Keeping busy - king salmon and part 2 in the courts again

A recent High Court decision is the latest in the line of judicial comment on the relevance of Part 2 of the Resource Management Act 1991 (RMA) to decision making following the 2014 Supreme Court case of Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38.

Turners & Growers Horticulture Ltd v Far North District Council [2017] NZHC 764 addressed plan provisions in the Far North District Plan. Turners & Growers was unsuccessful in the Environment Court. The main ground of appeal was that the Environment Court incorrectly evaluated the plan change proposal under section 32 of the RMA. Specifically, it asked whether the Environment Court erred in considering Part 2 and section 31 (the Council's functions of the RMA) as part of that analysis.

The issue in question related to the appropriateness of boundary setback rules. There was no challenge to the related objectives within the District Plan.

Turners & Growers argued that unless the relevant plan is invalid, incomplete or uncertain, (being the three exceptions set out in King Salmon to the principle that you cannot look beyond higher policy direction to Part 2 for interpretation purposes) or a higher level document has been promulgated since the relevant plan was made operative, there is no justification for going beyond settled objectives of the relevant District Plan. As the objectives were agreed to be the most appropriate, it submitted that the Environment Court should have only looked at whether the proposed methods were the most appropriate for achieve those objectives. It was not entitled to look to Part 2 or the Council's functions when making that assessment.

The High Court was critical of this argument in three ways. Firstly, it was opposite to the argument of Turners & Growers in the Environment Court. There its appeal was on the basis that the Council's decision would not achieve the purpose of the RMA, was contrary to Part 2 and was not the most appropriate means of exercising the Council's functions. The Court said that Turners & Growers could not now criticize the Environment Court for addressing the matters it complained the Council did not address in its decision. This is an important point to consider when decisions are being made as to questions of law and grounds of appeal to be pursued.

Secondly, the High Court considered the Environment Court followed the decision making process that Turners & Growers was promoting on appeal to the High Court. The Environment Court approached its analysis on the basis that the critical enquiry was whether the methods proposed were the most appropriate way of achieving the objectives of the District Plan.

Finally, the High Court stated that it was not wrong to consider the purpose and principles of Part 2 or the Council's functions when evaluating the rules of the District Plan. Instead, it is specifically required to consider those matters under section 74 of the RMA. The Supreme Court in King Salmon did not undermine, but instead emphasized, the importance of Part 2 to RMA decision making. It repeated the Supreme Court's statement that: section 5 is a carefully formulated statement of principle intended to guide those who make decisions under the RMA. What the Supreme Court did say was that it was a mandatory requirement for lower order documents to give effect to higher order planning documents. It identified three situations where a decision maker could resort to Part 2 to interpret the policies of higher order planning documents where there is an allegation of invalidity, incomplete coverage or uncertainty of meaning.

In the Turners & Growers case, unlike King Salmon, there was no higher order constraint to which the Council was required to give effect. The High Court concluded on the issue by stating that King Salmon did not prevent reversion to Part 2 where the decision maker was faced with options as to the most appropriate provisions. This could be seen to add to the Supreme Court's three exemptions, but it needs to be remembered that in King Salmon there was no choice available as to how the directive policy in the NZCPS was to be given effect to.

With multiple High Court decisions taking different approaches to King Salmon across a range of plan change, resource consent and notice of requirement appeals, this is not the end of the matter. There is, however, a potential light at the end of the tunnel with some certainty as to approach to potentially eventuate with the Court of Appeal to hear an appeal on the specific King Salmon approach to Part 2 issue later this year with respect to resource consents (refer to the Court of Appeal's decision granting leave in R J Davidson Family Trust v Marlborough District Council [2017] NZCA 194). The question to be considered by the Court of Appeal is whether, in the context of a resource consent application, the High Court erred in holding that the Environment Court was not able or required to consider Part 2 of the RMA directly and was bound by its expression in the relevant planning documents.