The following is part-one of a two part article looking at the recent High Court decision involving the NZ King Salmon Company Ltd.
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 Policy Statement.
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 important findings:
- 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 decision
- 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 outstanding.
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 circumstances.
- 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 obligation
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.
