New Zealand: Case Note: Coromandel Watchdog Of Hauraki Incorporated v Chief Executive Of The Ministry Of Economic Development And Anor CA CA285/05 (31 October 2007)

Last Updated: 11 January 2008
Article by Helen Atkins

The status of a 'prohibited activity' specifically in relation to mining was under review in this recent case heard by the Court of Appeal.

The Facts

The environmental group, Coromandel Watchdog, sought and got special leave from the Court of Appeal to answer the following question:

Did the High Court err in holding that if a prohibited activity status can only be used when a planning authority is satisfied that, within the time span of the Plan, the activity in question should in no circumstances ever be allowed in the area under consideration?

The short answer is the Court of Appeal said yes the High Court did err, and it remitted the matter in issue back to the Environment Court.

The matter at issue concerned mining in the Coromandel - an issue of some considerable history.

Of particular note is who the parties in this case actually were.  As noted Coromandel Watchdog (a well known opponent of mining in the Peninsula) was the appellant. The other parties were interesting in terms of who they are and why they were involved.  Note the Thames Coromandel District Council (TCDC) was not a party to this appeal though it was in the earlier related proceedings.

The Ministry of Economic Development (MED) and the New Zealand Minerals Industry Association (NZMIA) - the respondents - had similar interests.  Both wanted to see the proposed district plan give appropriate recognition of mineral and aggregate resources and the provision of their use. By way of context parts of the Coromandel are known to have significant deposits of gold and silver.

The two Auckland Councils (the city and the regional) sought and achieved status as interveners. As councils they were interested in the general question being asked by Coromandel Watchdog though obviously not the specifics relating to mining in the Coromandel.

Mining in the Coromandel has a long and tortious resource management history that culminated, in the case of these proceedings in the TCDC providing in its decisions versions of the proposed district plan that mining would be a prohibited activity in the conservation and coastal zones, and in all recreation and open space policy areas.  In all other areas and zones it was non-complying.

The matter, not surprisingly went to the Environment Court. By the time of the hearing TCDC had modified its stance and moved more towards the position that MED and NZMIA were requesting. Needless to say this stance did not meet the concerns of any of the parties.

Defining A 'Prohibited Activity'

During the course of the Environment Court's consideration, a philosophical debate arose was as to whether prohibited activity was an appropriate status where a planning authority did not necessarily rule out an activity, but wished to ensure that a proponent of the activity would need to initiate a 'plan change'. The Court of Appeal summarised the Environment Court's position as:

 [3] In short, the Environment Court held that prohibited activity status should not be used unless an activity is actually forbidden.  In the words of the Environment Court (at [13]), prohibited activity status "should be used only when the activity in question should not be contemplated in the relevant place, under any circumstances".  In particular, the Environment Court held at [12]:

It is not, we think, legitimate to use the prohibited status as a de facto, but more complex version of a non-complying status. In other words, it is not legitimate to say that the term prohibited does not really mean forbidden, but rather that while the activity could not be undertaken as the Plan stands, a Plan Change to permit it is, if not tacitly invited, certainly something that would be entertained.

 [U]nless it can definitively be said that in no circumstances should mining ever be allowed on a given piece of land, a prohibited status is an inappropriate planning tool.

An important factual finding of the Environment Court (in the view of the Court of Appeal) related to the Court's criticism of TCDC for inconsistency in its treatment of some activities that had essentially the same effect as mining - ie quarrying and production forestry.

In essence, the case for Coromandel Watchdog was that the Environment and High Court were wrong in holding that the Council was incorrect to categorise mining as a prohibited activity in circumstances where the Council contemplated the possibility of mining activities occurring, but wanted to ensure that such activities could only occur if a plan change was approved. In short the criticism of the Environment and High Court's decisions were that they had set the test for prohibited activities too high.

In considering the primary question posed by Coromandel Watchdog the Court of Appeal provides a detailed overview of the provisions of the RMA relevant to prohibited activities and all those sections that pertain to plan formulation. The Court examined the interplay between sections 5, 32 and 75, observing:

[28] The important point for present purposes is that the exercise required by s 32, when applied to the allocation of activity statuses in terms of s 77B, requires a council to focus on what is "the most appropriate" status for achieving the objectives of the district plan, which, in turn, must be the most appropriate way of achieving the purpose of sustainable management.

The Court also recognised that in addition to the s32 cost/benefit analysis, the Council must also have regard to its functions under section 31, the Part 2 purpose and principles, section 74 matters, and in relation to rules, the actual or potential effect on the environment of activities, including any adverse effects.

The Court agreed that none of these requirements and criteria gave support to the restrictive interpretation of prohibited activity that had been adopted by both the Environment and High Courts, to recap that prohibited activity status is only appropriate for absolutely forbidden activities. 

The two intervening Councils had a slightly different position than that of the Coromandel Watchdog. They supported the case that the test for prohibited activities was not that high but said that having regard to section 32's emphasis on the most appropriate outcome, a prohibited activity classification could be imposed validly in a wide range of circumstances. These circumstances, included:

  • Where a planning authority has insufficient information as to the likely effects and takes a precautionary approach, even though it does not rule out the possibility of that activity being permitted in the future.
  • Where the Council takes a purposively staged approach or wishes to ensure a comprehensive development.
  • Where it is necessary to allow an expression of social or cultural outcomes or expectation, for example prohibited nuclear power was expressly mentioned. Another example is the debate over GE crops.
  • Where the classification is intended to restrict the allocation of resources, for example aquaculture location.
  • When a council wishes to establish priorities otherwise than on a 'first in first served' basis.
The Judgment

The Court of Appeal did not comment in detail on the merits of the particular scenarios posed by the interveners but noted that in some of the cases the 'bright-line' test of the Environment Court would not be met (that is that a local authority must consider that an activity be forbidden outright, with no contemplation of any change or exception, before prohibited activity status would be appropriate). The Court went onto observe, however, that having regard to the broad considerations applying to the formulation of a plan, a local authority could rationally conclude that prohibitive activity status was the most appropriate status. 

The Court went on to comment that councils should not use a prohibited activity classification to defer undertaking an evaluation of a particular activity until it received a specific application to do so. 

Overall the Court of Appeal agreed with Coromandel Watchdog's submission that prohibited does not mean forbidden (as held by the Environment Court).

There was some debate over whether the matter ought to be remitted back to the Environment Court in the circumstances. That is the substantive matter had moved on since the case had been heard in the Environment Court with the parties having been in negotiations. The Court of Appeal was unable to conclude that the Environment Court's decision would be unaffected by the appeal and remitted it back to that Court.

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