Obiter

Supreme Court’s decision in Environmental Defence Society v King Salmon

First, the case involved a plan change.  Close review of the decision reveals that the Supreme Court’s reasoning was strongly connected with the plan change scenario the Court was actually dealing with; and did not (at least expressly) extend to address application of any overall judgment in a resource consent context (which I turn to presently).

Within that setting, the essential question that the Court was grappling with was whether it would “give effect to” NZCPS (policies 13 and 15 in particular) to approve the proposed plan change, when the Board of Inquiry found as a fact the Papatua salmon farm, which the plan change provided for, would have significant adverse effects on an outstanding natural landscape.

The Supreme Court found that it would not give effect to NZCPS to provide for this salmon farm in those circumstances.  As such the plan change was contrary to s67(3)(b) of RMA.

The Court ruled against  recourse back to Part 2 to in effect “trump” the specific and directive policies of the NZCPS at issue, as the Board of Inquiry was found to have done (incorrectly as a matter of law) in approving the plan change for the Papatua salmon farm.

In reaching that conclusion, the Court was not ruling out an overall judgment approach for all purposes under the Act.  But it did do so as to interpretation and application of the NZCPS itself.

A cornerstone of the Supreme Court’s reasoning was an in principle finding that in giving effect to the NZCPS a regional council is necessarily acting “in accordance with” Part 2, so there is no need to refer back to Part 2 when determining a plan change.

The Court however listed several caveats to this in principle conclusion, namely where the NZCPS did not “cover the field” of all Part 2 matters; its provisions were invalid, or there was uncertainty of meaning.

Building on that foundation, the Court determined (these exceptions aside) that recourse back to Part 2 is both unnecessary and unhelpful.

A question of timing?

One way of considering the judgement then is that the Supreme Court decision precludes a type of “collateral challenge” to the NZCPS in determining the provisions of any inferior planning instrument.  The parties to the EDS v King Salmon decision had accepted the validity of the NZCPS for the purposes of the hearing and the case before that Court.

That does not however preclude the possibility that provisions of the NZCPS might be challenged (for example as not being in accordance with Part 2 (see s56 of the RMA)) in another context or case,  including  by way of judicial review.

As such, the Supreme Court’s decision is not against the overall judgment approach per se, but instead resolves a question of timing– when the overall judgment may be applied. As I suggest below, an overall judgement was applied in setting the terms of the NZCPS, but the Court found it cannot then (later) be applied again when deciding what gives effect to it in an inferior planning document context. I return to this point in a moment.

What is an overall judgement anyway?

In the meantime, it is important to understand what the Supreme Court meant by the term “overall judgment” as discussed in its decision.

The Supreme Court described the overall judgment approach relative to the NZCPS, as one where the NZCPS is:

…essentially a listing of potentially relevant considerations, which will have varying weight in different fact situations.

The Court rejected that approach, whereby the NZCPS may be given effect in subordinate planning documents in whatever manner decision makers consider appropriate in particular circumstances.  Instead the obligation to “give effect to” underpins the NZCPS as a “mechanism for Ministerial control”, contemplating that the NZCPS may be directive in nature, rather than a matter of discretion.

But this does not mean that Part 2 itself does not comprise a list of relevant considerations, which should not have varying weight in different fact situations.

That is of course precisely what the Environment Court in North Shore City Council v Auckland Regional Council found when coining the phrase “overall broad judgement’, whereby such judgment allows for comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome.

This goes back to the issue of timing mentioned above.

The Supreme Court, working from a foundation or presumption that the NZCPS was in accordance with Part 2, was effectively saying that an overall judgment had already been applied in its formation. Such a judgement could not be ‘played’ again as a subsequent trump card relative to an inferior planning instrument in giving effect to it.

Of interest in that regard is the statement of the Board of Inquiry in its report on submissions to the NZCPS that:

            Many submissions called for balance in the policies, though interpretations of “balance” obviously varied greatly.  In our recommendations we have tried to ensure that the balancing of factors and interests has a better environmental result …

This supports an argument that the Board of Inquiry and in turn Minister setting the terms of the NZCPS had determined that a “bottom line” approach to landscape protection was warranted, after making an ‘overall judgement’ of its own at that earlier stage. The Supreme Court found it was open to planning documents to give primacy to preservation or protection, as a “core element” of sustainable management, and as reflected in polices 13 and 15 of NZCPS 2010.

Implications for resource consent decision making?

For resource consent decision making the position must necessarily be different than as addressed by the Supreme Court.

First, there is no “give effect to” imperative within s104, but as so strongly influenced the Supreme Court in its reasoning in the case within a plan change context and scenario.

Secondly, the s104 test expressly preserves not only the opportunity but in fact a requirement for “collateral challenge” (of a sort) to the provisions of any planning instrument when considering a consent application, and states that the requirements of Part 2 prevail in the event of conflict.

Not only is the NZCPS just one of a list of planning instruments to which reference must be had under s104, but that reference is expressly “subject to Part 2”. Section 104 therefore actually compels, for a resource consent, what the Supreme Court generally ruled out for a plan change (i.e. direct recourse to Part 2).

Perhaps ironically, reference can be made back to the decision of the Court of Appeal in EDS v Manganui County Council [1989] 3 NZLR 257 in which (as he later became) Lord Cooke stated that the words “subject to” are “a standard drafting method of making clear that the other provisions referred to are to prevail in the event of a conflict.”

This must mean that, should a Court or indeed local authority, in considering a resource consent application, find that strict application of any provision of the NZCPS would impede an outcome better promoting the sustainable management purpose of the Act in an overall sense, it may (with direct recourse back to Part 2) find in favour of that proposal. Indeed, it probably should.

A potential response to this argument is the Supreme Court’s presumption that the NZCPS is in accordance with Part 2, such that any conflict of this kind should not arise on the facts (or is simply theoretical).

In my view this would be taking the Supreme Court’s presumption too far, to the point of being irrefutable or comprising some ‘legal fiction’; inappropriate I suggest in a resource consent context, where the requirement to give effect to the NZCPS (or indeed any other higher order planning instrument) does not apply, and examination of particular merit against Part 2 specifically is mandatory.

Overall judgement survives

Beyond that, I am of the view that an overall judgment approach to Part 2 of RMA remains unavoidable.  It is simply impossible to promote all and every dimension of s5 through s8 in the circumstances of any given case.

Looking at s5 itself, if the word “while” means “at the same time as” (as the Supreme Court found) there must be an element of evaluation of relative significance or proportion.  Any development proposal with material economic benefits is likely to have some effect on the environment.  Absolutes of any kind cannot be reconciled. Complete avoidance is obviously not required, as the words “remedied or mitigated” in s5(2)(c) themselves confirm.

In short, while the RMA may permit the setting of environmental bottom lines through planning instruments which must be given effect to in any inferior instrument, the Act itself does not set up a mandatory “bottom line” approach to environmental protection across the board.

Where too for Freshwater management?

One other question I have been considering in my own practice involves the implications of the Supreme Court’s decision in the context of the National Policy Statement on Fresh Water Management (NPSFM).

Readers may be interested in visiting the EPA website in relation to the Tukituki Catchment Proposal, to view competing submissions made about the extent to which the Supreme Court’s decision has a direct bearing upon decision making relative to NPSFM, and planning instruments that must give effect to it (in this case, Change 6 to the Hawke’s Bay Regional Plan).

For what it is worth, and declaring my role as part of the legal team acting for the Council Organisation promoting Ruataniwha Water Storage Scheme, a case for differentiating NPSFM from NZCPS can be made as follows, as a matter of comparative interpretation.

First, the Supreme Court’s decision places significant emphasis on s58 through which a New Zealand Coastal Policy Statement must be framed, including  on the words “priorities”, “preservation” and “protection” appearing in s58(a). But these words do not appear in s45 (the equivalent for a national policy statement more generally). So the statutory prescription for each instrument under the Act is different.

Secondly, Objectives A1 and B1 of NPSFM both aspire to safeguard life supporting capacity [etc] in sustainably managing the relevant activities.

Unless sustainable management means something different under these NPSFM objectives than in the parent legislation, which seems highly unlikely, reference back to the sustainable management purpose (or at least definition in s5 (2)) seems unavoidable under NPSFM.

Thirdly, the policies of NPSFM are also arguably less “specific and directive” than as caused the Supreme Court to find that policies 13 and 15 of NZCPS set “something in the nature of a bottom line”. Other provisions of the NZCPS were seen by the Court to leave greater flexibility and scope for choice to Councils. The Court noted that the differences in wording within the provisions of the NZCPS (as to how directive they are) “matter”. Presumably this then applies as between NZCPS and NPSFM as well, (the differences matter) and a finding that Policies 13 and 15 of NZCPS “set something in the nature of a bottom line” does not mean the same for all provisions across both instruments.

For example Objective A2 of NPSFM refers to the “overall” quality of fresh water being maintained or improved, somewhat resonating with the “overall judgment” approach that the Supreme Court rejected in an NZCPS context.

By contrast objective B2 (as to water quantity) is more directive in setting an avoidance imperative in relation to over allocation of fresh water.

Finally, it can be argued (as was submitted to the Board of Inquiry in the Tukituki case), that the NPSFM itself does not set bottom lines at all (unlike NZCPS).

It instead sets a framework through which regional councils must move to establish limits and targets that over time may set bottom line requirements (refer for example policies A1, A2 and E1 of NPSFM).

The range of submissions to the Tukituki Catchment Proposal obviously reveals that other parties (and their advisors) advance a different view, and given the matter is still before the Board of Inquiry, I should probably say no more, but –“watch this space”.

Editor’s Note:

It is correct that there is nothing in the language of s104 that refers to the hierarchy of policy statements and plans.  However, the hierarchy is nevertheless inherent in the scheme of the Act.  It is likely to be arguable that the hierarchy is material to the interpretation and application of policy statements and plans.

Thus a resource consent application which seeks to do what the NZCPS would avoid is going to face ‘something approaching an environmental bottom line’.