Court of Appeal Decides King Salmon Does Not Apply to Resource Consent Applications


Introduction

The keenly awaited decision of the Court of Appeal in RJ Davidson Family Trust v Marlborough District Council[1] was released this week. The decision is important because it resolves uncertainty arising from the Supreme Court decision in King Salmon[2] about whether recourse to Part 2, which sets out the purpose and key principles of the Resource Management Act 1991 (RMA), should occur in the context of resource consent applications.   

In King Salmon the Supreme Court held that consideration of Part 2 is not required when determining plan change applications. Since King Salmon there has been considerable debate about whether this approach, which prevents consideration of Part 2 RMA, should apply in the context of resource consent applications. The issue is important because in some instances the Part 2 assessment (known as the “overall assessment”) can be influential in determining the outcome of a consent application.

The issue was squarely addressed by the Court of Appeal which held that King Salmon does not prevent recourse to Part 2 in the case of applications for resource consent. The Court noted however that in some cases genuine consideration of the relevant plan considerations may leave little room for Part 2 to influence the final outcome. In this article we discuss the background to the case, key findings of the Court and the implications of the Davidson decision with respect to resource consent applications.


Background

The R J Davidson Family Trust (the “Trust”) applied for a resource consent to establish and operate a 7 hectare mussel farm in Pelorus Sounds, Marlborough.

The application was declined by the Marlborough District Council and subsequently appealed to the Environment Court where the majority declined consent. The Environment Court held there was no need or ability to look to Part 2 of the RMA in determining an application for resource consent under section 104 of the RMA and that logically the King Salmon approach should apply when applying for a resource consent under a district plan.

The Trust appealed to the High Court which held that the reasoning in King Salmon should also apply to resource consent applications because the provisions of the relevant planning documents, including the New Zealand Coastal Policy Statement (the NZCPS), had already given substance to the principles in Part 2 of the RMA.

The Trust appealed to the Court of Appeal. The basis of the appeal was whether the High Court erred in finding that the Environment Court was not required to consider Part 2 when determining the Trust’s application. 


Court of Appeal Decision

After considering the particular factual and statutory context addressed by the Supreme Court, the Court of Appeal held that the decision in King Salmon does not prohibit the consideration of Part 2 of the RMA in the context of a resource consent application. The Court gave the following reasons for its conclusion:

 

  1. First, the Supreme Court’s discussion of the “overall judgement” approach was expressly tied to the plan change context under consideration in King Salmon. If the Supreme Court’s intention had been to reject that approach in the context of resource consent applications then it would have specifically said so.
  2. Secondly, the Supreme Court’s observation that the overall judgment approach creates uncertainty was directed toward applications related to the NZCPS, and that did not equate to an intention by the Supreme Court to prohibit an “overall judgement” approach in the case of resource consents generally.
  3. Thirdly, there are significant differences between the statutory provisions applying to resource consent applications and plan change applications. The Court held that the statutory language in section 104 plainly contemplates the direct consideration of Part 2 matters in the context of resource consent applications.

After reaching the above primary finding, the Court of Appeal then went on to consider the requirement to consider Part 2;

[74] It may be, of course, that a fair appraisal of the policies means that the appropriate response to an application is obvious, if it effectively presents itself. Other cases will be more difficult. If it is clear that a plan has been prepared having regard to pt 2 and with a coherent set of policies designed to achieve clear environmental outcomes, the result of a genuine process that has regard to those policies in accordance with s104(1) should be to implement those policies in evaluating a resource consent application. Reference to pt 2 in such a case would not likely add anything. It could not justify an outcome contrary to the thrust of the policies. Equally, if it appears the plan has not been prepared in a manner that appropriately reflects the provisions of pt 2, that will be a case where the consent authority will be required to give emphasis to pt 2.

[75] If the plan is competently prepared under the Act it may be that in many cases the consent authority will feel assured in taking the view that there is no need to refer to pt 2 because doing so would not add anything to the evaluative exercise. Absent such assurances, or if in doubt, it will be appropriate and necessary to do so. That is the implication of the words “subject to Part 2” in s 104(1), the statement of the Act’s purpose in s5, and the mandatory, albeit general language of ss6,7 and 8.

The Court preferred the approach outlined above rather than limiting resort to Part 2 only where there is “invalidity, incomplete coverage or uncertainty” in the planning instrument as was employed in King Salmon because it provided more flexibility.

Applying the approach outlined above, the Court concluded that even though the High Court erred by finding that King Salmon prevents recourse to Part 2, in the present case there was no reason to depart from Part 2’s expression in the relevant planning documents and so the error was of no consequence.


Implications of decision

The Davidson decision is binding on the High Court, the Environment Court and consent authorities.

The decision is important because it resolves uncertainty about whether regard should be had to Part 2 in relation to resource consent applications. The outcome is that it requires that decision makers should have regard to Part 2 when assessing a resource consent application.

However the decision leaves open for consideration the extent to which Part 2 should be referred to or influence the evaluation of a resource consent application in any particular instance, depending on the quality of the relevant planning documents. There may be circumstances where recourse to Part 2 will not add anything if it is clear that a plan has been prepared having regard to Part 2 and contains a coherent set of policies designed to achieve clear environmental outcomes. In other cases the position will be more difficult and will require careful consideration of the relevant plan provisions.


 

[1] RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316.

[2] Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38.


Disclaimer: This is a brief summary for information purposes only and is not legal advice

 

Posted on Friday 24th August, 2018 at 12:27 pm