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Application of King Salmon to Regional Policy Statements

Application of King Salmon to Regional Policy Statements

Application of King Salmon to Regional Policy Statements

The High Court recently considered the application of the Supreme Court’s decision in King Salmon[1] to the drafting of regional policy statements.[2]

The Environmental Defence Society Incorporated “EDS” challenged the Otago Regional Council’s wording of a provision in the Proposed Otago Regional Policy Statement “PORPS”. The EDS alleged that the policy’s wording was inconsistent with the avoidance policies[3] in the New Zealand Coastal Policy Statement “NZCPS”. EDS argued the avoidance policies were directive, which required the PORPS to ensure the avoidance of all adverse effects on the listed coastal environments. As the contested policy in the PORPS did not implement the avoidance policies, EDS contended that the Council had failed to give effect to the NZCPS.

Environment Court Decision

In an interim decision,[4] the Environment Court held that Policy 9 of the NZCPS (which provides for the development of ports in the coastal environment) was prescriptive and regional policy statements were required to provide for the efficient and safe operation of ports. As such, this provision was then considered to conflict with the avoidance policies. In comparing the wording of the policies, the Environment Court distinguished the application of the Supreme Court’s decision in King Salmon as Policy 9 did not incorporate immediate deference to the avoidance policies.

The Environment Court concluded that adverse effects of port activities on specified coastal environments were to be avoided in almost, but not all, circumstances, rendering the PORPS consistent with the NZCPS. [5] It amended the PORPS to require resource consent for port activities, allowing for an assessment of the potential adverse effects on the specified coastal environment.

Appeal to the High Court

EDS appealed the interim decision on the basis that the Environment Court had erred in its interpretation of the NZCPS and had therefore failed to give effect to the NZCPS in the PORPS as required, making the PORPS unlawful.

The High Court agreed that the Environment Court had misapplied the Supreme Court test in King Salmon. The High Court found there was nothing in Policy 9 that provided an exception to the application of the avoidance policies, so the Environment Court had erred in concluding that the avoidance policies and Policy 9 were in direct conflict. The High Court also accepted that the Environment Court had erred in deciding that adverse effects on the coastal environment were to be avoided in “almost… but not all” circumstances. The High Court found that such a conclusion by the Environment Court was reached through the application of the ‘overall judgment’ approach to avoiding adverse effects, use of which had been rejected by the Supreme Court and was no longer available.

Accordingly, the High Court declared that PORPS was inconsistent with the NZCPS as the avoidance policies are specific and directive, providing an environmental bottom line that binds consent authorities. [6] To give effect to the avoidance policies in the NZCPS, the PORPS had to require port activities to avoid all adverse effects on the listed coastal environments. The High Court quashed the interim decision and sent the issue back to the Environment Court for reconsideration.

Conclusion

The Supreme Court decision in King Salmon represents a significant change in the application of the Resource Management Act. It is no longer appropriate to take a case by case approach to avoiding adverse effects of activities on protected areas of the coastal environment. King Salmon clearly establishes that avoidance policies are environmental bottom lines that authorities must implement into their policy statements, regardless of the circumstances.

 


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[1] Environmental Defence Society v New ZealandKing Salmon Company Ltd [2014] NZSC 38.
[2] Environmental Defence Society Incorporated v Otago Regional Council [2019] NZHC 2278.
[3] Policies 11(a), 13(1)(a), 15(a) and 16.
[4] Port of Otago Ltd v Otago Regional Council [2018] NZEnvC 183.
[5] Above n 18, at [100].
[6] Above n 16, at [53].