The High Court’s recent decision in R J Davidson Family Trust v Marlborough District Council  NZHC 52 (“Davidson”) makes it clear that a key finding of the Supreme Court in King Salmon  – that there is generally no ability to consider Part 2 of the RMA and undertake an “overall broad judgment” – also applies to decisions on resource consents. As it stands, Davidson will have important consequences, including regarding how resource consents are decided, and how planning documents are drafted.
How we got here: King Salmon and Basin Bridge
The prevailing pre-King Salmon view was that Part 2, being the purpose and principles of the RMA, was the RMA’s “engine-room”. Decisions routinely pivoted on an “overall broad judgment” under Part 2, which was seen as a vehicle for the broad weighing of the relevant pros and cons of a proposal, in order to inform a decision as to whether it met the sustainable management purpose of the RMA. Any directive provisions in the inevitably conflicting planning documents were not necessarily determinative.
In its landmark King Salmon decision, the Supreme Court held that unless there is invalidity, incomplete coverage, or uncertainty of meaning in the statutory planning documents, decision-makers should not refer back to Part 2 when determining a plan change. Because the relevant planning documents (namely the NZCPS) gave substance to Part 2, independent reference to Part 2 was not necessary, and the “overall broad judgment” approach was inappropriate. Of importance in King Salmon, the directive provisions in the NZCPS – requiring the “avoidance” of particular adverse effects – therefore meant what they said and had to be given effect to by the plan change. The Supreme Court found that it is not permissible to downplay such provisions by way of an overall broad judgment involving competing Part 2 matters.
Following King Salmon, decision-makers and practitioners grappled with the application of the Supreme Court’s decision, in particular whether it was limited to decisions on plan changes, or whether it applied to resource consents and designations also, which are subject to different statutory frameworks. This was primarily because of the different wording in the RMA whereby consideration of resource consents and designations is explicitly “subject to Part 2”; and decision-makers are required to have “regard”/“particular regard” to certain matters, including planning documents such as the NZCPS. This is a lesser requirement than the provisions relating to plan changes, which require that higher order planning instruments including the NZCPS be “given effect to”. The High Court in Basin Bridge  confirmed that the decision-making context for designations requires a different approach to that taken in King Salmon, and that reference to Part 2 is still appropriate in that context.
Davidson – Environment Court decision
Davidson concerned an application for a mussel farm in Beatrix Bay, Pelorus Sound. The NZCPS was of particular importance to the application because the proposed mussel farm was within an “Area of Significant Ecological Value” in the relevant plan, and there was evidence as to adverse effects of the proposal on endangered King Shag. In declining the resource consents sought, the majority of the Environment Court held that the Supreme Court’s reasoning in King Salmon applies equally to decisions on resource consents under s104 of the RMA – i.e. there is usually no ability to look at Part 2 of the RMA when considering resource consent applications.
Davidson – High Court decision
The High Court confirmed the Environment Court’s majority decision. The Court noted that the relevant planning documents, including the NZCPS, have “already given substance to the principles in Part 2”, and it would be inconsistent with the scheme of the RMA and King Salmon to allow plans to be “rendered ineffective” through broad recourse to Part 2. The High Court also reaffirmed the three caveats identified by the Supreme Court: where there is invalidity, incomplete coverage, or uncertainty in the planning documents, reference should then be had to Part 2, and it may be appropriate to undertake a wider balancing exercise.
Implications of the High Court’s decision
With its rejection of general recourse to Part 2 (and the “overall broad judgment”), Davidson advances a major shift away from the orthodox understanding of the role of Part 2 in resource consent decision-making. Some will see the decision as a necessary extension of King Salmon. Others will see it as confirming Part 2’s relegation from the “engine room” to the “back seat”. For them and many others in the resource management fraternity, the Court’s decision may have come as a surprise. Following Basin Bridge clarifying that King Salmon does not apply in the context of designations, many will have expected it to be a matter of time before the courts confirmed a similar exception for the resource consent context. Such an approach would seemingly have been supported by the wording of s104, which requires decision-makers to “have regard to” the planning documents, as opposed to “give effect to” them; and expressly includes the phrase “subject to Part 2”.
Following Davidson, the situation appears to be that Part 2 can be considered in relation to a proposed designation, but generally cannot be for a plan change or resource consent (unless one of the caveats is made out). The decision will have far-reaching implications, particularly in terms of how resource consents are decided (and therefore how applications are prepared), and how planning documents throughout the hierarchy are drafted. Unless Davidson is successfully appealed or revisited, takeaway points for planners include the following:
- For resource consent applications, now more than ever the particular wording of the relevant plans is key, given that broad recourse to Part 2 considerations is generally not available. Resource consents will likely be more difficult to obtain in the face of unqualified protection-based plan provisions, for example those requiring “avoidance” of certain adverse effects (e.g. the NZCPS provisions requiring the avoidance of adverse effects on areas of outstanding natural character, features and landscapes; and the avoidance of significant adverse effects on all other areas). The rubber will meet the road for proposals that simply cannot “avoid” such effects.
- Davidson will change the way that plans and plan changes are drafted, and various planning documents (including the NZCPS) may need to be revisited. To date it has been commonplace in plans for there to be objectives and policies that both directly support, and go against, a particular resource consent proposal (i.e. “enabling” provisions and “protection” provisions). Such drafting has been based on the orthodox thinking whereby it was accepted that decision-makers would independently consider Part 2, and resolve the broad weighing of the issues (including matters raised by the plan provisions) via an “overall broad judgment”. But if unqualified planning provisions, including those requiring “avoidance” of effects, are going to be interpreted as directives in the context of resource consent applications (without resort to Part 2), planning provisions will need to be carefully drafted in order to ensure that these are appropriately balanced and qualified, and do not have unintended consequences, including the de facto prohibition of activities. This will likely increase the complexity of plans and the drafting nuances required.
- The three caveats (being invalidity, incomplete coverage, and uncertainty) will likely be the subject of intense litigation. While King Salmon and Davidson base their reasoning in part on the fact that planning documents already give substance to Part 2, there is some doubt regarding how effectively plans embody Part 2 in practice, especially given they have generally been drafted on the basis of the orthodox approach to Part 2 and the “overall broad judgment”. Therefore, incomplete coverage and uncertainty will be key areas for debate. Whether such exceptions are successfully made out will determine whether the consent authority should undertake the Part 2 balancing exercise, and will likely have significant implications for whether consent is granted.
- The requirements of Schedule 4 remain unaffected. The information required by Schedule 4 of the RMA, particularly the mandatory information in clause 2, remains unaffected by the decision. This includes an assessment of the activity against the relevant provisions of a statutory planning document (cl. 2(1)(g)), and against the matters set out in Part 2 (cl. 2(1)(f)). It would be prudent for planners to continue to ensure that the requirements of Schedule 4 are fully met, in order to avoid the possibility of an application being determined incomplete pursuant to s.88.
Where to from here?
For now at least, Davidson is binding on resource consent decision-makers at the Environment Court and Council levels. How Davidson will be interpreted and applied remains to be seen: in a decision released just a few days after Davidson, the Environment Court held that despite Davidson, Part 2 is still relevant to resource consents for certain reasons/purposes. 
There will be considerable interest from a wide range of parties regarding any appeals on Davidson. Given the practical importance of what is at stake, and the range of opinions on the issues (including within the courts), the High Court’s decision in Davidson may not be the end of the matter. At least for the meantime, planners and other practitioners will need to carefully navigate what has become a complex and dynamic area of the law.
This article appeared in the 'Issue 204 / March 2017' edition of the Planning Quarterly, and is reproduced here with permission.
1 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd  NZSC 38.
2 New Zealand Transport Agency v Architectural Centre Inc  NZHC 1991.
3 Envirofume Ltd v Bay of Plenty Regional Council  NZEnvC 12.