In Davidson Family Trust v Marlborough District Council & Ors3 the High Court applied the Supreme Court's approach to Part 2 of the RMA, from King Salmon4 to a decision on a resource consent application under section 104 of the Resource Management Act 1991 (RMA).
What did King Salmon say?
In King Salmon the Court was looking at a Plan Change under sections 66 and 67 of the RMA. Matters to be considered by a Regional Council when preparing a Plan Change are set out in section 66 of the RMA. Section 66(1) RMA requires that a Regional Council must prepare and change a plan including in accordance with the Provisions of Part 2. Section 67(3) of the RMA goes on to provide that a regional plan must give effect to any national policy statement, the New Zealand Coastal Policy Statement, and any regional policy statement.
The Supreme Court in King Salmon said, in relation to Part 2 of the RMA:
`the NZCPS gives substance to Part 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 Part 2 and there is no need to refer back to Part 2 when determining a Plan Change.'
The Supreme Court identified three caveats to this approach:
`absent invalidity, incomplete coverage, or uncertainty of meaning in the statutory planning documents, there is no need to look at Part 2 of the RMA.'
What did the High Court in Davidson say?
In terms of the Davidson decision, the provision under consideration was section 104(1) of the RMA. Section 104(1) requires a decision-maker, when considering a resource consent application, to have regard to the relevant listed matters, subject to Part 2.
The High Court traversed the reasoning of the Supreme Court, and found:
`that the reasoning in King Salmon applies to section 104(1) because the relevant provisions of the planning documents, which include the Coastal Policy Statement, have already given substance to the principles of Part 2.'
Justice Cull acknowledged, and endorsed the three caveats identified by the Supreme Court. She also accepted the Council's submission stating it would be inconsistent with the scheme of the RMA and King Salmon to allow Regional or District Plans to be rendered ineffective by general recourse to Part 2 in deciding resource consent applications.
What are the implications?
The Davidson decision is the first decision of the High Court to apply the King Salmon approach to Part 2 to a resource consent application.
Of note, Davidson takes different approach to another High Court decision, New Zealand Transport Agency v Architectural Centre Inc5, in which Justice Brown declined to apply King Salmon to a decision on a Notice of Requirement under section 171 of the RMA. Section 171, similar to section 104, lists matters that a decision-maker must have particular regard to, subject to Part 2. Justice Brown found that the context of section 171 demanded a different approach to that taken by the Supreme Court in King Salmon.6 Unlike a plan change under section 67 of the RMA, he said the New Zealand Coastal Policy Statement (or any other planning document) does not determine the outcome of a section 171 assessment.
An application for leave to appeal Davidson has been filed with the Court. Until any potential appeal is resolved the decision remains the law, and a particular focus on assessments of the statutory documents is warranted as well as an assessment under Part 2 of the RMA.
In the majority of cases, an assessment against the statutory documents and your Part 2 assessment will align. Where they don't align, it would suggest that there may be a `deficiency' in the planning documents, which would indicate that a Part 2 assessment is required in any event.
The Environment Court7, noting the Davidson decision, recently concluded that a Part 2 assessment remains relevant, as:
- An overview or check that the purpose and RMA and Part 2 are properly covered and clear.
- To focus the Court and decision makers on the overall purpose of the consent in question.
- As a check that the various documents have recognised, provided for or given effect to the RMA and other documents in the planning hierarchy.