Part 2 of the RMA Lives

The Court of Appeal has confirmed that Part 2 of the RMA is once again relevant to resource consent applications.

On 21 August 2018 the Court of Appeal released its decision of RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, which clarifies how Part 2 of the RMA should be considered in resource consent applications.

By way of background, in 2014 the Supreme Court in Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 38 “King Salmon” determined that (contrary to existing caselaw) unless there are questions of invalidity, incomplete coverage or uncertainty of meaning in planning documents, there is no need to refer back to Part 2 when considering a plan change application. The High Court then concluded in RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52 that the reasoning of King Salmon applies to resource consent applications and decision makers are unable to refer back to Part 2 unless the King Salmon caveats apply because they are bound by its expression in planning documents.

The Court of Appeal has now determined that the High Court’s conclusion was wrong. Given the factual and statutory context of King Salmon, the Court of Appeal does not consider that the Supreme Court intended to prohibit Part 2 being considered in resource consent applications. The Court listed the following additional three reasons to support that conclusion:

• The Supreme Court made no reference to s 104 of the RMA or the phrase “subject to Part 2”;
• There is no indication from the decision that the Supreme Court intended its reasoning to be generally applicable, including to resource consent applications; and
• The statutory language of s 104 clearly contemplates direct consideration of Part 2 and there cannot be the same assurance outside the NZCPS that plans made by local authorities will reflect the provisions of Part 2.

However the Court of Appeal did not entirely revert to the position before the High Court’s decision, that consent authorities would always consider Part 2 in considering resource consent applications. The Court of Appeal has now determined that in some situations recourse to Part 2 is not required:

• Resource consent applications engaging the NZCPS
The Supreme Court in King Salmon concluded that the NZCPS complies with the RMA’s requirements and gives effect to Part 2. In light of this fact the Court of Appeal determined that if a resource consent application engages the NZCPS then considering Part 2 will unlikely provide any additional guidance. The Court of Appeal stated that Part 2 cannot be used to undermine a clearly relevant restriction in the NZCPS and doing so would expose the decision to being overturned on appeal. However the Court of Appeal noted that if the NZCPS does not provide a clear outcome then consent authorities can consider Part 2 for guidance.

• Other plans
The Court of Appeal determined that relevant plan provisions are not properly had regard to if they are considered for the purpose of putting them to one side; consent authorities must conduct a “fair appraisal of the objectives and policies read as a whole”. It stated that if a plan was prepared having regard to Part 2 and has a coherent set of policies designed to achieve clear environmental outcomes then the policies should be implemented and recourse to Part 2 will not add anything, and cannot justify an outcome contrary to its policies. However consent authorities need to give emphasis to Part 2 if it appears the plan was not prepared in a manner that appropriately reflects Part 2.

In summary, the Court of Appeal agreed with the High Court that allowing plans to be rendered ineffective by general recourse to Part 2 is inconsistent with the scheme of the RMA, provided that the plans have been properly prepared having regard to Part 2. However the High Court was incorrect to apply the reasoning in King Salmon with equal force to resource consent applications. Rather, the implications of King Salmon in resource consent applications are that proper application of relevant plans may leave little room for Part 2 to influence decisions.

In terms of the present case, the Court of Appeal concluded that in the circumstances the thrust of the relevant NZCPS policies and the Marlborough Sounds Resource Management Plan could not have been put aside by recourse to Part 2 and the decision did not need to be overturned.