The appeal is allowed.
The plan change in relation to Papatua at Port Gore did not comply with s 67(3)(b) of the Resource Management Act 1991 as it did not give effect to policies 13(1)(a) and 15(a) of the New Zealand Coastal Policy Statement.
Costs are reserved.
Elias CJ, McGrath, Glazebrook & Arnold JJ
In October 2011, the first respondent, New Zealand King Salmon Co Ltd (King Salmon), applied for changes to the Marlborough Sounds Resource Management Plan (the Sounds Plan) so that salmon farming would be changed from a prohibited to a discretionary activity in eight locations. At the same time, King Salmon applied for resource consents to enable it to undertake salmon farming at these locations, and at one other, for a term of 35 years.
King Salmon’s application was made shortly after the Resource Management Act 1991 (the RMA) was amended in 2011 to streamline planning and consenting processes in relation to, among other things, aquaculture applications. The Minister of Conservation, acting on the recommendation of the Environmental Protection Agency, determined that King Salmon’s proposals involved matters of national significance and should be determined by a board of inquiry, rather than by the relevant local authority, the Marlborough District Council. On 3 November 2011, the Minister referred the applications to a five member board chaired by retired Environment Court Judge Gordon Whiting (the Board). After hearing extensive evidence and submissions, the Board determined that it would grant plan changes in relation to four of the proposed sites, so that salmon farming became a discretionary rather than prohibited activity at those sites. The Board granted King Salmon resource consents in relation to these four sites, subject to detailed conditions of consent.
An appeal from a board of inquiry to the High Court is available as of right, but only on a question of law. The appellant, the Environmental Defence Society (EDS), took an appeal to the High Court as did Sustain Our Sounds Inc (SOS), the appellant in SC84/2013. Their appeals were dismissed by Dobson J. EDS and SOS then sought leave to appeal to this Court under s 149V of the RMA. Leave was granted. We are delivering contemporaneously a separate judgment in which we will outline our approach to s 149V and give our reasons for granting leave.
The EDS and SOS appeals were heard together. They raise issues going to the heart of the approach mandated by the RMA. The particular focus of the appeals was rather different, however. In this Court EDS’s appeal related to one of the plan changes only, at Papatua in Port Gore. By contrast, SOS challenged all four plan changes. While the SOS appeal was based principally on issues going to water quality, the EDS appeal went to the protection of areas of outstanding natural character and outstanding natural landscape in the coastal environment. In this judgment, we address the EDS appeal. The SOS appeal is dealt with in a separate judgment, which is being delivered contemporaneously.
King Salmon’s plan change application in relation to Papatua covered an area that was significantly greater than the areas involved in its other successful plan change applications because it proposed to rotate the farm around the area on a three year cycle. In considering whether to grant the application, the Board was required to “give effect to” the New Zealand Coastal Policy Statement (NZCPS). The Board accepted that Papatua was an area of outstanding natural character and an outstanding natural landscape and that the proposed salmon farm would have significant adverse effects on that natural character and landscape. As a consequence, policies 13(1)(a) and 15(a) of the NZCPS would not be complied with if the plan change was granted. Despite this, the Board granted the plan change. Although it accepted that policies 13(1)(a) and 15(a) in the NZCPS had to be given considerable weight, it said that they were not determinative and that it was required to give effect to the NZCPS “as a whole”. The Board said that it was required to reach an “overall judgment” on King Salmon’s application in light of the principles contained in pt 2 of the RMA, and s 5 in particular. EDS argued that this analysis was incorrect and that the Board’s finding that policies 13(1)(a) and 15(a) would not be given effect if the plan change was granted meant that King Salmon’s application in relation to Papatua had to be refused. EDS said that the Board had erred in law.
Although the Board was not named as a party to the appeals, it sought leave to make submissions, both in writing and orally, to assist the Court and deal with the questions of law raised in the appeals (including any practical implications) on a non-adversarial basis. The Court issued a minute dated 11 November 2013 noting some difficulties with this, and leaving the application to be resolved at the hearing. In the event, we declined to hear oral submissions from the Board. Further, we have taken no account of the written submissions filed on its behalf. We will give our reasons for this in the separate judgment that we are delivering contemporaneously in relation to the application for leave to appeal.
Before we address the matters at issue in the EDS appeal, we will provide a brief overview of the RMA. This is not intended to be a comprehensive overview but rather to identify aspects that will provide context for the more detailed discussion which follows.
The RMA: a (very) brief overview
The enactment of the RMA in 1991 was the culmination of a lengthy law reform process, which began in 1988 when the Fourth Labour Government was in power. Until the election of the National Government in October 1990, the Hon Geoffrey Palmer MP was the responsible Minister. He introduced the Resource Management Bill into the House in December 1989. Following the change of Government, the Hon Simon Upton MP became the responsible Minister and it was he who moved that the Bill be read for a third time. In his speech, he said that in formulating the key guiding principle, sustainable management of natural and physical resources, “the Government has moved to underscore the shift in focus from planning for activities to regulating their effects ....”.
The RMA replaced a number of different Acts, most notably the Water and Soil Conservation Act 1967 and the Town and Country Planning Act 1977. In place of rules that had become fragmented, overlapping, inconsistent and complicated, the RMA attempted to introduce a coherent, integrated and structured scheme. It identified a specific overall objective (sustainable management of natural and physical resources) and established structures and processes designed to promote that objective. Sustainable management is addressed in pt 2 of the RMA, headed “Purpose and principles”. We will return to it shortly.
Under the RMA, there is a three tiered management system – national, regional and district. A “hierarchy” of planning documents is established. Those planning documents deal, variously, with objectives, policies, methods and rules. Broadly speaking, policies implement objectives and methods and rules implement policies. It is important to note that the word “rule” has a specialised meaning in the RMA , being defined to mean “a district rule or a regional rule”.
The hierarchy of planning documents is as follows:
First, there are documents which are the responsibility of central government, specifically national environmental standards, national policy statements and New Zealand coastal policy statements. Although there is no obligation to prepare national environmental standards or national policy statements, there must be at least one New Zealand coastal policy statement. Policy statements of whatever type state objectives and policies, which must be given effect to in lower order planning documents. In light of the special definition of the term, policy statements do not contain “rules”.
Second, there are documents which are the responsibility of regional councils, namely regional policy statements and regional plans. There must be at least one regional policy statement for each region, which is to achieve the RMA’s purpose “by providing an overview of the resource management issues of the region and policies and methods to achieve integrated management of the natural and physical resources of the whole region”. Besides identifying significant resource management issues for the region, and stating objectives and policies, a regional policy statement may identify methods to implement policies, although not rules. Although a regional council is not always required to prepare a regional plan, it must prepare at least one regional coastal plan, approved by the Minister of Conservation, for the marine coastal area in its region. Regional plans must state the objectives for the region, the policies to implement the objectives and the rules (if any) to implement the policies. They may also contain methods other than rules.
Third, there are documents which are the responsibility of territorial authorities, specifically district plans. There must be one district plan for each district. A district plan must state the objectives for the district, the policies to implement the objectives and the rules (if any) to implement the policies. It may also contain methods (not being rules) for implementing the policies.
New Zealand coastal policy statements and regional policy statements cover the coastal environment above and below the line of mean high water springs. Regional coastal plans operate below that line out to the limit of the territorial sea (that is, in the coastal marine area, as defined in s 2), whereas regional and district plans operate above the line.
For present purposes we emphasise three features of this scheme. First, the Minister of Conservation plays a key role in the management of the coastal environment. In particular, he or she is responsible for the preparation and recommendation of New Zealand coastal policy statements, for monitoring their effect and implementation and must also approve regional coastal plans. Further, the Minster shares with regional councils responsibility for the coastal marine area in the various regions.
Second, the scheme moves from the general to the specific. Part 2 sets out and amplifies the core principle, sustainable management of natural and physical resources, as we will later explain. Next, national policy statements and New Zealand coastal policy statements set out objectives, and identify policies to achieve those objectives, from a national perspective. Against the background of those documents, regional policy statements identify objectives, policies and (perhaps) methods in relation to particular regions. “Rules” are, by definition, found in regional and district plans (which must also identify objectives and policies and may identify methods). The effect is that as one goes down the hierarchy of documents, greater specificity is provided both as to substantive content and to locality – the general is made increasingly specific. The planning documents also move from the general to the specific in the sense that, viewed overall, they begin with objectives, then move to policies, then to methods and “rules”.
Third, the RMA requires that the various planning documents be prepared through structured processes that provide considerable opportunities for public consultation. Open processes and opportunities for public input were obviously seen as important values by the RMA’s framers.
In relation to resource consents, the RMA creates six categories of activity, from least to most restricted. The least restricted category is permitted activities, which do not require a resource consent provided they are compliant with any relevant terms of the RMA, any regulations and any plan or proposed plan. Controlled activities, restricted discretionary activities, discretionary and non-complying activities require resource consents, the difference between them being the extent of the consenting authority’s power to withhold consent. The final category is prohibited activities. These are forbidden and no consent may be granted for them.
Questions for decision
In granting EDS leave to appeal, this Court identified two questions of law, as follows:
We will focus initially on question (a).
First question: proper approach
Before we describe those aspects of the statutory framework relevant to the first question in more detail, we will briefly set out the Board’s critical findings in relation to the Papatua plan change. This will provide context for the discussion of the statutory framework that follows.
The Board did not consider that there would be any ecological or biological impacts from the proposed farm at Papatua. The Board’s focus was on the adverse effects to outstanding natural character and landscape. The Board said:
As will be apparent from this extract, some of the features which made the site outstanding from a natural character and landscape perspective also made it attractive as a salmon farming site. In particular the remoteness of the site and its location close to the Cook Strait made it attractive from a biosecurity perspective. King Salmon had grouped its nine proposed salmon farms into three distinct geographic areas, the objective being to ensure that if disease occurred in the farms in one area, it could be contained to those farms. This approach had particular relevance to the Papatua site because, in the event of an outbreak of disease elsewhere, King Salmon could operate a separate salmon supply and processing chain from the southern end of the North Island.
Statutory background – Pt 2 of the RMA
Part 2 of the RMA is headed “Purpose and principles” and contains four sections, beginning with s 5. Section 5(1) identifies the RMA’s purpose as being to promote sustainable management of natural and physical resources. The use of the word “promote” reflects the RMA’s forward looking and management focus. While the use of “promote” may indicate that the RMA seeks to foster or further the implementation of sustainable management of natural and physical resources rather than requiring its achievement in every instance, the obligation of those who perform functions under the RMA to comply with the statutory objective is clear. At issue in the present case is the nature of that obligation.
Section 5(2) defines “sustainable management” as follows:
In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—
There are two important definitions of words used in s 5(2). First, the word “effect” is broadly defined to include any positive or adverse effect, any temporary or permanent effect, any past, present or future effect and any cumulative effect. Second, the word “environment” is defined, also broadly, to include:
The term “amenity values” in (c) of this definition is itself widely defined to mean “those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”. Accordingly, aesthetic considerations constitute an element of the environment.
We make four points about the definition of “sustainable management”:
First, the definition is broadly framed. Given that it states the objective which is sought to be achieved, the definition’s language is necessarily general and flexible. Section 5 states a guiding principle which is intended to be applied by those performing functions under the RMA rather than a specifically worded purpose intended more as an aid to interpretation.
Second, as we explain in more detail at  to  below, in the sequence “avoiding, remedying, or mitigating” in sub-para (c), “avoiding” has its ordinary meaning of “not allowing” or “preventing the occurrence of”. The words “remedying” and “mitigating” indicate that the framers contemplated that developments might have adverse effects on particular sites, which could be permitted if they were mitigated and/or remedied (assuming, of course, they were not avoided).
Third, there has been some controversy concerning the effect of the word “while” in the definition. The definition is sometimes viewed as having two distinct parts linked by the word “while”. That may offer some analytical assistance but it carries the risk that the first part of the definition will be seen as addressing one set of interests (essentially developmental interests) and the second part another set (essentially intergenerational and environmental interests). We do not consider that the definition should be read in that way. Rather, it should be read as an integrated whole. This reflects the fact that elements of the intergenerational and environmental interests referred to in sub-paras (a), (b) and (c) appear in the opening part of the definition as well (that is, the part preceding “while”). That part talks of managing the use, development and protection of natural and physical resources so as to meet the stated interests – social, economic and cultural well-being as well as health and safety. The use of the word “protection” links particularly to sub-para (c). In addition, the opening part uses the words “in a way, or at a rate”. These words link particularly to the intergenerational interests in sub-paras (a) and (b). As we see it, the use of the word “while” before sub-paras (a), (b) and (c) means that those paragraphs must be observed in the course of the management referred to in the opening part of the definition. That is, “while” means “at the same time as”.
Fourth, the use of the word “protection” in the phrase “use, development and protection of natural and physical resources” and the use of the word “avoiding” in sub-para (c) indicate that s 5(2) contemplates that particular environments may need to be protected from the adverse effects of activities in order to implement the policy of sustainable management; that is, sustainable management of natural and physical resources involves protection of the environment as well as its use and development. The definition indicates that environmental protection is a core element of sustainable management, so that a policy of preventing the adverse effects of development on particular areas is consistent with sustainable management. This accords with what was said in the explanatory note when the Resource Management Bill was introduced:
The central concept of sustainable management in this Bill encompasses the themes of use, development and protection.
Section 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 pt 2, ss 6, 7 and 8:
Section 6, headed “Matters of national importance”, provides that in achieving the purpose of the RMA, all persons exercising powers and functions under it in relation to managing the use, development and protection of natural and physical resources “shall recognise and provide for” seven matters of national importance. Most relevantly, these include:
in s 6(a), the preservation of the natural character of the coastal environment (including the coastal marine area) and its protection from inappropriate subdivision, use and development; and
in s 6(b), the protection of outstanding natural features and landscapes from inappropriate subdivision, use and development.
Also included in ss 6(c) to (g) are:
the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna;
the maintenance and enhancement of public access to and along the coastal marine area;
the relationship of Maori and their culture and traditions with, among other things, water;
the protection of historical heritage from inappropriate subdivision use and development; and
the protection of protected customary rights.
Section 7 provides that in achieving the purpose of the RMA, all persons excising powers and functions under it in relation to managing the use, development and protection of natural and physical resources “shall have particular regard to” certain specified matters, including (relevantly):
kaitiakitanga and the ethic of stewardship;
the efficient use and development of physical and natural resources; and
the maintenance and enhancement of the quality of the environment.
Section 8 provides that in achieving the purpose of the RMA, all persons exercising powers and functions under it in relation to managing the use, development and protection of natural and physical resources “shall take into account” the principles of the Treaty of Waitangi.
Section 5 sets out the core purpose of the RMA – the promotion of sustainable management of natural and physical resources. Sections 6, 7 and 8 supplement that by stating the particular obligations of those administering the RMA in relation to the various matters identified. As between ss 6 and 7, the stronger direction is given by s 6 – decision-makers “shall recognise and provide for” what are described as “matters of national importance”, whereas s 7 requires decision-makers to “have particular regard to” the specified matters. The matters set out in s 6 fall naturally within the concept of sustainable management in a New Zealand context. The requirement to “recognise and provide for” the specified matters as “matters of national importance” identifies the nature of the obligation that decision-makers have in relation to those matters when implementing the principle of sustainable management. The matters referred to in s 7 tend to be more abstract and more evaluative than the matters set out in s 6. This may explain why the requirement in s 7 is to “have particular regard to” them (rather than being in similar terms to s 6).
Under s 8 decision-makers are required to “take into account” the principles of the Treaty of Waitangi. Section 8 is a different type of provision again, in the sense that the principles of the Treaty may have an additional relevance to decision-makers. For example, the Treaty principles may be relevant to matters of process, such as the nature of consultations that a local body must carry out when performing its functions under the RMA. The wider scope of s 8 reflects the fact that among the matters of national importance identified in s 6 are “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga” and protections for historic heritage and protected customary rights and that s 7 addresses kaitiakitanga.
It is significant that three of the seven matters of national importance identified in s 6 relate to the preservation or protection of certain areas, either absolutely or from “inappropriate” subdivision, use and development (that is, ss 6(a), (b) and (c)). Like the use of the words “protection” and “avoiding” in s 5, the language of ss 6(a), (b) and (c) suggests that, within the concept of sustainable management, the RMA envisages that there will be areas the natural characteristics or natural features of which require protection from the adverse effects of development. In this way, s 6 underscores the point made earlier that protection of the environment is a core element of sustainable management.
The use of the phrase “inappropriate subdivision, use or development” in s 6 raises three points:
First, s 6(a) replaced s 3(c) of the Town and Country Planning Act, which made “the preservation of the natural character of the coastal environment, and the margins of lakes and rivers, and the protection of them from unnecessary subdivision and development” a matter of national importance. In s 6(a), the word “inappropriate” replaced the word “unnecessary”. There is a question of the significance of this change in wording, to which we will return.
Second, a protection against “inappropriate” development is not necessarily a protection against any development. Rather, it allows for the possibility that there may be some forms of “appropriate” development.
Third, there is an issue as to the precise meaning of “inappropriate” in this context, in particular whether it is to be assessed against the particular features of the environment that require protection or preservation or against some other standard. This is also an issue to which we will return.
As we have said, the RMA envisages the formulation and promulgation of a cascade of planning documents, each intended, ultimately, to give effect to s 5, and to pt 2 more generally. These documents form an integral part of the legislative framework of the RMA and give substance to its purpose by identifying objectives, policies, methods and rules with increasing particularity both as to substantive content and locality. Three of these documents are of particular importance in this case – the NZCPS, the Marlborough Regional Policy Statement and the Sounds Plan.
New Zealand Coastal Policy Statement
(i) General observations
As we have said, the planning documents contemplated by the RMA are part of the legislative framework. This point can be illustrated by reference to the NZCPS, the current version of which was promulgated in 2010. Section 56 identifies the NZCPS’s purpose as being “to achieve the purpose of [the RMA] in relation to the coastal environment of New Zealand”. Other subordinate planning documents – regional policy statements, regional plans and district plans – must “give effect to” the NZCPS. Moreover, under s 32, the Minister was obliged to carry out an evaluation of the proposed coastal policy statement before it was notified under s 48 for public consultation. That evaluation was required to examine:
In developing and promulgating a New Zealand coastal policy statement, the Minister is required to use either the board of inquiry process set out in ss 47 to 52 or something similar, albeit less formal. Whatever process is used, there must be a sufficient opportunity for public submissions. The NZCPS was promulgated after a board of inquiry had considered the draft, received public submissions and reported to the Minister.
Because the purpose of the NZCPS is “to state policies in order to achieve the purpose of the [RMA] in relation to the coastal environment of New Zealand” and any plan change must give effect to it, the NZCPS must be the immediate focus of consideration. Given the central role played by the NZCPS in the statutory framework, and because no party has challenged it, we will proceed on the basis that the NZCPS conforms with the RMA’s requirements, and with pt 2 in particular. Consistently with s 32(3), we will treat its objectives as being the most appropriate way to achieve the purpose of the RMA and its policies as the most appropriate way to achieve its objectives.
We pause at this point to note one feature of the Board’s decision, namely that having considered various aspects of the NZCPS in relation to the proposed plan changes, the Board went back to pt 2 when reaching its final determination. The Board set the scene for this approach in the early part of its decision in the following way:
The Board returned to the point when expressing its final view:
We will discuss the Board’s reliance on pt 2 rather than the NZCPS in reaching its final determination later in this judgment. It sufficient at this stage to note that there is a question as to whether its reliance on pt 2 was justified in the circumstances.
There is one other noteworthy feature of the Board’s approach as set out in these extracts. It is that the principles enunciated in pt 2 are described as “sometimes competing”. The Board expressed the same view about the NZCPS, namely that the various objectives and policies it articulates compete or “pull in different directions”. One consequence is that an “overall broad judgment” is required to reach a decision about sustainable management under s 5(2) and, in relation to the NZCPS, as to “whether the instrument as a whole is generally given effect to”.
Two different approaches to s 5 have been identified in the early jurisprudence under the RMA, the first described as the “environmental bottom line” approach and the second as the “overall judgment” approach. A series of early cases in the Planning Tribunal set out the “environmental bottom line” approach. In Shell Oil New Zealand Ltd v Auckland City Council, the Tribunal said that ss 5(2)(a), (b) and (c):
... may be considered cumulative safeguards which enure (or exist at the same time) whilst the resource .... is managed in such a way or rate which enables the people of the community to provide for various aspects of their wellbeing and for their health and safety. These safeguards or qualifications for the purpose of the [RMA] must all be met before the purpose is fulfilled. The promotion of sustainable management has to be determined therefore, in the context of these qualifications which are to be accorded the same weight.
In this case there is no great issue with s 5(2)(a) and (b). If we find however, that the effects of the service station on the environment cannot be avoided, remedied or mitigated, one of the purposes of the [RMA] is not achieved.
In Campbell v Southland District Council, the Tribunal said:
Section 5 is not about achieving a balance between benefits occurring from an activity and its adverse effects. .... [T]he definition in s 5(2) requires adverse effects to be avoided, remedied or mitigated, irrespective of the benefits which may accrue ....
The “overall judgment” approach seems to have its origin in the judgment of Grieg J in New Zealand Rail Ltd v Marlborough District Council, in the context of an appeal relating to a number of resource consents for the development of a port at Shakespeare Bay. The Judge rejected the contention that the requirement in s 6(a) to preserve the natural character of a particular environment was absolute. Rather, Grieg J considered that the preservation of natural character was subordinate to s 5’s primary purpose, to promote sustainable management. The Judge described the protection of natural character as “not an end or an objective on its own” but an “accessory to the principal purpose” of sustainable management.
Greig J pointed to the fact that under previous legislation there was protection of natural character against “unnecessary” subdivision and development. This, the Judge said, was stronger than the protection in s 6(a) against “inappropriate” subdivision, use and development: the word “inappropriate” had a wider connotation than “unnecessary”. The question of inappropriateness had to be determined on a case-by-case basis in the particular circumstances. The Judge said:
It is “inappropriate” from the point of view of the preservation of natural character in order to achieve the promotion of sustainable management as a matter of national importance. It is, however, only one of the matters of national importance, and indeed other matters have to be taken into account. It is certainly not the case that preservation of the natural character is to be achieved at all costs. The achievement which is to be promoted is sustainable management and questions of national importance, national value and benefit, and national needs, must all play their part in the overall consideration and decision.
This Part of the [RMA] expresses in ordinary words of wide meaning the overall purpose and principles of the [RMA]. It is not, I think, a part of the [RMA] which should be subjected to strict rules and principles of statutory construction which aim to extract a precise and unique meaning from the words used. There is a deliberate openness about the language, its meaning and its connotations which I think is intended to allow the application of policy in a general and broad way. Indeed, it is for that purpose that the Planning Tribunal, with special expertise and skills, is established and appointed to oversee and to promote the objectives and the policies and the principles under the [RMA].
In the end I believe the tenor of the appellant’s submissions was to restrict the application of this principle of national importance, to put the absolute preservation of the natural character of a particular environment at the forefront and, if necessary, at the expense of everything except where it was necessary or essential to depart from it. That is not the wording of the [RMA] or its intention. I do not think that the Tribunal erred as a matter of law. In the end it correctly applied the principles of the [RMA] and had regard to the various matters to which it was directed. It is the Tribunal which is entrusted to construe and apply those principles, giving the weight that it thinks appropriate. It did so in this case and its decision is not subject to appeal as a point of law.
In North Shore City Council v Auckland Regional Council, the Environment Court discussed New Zealand Rail and said that none of the ss 5(2)(a), (b) or (c) considerations necessarily trumped the others – decision makers were required to balance all relevant considerations in the particular case. The Court said:
We have considered in light of those remarks [in New Zealand Rail] the method to be used in applying s 5 to a case where on some issues a proposal is found to promote one or more of the aspects of sustainable management, and on others is found not to attain, or fully attain, one or more of the aspects described in paragraphs (a), (b) and (c). To conclude that the latter necessarily overrides the former, with no judgment of scale or proportion, would be to subject s 5(2) to the strict rules and proposal of statutory construction which are not applicable to the broad description of the statutory purpose. To do so would not allow room for exercise of the kind of judgment by decision-makers (including this Court — formerly the Planning Tribunal) alluded to in the [New Zealand Rail] case.
The method of applying s 5 then involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. That recognises that the [RMA] has a single purpose. Such a judgment allows for comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome.
The Environment Court has said that the NZCPS is to be approached in the same way. The NZCPS “is an attempt to more explicitly state the tensions which are inherent within Part 2 of the [RMA]”. Particular policies in the NZCPS may be irreconcilable in the context of a particular case. No individual objective or policy from the NZCPS should be interpreted as imposing a veto. Rather, where relevant provisions from the NZCPS are in conflict, the court’s role is to reach an “overall judgment” having considered all relevant factors.
The fundamental issue raised by the EDS appeal is whether the “overall judgment” approach as the Board applied it is consistent with the legislative framework generally and the NZCPS in particular. In essence, the position of EDS is that, once the Board had determined that the proposed salmon farm at Papatua would have high adverse effects on the outstanding natural character of the area and its outstanding natural landscape, so that policies 13(1)(a) and 15(a) of the NZCPS would not be given effect to, it should have refused the application. EDS argued, then, that there is an “environmental bottom line” in this case, as a result of the language of policies 13(1)(a) and 15(a).
The EDS appeal raises a number of particular issues – the nature of the obligation to “give effect to” the NZCPS, the meaning of “avoid” and the meaning of “inappropriate”. As will become apparent, all are affected by the resolution of the fundamental issue just identified.
(ii) Objectives and policies in the NZCPS
Section 57(1) of the RMA requires that there must “at all times” be at least one New Zealand coastal policy statement prepared and recommended by the Minister of Conservation following a statutorily-mandated consultative process. The first New Zealand coastal policy statement was issued in May 1994. In 2003 a lengthy review process was initiated. The process involved: an independent review of the policy statement, which was provided to the Minster in 2004; the release of an issues and options paper in 2006; the preparation of the proposed new policy statement in 2007; public submissions and board of inquiry hearings on the proposed statement in 2008; and a report from the board of inquiry to the Minister in 2009. All this culminated in the NZCPS, which came into effect in December 2010.
Under s 58, a New Zealand coastal policy statement may state objectives and policies about any one or more of certain specified matters. Because they are not mentioned in s 58, it appears that such a statement was not intended to include “methods”, nor can it contain “rules” (given the special statutory definition of “rules”).
As we discuss in more detail later in this judgment, Mr Kirkpatrick for EDS argued that s 58(a) is significant in the present context because it contemplates that a New Zealand coastal policy statement may contain “national priorities for the preservation of the natural character of the coastal environment of New Zealand, including protection from inappropriate subdivision, use and development”. While counsel were agreed that the current NZCPS does not contain national priorities in terms of s 58(a), this provision may be important because the use of the words “priorities”, “preservation” and “protection” (together with “inappropriate”) suggests that the RMA contemplates what might be described as “environmental bottom lines”. As in s 6, the word “inappropriate” appears to relate back to the preservation of the natural character of the coastal environment: it is preservation of natural character that provides the standard for assessing whether particular subdivisions, uses or developments are “inappropriate”.
The NZCPS contains seven objectives and 29 policies. The policies support the objectives. Two objectives are of particular importance in the present context, namely objectives 2 and 6.
Objective 2 provides:
To preserve the natural character of the coastal environment and protect natural features and landscape values through:
Three aspects of objective 2 are significant. First, it is concerned with preservation and protection of natural character, features and landscapes. Second, it contemplates that this will be achieved by articulating the elements of natural character and features and identifying areas which possess such character or features. Third, it contemplates that some of the areas identified may require protection from “inappropriate” subdivision, use and development.
Objective 6 provides:
To enable people and communities to provide for their social, economic, and cultural wellbeing and their health and safety, through subdivision, use, and development, recognising that:
Objective 6 is noteworthy for three reasons:
First, it recognises that some developments which are important to people’s social, economic and cultural well-being can only occur in coastal environments.
Second, it refers to use and development not being precluded “in appropriate places and forms” and “within appropriate limits”. Accordingly, it is envisaged that there will be places that are “appropriate” for development and others that are not.
Third, it emphasises management under the RMA as an important means by which the natural resources of the coastal marine area can be protected. This reinforces the point previously made, that one of the components of sustainable management is the protection and/or preservation of deserving areas.
As we have said, in the NZCPS there are 29 policies that support the seven objectives. Four policies are particularly relevant to the issues in the EDS appeal: policy 7, which deals with strategic planning; policy 8, which deals with aquaculture; policy 13, which deals with preservation of natural character; and policy 15, which deals with natural features and natural landscapes.
Policy 7 provides:
Policy 7 is important because of its focus on strategic planning. It requires the relevant regional authority to look at its region as a whole in formulating a regional policy statement or plan. As part of that overall assessment, the regional authority must identify areas where particular forms of subdivision, use or development “are” inappropriate, or “may be” inappropriate without consideration of effects through resource consents or other processes, and must protect them from inappropriate activities through objectives, policies and rules. Policy 7 also requires the regional authority to consider adverse cumulative effects.
There are two points to be made about the use of “inappropriate” in policy 7. First, if “inappropriate”, development is not permitted, although this does not necessarily rule out any development. Second, what is “inappropriate” is to be assessed against the nature of the particular area under consideration in the context of the region as a whole.
Policy 8 provides:
Recognise the significant existing and potential contribution of aquaculture to the social, economic and cultural well-being of people and communities by:
The importance of policy 8 will be obvious. Local authorities are to recognise aquaculture’s potential by including in regional policy statements and regional plans provision for aquaculture “in appropriate places” in the coastal environment. Obviously, there is an issue as to the meaning of “appropriate” in this context.
Finally, there are policies 13 and 15. Their most relevant feature is that, in order to advance the specified overall policies, they state policies of avoiding adverse effects of activities on natural character in areas of outstanding natural character and on outstanding natural features and outstanding natural landscapes in the coastal environment.
Policy 13 provides:
Preservation of natural character
Policy 15 provides:
Natural features and natural landscapes
To protect the natural features and natural landscapes (including seascapes) of the coastal environment from inappropriate subdivision, use, and development:
As can be seen, policies 13(1)(a) and (b) and 15(a) and (b) are to similar effect. Local authorities are directed to avoid adverse effects of activities on natural character in areas of outstanding natural character (policy 13(1)(a)), or on outstanding natural features and outstanding natural landscapes (policy 15(a)). In other contexts, they are to avoid “significant” adverse effects and to “avoid, remedy or mitigate” other adverse effects of activities (policies 13(1)(b) and 15(b)).
The overall purpose of these directions is to preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use and development (policy 13) or to protect the natural features and natural landscapes (including seascapes) from inappropriate subdivision, use and development (policy 15). Accordingly, then, the local authority’s obligations vary depending on the nature of the area at issue. Areas which are “outstanding” receive the greatest protection: the requirement is to “avoid adverse effects”. Areas that are not “outstanding” receive less protection: the requirement is to avoid significant adverse effects and avoid, remedy or mitigate other adverse effects. In this context, “avoid” appears to mean “not allow” or “prevent the occurrence of”, but that is an issue to which we return at  below.
Further, policies 13 and 15 reinforce the strategic and comprehensive approach required by policy 7. Policy 13(1)(c) and (d) require local authorities to assess the natural character of the relevant region by identifying “at least areas of high natural character” and to ensure that regional policy statements and plans include objectives, policies and rules where they are required to preserve the natural character of particular areas. Policy 15(d) and (e) have similar requirements in respect of natural features and natural landscapes requiring protection.
Regional policy statement
As we have said, regional policy statements are intended to achieve the purpose of the RMA “by providing an overview of the resource management issues of the region and policies and methods to achieve integrated management of the natural and physical resources of the whole region”. They must address a range of issues and must “give effect to” the NZCPS.
The Marlborough Regional Policy Statement became operative on 28 August 1995, when the 1994 version of the New Zealand coastal policy statement was in effect. We understand that it is undergoing revision in light of the NZCPS. Accordingly, it is of limited value in the present context. That said, the Marlborough Regional Policy Statement does form part of the relevant context in relation to the development and protection of areas of natural character in the Marlborough Sounds.
The Marlborough Regional Policy Statement contains a section on subdivision, use and development of the coastal environment and another on visual character, which includes a policy on outstanding landscapes. The policy dealing with subdivision, use and development of the coastal environment is framed around the concepts of “appropriate” and “inappropriate” subdivision, use and development. It reads:
The methods to implement this policy are then addressed, as follows:
As to the outstanding landscapes policy, and the method to achieve it, the commentary indicates that the effect of any proposed development will be assessed against the criteria that make the relevant landscape outstanding; that is, the standard of “appropriateness”. Policy 8.1.3 reads in full:
Regional and district plans
Section 64 of the RMA requires that there be a regional coastal plan for the Marlborough Sounds. One of the things that a regional council must do in developing a regional coastal plan is act in accordance with its duty under s 32 (which, among other things, required an evaluation of the risks of acting or not acting in circumstances of uncertainty or insufficient information). A regional coastal plan must state the objectives for the region, policies to implement the objectives and rules (if any) to implement the policies and must “give effect to” the NZCPS and to any regional policy statement. It is important to emphasise that the plan is a regional one, which raises the question of how spot zoning applications such as that relating to Papatua are to be considered. It is obviously important that the regional integrity of a regional coastal plan not be undermined.
We have observed that policies 7, 13 and 15 in the NZCPS require a strategic and comprehensive approach to regional planning documents. To reiterate, policy 7(1)(b) requires that, in developing regional plans, entities such as the Marlborough District Council:
identify areas of the coastal environment where particular activities and forms of subdivision, use, and development:
and provide protection from inappropriate subdivision, use, and development in these areas through objectives, policies and rules.
Policies 13(1)(d) and 15(d) require that regional plans identify areas where preserving natural character or protecting natural features and natural landscapes require objectives, policies and rules. Besides highlighting the need for a region-wide approach, these provisions again raise the issue of the meaning of “inappropriate”.
The Marlborough District Council is a unitary authority with the powers, functions and responsibilities of both a regional and district council. It is responsible for the Sounds Plan, which is a combined regional, regional coastal and district plan for the Marlborough Sounds. The current version of the Sounds Plan became operative on 25 August 2011. It comprises three volumes, the first containing objectives, policies and methods, the second containing rules and the third maps. The Sounds Plan identifies certain areas within the coastal marine area of the Marlborough Sounds as Coastal Marine Zone One (CMZ1), where aquaculture is a prohibited activity, and others as Coastal Marine Zone Two (CMZ2), where aquaculture is either a controlled or a discretionary activity. It describes areas designated CMZ1 as areas “where marine farming will have a significant adverse effect on navigational safety, recreational opportunities, natural character, ecological systems, or cultural, residential or amenity values”. The Board created a new zoning classification, Coastal Marine Zone Three (CMZ3), to apply to the four areas (previously zoned CMZ1) in respect of which it granted plan changes to permit salmon farming.
In developing the Sounds Plan the Council classified and mapped the Marlborough Sounds into management areas known as Natural Character Areas. These classifications were based on a range of factors which went to the distinctiveness of the natural character within each area. The Council described the purpose of this as follows:
This natural character information is a relevant tool for management in helping to identify and protect those values that contribute to people’s experience of the Sounds area. Preserving natural character in the Marlborough Sounds as a whole depends both on the overall pattern of use, development and protection, as well as maintaining the natural character of particular areas. The Plan therefore recognises that preservation of the natural character of the constituent natural character areas is important in achieving preservation of the natural character of the Marlborough Sounds as a whole.
The Plan requires that plan change and resource consent applications be assessed with regard to the natural character of the Sounds as a whole as well as each natural character area, or areas where appropriate. ....
In addition, the Council assessed the landscapes in the Marlborough Sounds for the purpose of identifying those that could be described as outstanding. It noted that, as a whole, the Marlborough Sounds has outstanding visual values and identified the factors that contribute to that. Within the overall Marlborough Sounds landscape, however, the Council identified particular landscapes as “outstanding”. The Sounds Plan describes the criteria against which the Council made the assessment and contains maps that identify the areas of outstanding landscape value, which are relatively modest given the size of the region. It seems clear from the Sounds Plan that the exercise was a thoroughgoing one.
In 2009, the Council completed a landscape and natural character review of the Marlborough Sounds, which confirmed the outstanding natural character and outstanding natural landscape of the Port Gore area.
Requirement to “give effect to” the NZCPS
For the purpose of this discussion, it is important to bear two statutory provisions in mind. The first is s 66(1), which provides that a regional council shall prepare and change any regional plan in accordance with its functions under s 30, the provisions of Part 2, a direction given under section 25A(1), its duty under s 32, and any regulations. The second is s 67(3), which provides that a regional plan must “give effect to” any national policy statement, any New Zealand coastal policy statement and any regional policy statement. There is a question as to the interrelationship of these provisions.
As we have seen, the RMA requires an extensive process prior to the issuance of a New Zealand coastal policy statement – an evaluation under s 32, then a board of inquiry or similar process with the opportunity for public input. This is one indication of such a policy statement’s importance in the statutory scheme. A further indication is found in the requirement that the NZCPS must be given effect to in subordinate planning documents, including regional policy statements and regional and district plans. We are concerned with a regional coastal plan, the Sounds Plan. Up until August 2003, s 67 provided that such a regional plan should “not be inconsistent with” any New Zealand coastal policy statement. Since then, s 67 has stated the regional council’s obligation as being to “give effect to” any New Zealand coastal policy statement. We consider that this change in language has, as the Board acknowledged, resulted in a strengthening of the regional council’s obligation.
The Board was required to “give effect to” the NZCPS in considering King Salmon’s plan change applications. “Give effect to” simply means “implement”. On the face of it, it is a strong directive, creating a firm obligation on the part of those subject to it. As the Environment Court said in Clevedon Cares Inc v Manukau City Council:
Further, the RMA provides mechanisms whereby the implementation of the NZCPS by regional authorities can be monitored. One of the functions of the Minister of Conservation under s 28 of the RMA is to monitor the effect and implementation of the NZCPS. In addition, s 293 empowers the Environment Court to monitor whether a proposed policy statement or plan gives effect to the NZCPS; it may allow departures from the NZCPS only if they are of minor significance and do not affect the general intent and purpose of the proposed policy statement or plan. The existence of such mechanisms underscores the strength of the “give effect to” direction.
The requirement to “give effect to” the NZCPS gives the Minister a measure of control over what regional authorities do: the Minister sets objectives and policies in the NZPCS and relevant authorities are obliged to implement those objectives and policies in their regional coastal plans, developing methods and rules to give effect to them. To that extent, the authorities fill in the details in their particular localities.
We have said that the “give effect to” requirement is a strong directive, particularly when viewed against the background that it replaced the previous “not inconsistent with” requirement. There is a caveat, however. The implementation of such a directive will be affected by what it relates to, that is, what must be given effect to. A requirement to give effect to a policy which is framed in a specific and unqualified way may, in a practical sense, be more prescriptive than a requirement to give effect to a policy which is worded at a higher level of abstraction.
The Board developed this point in its discussion of the requirement that it give effect to the NZCPS and the Marlborough Regional Policy Statement (in the course of which it also affirmed the primacy of s 5 over the NZCPS and the perceived need for the “overall judgment” approach). It said:
Mr Kirkpatrick argued that there were two errors in this extract:
On the Board’s approach, whether the NZCPS has been given effect to in determining a regional plan change application depends on an “overall judgment” reached after consideration of all relevant circumstances. The direction to “give effect to” the NZCPS is, then, essentially a requirement that the decision-maker consider the factors that are relevant in the particular case (given the objectives and policies stated in the NZCPS) before making a decision. While the weight given to particular factors may vary, no one factor has the capacity to create a veto – there is no bottom line, environmental or otherwise. The effect of the Board’s view is that the NZCPS is essentially a listing of potentially relevant considerations, which will have varying weight in different fact situations. We discuss at  to  below whether this approach is correct.
Moreover, as we indicated at  to  above, and as  in the extract just quoted demonstrates, the Board ultimately determined King Salmon’s applications not by reference to the NZCPS but by reference to pt 2 of the RMA. It did so because it considered that the language of s 66(1) required that approach. Ms Gwyn for the Minister supported the Board’s approach. We do not accept that it is correct.
First, while we acknowledge that a regional council is directed by s 66(1) to prepare and change any regional plan “in accordance with” (among other things) pt 2, it is also directed by s 67(3) to “give effect to” the NZCPS. As we have said, the purpose of the NZCPS is to state policies in order to achieve the RMA’s purpose in relation to New Zealand’s coastal environment. That is, the NZCPS gives substance to pt 2’s provisions in relation to the coastal environment. In principle, by giving effect to the NZCPS, a regional council is necessarily acting “in accordance with” pt 2 and there is no need to refer back to the part when determining a plan change. There are several caveats to this, however, which we will mention shortly.
Second, there are contextual considerations supporting this interpretation:
Mr Nolan for King Salmon advanced a related argument as to the relevance of pt 2. He submitted that the purpose of the RMA as expressed in pt 2 had a role in the interpretation of the NZCPS and its policies because the NZCPS was drafted solely to achieve the purpose of the RMA; so, the NZCPS and its policies could not be interpreted in a way that would fail to achieve the purpose of the RMA.
Before addressing this submission, we should identify three caveats to the “in principle” answer we have just given. First, no party challenged the validity of the NZCPS or any part of it. Obviously, if there was an allegation going to the lawfulness of the NZCPS, that would have to be resolved before it could be determined whether a decision-maker who gave effect to the NZCPS as it stood was necessarily acting in accordance with pt 2. Second, there may be instances where the NZCPS does not “cover the field” and a decision-maker will have to consider whether pt 2 provides assistance in dealing with the matter(s) not covered. Moreover, 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, including when giving effect to the NZCPS. Third, if there is uncertainty as to the meaning of particular policies in the NZCPS, reference to pt 2 may well be justified to assist in a purposive interpretation. However, this is against the background that the policies in the NZCPS are intended to implement the six objectives it sets out, so that reference to one or more of those objectives may well be sufficient to enable a purposive interpretation of particular policies.
We do not see Mr Nolan’s argument as falling within the third of these caveats. Rather, his argument is broader in its effect, as it seeks to justify reference back to pt 2 as a matter of course when a decision-maker is required to give effect to the NZCPS.
The difficulty with the argument is that, as we have said, the NZCPS was intended to give substance to the principles in pt 2 in respect of the coastal environment by stating objectives and policies which apply those principles to that environment: the NZCPS translates the general principles to more specific or focussed objectives and policies. The NZCPS is a carefully expressed document whose contents are the result of a rigorous process of formulation and evaluation. It is a document which reflects particular choices. To illustrate, s 5(2)(c) of the RMA talks about “avoiding, remedying or mitigating any adverse effects of activities on the environment” and s 6(a) identifies “the preservation of the natural character of the coastal environment (including the coastal marine area) .... and the protection of [it] from inappropriate subdivision, use and development” as a matter of national importance to be recognised and provided for. The NZCPS builds on those principles, particularly in policies 13 and 15. Those two policies provide a graduated scheme of protection and preservation based on the features of particular coastal localities, requiring avoidance of adverse effects in outstanding areas but allowing for avoidance, mitigation or remedying in others. For these reasons, it is difficult to see that resort to pt 2 is either necessary or helpful in order to interpret the policies, or the NZCPS more generally, absent any allegation of invalidity, incomplete coverage or uncertainty of meaning. 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.
We acknowledge that the scheme of the RMA does give subordinate decision-makers considerable flexibility and scope for choice. This is reflected in the NZCPS, which is formulated in a way that allows regional councils flexibility in implementing its objectives and policies in their regional coastal policy statements and plans. Many of the policies are framed in terms that provide flexibility and, apart from that, the specific methods and rules to implement the objectives and policies of the NZCPS in particular regions must be determined by regional councils. But the 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 decision-makers.
Meaning of “avoid”
The word “avoid” occurs in a number of relevant contexts. In particular:
What does “avoid” mean in these contexts? As we have said, given the juxtaposition of “mitigate” and remedy”, the most obvious meaning is “not allow” or “prevent the occurrence of”. But the meaning of “avoid” must be considered against the background that:
In Man O’War Station, the Environment Court said that the word “avoid” in policy 15(a) did not mean “prohibit”, expressing its agreement with the view of the Court in Wairoa River Canal Partnership v Auckland Regional Council. The Court accepted that policy 15 should not be interpreted as imposing a blanket prohibition on development in any area of the coastal environment that comprises an outstanding natural landscape as that would undermine the purpose of the RMA, including consideration of factors such as social and economic wellbeing.
In the Wairoa River Canal Partnership case, an issue arose concerning a policy (referred to as policy 3) proposed to be included in the Auckland Regional Policy Statement. It provided that countryside living (ie, low density residential development on rural land) “avoids development in those areas .... identified .... as having significant, ecological, heritage or landscape value or high natural character” and possessing certain characteristics. The question was whether the word “inappropriate” should be inserted between “avoids” and “development”, as sought by Wairoa River Canal Partnership. In the course of addressing that, the Environment Court said that policy 3 did “not attempt to impose a prohibition on development – to avoid is a step short of to prohibit”. The Court went on to say that the use of “avoid” “sets a presumption (or a direction to an outcome) that development in those areas will be inappropriate ....”.
We express no view on the merits of the Court’s analysis in the Wairoa River Canal Partnership case, which was focussed on the meaning of “avoid”, standing alone, in a particular policy proposed for the Auckland Regional Policy Statement. Our concern is with the interpretation of “avoid” as it is used in s 5(2)(c) and in relevant provisions of the NZCPS. In that context, we consider that “avoid” has its ordinary meaning of “not allow” or “prevent the occurrence of”. In the sequence “avoiding, remedying, or mitigating any adverse effects of activities on the environment” in s 5(2)(c), for example, it is difficult to see that “avoid” could sensibly bear any other meaning. Similarly in relation to policies 13(1)(a) and (b) and 15(a) and (b), which also juxtapose the words “avoid”, “remedy” and “mitigate”. This interpretation is consistent with objective 2 of the NZCPS, which is, in part, “[t]o preserve the natural character of the coastal environment and protect natural features and landscape values through .... identifying those areas where various forms of subdivision, use, and development would be inappropriate and protecting them from such activities”. It is also consistent with objective 6’s recognition that protection of the values of the coastal environment does not preclude use and development “in appropriate places and forms, and within appropriate limits”. The “does not preclude” formulation emphasises protection by allowing use or development only where appropriate, as opposed to allowing use or development unless protection is required.
However, taking that meaning may not advance matters greatly: whether “avoid” (in the sense of “not allow” or “prevent the occurrence of”) bites depends upon whether the “overall judgment” approach or the “environmental bottom line” approach is adopted. Under the “overall judgment” approach, a policy direction to “avoid” adverse effects is simply one of a number of relevant factors to be considered by the decision maker, albeit that it may be entitled to great weight; under the “environmental bottom line” approach, it has greater force.
Meaning of “inappropriate”
Both pt 2 of the RMA and provisions in the NZCPS refer to protecting areas such as outstanding natural landscapes from “inappropriate” development – they do not refer to protecting them from any development. This suggests that the framers contemplated that there might be “appropriate” developments in such areas, and raises the question of the standard against which “inappropriateness” is to be assessed.
Moreover, objective 6 and policies 6 and 8 of the NZCPS invoke the standard of “appropriateness”. To reiterate, objective 6 provides in part:
To enable people and communities to provide for their social, economic, and cultural wellbeing and their health and safety, through subdivision, use, and development, recognising that:
This is echoed in policy 6 which deals with activities in the coastal environment. Policy 6(2)(c) reads: “recognise that there are activities that have a functional need to be located in the coastal marine area, and provide for those activities in appropriate places”. Policy 8 indicates that regional policy statements and plans should make provision for aquaculture activities:
.... in appropriate places in the coastal environment, recognising that relevant considerations may include:
The scope of the words “appropriate” and “inappropriate” is, of course, heavily affected by context. For example, where policy 8 refers to making provision for aquaculture activities “in appropriate places in the coastal environment”, the context suggests that “appropriate” is referring to suitability for the needs of aquaculture (for example, water quality) rather than to some broader notion. That is, it is referring to suitability in a technical sense. By contrast, where objective 6 says that the protection of the values of the coastal environment does not preclude use and development “in appropriate places and forms, and within appropriate limits”, the context suggests that “appropriate” is not concerned simply with technical suitability for the particular activity but with a broader concept that encompasses other considerations, including environmental ones.
We consider that where the term “inappropriate” is used in the context of protecting areas from inappropriate subdivision, use or development, the natural meaning is that “inappropriateness” should be assessed by reference to what it is that is sought to be protected. It will be recalled that s 6(b) of the RMA provides:
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
A planning instrument which provides that any subdivision, use or development that adversely affects an area of outstanding natural attributes is inappropriate is consistent with this provision.
The meaning of “inappropriate” in the NZCPS emerges from the way in which particular objectives and policies are expressed. Objective 2 deals with preserving the natural character of the coastal environment and protecting natural features and landscape values through, among other things, “identifying those areas where various forms of subdivision, use, and development would be inappropriate and protecting them from such activities”. This requirement to identify particular areas, in the context of an overall objective of preservation and protection, makes it clear that the standard for inappropriateness relates back to the natural character and other attributes that are to be preserved or protected, and also emphasises that the NZCPS requires a strategic, region-wide approach. The word “inappropriate” in policies 13(1)(a) and (b) and 15(a) and (b) of the NZCPS bears the same meaning. To illustrate, the effect of policy 13(1)(a) is that there is a policy to preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use, and development by avoiding the adverse effects on natural character in areas of the coastal environment with outstanding natural character. The italicised words indicate the meaning to be given to “inappropriate” in the context of policy 13.
If “inappropriate” is interpreted in the way just described, it might be thought to provide something in the nature of an “environmental bottom line”. However, that will not necessarily be so if policies 13 and 15 and similarly worded provisions are regarded simply as relevant considerations which may be outweighed in particular situations by other considerations favouring development, as the “overall judgment” approach contemplates.
An alternative approach is to treat “inappropriate” (and “appropriate” in objective 6 and policies 6(2)(c) and 8) as the mechanism by which an overall judgment is to be made about a particular development proposal. On that approach, a decision-maker must reach an evaluation of whether a particular development proposal is, in all the circumstances, “appropriate” or “inappropriate”. So, an aquaculture development that will have serious adverse effects on an area of outstanding natural character may nevertheless be deemed not to be “inappropriate” if other considerations (such as suitability for aquaculture and economic benefits) are considered to outweigh those adverse effects: the particular site will be seen as an “appropriate” place for aquaculture in terms of policy 8 despite the adverse effects.
We consider that “inappropriate” should be interpreted in s 6(a), (b) and (f) against the backdrop of what is sought to be protected or preserved. That is, in our view, the natural meaning. The same applies to objective 2 and policies 13 and 15 in the NZCPS. Again, however, that does not resolve the fundamental issue in the case, namely whether the “overall judgment” approach adopted by the Board is the correct approach. We now turn to that.
Was the Board correct to utilise the “overall judgment” approach?
In the extracts from its decision which we have quoted at  to  and  above, the Board emphasised that in determining whether or not it should grant the plan changes, it had to make an “overall judgment” on the facts of the particular proposal and in light of pt 2 of the RMA.
We noted at  above that several early decisions of the Planning Tribunal adopted what has been described as the “environmental bottom line” approach to s 5. That approach finds some support in the speeches of responsible Ministers in the House. In the debate on the second reading of the Resource Management Bill, the Rt Hon Geoffrey Palmer said:
The Bill as reported back does not reflect a wish list of any one set of views. Instead, it continues to reflect the balancing of the range of views that society holds about the use of land, air, water and minerals, while recognising that there is an ecological bottom line to all of those questions.
In introducing the Bill for its third reading, the Hon Simon Upton said:
The Bill provides us with a framework to establish objectives by a physical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. As such, the Bill provides a more liberal regime for developers. On the other hand, activities will have to be compatible with hard environmental standards, and society will set those standards. Clause 4 [now s 5] sets out the biophysical bottom line. Clauses 5 and 6 [now ss 6 and 7] set out further specific matters that expand on the issue. The Bill has a clear and rigorous procedure for the setting of environmental standards – and the debate will be concentrating on just where we set those standards. They are established by public process.
In the plan change context under consideration, the “overall judgment” approach does not recognise any such bottom lines, as Dobson J accepted. The Judge rejected the view that some coastal environments could be excluded from marine farming activities absolutely as a result of their natural attributes. That approach, he said, “would be inconsistent with the evaluative tenor of the NZCPS, when assessed in the round”. Later, the Judge said:
The essence of EDS’s concern is to question the rationale, in resource management terms, for designating coastal areas as having outstanding natural character or features, if that designation does not protect the area from an economic use that will have adverse effects. An answer to that valid concern is that such designations do not afford absolute protection. Rather, they require a materially higher level of justification for relegating that outstanding natural character or feature, when authorising an economic use of that coastal area, than would be needed in other coastal areas.
Accordingly, Dobson J upheld the “overall judgment” approach as the approach to be adopted.
One noteworthy feature of the extract just quoted is the requirement for “a materially higher level of justification” where an area of outstanding natural character will be adversely affected by a proposed development. The Board made an observation to similar effect when it said:
We consider these to be significant acknowledgements and will return to them shortly.
Mr Kirkpatrick argued that the Board and the Judge were wrong to adopt the “overall judgment” approach, submitting in particular that it:
In response, Ms Gwyn emphasised that the policies in the NZCPS were policies, not standards or rules. She argued that the NZCPS provides direction for decision-makers (including boards of inquiry) but leaves them with discretion as to how to give effect to the NZCPS. Although she acknowledged that policies 13 and 15 give a strong direction, Ms Gwyn submitted that they cannot and do not prohibit activities that adversely affect coastal areas with outstanding features. Where particular policies are in conflict, the decision-maker is required to exercise its own judgment, as required by pt 2. Mr Nolan’s submissions were to similar effect. While he accepted that some objectives or policies provided more guidance than others, they were not “standards or vetos”. Mr Nolan submitted that this was “the only tenable, workable approach that would achieve the RMA’s purpose”. The approach urged by EDS would, he submitted, undermine the RMA’s purpose by allowing particular considerations to trump others whatever the consequences.
(i) The NZCPS: policies and rules
We begin with Ms Gwyn’s point that the NZCPS contains objectives and policies rather than methods or rules. As Ms Gwyn noted, the Full Court of the Court of Appeal dealt with a similar issue in Auckland Regional Council v North Shore City Council. The Auckland Regional Council was in the process of hearing and determining submissions in respect of its proposed regional policy statement. That proposed policy statement included provisions which were designed to limit urban development to particular areas (including demarking areas by lines on maps). These provisions were to have a restrictive effect on the power of the relevant territorial authorities to permit further urbanisation in particular areas; the urban limits were to be absolutely restrictive.
The Council’s power to impose such restrictions was challenged. The contentions of those challenging these limits were summarised by Cooke P, delivering the judgment of the Court, as follows:
The defendants contend that the challenged provisions would give the proposed regional policy statement a master plan role, interfering with the proper exercise of the responsibilities of territorial authorities; that it would be “coercive” and that “The drawing of a line on a map is the ultimate rule. There is no scope for further debate or discretion. No further provision can be made in a regional plan or a district plan”.
The defendants’ essential point was that the Council was proposing to go beyond a policy-making role to a rule-making role, which it was not empowered to do under the RMA.
The Court considered, however, that the defendants’ contention placed too limited a meaning on the scope of the words “policy” and “policies” in ss 59 and 62 of the RMA (which deal with, respectively, the purpose and content of regional policy statements). The Court held that “policy” should be given its ordinary and natural meaning and that a definition such as “course of action” was apposite. The Court said:
It is obvious that in ordinary present-day speech a policy may be either flexible or inflexible, either broad or narrow. Honesty is said to be the best policy. Most people would prefer to take some discretion in implementing it, but if applied remorselessly it would not cease to be a policy. Counsel for the defendants are on unsound ground in suggesting that, in everyday New Zealand speech or in parliamentary drafting or in etymology, policy cannot include something highly specific. ....
As to the argument that a regional policy statement could not contain what were in effect rules, Cooke P said:
A well-meant sophistry was advanced to bolster the argument. It was said that the [RMA] in s 2(1) defines “rule” as a district rule or a regional rule, and that the scheme of the [RMA] is that “rules” may be included in regional plans (s 68) or district plans (s 76) but not in regional policy statements. That is true. But it cannot limit the scope of a regional policy statement. The scheme of the [RMA] does not include direct enforcement of regional policy statements against members of the public. As far as now relevant, the authorised contravention procedures relate to breaches of the rules in district plans or proposed district plans (s 9 and Part XII generally). Regional policy statements may contain rules in the ordinary sense of that term, but they are not rules within the special statutory definition directly binding on individual citizens. Mainly they derive their impact from the stipulation of Parliament that district plans may not be inconsistent with them.
In short, then, although a policy in a New Zealand coastal policy statement cannot be a “rule” within the special definition in the RMA, it may nevertheless have the effect of what in ordinary speech would be a rule. Policy 29 in the NZCPS is an obvious example.
(ii) Section 58 and other statutory indicators
We turn next to s 58. It contains provisions which are, in our view, inconsistent with the notion that the NZCPS is, properly interpreted, no more than a statement of relevant considerations, to which a decision-maker is entitled to give greater or lesser weight in the context of determining particular matters. Rather, these provisions indicate that it was intended that a New Zealand coastal policy statement might contain policies that were not discretionary but would have to be implemented if relevant. The relevant provisions provide for a New Zealand coastal policy statement to contain objectives and policies concerning:
national priorities for specified matters (ss 58(a) and (ga));
the Crown’s interests in the coastal marine area (s 58(d));
matters to be included in regional coastal plans in regard to the preservation of the natural character of the coastal environment (s 58(e));
the implementation of New Zealand’s international obligations affecting the coastal environment (s 58(f));
the procedures and methods to be used to review the policies and monitor their effectiveness (s 58(g)); and
the protection of protected customary rights (s 58 (gb)).
We begin with s 58(a), the language of which is set out at (a) above. It deals with the Minister’s ability (by means of the NZCPS) to set national priorities in relation to the preservation of the natural character of the coastal environment. This provision contemplates the possibility of objectives and policies the effect of which is to provide absolute protection from the adverse effects of development in relation to particular areas of the coastal environment. The power of the Minister to set objectives and policies containing national priorities for the preservation of natural character is not consistent with the “overall judgment” approach. This is because, on the “overall judgment” approach, the Minister’s assessment of national priorities as reflected in a New Zealand coastal policy statement would not be binding on decision-makers but would simply be a relevant consideration, albeit (presumably) a weighty one. If the Minister did include objectives or policies which had the effect of protecting areas of the coastal environment against the adverse effects of development as national priorities, it is inconceivable that regional councils would be free to act inconsistently with those priorities on the basis that, although entitled to great weight, they were ultimately no more than relevant considerations. The same is true of s 58(ga), which relates to national priorities for maintaining and enhancing public access to and along the coastal marine area (that is, below the line of mean high water springs).
A similar analysis applies in respect of ss 58(d), (f) and (gb). These enable the Minister to include in a New Zealand coastal policy statement objectives and policies concerning first, the Crown’s interests in the coastal marine area, second, the implementation of New Zealand’s international obligations affecting the coastal environment and third, the protection of protected rights. We consider that the Minister is entitled to include in such a statement relevant objectives and policies that are intended, where relevant, to be binding on decision-makers. If policies concerning the Crown’s interests, New Zealand’s international obligations or the protection of protected rights were to be stated in binding terms, it is difficult to see what justification there could be for interpreting them simply as relevant considerations which a decision-maker would be free to apply or not as it saw appropriate in particular circumstances. The Crown’s interests in the coastal marine area, New Zealand’s relevant international obligations and the protection of protected rights are all matters about which it is to be expected that the Minister would have authority to make policies that are binding if he or she considered such policies were necessary.
Next we come to s 58(g), which permits objectives and policies concerning “the procedures and methods to be used to review the policies and to monitor their effectiveness”. It will be recalled that one of the responsibilities of the Minister under s 28(d) of the RMA is to monitor the effect and implementation of New Zealand coastal policy statements. The Minister would be entitled, in our view, to set out policies in a New Zealand coastal policy statement that were designed to impose obligations on local authorities so as to facilitate that review and monitoring function. It is improbable that any such policies were intended to be discretionary as far as local authorities were concerned.
Finally, there is s 58(e). It provides that a New Zealand coastal policy statement may state objectives or policies about:
the matters to be included in 1 or more regional coastal plans in regard to the preservation of the natural character of the coastal environment, including the activities that are required to be specified as restricted coastal activities because the activities―
The term “restricted coastal activity” is defined in s 2 to mean “any discretionary activity or non-complying activity that, in accordance with section 68, is stated by a regional coastal plan to be a restricted coastal activity”. Section 68 allows a regional council to include rules in regional plans. Section 68(4) provides that a rule may specify an activity as a restricted coastal activity only if the rule is in a regional coastal plan and the Minister of Conservation has required the activity to be so specified on one of the two grounds contained in s 58(e). The obvious mechanism by which the Minister may require the activity to be specified as a restricted coastal activity is a New Zealand coastal policy statement. Accordingly, although the matters covered by s 58(e) are to be stated as objectives or policies in a New Zealand coastal policy statement, the intention must be that any such requirement will be binding on the relevant regional councils. Given the language and the statutory context, a policy under s 58(e) cannot simply be a factor that a regional council must consider or about which it has discretion.
This view is confirmed by policy 29 in the NZCPS, which states that the Minister does not require any activity to be specified as a restricted coastal activity in a regional coastal plan and directs local authorities that they must amend documents in the ways specified to give effect to this policy as soon as practicable. Policy 29 is highly prescriptive and illustrates that a policy in a New Zealand coastal policy statement may have the effect of what, in ordinary speech, might be described as a rule (because it must be observed), even though it would not be a “rule” under the RMA definition.
In addition to these provisions in s 58, we consider that s 58A offers assistance. It provides that a New Zealand coastal policy statement may incorporate material by reference under sch 1AA of the RMA. Clause 1 of sch 1AA relevantly provides:
As can be seen, cl 1 envisages that a New Zealand coastal statement may contain objectives or policies that refer to standards, requirements or recommended practices of international and national organisations. This also suggests that Parliament contemplated that the Minister might include in a New Zealand coastal policy statement policies that, in effect, require adherence to standards or impose requirements, that is, policies that are prescriptive and are expected to be followed. If this is so, a New Zealand coastal policy statement cannot properly be viewed as simply a document which identifies a range of potentially relevant policies, to be given effect in subordinate planning documents as decision-makers consider appropriate in particular circumstances.
Finally in this context, we mention ss 55 and 57. Section 55(2) relevantly provides that, if a national policy statement so directs, a regional council must amend a regional policy statement or regional plan to include specific objectives or policies or so that objectives or policies in the regional policy statement or regional plan “give effect to objectives and policies specified in the [national policy] statement”. Section 55(3) provides that a regional council “must also take any other action that is specified in the national policy statement”. Under s 57(2), s 55 applies to a New Zealand coastal policy statement as if it were a national policy statement “with all necessary modifications”. Under s 43AA the term “regional plan” includes a regional coastal plan. These provisions underscore the significance of the regional council’s (and therefore the Board’s) obligation to “give effect to” the NZCPS and the role of the NZCPS as an mechanism for Ministerial control. They contemplate that a New Zealand coastal policy statement may be directive in nature.
(iii) Interpreting the NZCPS
We agree with Mr Kirkpatrick that the language of the relevant policies in the NZCPS is significant and that the various policies are not inevitably in conflict or pulling in different directions. Beginning with language, we have said that “avoid” in policies 13(1)(a) and 15(a) is a strong word, meaning “not allow” or “prevent the occurrence of”, and that what is “inappropriate” is to be assessed against the characteristics of the environment that policies 13 and 15 seek to preserve. While we acknowledge that the most likely meaning of “appropriate” in policy 8(a) is that it relates to suitability for salmon farming, the policy does not suggest that provision must be made for salmon farming in all places that might be appropriate for it in a particular coastal region.
Moreover, when other provisions in the NZCPS are considered, it is apparent that the various objectives and policies are expressed in deliberately different ways. Some policies give decision-makers more flexibility or are less prescriptive than others. They identify matters that councils should “take account of” or “take into account”, “have (particular) regard to”, “consider”, “recognise”, “promote” or “encourage”; use expressions such as “as far as practicable”, “where practicable”, and “where practicable and reasonable”; refer to taking “all practicable steps” or to there being “no practicable alternative methods”. Policy 3 requires councils to adopt the precautionary approach, but naturally enough the implementation of that approach is addressed only generally; policy 27 suggests a range of strategies. Obviously policies formulated along these lines leave councils with considerable flexibility and scope for choice. By contrast, other policies are expressed in more specific and directive terms, such as policies 13, 15, 23 (dealing with the discharge of contaminants) and 29. These differences matter. One of the dangers of the “overall judgment” approach is that it is likely to minimise their significance.
Both the Board and Dobson J acknowledged that the language in which particular policies were expressed did matter: the Board said that the concern underpinning policies 13 and 15 “weighs heavily against” granting the plan change and the Judge said that departing from those policies required “a materially higher level of justification”. This view that policies 13 and 15 should not be applied in the terms in which they are drafted but simply as very important considerations was based on the perception that to apply them in accordance with their terms would be contrary to the purpose of the RMA and unworkable. Both Ms Gwyn and Mr Nolan supported this position in argument; they accepted that policies such as policies 13 and 15 provided “more guidance” than other policies or constituted “starting points”, but argued that they were not standards, nor did they operate as vetoes. Although this view of the NZCPS as a document containing guidance or relevant considerations of differing weight has significant support in the authorities, it is not one with which we agree.
When dealing with a plan change application, the decision-maker must first identify those policies that are relevant, paying careful attention to the way in which they are expressed. Those expressed in more directive terms will carry greater weight than those expressed in less directive terms. Moreover, it may be that a policy is stated in such directive terms that the decision-maker has no option but to implement it. So, “avoid” is a stronger direction than “take account of ”. That said however, we accept that there may be instances where particular policies in the NZCPS “pull in different directions”. But we consider that this is likely to occur infrequently, given the way that the various policies are expressed and the conclusions that can be drawn from those differences in wording. It may be that an apparent conflict between particular policies will dissolve if close attention is paid to the way in which the policies are expressed.
Only if the conflict remains after this analysis has been undertaken is there any justification for reaching a determination which has one policy prevailing over another. The area of conflict should be kept as narrow as possible. The necessary analysis should be undertaken on the basis of the NZCPS, albeit informed by s 5. As we have said, s 5 should not be treated as the primary operative decision-making provision.
A danger of the “overall judgment” approach is that decision-makers may conclude too readily that there is a conflict between particular policies and prefer one over another, rather than making a thoroughgoing attempt to find a way to reconcile them. In the present case, we do not see any insurmountable conflict between policy 8 on the one hand and policies 13(1)(a) and 15(a) on the other. Policies 13(1)(a) and 15(a) provide protections against adverse effects of development in particular limited areas of the coastal region – areas of outstanding natural character, of outstanding natural features and of outstanding natural landscapes (which, as the use of the word “outstanding” indicates, will not be the norm). Policy 8 recognises the need for sufficient provision for salmon farming in areas suitable for salmon farming, but this is against the background that salmon farming cannot occur in one of the outstanding areas if it will have an adverse effect on the outstanding qualities of the area. So interpreted, the policies do not conflict.
Policies 13(1)(a) and (b) and 15(a) and (b) do, in our view, provide something in the nature of a bottom line. We consider that this is consistent with the definition of sustainable management in s 5(2), which, as we have said, contemplates protection as well as use and development. It is also consistent with classification of activities set out in s 87A of the RMA, the last of which is activities that are prohibited. The RMA contemplates that district plans may prohibit particular activities, either absolutely or in particular localities. If that is so, there is no obvious reason why a planning document which is higher in the hierarchy of planning documents should not contain policies which contemplate the prohibition of particular activities in certain localities.
The contrast between the 1994 New Zealand Coastal Policy Statement (the 1994 Statement) and the NZCPS supports the interpretation set out above. Chapter 1 of the 1994 Statement sets out national priorities for the preservation of the natural character of the coastal environment. Policy 1.1.3 provides that it is a national priority to protect (among other things) “landscapes, seascapes and landforms” which either alone or in combination are essential or important elements of the natural character of the coastal environment. Chapter 3 deals with activities involving subdivision, use or development of areas of the coastal environment. Policy 3.2.1 provides that policy statements and plans “should define what form of subdivision, use or development would be appropriate in the coastal environment, and where it would be appropriate”. Policy 3.2.2 provides:
Adverse effects of subdivision, use or development in the coastal environment should as far as practicable be avoided. Where complete avoidance is not practicable, the adverse effects should be mitigated and provision made for remedying those effects, to the extent practicable.
Overall, the language of the 1994 Statement is, in relevant respects, less directive and allows greater flexibility for decision-makers than the language of the NZCPS. The greater direction given by the NZCPS was a feature emphasised by Minister of Conservation, Hon Kate Wilkinson, when she released the NZCPS. The Minister described the NZCPS as giving councils “clearer direction on protecting and managing New Zealand’s coastal environment” and as reflecting the Government’s commitment “to deliver more national guidance on the implementation of the [RMA]”. The Minister said that the NZCPS was more specific than the 1994 Statement “about how some matters of national importance under the RMA should be protected from inappropriate use and development”. Among the key differences the Minister identified was the direction on protection of natural character and outstanding landscapes. The emphasis was “on local councils to produce plans that more clearly identify where development will need to be constrained to protect special areas of the coast”. The Minister also noted that the NZCPS made provision for aquaculture “in appropriate places”.
The RMA does, of course, provide for applications for private plan changes. However, we do not see this as requiring or even supporting the adoption of the “overall judgment” approach (or undermining the approach which we consider is required). We make two points:
First, where there is an application for a private plan change to a regional coastal plan, we accept that the focus will be on the relevant locality and that the decision-maker may grant the application on a basis which means the decision has little or no significance beyond that locality. But the decision-maker must nevertheless always have regard to the region-wide perspective that the NZCPS requires to be taken. It will be necessary to put the application in its overall context.
Second, Papatua at Port Gore was identified as an area of outstanding natural attributes by the Marlborough District Council. An applicant for a private plan change in relation to such an area is, of course, entitled to challenge that designation. If the decision-maker is persuaded that the area is not properly characterised as outstanding, policies 13 and 15 allow for adverse effects to be remedied or mitigated rather than simply avoided, provided those adverse effects are not “significant”. But if the coastal area deserves the description “outstanding”, giving effect to the NZCPS requires that it be protected from development that will adversely affect its outstanding natural attributes.
There are additional factors that support rejection of the “overall judgment” approach in relation to the implementation of the NZCPS. First, it seems inconsistent with the elaborate process required before a national coastal policy statement can be issued. It is difficult to understand why the RMA requires such an elaborate process if the NZCPS is essentially simply a list of relevant factors. The requirement for an evaluation to be prepared, the requirement for public consultation and the requirement for a board of inquiry process or an equivalent all suggest that a New Zealand coastal policy statement has a greater purpose than merely identifying relevant considerations.
Second, the “overall judgment” approach creates uncertainty. The notion of giving effect to the NZCPS “in the round” or “as a whole” is not one that is easy either to understand or to apply. If there is no bottom line and development is possible in any coastal area no matter how outstanding, there is no certainty of outcome, one result being complex and protracted decision-making processes in relation to plan change applications that affect coastal areas with outstanding natural attributes. In this context, we note that historically there have been three mussel farms at Port Gore, despite its CMZ1 classification. The relevant permits came up for renewal. On various appeals from the decisions of the Marlborough District Council on the renewal applications, the Environment Court determined, in a decision issued on 26 April 2012, that renewals for all three should be declined. The Court said:
While the Court conducted an overall analysis, it was heavily influenced by the directives in policies 13 and 15 of the NZCPS, as given effect in this locality by the Marlborough District Council’s CMZ1 zoning. This was despite the fact that the applicants had suggested mechanisms whereby the visual impact of the mussel farms could be reduced. There is no necessary inconsistency between the Board’s decision in the present case and that of the Environment Court, given that different considerations may arise on a salmon farm application than on a mussel farm application. But a comparison of the outcomes of the two cases does illustrate the uncertainty that arises from the “overall judgment” approach: although the mussel farms would have had an effect on the natural character and landscape attributes of the area that was less adverse than that arising from a salmon farm, the mussel farm applications were declined whereas the salmon farm application was granted.
Further, the “overall judgment” approach has the potential, at least in the case of spot zoning plan change applications relating to coastal areas with outstanding natural attributes, to undermine the strategic, region-wide approach that the NZCPS requires regional councils to take to planning. We refer here to policies 7, 13(1)(c) and (d) and 15(d) and (e). Also significant in this context is objective 6, which provides in part that “the proportion of the coastal marine area under any formal protection is small and therefore management under the [RMA] is an important means by which the natural resources of the coastal marine area can be protected”. This also requires a “whole of region” perspective.
We think it significant that the Board did not discuss policy 7 (although it did refer to it in its overview of the NZCPS), nor did it discuss the implications of policies 13(1)(c) and (d) and 15(d) and (e). As applied, the “overall judgment” approach allows the possibility that developments having adverse effects on outstanding coastal landscapes will be permitted on a piecemeal basis, without a full assessment of the overall effect of the various developments on the outstanding areas within the region as a whole. At its most extreme, such an approach could result in there being few outstanding areas of the coastal environment left, at least in some regions.
A number of objections have been raised to the interpretation of the NZCPS that we have accepted, which we now address. First, we acknowledge that the opening section of the NZCPS contains the following:
[N]umbering of objectives and policies is solely for convenience and is not to be interpreted as an indication of relative importance.
But the statement is limited to the impact of numbering; it does not suggest that the differences in wording as between various objectives and policies are immaterial to the question of relative importance in particular contexts. Indeed, both the Board and the Judge effectively accepted that policies 13 and 15 did carry additional weight. Ms Gwyn and Mr Nolan each accepted that this was appropriate. The contested issue is, then, not whether policies 13 and 15 have greater weight than other policies in relevant contexts, but rather how much additional weight.
Second, in the New Zealand Rail case, Grieg J expressed the view that pt 2 of the RMA should not be subjected to “strict rules and principles of statutory construction which aim to extract a precise and unique meaning from the words used”. He went on to say that there is “a deliberate openness about the language, its meanings and its connotations which .... is intended to allow the application of policy in a general and broad way.” The same might be said of the NZCPS. The NZCPS is, of course, a statement of objectives and policies and, to that extent at least, does differ from an enactment. But the NZCPS is an important part of a carefully structured legislative scheme: Parliament required that there be such a policy statement, required that regional councils “give effect to” it in the regional coastal plans they were required to promulgate, and established processes for review of its implementation. The NZCPS underwent a thoroughgoing process of development; the language it uses does not have the same “openness” as the language of pt 2 and must be treated as having been carefully chosen. The interpretation of the NZCPS must be approached against this background. For example, if the intention was that the NZCPS would be essentially a statement of potentially relevant considerations, to be given varying weight in particular contexts based on the decision-maker’s assessment, it is difficult to see how the statutory review mechanisms could sensibly work.
The Minister might, of course, have said in the NZCPS that the objectives and policies contained in it are simply factors that regional councils and others must consider in appropriate contexts and give such weight as they think necessary. That is not, however, how the NZCPS is framed.
Third, it is suggested that this approach to policies 13(1)(a) and 15(a) will make their reach over-broad. The argument is that, because the word “effect” is widely defined in s 3 of the RMA and that definition carries over to the NZCPS, any activity which has an adverse effect, no matter how minor or transitory, will have to be avoided in an outstanding area falling within policies 13 or 15. This, it is said, would be unworkable. We do not accept this.
The definition of “effect” in s 3 is broad. It applies “unless the context otherwise requires”. So the question becomes, what is meant by the words “avoid adverse effects” in policies 13(1)(a) and 15(a)? This must be assessed against the opening words of each policy. Taking policy 13 by way of example, its opening words are: “To preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use, and development”. Policy 13(1)(a) (“avoid adverse effects of activities on natural character in areas of the coastal environment with outstanding natural character”) relates back to the overall policy stated in the opening words. It is improbable that it would be necessary to prohibit an activity that has a minor or transitory adverse effect in order to preserve the natural character of the coastal environment, even where that natural character is outstanding. Moreover, some uses or developments may enhance the natural character of an area.
Finally, Ms Gwyn and Mr Nolan both submitted, in support of the views of the Board and the High Court, that to give effect to policies 13(1)(a) and 15(a) in accordance with their terms would be inconsistent with the purpose of the RMA. We do not accept that submission. As we have emphasised, s 5(2) of the RMA contemplates environmental preservation and protection as an element of sustainable management of natural and physical resources. This is reinforced by the terms of s 6(a) and (b). It is further reinforced by the provision of a “prohibited activity” classification in s 87A, albeit that it applies to documents lower in the hierarchy of planning documents than the NZCPS. It seems to us plain that the NZCPS contains policies that are intended to, and do, have binding effect, policy 29 being the most obvious example. Policies 13(1)(a) and 15(a) are clear in their terms: they seek to protect areas of the coastal environment with outstanding natural features from the adverse effects of development. As we see it, that falls squarely within the concept of sustainable management and there is no justification for reading down or otherwise undermining the clear terms in which those two policies have been expressed.
We should make explicit a point that is implicit in what we have just said. In New Zealand Rail, Grieg J said:
The recognition and provision for the preservation of the natural character of the coastal environment in the words of s 6(a) is to achieve the purpose of the [RMA], that is to say to promote the sustainable management of natural and physical resources. That means that the preservation of natural character is subordinate to the primary purpose of the promotion of sustainable management. It is not an end or an objective on its own but is accessory to the principle purpose.
This passage may be interpreted in a way that does not accurately reflect the proper relationship between s 6, in particular ss 6(a) and (b), and s 5.
At the risk of repetition, s 5(2) defines sustainable management in a way that makes it clear that protecting the environment from the adverse effects of use or development is an aspect of sustainable management – not the only aspect, of course, but an aspect. Through ss 6(a) and (b), those implementing the RMA are directed, “in relation to managing the use, development, and protection of natural and physical resources”, to provide for the preservation of the natural character of the coastal environment and its protection, as well as the protection of outstanding natural features and landscapes, from inappropriate development, these being two of seven matters of national importance. They are directed to make such provision in the context of “achieving the purpose of [the RMA]”. We see this language as underscoring the point that preservation and protection of the environment is an element of sustainable management of natural and physical resources. Sections 6(a) and (b) are intended to make it clear that those implementing the RMA must take steps to implement that protective element of sustainable management.
Section 6 does not, we agree, give primacy to preservation or protection; it simply means that provision must be made for preservation and protection as part of the concept of sustainable management. The fact that ss 6(a) and (b) do not give primacy to preservation or protection within the concept of sustainable management does not mean, however, that a particular planning document may not give primacy to preservation or protection in particular circumstances. This is what policies 13(1)(a) and 15(a) in the NZCPS do. Those policies are, as we have interpreted them, entirely consistent with the principle of sustainable management as expressed in s 5(2) and elaborated in s 6.
Conclusion on first question
To summarise, both the Board and Dobson J expressed the view that the “overall judgment” approach was necessary to make the RMA workable and to give effect to its purpose of sustainable management. Underlying this is the perception, emphasised by Grieg J in New Zealand Rail, that the Environment Court, a specialist body, has been entrusted by Parliament to construe and apply the principles contained in pt 2 of the RMA, giving whatever weight to relevant principles that it considers appropriate in the particular case. We agree that the definition of sustainable management in s 5(2) is general in nature, and that, standing alone, its application in particular contexts will often, perhaps generally, be uncertain and difficult. What is clear about the definition, however, is that environmental protection by way of avoiding the adverse effects of use or development falls within the concept of sustainable management and is a response legitimately available to those performing functions under the RMA in terms of pt 2.
Section 5 was not intended to be an operative provision, in the sense that it is not a section under which particular planning decisions are made; rather, it sets out the RMA’s overall objective. Reflecting the open-textured nature of pt 2, Parliament has provided for a hierarchy of planning documents the purpose of which is to flesh out the principles in s 5 and the remainder of pt 2 in a manner that is increasingly detailed both as to content and location. It is these documents that provide the basis for decision-making, even though pt 2 remains relevant. It does not follow from the statutory scheme that because pt 2 is open-textured, all or some of the planning documents that sit under it must be interpreted as being open-textured.
The NZCPS is an instrument at the top of the hierarchy. It contains objectives and policies that, while necessarily generally worded, are intended to give substance to the principles in pt 2 in relation to the coastal environment. Those objectives and policies reflect considered choices that have been made on a variety of topics. As their wording indicates, particular policies leave those who must give effect to them greater or lesser flexibility or scope for choice. Given that environmental protection is an element of the concept of sustainable management, we consider that the Minister was fully entitled to require in the NZCPS that particular parts of the coastal environment be protected from the adverse effects of development. That is what she did in policies 13(1)(a) and 15(a), in relation to coastal areas with features designated as “outstanding”. As we have said, no party challenged the validity of the NZCPS.
The Board accepted that the proposed plan change in relation to Papatua at Port Gore would have significant adverse effects on an area of outstanding natural character and landscape, so that the directions in policies 13(1)(a) and 15(a) of the NZCPS would not be given effect to if the plan change were to be granted. Despite this, the Board granted the plan change. It considered that it was entitled, by reference to the principles in pt 2, to carry out a balancing of all relevant interests in order to reach a decision. We consider, however, that the Board was obliged to deal with the application in terms of the NZCPS. We accept the submission on behalf of EDS that, given the Board’s findings in relation to policies 13(1)(a) and 15(a), the plan change should not have been granted. These are strongly worded directives in policies that have been carefully crafted and which have undergone an intensive process of evaluation and public consultation. The NZCPS requires a “whole of region” approach and recognises that, because the proportion of the coastal marine area under formal protection is small, management under the RMA is an important means by which the natural resources of the coastal marine area can be protected. The policies give effect to the protective element of sustainable management.
Accordingly, we find that the plan change in relation to Papatua at Port Gore did not comply with s 67(3)(b) of the RMA in that it did not give effect to the NZCPS.
Second question: consideration of alternatives
The second question on which leave was granted raises the question of alternatives. This Court’s leave judgment identified the question as:
Was the Board obliged to consider alternative sites or methods when determining a private plan change that is located in, or results in significant adverse effects on, an outstanding natural landscape or feature or outstanding natural character area within the coastal environment?
The Court went on to say:
This question raises the correctness of the approach taken by the High Court in Brown v Dunedin City Council  NZRMA 420 and whether, if sound, the present case should properly have been treated as an exception to the general approach. Whether any error in approach was material to the decision made will need to be addressed if necessary.
At the hearing of the appeal, Mr Kirkpatrick suggested modifications to the question, so that it read:
Was the Board obliged to consider alternative sites when determining a site specific plan change that is located in, or does not avoid significant adverse effects on, an outstanding natural landscape or feature or outstanding natural character area within the coastal environment?
We will address the question in that form.
We should make a preliminary point. We have concluded that the Board, having found that the proposed salmon farm at Papatua would have had significant adverse effects on the area’s outstanding natural attributes, should have declined King Salmon’s application in accordance with policies 13(1)(a) and 15(a) of the NZCPS. Accordingly, no consideration of alternatives would have been necessary. Moreover, although it did not consider that it was legally obliged to do so, the Board did in fact consider alternatives in some detail. For these reasons, the second question is of reduced significance in the present case. Nevertheless, because it was fully argued, we will address it, albeit briefly.
Section 32 is important in this context. Although we have referred to it previously, we set out the relevant portions of it for ease of reference:
A number of those who made submissions to the Board on King Salmon’s plan change application raised the issue of alternatives to the plan changes sought, for example, conversion of mussel farms to salmon farms and expansion of King Salmon’s existing farms. As we have said, despite its view that it was not legally obliged to do so, the Board did consider the various alternatives raised and concluded that none was suitable.
The Board noted that it has been held consistently that there is no requirement for consideration of alternatives when dealing with a site specific plan change application. The Board cited, as the principal authority for this proposition, the decision of the High Court in Brown v Dunedin City Council. Mr Brown owned some land on the outskirts of Mosgiel that was zoned as “rural”. He sought to have the zoning changed to residential. The matter came before the Environment Court on a reference. Mr Brown was unsuccessful in his application and appealed to the High Court, on the basis that the Environment Court had committed a number of errors of law, one of which was that it had allowed itself to be influenced by the potential of alternative sites to accommodate residential expansion. Chisholm J upheld this ground of appeal. Having discussed several decisions of the Environment Court, the Judge said:
(Chisholm J’s observations were directed at s 32 as it was prior to its repeal and replacement by the version at issue in this appeal, which has, in turn, been repealed and replaced.)
The Board also noted the observation of the Environment Court in Director-General of Conservation (Nelson-Marlborough Conservancy) v Marlborough District Council:
It seems to us that whether alternatives should be considered depends firstly on a finding of fact as to whether or not there are significant adverse effects on the environment. If there are significant adverse effects on the environment, particularly if they involve matters of national importance, it is a question of fact in each case as to whether or not an applicant should be required to look at alternatives, and the extent to which such an enquiry, including the undertaking of a cost/benefit analysis, should be carried out.
In the High Court Dobson J held that the Board did not commit an error of law in rejecting a requirement to consider alternative locations. The Judge adopted the approach taken by the Full Court of the High Court in Meridian Energy Ltd v Central Otago District Council. There, in a resource consent context, the Court contrasted the absence of a specific requirement to consider alternatives with express requirements for such consideration elsewhere in the RMA. The Court accepted that alternatives could be looked at, but rejected the proposition that they must be looked at. Referring to Brown, Dobson J said:
Although the context is relevantly different from that in Brown, the same practical concerns arise in imposing an obligation on an applicant for a plan change to canvass all alternative locations. If, in the course of contested consideration of a request for a plan change, a more appropriate means of achieving the objectives is raised, then there is nothing in s 32 or elsewhere in the RMA that would preclude the consenting authority having regard to that as part of its evaluation. That is distinctly different, however, from treating such an assessment as mandatory under s 32.
For EDS, Mr Kirkpatrick’s essential point was that, in a case such as the present, it is mandatory to consider alternatives. He submitted that the terms of policies 13(1)(a) and 15(a) required consideration of alternatives in circumstances where the proposed development will have an adverse effect on an area of the coastal environment with outstanding natural attributes. Given that these policies appear alongside policy 8, the Board’s obligation was to consider alternative sites in order to determine whether, if it granted the plan change sought, it would “give effect to” the NZCPS. Further, Mr Kirkpatrick argued that Brown had been interpreted too widely. He noted in particular the different context – Brown concerned a landowner seeking a zoning change in respect of his own land; the present case involves an application for a plan change that will result in the exclusive use of a resource that is in the public domain. Mr Kirkpatrick emphasised that, in considering the plan change, the Board had to comply with s 32. That, he argued, required that the Board consider the “efficiency and effectiveness” of the proposed plan change, its benefits and costs and the risk of acting or not acting in conditions of uncertainty. He emphasised that, although this was an application in relation to a particular locality, it engaged the Sounds Plan as a whole.
In response, Mr Nolan argued that s 32 should not be read as requiring consideration of alternative sites. He supported the findings of the Board and the High Court that there was no mandatory requirement to consider alternative sites, as opposed to alternative methods, which were the focus of s 32: that is, whether the proposed provisions were the most appropriate way to achieve the RMA’s purpose. He relied on the Meridian Energy case. Mr Nolan accepted that there is nothing to preclude consideration of an alternative raised in the context of an application for a private plan change but said it was not a mandatory requirement. He noted that the decision in Brown has been widely adopted and applied and submitted that the distinction drawn by Mr Kirkpatrick between the use of private land and the use of public space for private purposes was unsustainable: s 32 applied equally in both situations. Mr Nolan submitted that to require applicants for a plan change such as that at issue to canvass all possible alternatives would impose too high a burden on them. In an application for a site-specific plan change, the focus should be on the merits of the proposed planning provisions for that site and whether they satisfy s 32 and achieve the RMA’s purpose. Mr Nolan noted that there was nothing in policies 13 or 15 which required the consideration of alternative sites.
We do not propose to address these arguments in detail, given the issue of alternatives has reduced significance in this case. Rather, we will make three points.
First, as we have said, Mr Nolan submitted that consideration of alternative sites on a plan change application was not required but neither was it precluded. As he neatly put it, consideration of alternative sites was permissible but not mandatory. But that raises the question, when is consideration of alternative sites permissible? The answer cannot depend simply on the inclination of the decision-maker: such an approach would be unprincipled and would undermine rational decision-making. If consideration of alternatives is permissible, there must surely be something about the circumstances of particular cases that make it so. Indeed, those circumstances may make consideration of alternatives not simply permissible but necessary. Mr Kirkpatrick submitted that what made consideration of alternatives necessary in this case was the Board’s conclusion that the proposed salmon farm would have significant adverse effects on an area of outstanding natural character and landscape.
Second, Brown concerned an application for a zoning change in relation to the applicant’s own land. We agree with Chisholm J that the RMA does not require consideration of alternative sites as a matter of course in that context, and accept also that the practical difficulties which the Judge identified are real. However, we note that the Judge accepted that there may be instances where a consideration of alternative sites was required and suggested a way in which that might be dealt with.
We agree with Chisholm J that there may be instances where a decision-maker must consider the possibility of alternative sites when determining a plan change application in relation to the applicant’s own land. We note that where a person requests a change to a district or regional plan, the relevant local authority may (if the request warrants it) require the applicant to provide “further information necessary to enable the local authority to better understand .... the benefits and costs, the efficiency and effectiveness, and any possible alternatives to the request”. The words “alternatives to the request” refer to alternatives to the plan change sought, which must bring into play the issue of alternative sites. The ability to seek further information on alternatives to the requested change is understandable, given the requirement for a “whole of region” perspective in plans. At the very least, the ability of a local authority to require provision of this information supports the view that consideration of alternative sites may be relevant to the determination of a plan change application.
Third, we agree with Mr Kirkpatrick that the question of alternative sites may have even greater relevance where an application for a plan change involves not the use of the applicant’s own land, but the use of part of the public domain for a private commercial purpose, as here. It is true, as Mr Nolan argued, that the focus of s 32 is on the appropriateness of policies, methods or rules – the section does not mention individual sites. That said, an evaluation under s 32(3)(b) must address whether the policies, methods or rules proposed are the “most appropriate” way of achieving the relevant objectives, which requires consideration of alternative policies, methods or rules in relation to the particular site. Further, the fact that a local authority receiving an application for a plan change may require the applicant to provide further information concerning “any possible alternatives to the request” indicates that Parliament considered that alternative sites may be relevant to the local authority’s determination of the application. We do not accept that the phrase “any possible alternatives to the request” refers simply to alternative outcomes of the application, that is, granting it, granting it on terms or refusing it.
This brings us back to the question when consideration of alternative sites may be necessary. This will be determined by the nature and circumstances of the particular site-specific plan change application. For example, an applicant may claim that that a particular activity needs to occur in part of the coastal environment. If that activity would adversely affect the preservation of natural character in the coastal environment, the decision-maker ought to consider whether the activity does in fact need to occur in the coastal environment. Almost inevitably, this will involve the consideration of alternative localities. Similarly, even where it is clear that an activity must occur in the coastal environment, if the applicant claims that a particular site has features that make it uniquely, or even especially, suitable for the activity, the decision-maker will be obliged to test that claim; that may well involve consideration of alternative sites, particularly where the decision-maker considers that the activity will have significant adverse effects on the natural attributes of the proposed site. In short, the need to consider alternatives will be determined by the nature and circumstances of the particular application relating to the coastal environment, and the justifications advanced in support of it, as Mr Nolan went some way to accepting in oral argument.
Also relevant in the context of a site specific plan change application such as the present is the requirement of the NZCPS that regional councils take a regional approach to planning. While, as Mr Nolan submitted, a site-specific application focuses on the suitability of the planning provisions for the proposed site, the site will sit within a region, in respect of which there must be a regional coastal plan. Because that regional coastal plan must reflect a regional perspective, the decision-maker must have regard to that regional perspective when determining a site-specific plan change application. That may, at least in some instances, require some consideration of alternative sites.
We see the obligation to consider alternative sites in these situations as arising at least as much from the requirements of the NZCPS and of sound decision-making as from s 32.
Dobson J considered that imposing an obligation on all site-specific plan change applicants to canvass all alternative locations raised the same practical concerns as were canvassed by Chisholm J in Brown. We accept that. But given that the need to consider alternative sites is not an invariable requirement but rather a contextual one, we do not consider that this will create an undue burden for applicants. The need for consideration of alternatives will arise from the nature and circumstances of the application and the reasons advanced in support of it. Particularly where the applicant for the plan change is seeking exclusive use of a public resource for private gain and the proposed use will have significant adverse effects on the natural attributes of the relevant coastal area, this does not seem an unfairly onerous requirement.
The appeal is allowed. The plan change in relation to Papatua at Port Gore did not comply with s 67(3)(b) of the Resource Management Act 1991 as it did not give effect to policies 13(1)(a) and 15(a) of the New Zealand Coastal Policy Statement. If the parties are unable to agree as to costs, they may file memoranda on or before 2 June 2014.
William Young J
A preliminary comment
The plan change to permit the Papatua salmon farm in Port Gore would permit activities with adverse effects on (a) “areas of the coastal environment with outstanding natural character” and (b) “outstanding natural features and outstanding natural landscapes in the coastal environment” (to which, for ease of discussion, I will refer collectively as “areas of outstanding natural character”). The majority conclude that the protection of areas of outstanding natural character from adverse effects is an “environmental bottom line” by reason of the New Zealand Coastal Policy Statement (NZCPS) to which the Board of Inquiry was required to give effect under s 67(3)(b) of the Resource Management Act 1991. For this reason, the majority is of the view that the plan change should have been refused.
I do not agree with this approach and for this reason disagree with the conclusion of the majority on the first of the two issues identified in their reasons. As to the second issue, I agree with the approach of the majority to Brown v Dunedin City Council but, as I am in dissent, see no point in further analysis of the Board’s decision as to what consideration was given to alternative sites. I will, however, explain, as briefly as possible, why I differ from the majority on the first issue.
The majority’s approach on the first issue – in summary
Section 6(a) and (b) of the Resource Management Act 1991 provide:
The majority consider that these subsections, and particularly s 6(b), contemplate planning on the basis that a “use” or “development” which has adverse effects on areas of outstanding natural character is, for that reason alone, “inappropriate”. They are also of the view that this is the effect of the NZCPS given policies 13 and 15 which provide:
The majority interpret policies 13 and 15 as requiring regional and territorial authorities to prevent, by specifying as prohibited, any activities which will have adverse effects on areas of outstanding natural character. Section 67(3)(b) of the RMA thus requires salmon farming to be a prohibited activity in Port Gore with the result that the requested plan change ought to have been refused.
Section 6(a) and (b)
As a matter of logic, areas of outstanding natural character do not require protection from activities which will have no adverse effects. To put this in a different way, the drafting of ss 6(a) and (b) seems to me to leave open the possibility that a use or development might be appropriate despite having adverse effects on areas of outstanding natural character.
Whether a particular use is “inappropriate” or, alternatively, “appropriate” for the purposes of ss 6(a) and (b) may be considered in light of the purpose of the RMA. and thus in terms of s 5. It thus follows that the NZCPS must have been prepared so as to be consistent with, and give effect to, s 5. For this reason, I consider that those charged with the interpretation or application of the NZCPS are entitled to have regard to s 5.
The meaning of the NZCPS
Section 58 of the Resource Management Act
Section 58 of the RMA provides for the contents of New Zealand coastal policy statements:
I acknowledge that a “policy” may be narrow and inflexible (as the Court of Appeal held in Auckland Regional Council v North Shore City Council) and I thus agree with the conclusion of the majority that a policy may have such a controlling effect on the content of regional plans as to make it a rule “in ordinary speech”. Most particularly, I accept that policies stipulated under s 58(e) may have the character of rules.
Under s 58(e), the NZCPS might have stipulated what was required to be included in a regional coastal plan to preserve the natural character of the coastal environment. The example given in the subsection is confined to the specification of activities as restricted coastal activities. This leaves me with at least a doubt as to whether s 58, read as a whole, contemplates policies which require particular activities to be specified as prohibited. I am, however, prepared to assume for present purposes that s 58, and in particular s 58(e), might authorise a policy which required that activities with adverse effects on areas of outstanding natural character be specified as prohibited.
As it happens, the Minister of Conservation made use of s 58(e) but only in a negative sense, as policy 29(1) of the NZCPS provides that the Minister:
... does not require any activity to be specified as a restricted coastal activity in a regional coastal plan.
Given this explicit statement, it seems plausible to assume that if the Minister’s purpose was that some activities (namely those with adverse effects on areas of outstanding natural character) were to be specified as prohibited, this would have been “specified” in a similarly explicit way. At the very least, policy 29 makes it clear that the Minister was not relying on s 58(e) to impose such a requirement. I see this as important. Putting myself in the shoes of a Minister who wished to ensure that some activities were to be specified in regional plans as prohibited, I would have attempted to do so under the s 58(e) requiring power rather than in the form of generally stated policies.
The scheme of the NZCPS
Objective 2 of the NZCPS is material to the preservation of the coastal environment. It is relevantly in these terms:
To preserve the natural character of the coastal environment and protect natural features and landscape values through:
It is implicit in this language that the identification of the areas in question is for regional councils. I think it is also implicit, but still very clear, that the identification of the “forms of .... use, and development” which are inappropriate is also for regional councils.
To the same effect is policy 7:
It is again clear – but this time as a result of explicit language – that it is for regional councils to decide as to both (a) the relevant areas of the coastal environment and (b) what “forms of .... use, and development” are inappropriate in such areas. There is no suggestion in this language that such determinations have in any way been pre-determined by the NZCPS.
The majority consider that all activities with adverse effects on areas of outstanding natural character must be prevented. Since there is no reason for concern about activities with no adverse effects, the NZCPS, on the majority approach, has pre-empted the exercise of the function which it, by policy 7, has required regional councils to perform. Decisions as to areas of the coastal environment which require protection should be made by the same body as determines the particular “forms of .... use, and development” which are inappropriate in such areas. On the majority approach, decisions in the first category are made by regional councils whereas decisions as to the latter have already been made in the NZCPS. This result is too incoherent to be plausibly within the purpose of the NZCPS.
The point I have just made is reinforced by a consideration of the NZCPS’s development-focused objectives and policies.
Objective 6 of the NZCPS provides:
To enable people and communities to provide for their social, economic, and cultural wellbeing and their health and safety, through .... use, and development, recognising that:
Policy 8 provides:
Recognise the significant existing and potential contribution of aquaculture to the social, economic and cultural well-being of people and communities by:
Policy 8 gives effect to objective 6, just as policies 13 and 15 give effect to objective 2. There is no suggestion in the NZCPS that objective 2 is to take precedence over objective 6, and there is likewise no indication that policies 13 and 15 take precedence over policy 8. Viewed solely through the lens of policy 8 and on the findings of the Board, Port Gore is an appropriate location for a salmon farm. On the other hand, viewed solely through the lens of policies 13 and 15, it is inappropriate. On the approach of the majority, the standards for determining what is “appropriate” under policy 8 are not the same as those applicable to determining what is “inappropriate” in policies 13 and 15.
I disagree with this approach. The concept of “inappropriate .... use [or] development” in the NZCPS is taken directly from ss 6(a) and (b) of the RMA. The concept of a “use” or “development” which is or may be “appropriate” is necessarily implicit in those subsections. There was no point in the NZCPS providing that certain uses or developments would be “appropriate” other than to signify that such developments might therefore not be “inappropriate” for the purposes of other policies. So I simply do not accept that there is one standard for determining whether aquaculture is “appropriate” for the purposes of policy 8 and another standard for determining whether it is “inappropriate” for the purposes of policies 13 and 15. Rather, I prefer to resolve the apparent tension between policy 8 and policies 13 and 15 on the basis of a single concept – informed by the NZCPS as a whole and construed generally in light of ss 6(a) and (b) and also s 5 – of what is appropriate and inappropriate. On the basis of this approach, the approval of the salmon farm turned on whether it was appropriate (or not inappropriate) having regard to policies 8, 13 and 15 of the NZCPS, with ss 5 and 6(a) and (b) of the RMA being material to the interpretation and application of those policies.
I accept that this approach requires policies 13 and 15 to be construed by reading into the first two bullets points of each policy the word “such” to make it clear that the polices are directed to the adverse effects of “inappropriate .... use, and development”. By way of illustration, I consider that policy 13 should be construed as if it provided:
The necessity to add words in this way shows that my interpretation of the policies is not literal. That said, I do not think it is difficult to construe these policies on the basis that given the stated purpose – protection from “inappropriate .... use, and development” – what follows should read as confined to activities which are associated with “inappropriate .... use, and development”. Otherwise, the policies would go beyond their purpose.
The majority avoid the problem of the policies going beyond their purpose by concluding that any use or development which would produce adverse effects on areas of outstanding natural character is, for this reason, “inappropriate”. That, however, is not spelt out explicitly in the policies. As I have noted, if it was the purpose of the Minister to require that activities with such effects be specified as prohibited, that would have been provided for directly and pursuant to s 58(e). So I do not see their approach as entirely literal either (because it assumes a determination that adverse effects equates to “inappropriate”, which is not explicit). It is also inconsistent with the scheme of the NZCPS under which decisions as to what is “appropriate” or “inappropriate” in particular cases (that is, by reference to specific locations and activities) is left to regional councils. The approach taken throughout the relevant objectives and policies of the NZCPS is one of shaping regional coastal plans but not dictating their content.
We are dealing with a policy statement and not an ordinary legislative instrument. There seems to me to be flexibility given that
the requirement is to “give effect” to the NZCPS rather than individual policies,
the language of the policies, which require certain effects to be avoided and not prohibited, and
the context provided by policy 8.
Against this background, I think it is wrong to construe the NZCPS and, more particularly, certain of its policies, with the rigour customary in respect of statutory interpretation.
I think it is useful to consider the consequences of the majority’s approach, which I see as overbroad.
“Adverse effects” and “effects” are not defined in the NZCPS save by general reference to the RMA definitions. This plainly incorporates into the NZCPS the definition in s 3 of the RMA:
On the basis that the s 3 definition applies, I consider that a corollary of the approach of the majority is that regional councils must promulgate rules which specify as prohibited any activities having any perceptible adverse effect, even temporary, on areas of outstanding natural character. I think that this would preclude some navigation aids and it would impose severe restrictions on privately-owned land in areas of outstanding natural character. It would also have the potential generally to be entirely disproportionate in its operation as any perceptible adverse effect would be controlling irrespective of whatever benefits, public or private, there might be if an activity were permitted. I see these consequences as being so broad as to render implausible the construction of policies 13 and 15 proposed by the majority.
The majority suggest that such consequences can be avoided. They point out that the s 3 definition of “effect” does not apply if the context otherwise requires. They also, rather as I have done, suggest that the literal words in which the policies are expressed can be read down in light of the purposes stated in each policy (in essence to the protection of areas of outstanding natural character). There is the suggestion of a de minimis approach. They also point out that a development might enhance an area of outstanding character (presumably contemplating that beneficial effects might outweigh any adverse effects).
I would like to think that a sensible approach will be taken to the future application of the NZCPS in light of the conclusions of the majority as to the meaning of policies 13 and 15 and I accept that for reasons of pragmatism, such an approach might be founded on reasoning of the kind provided by the majority. But I confess to finding it not very convincing. In particular:
I think it clear that the NZCPS uses “effects” in its s 3 sense.
While I agree that the policies should be read down so as not to go beyond their purposes, I think it important to recognise that those purposes are confined to protection only from “inappropriate” uses or developments.
Finally, given the breadth of the s 3 definition and the distinction it draws between “positive” and “adverse” effects, I do not see much scope for either a de minimis approach or a balancing of positive and adverse effects.
My conclusion as to the first issue
On my approach, policies 13 and 15 on the one hand and policy 8 on the other are not inconsistent. Rather, they required an assessment as to whether a salmon farm at Papatua was appropriate. Such assessment required the Board to take into account and balance the conflicting considerations – in other words, to form a broad judgment. A decision that the salmon farm at Papatua was appropriate was not inconsistent with policies 13 and 15 as I construe them and, on this basis, the s 67(3)(b) requirement to give effect to the NZCPS was not infringed.
This approach is not precisely the same as that adopted by the Board. It is, however, sufficiently close for me to be content with the overall judgment of the Board on this issue.
 Marlborough District Council Marlborough Sounds Resource Management Plan (2003) [Sounds Plan].
 The proposed farms were grouped in three distinct geographic locations – five at Waitata Reach in the outer Pelorus Sound, three in the area of Tory Channel/Queen Charlotte Sound and one at Papatua in Port Gore. The farm to be located at White Horse Rock did not require a plan change, simply a resource consent. For further detail, see Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd  NZHC 1992,  NZRMA 371 [King Salmon (HC)] at .
 Resource Management Amendment Act (No 2) 2011. For a full description of the background to this legislation, see Derek Nolan (ed) Environmental and Resource Management Law (looseleaf ed, LexisNexis) at [5.71] and following.
 The Minister of Conservation deals with applications relating to the coastal marine area, the Minister of the Environment with other applications: see Resource Management Act 1991 [RMA], s 148.
 The Marlborough District Council is a unitary authority with the powers, functions and responsibilities of both a regional and a district council. The Board of Inquiry acted in place of the Council: see King Salmon (HC), above n 2, at –.
 Board of Inquiry, New Zealand King Salmon Requests for Plan Changes and Applications for Resource Consents, 22 February 2013 [King Salmon (Board)].
 At .
 RMA, s 149V.
 King Salmon (HC), above n 2.
 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd  NZSC 101 [King Salmon (Leave)].
 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd  NZSC 41.
 Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd  NZSC 40.
 Department of Conservation New Zealand Coastal Policy Statement 2010 (issued by notice in the New Zealand Gazette on 4 November 2010 and taking effect on 3 December 2010) [NZCPS].
 King Salmon (Board), above n 6, at –.
 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 11.
 As contained in s 5 of the RMA.
 (4 July 1991) 516 NZPD 3019.
 RMA, s 43AA.
 Sections 43–44A.
 Sections 45–55.
 Sections 56–58A.
 Section 57(1).
 Sections 45(1) and 58.
 See further  and – below.
 RMA, s 60(1).
 Section 59.
 Section 62(1).
 Section 64(1).
 Section 67(1).
 Section 67(2)(b).
 Sections 73–77D.
 Section 73(1).
 Section 75(1).
 Section 75(2)(b).
 Sections 56 (which uses the term “coastal environment”) and 60(1) (which refers to a regional council’s “region”: under the Local Government Act 2002, where the boundary of a regional council’s region is the sea, the region extends to the outer limit of the territorial sea: see s 21(3) and pt 3 of sch 2). The full extent of the landward side of the coastal environment is unclear as that term is not defined in the RMA: see Nolan, above n 3, at [5.7].
 RMA, ss 63(2) and 64(1).
 Section 73(1) and the definition of “district” in s 2.
 Section 28.
 Section 30(1)(d).
 See s 87A.
 King Salmon (Leave), above n 10, at .
 BV Harris “Sustainable Management as an Express Purpose of Environmental Legislation: The New Zealand Attempt”  OtaLawRw 3; (1993) 8 Otago L Rev 51 at 59.
 RMA, s 3.
 Section 2.
 Section 2.
 The Environment Court has held on several occasions, albeit in the context of planning documents made under the RMA, that avoiding something is a step short of prohibiting it: see Wairoa River Canal Partnership v Auckland Regional Council  NZEnvC 309;  16 ELRNZ 152 (EnvC) at ; Man O’War Station Ltd v Auckland Council  NZEnvC 233 at . We return to this below.
 See Nolan, above n 3, at [3.24]; see also Harris, above n 42, at 60–61. Harris concludes that the importance of competing views has been overstated, because the flexibility of the language of ss 5(2)(a), (b) and (c) provides ample scope for decision makers to trade off environmental interests against development benefits and vice versa.
 Resource Management Bill 1989 (224-1), explanatory note at i.
 RMA, ss 7(a) and (aa).
 Section 7(b).
 Section 7(f).
 Emphasis added.
 See  below.
 See – below.
 Marlborough District Council Marlborough Regional Policy Statement (1995).
 The 2010 version of the NZCPS replaced an earlier 1994 version: see  below.
 RMA, s 62(3).
 Section 67(3)(b).
 Section 75(3)(b).
 Section 32(3) (emphasis added), as it was until 2 December 2013. Section 32 as quoted was replaced with a new section by s 70 of the Resource Management Act Amendment Act 2013.
 Section 46A.
 NZCPS, above n 13, at 5.
 King Salmon (Board), above n 6. Emphasis in original, citations omitted.
 King Salmon (Board), above n 6, at .
 At , adopting the language of Ms Sarah Dawson, a planning consultant for King Salmon. This paragraph of the Board’s determination, along with others, is quoted at  below.
 At .
 See Jim Milne “Sustainable Management” in DSL Environmental Handbook (Brookers, Wellington, 2004) vol 1.
 Shell Oil New Zealand Ltd v Auckland City Council W8/94, 2 February 1994 (PT); Foxley Engineering Ltd v Wellington City Council W12/94, 16 March 1994 (PT); Plastic and Leathergoods Co Ltd v The Horowhenua District Council W26/94, 19 April 1994 (PT); and Campbell v Southland District Council W114/94, 14 December 1994 (PT).
 Shell Oil New Zealand Ltd v Auckland City Council, above n 68, at 10.
 Campbell v Southland District Council, above n 68, at 66.
 New Zealand Rail Ltd v Marlborough District Council  NZRMA 70 (HC).
 At 86.
 At 85.
 Town and Country Planning Act 1977, s 3(1).
 New Zealand Rail Ltd, above n 71, at 85.
 At 85–86.
 North Shore City Council v Auckland Regional Council  NZEnvC 23; (1996) 2 ELRNZ 305 (EnvC) at 345–347; aff’d Green & McCahill Properties Ltd v Auckland Regional Council  NZRMA 519 (HC).
 North Shore City Council v Auckland Regional Council, above n 77, at 347 (emphasis added). One commentator expresses the view that the effect of the overall judgment approach in relation to s 5(2) is “to render the concept of sustainable management virtually meaningless outside the facts, circumstances and nuances of a particular case”: see IH Williams “The Resource Management Act 1991: Well Meant But Hardly Done”  OtaLawRw 6; (2000) 9 Otago L R 673 at 682.
 See, for example, Te Runanga O Ngai Te Rangi Iwi Trust v Bay of Plenty Regional Council  NZEnvC 402 and Man O’War Station, above n 46.
 Ngai Te Rangi Iwi Trust, above n 79, at .
 At .
 Man O’War Station, above n 46, at –.
 Ngai Te Rangi Iwi Trust, above n 79, at .
 “Notice of the Issue of the New Zealand Coastal Policy Statement” (5 May 1994) 42 New Zealand Gazette 1563.
 In contrast, s 62(e) of the RMA provides that a regional policy statement must state “the methods (excluding rules) used, or to be used, to implement the policies”. Sections 67(1)(a) to (c) and 75(1)(a) to (c) provide that regional and district plans must state the objectives for the region/district, the policies to implement the objectives and the rules (if any) to implement the policies. Section 43AA provides that rule means “a district or regional rule” Section 43AAB defines regional rule as meaning “a rule made as part of a regional plan or proposed regional plan in accordance with section 68”.
 The 1994 version of the New Zealand coastal policy statement did contain a number of national priorities.
 It should be noted that the NZCPS provides that the numbering of objectives and policies is for convenience and is not to be interpreted as an indication of relative importance: see NZCPS, above n 13, at 8.
 The Department of Conservation explains that the reason for the distinction between “outstanding” character/features/landscapes and character/features/landscapes more generally is to “provide the greatest protection for areas of the coastal environment with the highest natural character”: Department of Conservation NZCPS 2010 Guidance Note – Policy 13: Preservation of Natural Character (September 2013) at 14; and Department of Conservation NZCPS 2010 Guidance Note – Policy 15: Natural Features and Natural Landscapes (September 2013) at 15.
 RMA, s 59.
 Section 62(1).
 Section 62(3).
 Italics in original.
 Italics in original.
 RMA, s 32(4)(b) as it was at the relevant time (see above n 60 for the legislative history).
 Section 67(1).
 Section 67(3)(b).
 Sounds Plan, above n 1, at [1.0].
 At [9.2.2].
 At Appendix 2.
 At [2.1.6]. Italics in original.
 At ch 5 and Appendix 1.
 At vol 3.
 King Salmon (Board), above n 6, at  and following.
 The term “regional plan” includes a regional coastal plan: see RMA, s 43AA.
 See  above.
 King Salmon (Board), above n 6, at .
 Clevedon Cares Inc v Manukau City Council  NZEnvC 211.
 RMA, ss 293(3)–(5).
 King Salmon (Board), above n 6 (citations omitted).
 Indeed, counsel in at least one case has submitted that pt 2 “trumps” the NZCPS: see Port Gore Marine Farms v Marlborough District Council  NZEnvC 72 at .
 Man O’War Station, above n 46, at .
 Wairoa River Canal Partnership, above n 46.
 Man O’War Station, above n 46, at .
 Wairoa River Canal Partnership, above n 46, at .
 At .
 RMA, s 6(a) and (b); NZCPS, above n 13, objective 6 and policies 13(1)(a) and 15(a).
 (28 August 1990) 510 NZPD 3950.
 (4 July 1991) 516 NZPD 3019.
 King Salmon (HC), above n 2, at .
 At .
 King Salmon (Board), above n 6.
 RMA, s 58(a).
 Auckland Regional Council v North Shore City Council  3 NZLR 18 (CA).
 At 19.
 At 22.
 At 23.
 At 23.
 Section 55 of the RMA uses the term “local authority”, which is defined in s 2 to include a regional council.
 NZCPS, above n 13, policies 2(e) and 6(g).
 Policy 10; see also policy 5(2).
 Policies 6(1) and 7(1)(a).
 Policies 1, 6, 9, 12(2) and 26(2).
 Policies 6(2)(e) and 14.
 Policies 6(c) and 25(c) and (d).
 Policies 2(c) and (g) and 12(1).
 Policies 14 (c), 17(h), 19(4), 21(c) and 23(4)(a).
 Policy 6(1)(i).
 Policy 23(5)(a).
 Policy 10(1)(c).
 King Salmon (Board), above n 6, at ; and King Salmon (HC), above n 2, at .
 See  above.
 Office of the Minister of Conservation “New Coastal Policy Statement Released” (28 October 2010).
 Although the farms were in a CMZ1 zone, mussel farming at the three locations was treated as a discretionary activity.
 Port Gore Marine Farms v Marlborough District Council, above n 110.
 The Board was aware of the Court’s decision because it cited it for a particular proposition: see King Salmon (Board), above n 6, at .
 See  above.
 New Zealand Rail Ltd, above n 71, at 86.
 At 86.
 At 85.
 At 86.
 King Salmon (Leave), above n 10, at .
 At .
 King Salmon (Board), above n 6, at –.
 At .
 Brown v Dunedin City Council  NZRMA 420 (HC).
 Hodge v Christchurch City Council  NZRMA 127 (PT) (citation added).
 Director-General of Conservation (Nelson-Marlborough Conservancy) v Marlborough District Council  NZEnvC 403 at  (quoted in King Salmon (Board), above n 6, at ).
 King Salmon (HC), above n 2, at .
 Meridian Energy Ltd v Central Otago District Council  NZHC 1390;  1 NZLR 482 (HC).
 At –.
 At –.
 King Salmon (HC), above n 2, at .
 Brown v Dunedin City Council, above n 155, at .
 RMA, sch 1 cl 23(1)(c) (emphasis added).
 King Salmon (HC), above n 2, at .
 Department of Conversation New Zealand Coastal Policy Statement 2010 (issued by notice in the New Zealand Gazette on 4 November 2010 and taking effect on 3 December 2010) [NZCPS].
 At  of the majority’s reasons.
 At – of the majority’s reasons.
 Brown v Dunedin City Council  NZRMA 420 (HC).
 Auckland Regional Council v North Shore City Council  3 NZLR 18 (CA).
 At  of the majority’s reasons.
 At – of the majority’s reasons.
 Compare the discussion and cases cited in – of the majority’s reasons.
 The NZCPS, above n 166, at 8 records that “[d]efinitions contained in the Act are not repeated in the Glossary”.
 At  of the majority’s reasons.
 See above at .
D A Kirkpatrick, R B Enright and N M de Wit (instructed by DLA Phillips Fox, Auckland) for Appellant.
D A Nolan, J D K Gardner-Hopkins, D J Minhinnick and A S Butler (instructed by Russell McVeagh, Wellington) for First Respondent,.
M S R Palmer and K R M Littlejohn (instructed by Dyhrberg Drayton, Wellington) for Second Respondent, Sustain Our Sounds Inc.
C R Gwyn and E M Jamieson (instructed by Crown Law Office, Wellington) for Fourth Respondents, Minister of Conseervation & Director General of Ministry for Primary Industries.
P T Beverley and D G Allen (instructed by Buddle Findlay, Wellington) for the Board of Inquiry
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