Public Decision Making Newsletter - Spring 2019: Environmental Defence Society Incorporated v Otago Regional Council [2019] NZHC 2278

The High Court in Environmental Defence Society (EDS) v Otago Regional Council has found that provisions of the Proposed Otago Regional Policy Statement (PORPS) relating to port activities at Port Chalmers and Dunedin did not give effect to the NZCPS, applying the approach to those policies adopted in EDS v New Zealand King Salmon Co Ltd, and the High Court in the Auckland Council v Cabra decision.¹

The central question that the High Court had to consider concerned the rules that should be in a proposed plan governing the specific management of resources in the Otago region.

The Otago Regional Council prepared a PORPS which was publicly notified on 23 May 2015. Policy 4.3.7 of the PORPS concerned the ports in Otago.

EDS, the appellant in this case, together with 24 others appealed the Regional Council’s decision regarding the PORPS to the Environment Court. EDS considered that the rules governing the established ports in Dunedin and Port Chalmers did not give effect to the NZCPS, particularly the ‘Avoidance Policies’. An interim decision of the Environment Court found in favour of the position taken by Port Otago.²

The High Court considered that Port Otago’s position that it would have no issue complying with the Avoidance Policies of the NZCPS if minor breaches were permissible or potential adverse effects could be avoided or managed does not ‘fit easily with the decision in King Salmon’.

The High Court held that the Environment Court failed to ‘give effect to’ the NZCPS, as required by section 62(3) of the Resource Management Act 1991 (RMA), in determining that avoidance of ‘adverse effects’ was not required.³ It stated:⁴

the King Salmon decision represents a sea change in resource management law which is continuing here with decisions such as the BOP Regional Council decision and the Auckland Council decision…The findings by the Environment Court in its Interim Decision for an overall judgment approach and suggesting that the planning framework should provide for a case by case approach to adverse effects on outstanding or significant coastal biodiversity, landscape and natural character sites and nationally significant surf breaks, which provides for effects on those sites or values to be avoided, remedied or mitigated, is an approach roundly rejected by the majority in King Salmon and one that is no longer available.

The decision indicates that the avoidance policies of the NZCPS do not allow the use of adaptive management (i.e., where predicted effects that carry an element of risk are avoided or managed by having monitoring and changing behaviour in accordance with that monitoring). The Court also found that Policy 9 relating to ports is not a prescriptive policy, and NZCPS Policy 16 relating to surf breaks of national significance is an NZCPS ‘avoidance’, ‘environmental bottom line’ policy.

The decision also discusses the meaning of ‘consider’ (think carefully about), noting that decision-makers must think carefully about ‘where, how, when’ to provide for the matter at issue, and ‘ensure’ (ensure is directive, it requires decision-makers to ‘make certain that something will turn out in a particular way’). The Court considered that a requirement to ‘ensure’ activities do not adversely affect part of the environment has the same meaning as a requirement to ‘avoid adverse effects’ on that area.