, these statements indicate the amendments were enacted to tighten up quality control of applications – lending support to a strict approach to sub-standard applications. Mr Davies submitted an application is either complete or it is not. It cannot be almost complete.
[20] Mr Davies drew my attention to a line of Australian authorities determining that, where a statutory regime confers power on the executive government to grant exclusive rights to exploit natural resources, compliance with the requirements of the regime is an essential prerequisite to a valid grant. Mr Davies submitted the same approach should be taken in this case as was taken in Forrest & Forrest Pty Ltd v Wilson where the High Court of Australia declared there was no jurisdiction to hear an
6 Dong Won Fisheries Co Ltd v Canterbury Regional Council HC Timaru AP10/99, 11 October 1999 at [7]; Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR 1 at [123]; Re New Zealand Oil & Gas Ltd [2015] NZHC 39 at [19]; Parker v Ministry of Transport [1982] 1 NZLR 209 (CA) at 210; Petterson v Browne [2016] NZCA 189 at [118]; and Air New Zealand Ltd v Director of Civil Aviation [2002] 3 NZLR 796 (HC) at [42].
7 Ministry for the Environment Regulatory Impact Statement: Progress of Phase Two of the Resource Management Reforms (13 September 2012).
application for a mining lease as the application was not accompanied by the report which the legislation required.8
[21] Both the Council and Marlborough Aquaculture submit s 88(3) gives consent authorities a discretion whether to accept or reject an incomplete application. The use of the word “may” in s 88(3) both before and after the 2013 Amendment Act confers on a consent authority a discretion to determine whether or not an application is incomplete.
[22] Ms Radich, counsel for the first respondent, submitted Part 6 of the RMA identifies three “threshold points” at which information included in a resource consent application can be assessed by a consent authority. The assessment made when an application is lodged is a simple “tick the box” process to determine whether, as a matter of form, the application meets the requirements of s 88(2)(a) and (b). The later assessments are evaluative and engage the consent authority in the content of the application. King Salmon’s challenge is based on a construction of s 88 that is erroneous. There is no obligation to reject applications that are incomplete at the point when they are first made.
[23] On behalf of Marlborough Aquaculture, Mr Clark submitted the application was not incomplete, nor a nullity. There was reasonable compliance with the requirements of sch 4 and the Council’s decision to accept the application was within the bounds of its discretion. The grant of relief to King Salmon would be a “triumph of form over substance”. The proceeding amounts to a collateral challenge by King Salmon whose sole motivation is to gain priority over Marlborough Aquaculture’s application.
Analysis
[24] It seems reasonably clear that Parliament intended to confer, and has conferred, on consent authorities a discretion to determine an application is incomplete if it does not include the information required by s 88(3)(a) or (b). The discretionary power
8 Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30, (2017) 346 ALR 1 at [64]–[66].
conferred by s 88(3) before the 2013 legislative amendments was unaltered by the 2013 Amendment Act.
[25] Within the context of s 88 itself “must” is used in contra-distinction to “may”. For example, an application must be made in the prescribed form and manner and must contain the information required by sch 4, including an assessment of the activity’s effects on the environment (AEE).9 By contrast, a consent authority may determine an application is incomplete.10 The drafting is careful and clear, reflecting the legislative intent to distinguish, within the context of s 88, between the mandatory and the permissive.
[26] I have not found the authorities referred to at note 6 above to be of particular assistance. One of the decisions was overturned on the point by the Court of Appeal.11 And the others, as is to be expected, turn on their particular facts and statutory contexts. For example, in Quake Outcasts “may” was read as importing a mandatory obligation because, when the Act was passed, it was not known whether the conditions under which the power was to be exercised would eventuate.12 Part 6 of the RMA brings no such inherent uncertainty. Each statute must be interpreted in its own context according to established canons of statutory interpretation.
[27] King Salmon was unable to offer any compelling basis for its contention that the permissive “may” in s 88(3) should be read as an obligatory “must”. The fact s 88 and sch 4 contain some mandatory obligations and requirements does not transform the clearly discretionary nature of the power conferred by s 88(3) into a mandatory obligation. The mandatory requirement, for instance, to “immediately return an incomplete application to the applicant, with written reasons for the determination”13 does not make a determination under s 88(3) non-discretionary.
[28] In fact, the scheme of the application process tells against such a construction. Section 92 permits a consent authority to seek further information from an applicant
9 Resource Management Act, s 88(2).
10 Section 88(3).
11 Dong Won Fisheries Co Ltd v Canterbury Regional Council, above n 6; overturned in Canterbury Regional Council v Dong Won Fisheries Co Ltd CA264/99, 24 November 1999.
12 Quake Outcasts v Minister for Canterbury Earthquake Recovery, above n 6, at [123].
13 Resource Management Act, s 88(3A).
after its application has been accepted under s 88. While I would not go so far as to say a mandatory reading of s 88(3) would render s 92 of little utility (as s 92 has a broad application beyond s 88), the ability to rectify deficits in an application after it is accepted is consistent with a discretion to accept applications which the consent authority appreciates at the time will require to be supplemented with further information or detail.
[29] King Salmon accepts some decisions prior to the 2013 amendments confirm the discretionary nature of the power conferred on consent authorities by s 88(3).
[30] Forrest & Forrest Pty Ltd v Wilson does not take the point any further for King Salmon. The issue before the High Court of Australia was whether non- compliance with provisions of the Mining Act 1978 (WA) in relation to matters preliminary to the granting of a mining lease would render invalid mining leases granted by the Minister. Forrest & Forrest is distinguishable on many bases. Most particularly, the relevant sections of the Mining Act 1978 (WA) do not appear to contain any power similar to that conferred on consent authorities by s 88(3) of the RMA.
[31] Accordingly, if King Salmon is to be successful in its review, it must show more than just that Marlborough Aquaculture’s application was incomplete. It would be necessary to show the Council unlawfully exercised its discretion to accept the application, incomplete or otherwise. But the second respondent argues the Council’s decision is not amenable to review. That is the next issue for determination.
Issue 2: Amenability of decision under s 88 to judicial review?
Parties’ submissions
[32] Mr Davies, for King Salmon, submitted the Council’s decision to accept the application for processing is amenable to judicial review and that the Court should adopt the approach used in reviews of notification decisions under the RMA.14 In
14 Notification decisions come after applications have been accepted as complete, and involve a decision whether public notification of the application, or notification to any affected persons, is necessary.
Auckland Council v Wendco (NZ) Ltd, the Supreme Court confirmed the correct approach in the notification context is to check whether the consent authority asked itself the right question(s) and had sufficient evidence to justify its conclusion(s).15 This approach falls within the “hard look” line of authority in judicial review jurisprudence.
[33] Mr Clark, for Marlborough Agriculture, submitted the decision is not amenable to judicial review as it was purely mechanical, or procedural, in nature, and unrelated to the merits of the consent application. Mr Clark submitted a “veritable Pandora’s box” would be opened if judicial review were available at that early procedural stage. Judicial review would create a technical barrier in the field of applications for resource consent even in respect of relatively simple applications.
[34] Ms Radich, on behalf of the Council, did not go so far. But, Ms Radich submitted, this is not a case where a ‘hard look’ approach should be applied. The consequence of accepting an application is to exclude others from applying to occupy the same space. The close judicial scrutiny of what is “essentially a tick the box exercise” is not therefore warranted. Ms Radich commended the High Court’s approach in Coro Mainstreet (Inc) v Thames-Coromandel District Council as the correct approach to judicial review in this area. The Court should not undertake an assessment of the application with a view to determining whether it was complete but should satisfy itself as to whether the Council exceeded its statutory jurisdiction; whether proper procedures were followed, and all relevant and no irrelevant, considerations taken into account and whether the decision was manifestly reasonable.16
Analysis
[35] In AgResearch Ltd v GE Free NZ in Food and the Environment Inc, the Court of Appeal decided a similar issue in the context of the Hazardous Substances and New Organisms Act 1996 (HSNO Act):17
15 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [7(b)].
16 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 at [40].
17 AgResearch Ltd v GE Free NZ in Food and the Environment Inc [2010] NZCA 89, [2014] NZAR 70 at [59].
We regard the decision of ERMA officials to register the AgResearch applications as essentially mechanical. We do not consider that decision to be of sufficient moment to be appropriately the focus of orders in judicial review proceedings.
[36] The Court of Appeal’s decision has since been followed in Greenpeace v Environmental Protection Authority where MacKenzie J was required to consider the acceptance of an application under s 41 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act).18 Acknowledging that the Court of Appeal’s consideration had been in the context of s 40 of the HSNO Act, McKenzie J considered the two provisions were sufficiently analogous to make the Court of Appeal’s observations applicable to the case before him.19 McKenzie J further added:20
A decision which is “wholly administrative in nature” and “essentially mechanical” is not readily susceptible to the sort of error which may justify judicial review. To succeed on the present application, Greenpeace must demonstrate an error of law by EPA.
[37] The application regimes in s 40(2) of the HSNO Act, and s 41 of the EEZ Act were21 similar to the application regime in Part 6 of the RMA. However, I do not take the AgResearch or Greenpeace decisions as excluding amenability to judicial review. Such an approach is tantamount to raising a jurisdictional bar to judicial review when, in principle, all exercises of public power are reviewable.22 A central aspect of the constitutional responsibility which the courts of higher jurisdiction have for upholding the rule of law is to ensure public officials act in accordance with the powers conferred on them.23 Where important principles of public administration are engaged, for example in ensuring consistency of treatment and avoiding material error in decision- making, the courts’ supervisory jurisdiction is more obviously engaged.24
18 Greenpeace of New Zealand Inc v Environmental Protection Authority [2013] NZHC 3482, [2014] NZRMA 112.
19 The relevant difference between the provisions being that, unlike s 88(3) RMA and s 41 EEZ Act, the HSNO Act made no provision for non-compliance with the s 40 requirements as to the form of the application and the inclusion of prescribed information.
20 At [33].
21 The application regime under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 has subsequently been amended.
22 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].
23 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [3].
24 Ririnui v Landcorp Farming Ltd, above n 22, at [89]–[93].
[38] In the context of a challenge to “mechanistic” decisions, such as the decision at issue in this case, the relevant question concerns the limits of review rather than whether the power is reviewable at all.
[39] I do not accept the position advanced by King Salmon in reliance on Auckland Council v Wendco. The issue and facts of that case are not analogous to the issues and facts in this proceeding. A notification decision attracts a “hard look” approach because the consequence of a decision not to notify an application may be to shut out participation in the substantive process by interested parties.25
[40] A decision to accept an application as complete has no such substantive impact. The decision is preliminary in nature. It may be that further information is yet to be sought. The decision to accept an application occurs prior to the notification process. The fact acceptance gives priority to that applicant is insufficient to warrant more intense judicial scrutiny, as that consequence is secondary to the primary function of s
88. The consent authority is not committed at this early stage to any final determinations about the consent. A decision to accept an application for processing does not engage the merits of the application and does not therefore warrant judicial scrutiny beyond being satisfied that the decision was plainly wrong or the decision- maker plainly acted without power.
[41] Insufficiency of information is a substantive ground for refusing an application for a resource consent for a controlled activity.26 Therefore, when the ground of judicial review is insufficiency of information, only in the rarest of cases will the High Court’s supervisory jurisdiction be appropriately engaged ahead of the consent authority’s determination of the substance of the application.27
25 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at [116].
26 Resource Management Act, s 104A.
27 GE Free NZ in Food and the Environment Inc v AgResearch [2010] NZSC 71 at [3].
Issue 3: Did the Council err in accepting Marlborough Aquaculture’s resource consent application as complete?
Parties’ submissions
[42] Relying on the word “must” in s 88(2), Mr Davies emphasised the mandatory nature of the requirement to include in the application all information prescribed by sch 4. Without all of the information anticipated by sch 4 an application will be incomplete. Schedule 4 itself prefaces each piece of required information with the phrase “must include”. In this case, in breach of cl 2(1)(b), the consent application did not describe the site at which the activities will occur. Consequently, in breach of cls 6 and 7, the application did not include a description of the environmental effects on that site.
[43] Mr Davies relied on the correspondence between Mr Johnson and Dr Urlich to support a finding that the application was not complete due to the limitations of the Davidson report.
[44] The respondents contended the application had already been assessed as compliant with s 88 by that stage and the subsequent correspondence was related to the provision of further information and whether further information should be sought under s 92.
[45] The position of both respondents is that the application was not incomplete. Mr Clark submitted only reasonable compliance with the requirements of s 88 is required. In support of this proposition, he relied on the Planning Tribunal decisions in McFarland v Napier City Council28 and Hubbard v Tasman District Council.29
[46] In Mr Clark’s submission, an application is “complete” if the applicant has filled out the form and reasonably addressed the mandatory considerations outlined in sch 4. The application does not require exhaustive detail at this early stage. The proposition is supported by the fact the consent authority can request further information under s 92.
28 McFarland v Napier City Council (1993) 2 NZRMA 440 (PT) at 3.
29 Hubbard v Tasman District Council PT Nelson W1/95, 14 February 1995 at 12.
[47] Mr Clark further submitted the present application did in fact provide a description of the site, as required by cl 2(1)(b). The schedule does not require the description to include a scientific analysis, as contended by King Salmon. The site was described in the application in various ways, including by name as Blowhole Point, by reference to previous resource consents, in terms of several maps, graphics and a layout plan, and by photograph.
[48] Similarly, Mr Clark submitted, the assessment provided was adequate for the purposes of sch 4. There is no national environmental standard for aquaculture and the level of detail Dr Urlich desired is not strictly necessary. For a low value muddy habitat, the degree of survey work required is arguable. Therefore, whether an assessment is adequate for the purposes of making the final decision is a matter best decided under s 92, rather than at the threshold stage of s 88.
[49] Ms Radich argued the Court should not undertake the exercise which King Salmon asks it to undertake namely, to examine the resource consent application and determine whether the information provided was sufficient for the purposes of cl (2)(1)(b) of sch 4.
[50] Ms Radich further submitted there was no error in the form or content of the application at the time it was lodged. All parties accept more information was required before the application could be determined. That information was identified before notification, supplied by Marlborough Aquaculture and will be considered if and when the application is heard and determined.
Analysis
[51] The information to be included with an application for resource consent under the RMA is determined chiefly by s 88 and sch 4. These provisions provide crucial guidance to applicants as to the content of their applications. In its guide to assist practitioners to understand and implement the 2013 amendments to the RMA the Ministry for the Environment describes the new sch 4 as bridging a gap that previously existed between information required to be provided with an application and
information needed to reach a decision.30 Prior to the 2013 Amendment Act, s 88 allowed consent authorities up to five working days to decide whether to accept or return applications. They now have 10 working days. This longer period recognises more time may be required to check that the application and accompanying (more comprehensive) information meets the statutory requirements.
[52] The prescribed form in which an application must be made invites an applicant to attach a sketch of the locality and activity points and to describe the location in a manner which will allow it to be readily identified. In addition to the description which the application contained, Marlborough Aquaculture included a locality map showing Proposed Extension to Marine Farm 8630 Blowhole Point – Pelorus Sound; a site plan and schedule of coordinates; and a structures diagram with layout details.
[53] King Salmon’s case proceeds on the basis the full extent of the environmental impacts could not be assessed on the information contained in the application and AEE; that there is evidence to indicate parts of the site not subject to surveying involve different marine conditions; and there is significant uncertainty around what the environmental impacts will be.
[54] Contrary to Mr Davies’ argument, in my view, there was an absence of detail rather than an absence of information. Ms Eatherley, the Council’s manager of resource consents, checked the application for basic compliance with s 88 and to determine whether the application was sufficiently complete to be allocated to a resource management officer for a more detailed assessment. Having made that initial determination (which is not challenged) the application was assigned to Mr Johnson. It then became Mr Johnson’s responsibility to complete the assessment for the purposes of s 88.
[55] Mr Johnson’s affidavit evidence is that he scrutinised the application against the checklist which the Council has developed for the purpose. In a full and detailed affidavit Mr Johnson traversed the information which Marlborough Aquaculture
30 Ministry for the Environment A guide to section 88 and Schedule 4 of the Resource Management Act 1991: Incorporating changes as a result of the Resource Management Amendment Act 2013 (December 2014) at 6.
provided in response to each of the sch 4 requirements. Mr Johnson described his particular consideration of some of that material, for example, Marlborough Aquaculture’s reliance on the Davidson report which formed part of the application. In respect of the requirement for an assessment of the effects on the environment Mr Johnson noted that, in his experience, whether the assessment of effects is correct or not is typically determined during the “more fine-grained analysis undertaken in later stages of the resource consent process”.
[56] It is not necessary for me to engage with Mr Johnson’s detailed consideration of each piece of information included in the application. I accept that Mr Johnson corresponded with Dr Urlich in anticipation of a request under s 92, rather than as part of his consideration under s 88. This is borne out by the subsequent request made under s 92, and the fact that an internal report was signed stating that the application was complete under s 88 the day before Dr Urlich was first contacted.
[57] The RMA expressly contemplates the consent authority assessing the sufficiency of the information before it and requesting, not only further information, but preparation of a report on any matter relating to a resource consent application.31 Section 88 confers a discretion on the consent authority to decide whether or not to regard an application as complete for the purposes of accepting the application for processing. While there may have been deficits in the information provided with the application, those deficits could potentially be remedied in the consent process and the decision-maker was cognisant of that.
[58]Any information required by sch 4, including an assessment under cl 2(1)(f) or
(g) must be specified in sufficient detail to satisfy the purpose for which it is required.32 Mr Johnson deposed to his approach to cl 1. He said, “as a matter of practice” he needs the information in order to understand “the who, what, where, when and how” of a proposed activity. With that basic information, the application can begin its journey through the resource consent process which may include intermediate steps along the way. The first intermediate step for Marlborough Aquaculture’s application was Mr Johnson’s request under s 92 for further information.
31 Resource Management Act, s 92.
32 Schedule 4, cl 1.
[59] Consistent with the level of judicial scrutiny it is appropriate to bring to bear on the Council’s determination of whether an application is incomplete, it is plain to me that Mr Johnson acted within his delegated statutory authority.33
[60] I have discerned no error, of law or otherwise, in the Council’s decision under s 88(3) not to return the resource consent application as incomplete. It seems to me Marlborough Aquaculture’s application was processed on receipt, and progressed thereafter, precisely as intended by Part 6 of the RMA.
Summary
[61] Section 88(3) of the RMA confers on consent authorities a discretionary power to determine an application is incomplete if it does not contain the prescribed information. Applications themselves must conform to statutory requirements: applications must be in a prescribed form and manner and must include all necessary information. But the compulsory nature of the obligation on applicants to ensure their applications comply with the statutory requirements does not bear on the fully discretionary nature of the power conferred upon consent authorities to determine whether or not an application is complete.
[62] The consent authority’s power to determine whether an application is complete may be essentially mechanical but that of itself does not shield it from judicial review. The question is not whether the exercise of power is reviewable but where the limits of review lie. The exercise of power must be lawful and the courts will be concerned to ensure that public officials have acted in accordance with the powers conferred on them.
[63] In this case Mr Johnson lawfully exercised the statutory power delegated to him. In determining Marlborough Aquaculture’s resource consent application was not incomplete, the Council did not err, in law or otherwise.
33 There is no challenge to the operative delegations which have been provided in the Council’s evidence.
Result
[64]The application for judicial review is dismissed.
[65] The successful respondents are entitled to costs which are awarded on a 2B basis.
Karen Clark J
Solicitors:
Gascoigne Wicks, Blenheim for Applicant Radich Law, Blenheim for First Respondent
Wisheart Macnab & Partners, Blenheim for Second Respondent
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