New Zealand Law Society - To consider Part 2 or not to consider Part 2 – That is the question

To consider Part 2 or not to consider Part 2 – That is the question

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In environmental circles a recent debate has been whether the approach to consideration of resource consents has changed as a result of the Supreme Court’s decision in King Salmon (Environmental Defence Society v The New Zealand King Salmon Co Ltd [2014] 1 NZLR 593).

Prior to King Salmon it was conventional to consider the provisions of Part 2 – the purpose and principles sections of the Resource Management Act 1991 (RMA) – when making decisions in relation to statutory planning documents, designations and resource consents. The leading authority up to that time was New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC), where the High Court found it was appropriate to consider Part 2 as part of an “overall judgment” approach to decision-making under the RMA.

However, the Supreme Court in King Salmon found that, absent any uncertainty, invalidity or incomplete coverage in the relevant policy or plan document, there is no need to have recourse to an overall judgment approach under Part 2. While the Supreme Court’s decision was made in the context of a plan change application (where the decision maker had a statutory obligation to “give effect to” (section 67(3) RMA) policies of the New Zealand Coastal Policy Statement requiring avoidance of adverse effects on outstanding natural character and landscapes) (New Zealand Coastal Policy Statement, Policies 13(1)(a) and 15(1)(a)); it was largely accepted that the reasoning should also apply to other statutory planning documents (see, for example, Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional Council [2017] NZHC 3080). The issue then became whether the findings in King Salmon against an “overall judgment” approach also applied to designations and resource consent applications.

The High Court considered the issue in relation to designations in the Basin Bridge decision (New Zealand Transport Agency v Architectural Centre Inc [2015] NZHC 1991, at paragraphs [117] and [118]) and found that unlike the statutory planning context in King Salmon, for designations there was a specific statutory direction which required decision makers to appropriately consider and apply Part 2. This was due to the requirement in s 171(1) that a “territorial authority must, subject to Part 2, consider the effects on the environment of allowing the requirement having particular regard to…” a number of factors.

As the same statutory direction (of having regard to various considerations “subject to Part 2”) applies to resource consent decision-makers (s 104(1) RMA), it seems logical to expect that a similar approach would apply to resource consent decisions. However, that is not currently the case. The leading authority on whether a decision-making authority can have regard to Part 2 in considering a resource consent application is the decision of the High Court in RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52. In that case the Court found at [77] that 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.”

The existence of the potentially conflicting High Court authority (between designations and resource consents) was acknowledged, but not resolved, by the High Court in Hokio Trusts v Manawatu-Wanganui Regional Council [2017] NZHC 1355:

“[43] … It is unnecessary for me to decide whether, if environmental values are sufficiently accounted for in planning documents which have more specific relevance to the resource in question, the obligations of pt 2 are able to be considered already met for the purposes of s 104. Whichever of Davidson and New Zealand Transport Agency is correct, King Salmon made clear pt 2 is still relevant in assessing resource consents in certain specific circumstances – including those relevant to the current appeal. As the Supreme Court observed in King Salmon:

…the obligation in s 8 to have regard to the principles of the Treaty of Waitangi will have procedural as well as substantive implications, which decision-makers must always have in mind…”

A further decision of the High Court (albeit in a plan change context) would appear to lend weight to the view that where there is a specific statutory direction to consider a certain provision, (including Part 2), then that provision must be considered (Turners and Growers Horticulture Ltd v Far North District Council [2017] NZHC 764 at [43]):

“[43] Third, I do not accept the submission that the Court was wrong to consider the purpose and principles in Part 2 and Council’s functions under s 31 when evaluating the proposed rules. Section 74 specifically requires a territorial authority to change its district plan in accordance with its functions under s 31 and the provisions of Part 2 (ss 5 to 8). The Supreme Court did not suggest in New Zealand King Salmon that those making decisions under the Act should disregard these mandatory provisions. On the contrary, the Court stated 'the obligation of those who perform functions under the RMA to comply with the statutory objective is clear'. The Court explained that '[s]ection 5 is a carefully formulated statement of principle intended to guide those who make decisions under the RMA. It is given further elaboration by the remaining sections in Part 2, ss 6, 7 and 8'."

Following this case, the question is then whether the phrase “subject to Part 2” is regarded as a mandatory statutory requirement such that Part 2 must be considered? Relevant to this issue too perhaps, is clause 2(1)(f) of Schedule 4 to the RMA which requires an applicant for a resource consent to assess their proposal against the matters set out in Part 2. If Part 2 is not relevant for decision makers to consider, there would appear to be no point in having applicants assess their proposal against it.

If, instead, Part 2 is regarded as a mandatory statutory consideration for resource consents, then a further question is whether, following King Salmon, there is any limitation on the approach that can be taken to considering Part 2. In other words, does consideration of Part 2 enable an overall judgment approach to be taken such that an application could be approved by weighing all the various factors “in the round”; or is some lesser approach, such as checking the conclusion reached against certain aspects of Part 2 all that is enabled?

Happily, some further guidance on this issue is expected to be available soon. The RJ Davidson decision was appealed to the Court of Appeal and a decision is pending.

Until that guidance is available it may be useful for decision makers (particularly on contested applications) to:

  • assess an application against both approaches – the King Salmon approach of not considering Part 2 unless one of the exceptions applies and the overall judgment approach; and
  • record the outcome of both those assessments in its decision.

Vicki Morrison-Shaw is a partner with Atkins Holm Majurey Ltd. She is a member of the New Zealand Law Society’s Environmental Law Committee.

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