Summary and comment
The Supreme Court recently issued its judgment in Port Otago Ltd v Environmental Defence Society Inc.,[1] and it’s good news for infrastructure operators. In broad terms, the decision concludes:
that the directive enabling ports policy in the NZCPS (Policy 9) should be considered alongside the NZCPS avoidance policies (Policies 11, 13, 15, and 16, requiring certain adverse effects of activities to be avoided); and
that where there is conflict between those enabling and avoidance policies, it may be appropriate for a project to proceed, where the project is required to ensure the safe and efficient operation of ports.
The decision builds on recent High Court discussion of the relative weighting of directive plan provisions.[2] While specifically in the context of ports, it is likely to be applied (and tested/refined through the courts) in other situations. In our view, the decision provides a pragmatic and necessary amendment to the position formerly expressed by the Supreme Court in King Salmon.[3] It is not a silver bullet. It does, however, mean that infrastructure operators who are faced with attempting to undertake operations in a ‘sensitive’ environment, where the avoidance policies of the NZCPS cannot strictly be met, have support for a balanced argument based on directive policies enabling that infrastructure.
A refreshingly concise decision, it is essential reading for RM practitioners and infrastructure operators.
Background
The matter relates to an appeal against the provisions of the Otago Regional Policy Statement, and in particular the validity of a policy relating to ports. There was disagreement between the parties as to how the RPS policy should reflect the relationship between similar policies in the NZCPS. A succession of appeals, including a split decision in the Court of Appeal,[4] brought the matter before the Supreme Court.
Key issues
The key issue before the Supreme Court was the validity of the proposed ports policy, and how to balance the enabling of port operations against the directive avoidance requirements established in the NZCPS. The factual context advanced for Port Otago was that there was unavoidable conflict between the two: in short, that port operations were unlikely to be able to continue in future without having effects on ‘sensitive’ areas, and that this may have a constraining effect on port operations. Port Otago submitted that:[5]
…the Court of Appeal majority incorrectly creates an absolute prohibition on Port Otago breaching the values protected by the NZCPS avoidance policies, including not permitting Port Otago to avoid potential adverse effects on the protected values by the use of adaptive management.
Port Otago submitted that, absent appropriate reconciliation between the competing directive enabling and avoidance policies, matters would unsatisfactorily be left to the resource consent stage, and this would have a “stultifying effect”.
EDS submitted that the NZCPS ports policy should be applied, “within the bounds of” the NZCPS avoidance policies (and therefore that they do not conflict and are reconcilable). In support of EDS, Royal Forest & Bird submitted that any irreconcilable conflict must be resolved in favour of the NZCPS avoidance policies.
Decision
The Supreme Court decided as follows:
The NZCPS ports policy is directive. There is therefore potential for the ports policy to conflict with the avoidance policies where measures may be needed for the safe and efficient operation of a particular established port.[6]
Reconciliation of any potential conflict between the NZCPS avoidance policies and the port policy should be addressed at the RPS and plan level as far as possible. It was noted that it might not be possible or desirable for a regional planning instrument to do more than identify the location and activities that may generate conflict, and set out general principles for addressing the conflict, leaving particular cases to be dealt with at resource consent level.
Where there is a potential conflict between the avoidance policies and the ports policy with regard to a particular project, the decision-maker would have to be satisfied that:
The project is required (and not merely desirable) to ensure the safe and efficient operation of the ports;
If the project is required, all options for dealing with the safety and efficiency needs of the ports have been evaluated and, where possible, the chosen option should not breach the avoidance policies;
Where a breach of the avoidance policies cannot be averted, any breach is only to the extent required to provide for the safe and efficient operation of the ports.
The Supreme Court was careful to note that applications are fact-specific, and that even where a decision-maker is satisfied of the above, this does not mean that a resource consent will necessarily be granted. Put simply, the Court held that there can be no presumption that one directive policy will always prevail over another. Instead, in what the Court framed as a “structured analysis”,[7] it required a disciplined evaluation of the conflicting directive policies in the particular factual circumstances – including the particular safety or efficiency requirements the project addresses, and the importance and rarity of the environmental values at issue (and their intrinsic worth).
The Supreme Court proposed some wording for the proposed RPS policy as “a suggestion only” and sent it back to Council to decide on the wording, taking account of the judgment.
[1] [2023] NZSC 112 [24 August 2023].
[2] Southern Cross Healthcare Ltd v Eden Epsom Residential Protection Society Inc [2023] NZHC 948. Refer our earlier article here on the significance of that High Court decision.
[3] Environmental Defence Society v The New Zealand King Salmon Co Ltd [2014] NZSC 38 and Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 40.
[4] The dissenting judgement of Miller J was referenced with approval by the Supreme Court.
[5] Paragraph [42] of the Supreme Court decision.
[6] The Supreme Court declined to expressly include new ports here, on the basis that no issue relating to new ports was before it.
[7] The Court expressly distanced this from the “overall judgment” approach rejected in NZ King Salmon. How material this difference in approach, is in our view, questionable.