King Salmon applies to resource consents

King Salmon applies to resource consents

King Salmon applies to resource consents

Wednesday 17 May, 2017

Following the Supreme Court’s finding in EDS v NZ King Salmon [2014] NZSC 38 (“King Salmon”), that there is generally no need (or ability) to refer back to the purpose and principles in Part 2 of the Resource Management Act 1991 (“RMA”) (which was in the context of a plan change), there was some uncertainty as to its application in respect of resource consent applications and designations given their different statutory frameworks.  The High Court has since confirmed that reference to Part 2 is still appropriate in respect of designations (see New Zealand Transport Agency v Architectural Centre Inc [2015] NZHC 1991 (“the Basin Bridge case”)).  Now, in its recent decision R J Davidson Family Trust v Marlborough District Council [2017] NZHC 52 (“RJ Davidson”), the High Court has held that the King Salmon rationale applies in respect of a resource consent application.

RJ Davidson Family Trust v Marlborough District Council [2017] NZHC52

RJ Davidson concerns an application to establish and operate a mussel farm in Beatrix Bay in the Pelorus Sounds.  The proposed mussel farm was within an “Area of Significant Ecological Value” in the relevant plan, and there was evidence as to adverse effects on endangered King Shag.  The application for resource consent was declined by the Marlborough District Council and unsuccessfully appealed to the Environment Court.  In declining the consents sought, the majority of the Environment Court held “logically the King Salmon approach should apply when applying for resource consent under a district plan” at [260]. The Supreme Court’s approach in King Salmon held that unless one of three caveats apply, it is unnecessary to refer back to Part 2 of the RMA when determining a plan change.  The applicant appealed this finding and other aspects of the decision to the High Court.

The High Court confirmed the Environment Court’s majority decision. It found that the relevant planning documents, including the NZCPS, “have already given substance to the principles in Part 2”, and “it would be inconsistent with the scheme of the RMA and King Salmon to allow Regional or District Plans to be rendered ineffective by general recourse to Part 2 in deciding resource consent applications” at [76] – [77].  The High Court also reaffirmed the three caveats identified by the Supreme Court: where there is invalidity, incomplete coverage, or uncertainty in the planning documents, resort to Part 2 should then occur, and it may be appropriate to undertake a wider balancing exercise.

The High Court decision is expected to have significant implications for how all resource consent applications are decided in the future. 

The Court’s application of RJ Davidson

To date, the Environment Court has adopted an inconsistent approach to its application of RJ Davidson when considering applications for resource consents, irrespective of whether or not the NZCPS is a relevant consideration. 

In Infinity Investment Group Holdings Ltd v Canterbury Regional Council [2017] NZEnvC 36, Judge Jackson (who heard the RJ Davidson appeal) confirmed the approach in Davidson and the reasoning of the High Court on appeal.  This matter did not involve the NZCPS. 

However, Judge Smith’s division of the Environment Court took a different approach in Envirofume Ltd v Bay of Plenty Regional Council [2017] NZEnvC 12, despite the NZCPS being a relevant consideration in that case.  The Court held that Part 2 is still relevant to resource consent applications for the following reasons at [143]:

  • as an overview or check that the purpose of the Act and that Part 2 issues are properly covered and clear;
  • to focus the Court or decision makers on the overall purpose of the consent in question; and
  • as a check that the various documents have recognised, provided for, or given effect to, the Act, and other documents in the hierarchy.

Comment

RJ Davidson represents a significant shift from the orthodox role of Part 2 in resource consent application decisions.  The position following RJ Davidson appears to be that Part 2 can be considered in relation to a proposed designation, but generally not for a plan change or resource consent (unless one of the caveats is made out).  This has significant implications for legal and planning professionals; not least the importance of careful drafting of plan provisions during plan review and change processes. In particular, it places importance on the need for plan drafters to ensure that all aspects (both enablement and protection) of Part 2 are reflected in plan provisions, rather than relying on Part 2 itself to be a “catch all” when consent applications are assessed.  However, in light of the Environment Court’s inconsistent approach to RJ Davidson, the position as to the application of King Salmon to resource consent applications is not settled. 

Pending any determination on this matter by the Court of Appeal, we recommend Councils continue to apply Part 2 and the overall balancing approach to resource consent applications, especially where the NZCPS is not triggered by the application or has little bearing on the outcome. 

Further appeal

The Trust has applied for leave to appeal RJ Davidson to the Court of Appeal on the ground that the High Court misinterpreted the need to assess applications for consent under section 104 ‘subject to Part 2’.  The preliminary application for leave will be heard this month.  Given the different approaches in applying the RJ Davidson rationale, the Court of Appeal’s guidance on this issue will be valuable.