Supreme Court Affirms Environmental Bottom Line
- Created: Friday, 06 June 2014 04:25
SUPREME COURT AFFIRMS ENVIRONMENTAL BOTTOM LINE APPROACH WHERE POLICIES ARE DIRECTIVE
In Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited and Ors [2014] NZSC 38, the Supreme Court expressed its views on the interpretation of the New Zealand Coastal Policy Statement ("the NZCPS") with regard to the management framework within the Resource Management Act ("the RMA").
The Court found that policies in the NZCPS can be sufficiently specific and directive so as to create an "environmental bottom line".
Background
New Zealand King Salmon ("King Salmon") applied for plan changes and resource consents for nine salmon farms in the Marlborough Sounds, four of which were granted by the Board of Inquiry ("the Board"). The Board's decision was appealed by both the Environmental Defence Society Incorporated ("EDS") and Sustain our Sounds Incorporated and determined by the Supreme Court in two interrelated decisions.
The EDS Appeal
The EDS appeal concerned the proposed farm at Papatua in Port Gore. The Board found that the Papatua site was an Outstanding Natural Landscape ("ONL"), that the development would have significant adverse effects on the ONL, and therefore would not give effect to policies 13(1)(a) and 15(a) of the NZCPS as required by section 67(3)(b) of the RMA. The Board, however, granted the plan change taking an "overall judgment" approach in relation to the competing principles regarding sustainable management under Part 2 of the RMA and the objectives and policies of the NZCPS.
The EDS appeal claimed that the Board should have refused the application given that it would not give effect to the relevant policies of the NZCPS.
The Question Considered
The Supreme Court considered whether the Board was correct in its "overall judgment" approach and whether it was consistent with the legislative framework, specifically the need to give effect to the NZCPS.
The Court's Decision
The Language of the Policies
The Majority of the Supreme Court ("the Majority") accepted the position of the EDS that the language of policies 13(1)(a) and 15(a), namely the reference to "avoiding" adverse effects of inappropriate activities on ONLs, created a prohibition against the proposed plan change and therefore an "environmental bottom line".
Policies 13(1)(a) and 15(a) seek to preserve and protect the natural character, features and landscape of the coastal environment from inappropriate subdivision, use and development by avoiding adverse effects of activities on areas in the coastal environment with outstanding natural qualities.
In considering the interpretation of "avoid", as it is used in the relevant provisions of the NZCPS and in section 5(2)(c) of the RMA where it is juxtaposed with "mitigate" and "remedy", the Court defined "avoid" as "not allow" or "prevent the occurrence of".
The Majority acknowledged that the interpretation of "appropriateness" in the NZCPS is dependent on context and the expression of particular objectives and policies. It was considered that the term "inappropriate" in policies 13 and 15 should be interpreted against the backdrop of what is sought to be protected. In the respective policies, it was considered that inappropriate activities would be those which did not avoid the adverse effects on natural character, features and landscape in areas of the coastal environment with outstanding natural qualities.
The "Overall Judgment" Approach
The Board considered that the NZCPS contains provisions that "pull in different directions" and because there is no hierarchy of provisions, an "overall judgment", or balancing of the relevant considerations in the NZCPS, is necessary to comply with section 67(3) of the RMA and ensure that the NZCPS as a whole is given effect to.
The Majority considered that the various provisions of the NZCPS are deliberately worded so that some give decision-makers more flexibility, and others are stated in such directive terms that the decision-maker has no option but to implement them. Because of the strong direction to "give effect" to the NZCPS, policies of the NZCPS which are framed in a specific way have binding effect. The requirement to "avoid adverse effects" in policies 13(1)(a) and 15(a) was considered by the Majority, sufficiently specific and direct to create an "environmental bottom line".
The Majority considered the "overall judgment" approach inconsistent with the Minister's statutory power to set objectives and policies containing national priorities for the preservation of natural character. The "overall judgment" approach was also considered to be inconsistent with the extensive consultation and evaluation prior to the issue of a NZCPS.
The Majority stated:
[90] ...The notion that decision-makers are entitled to decline to implement aspects of the NZCPS if they consider that appropriate in the circumstances does not fit readily into the hierarchical scheme of the RMA.
[91] ...[T]he fact that the RMA and the NZCPS allow regional and district councils scope for choice does not mean, of course that the scope is infinite. The requirement to "give effect to" the NZCPS is intended to constrain the decision-makers.
Balancing Conflicts
The Majority considered that, in practice, conflicts between policies in the NZCPS can be avoided by paying "close attention" to the way in which the policies are expressed, and giving more weight to those expressed in more directive terms. A determination which has one policy prevailing over another can only be justified if a conflict between policies remains after making a serious attempt to reconcile them.
In this case, the Majority found no conflict between policies 13(1)(a) and 15(a), and policy 8, which recognises the need for provision for salmon farming within suitable areas, if the latter is interpreted to exclude ONLs where farming will have an adverse effect on their outstanding qualities.
The Majority supported their conclusion by observing that, in their view, the "overall judgment" approach creates uncertainty and would mean that development could be possible in any coastal area no matter how outstanding.
Part 2 of the RMA
The Majority also concluded that the Board's reliance on Part 2 of the RMA rather than the NZCPS in reaching its final determination was incorrect and unnecessary. The Majority emphasised that the function of the NZCPS is to translate the principles in Part 2 into objectives and policies which apply those principles to the coastal environment.
However, the Majority noted that a decision-maker may have to consider Part 2 due to incomplete coverage or uncertainty of meaning within the NZCPS.
Dissent
In his dissenting decision, Justice Young accepted that it is possible for a policy to be drafted in a manner that is so narrow and inflexible as to effectively form a rule. In this case, however, he considered that if the purpose of policies 13(1)(a) and 15(a) was to prohibit activities with adverse effects on ONLs, that would have been specified in an explicit way. By way of example, Justice Young referred to section 58(e) of the RMA which allows for specified activities to be controlled as restricted coastal activities.
The Judge considered that the Majority's view, which removes from regional councils the responsibility for identifying areas of particular natural character and the activities from which they require protection, is inconsistent with the purpose of the NZCPS.
Further, Justice Young considered the flexibility with regard to policies of the NZCPS is evident from the requirement to "give effect" to the NZCPS rather than individual policies, and the requirement in the policies for certain effects to be avoided but not prohibited.
Summary
The Board's application of the "overall judgment" approach and reference to Part 2 of the RMA was rejected by the Majority. The Majority found that the Board should have considered the proposal in light of the "strongly worded directives" of policies 13(1)(a) and 15(a) of the NZCPS, and applied those directives in the form of an "environmental bottom line".
It was concluded that the Board should not have granted the plan change as it did not comply with section 67(3)(b) of the RMA in that it did not "give effect" to policies 13(1)(a) and 15(a) of the NZCPS. The EDS appeal was therefore successful and the Board's decision allowing King Salmon's farm at Papatua was reversed.
Comment
In light of the EDS decision, the Tukituki Board of Inquiry invited comments from parties on its implications for the draft report on the Tukituki Catchment proposal, which concerns interpretation of the National Policy Statement on Freshwater Management 2011.
It will be interesting to see if there are a flurry of Regional Plan and Regional Policy Statement changes as Councils come to appreciate that they no longer have the "wriggle room" which Part II of the RMA gave them (as previously applied), and that the language of their planning instruments may be construed as being specific and direct thus creating unintended "bottom lines."
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