The following is part-one of a two part article looking at the
recent High Court decision involving the NZ King Salmon Company
In its recent judgment on appeals against the NZ King Salmon
Board of Inquiry decision, the High Court provided useful guidance
on combined plan change/resource consent hearings, site specific
plan changes and the interpretation of the 2010 New Zealand Coastal
New Zealand King Salmon's combined applications for the plan
change and resource consents required to establish nine salmon
farms within the Marlborough Sounds had been heard by the Board of
Inquiry, which had approved the establishment of four farm sites.
The environmental groups' appeals alleged that errors of law
had been made in the way in which the Board considered the plan
change and resource consents. Its concurrent consideration of those
applications, its interpretation of New Zealand Coastal Policy
Statement policies on protecting natural character and ecological
values, and its consideration of alternative sites were all said to
have been legally flawed.
In rejecting the appeals the High Court made the following
The effects of a private plan change request and related
resource consent applications may be considered concurrently.
The Court rejected the appellants' claims that combining the
factual analysis of the issues for the plan change and the resource
consent applications cut across what the Resource Management Act
1991 ("RMA") required and led to an incorrect
consideration. The Court held that a combined factual analysis did
not commit the Board to any particular outcome and agreed that
conducting separate analysis of the facts as they related to each
decision would be unjustifiable and repetitive. While the Court
accepted that there was a possibility for a concurrent process to
lead to legal errors, this was not the case in the Board's
Policies 13 and 15 of the New Zealand Coastal Policy Statement
("NZCPS") do not veto development in areas of outstanding
landscapes or features and outstanding character.
The appellants had complained that there had been a breach of
the specific obligations in Policies 13 and 15 to avoid adverse
effects of activities on outstanding natural character, features
and landscapes, and to avoid significant adverse effects in all
other areas of the coastal environment.
The Court held that the designation of a particular coastal area
as "outstanding natural character" or
"features" does not exclude all development which has
adverse effects. It considered that a blanket ban on all
development within those areas would be inconsistent with the
overall thrust of the NZCPS. Rather, it found that such policies
serve only to require a higher level of justification for
development with adverse effects in those areas classified as
The Court also provided that those tasked with "giving
effect" to the NZCPS do not need to approach each policy on
the basis of strict or slavish adherence to the specific meaning of
particular words, but should consider and weigh objectives and
policies overall, on the basis of their relevance to the particular
There is no mandatory obligation to consider alternative sites
for a site specific private plan change
The Court rejected the appellants' complaint that by not
looking at and eliminating alternative sites for the new
aquaculture zones, the Board had made a legal error by not
considering alternatives in the way required by the Act. It found
that eliminating alternative sites for a new zone did not form a
compulsory part of the evaluation for a private plan change. The
Court was not satisfied that the provisions of the Schedules to the
RMA, which mentioned the consideration of alternatives, could
transform what was not otherwise mandatory into a mandatory
The Supreme Court has recently granted the environmental groups
leave to appeal the High Court decision. The appeals are to be
heard in November 2013. We will consider the implications of the
appeal decision in part-two in our next issue.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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