The Court of Appeal decision in Davidson Family Trust and Marlborough District Council has been issued.
The decision cannot be read in isolation, reference must be made to the previous appeal decisions. In brief the High Court decision confirmed the Environment Court decision and the Court of Appeal decision held that there is a requirement to have regard to Part 2 when determining Resource Consent applications however this may be achieved by relying on planning documents that have passed the King Salmon test or by direct referral to Part 2 by the decision maker.
Summary of Decisions
Environment Court Decision
The Court held:
(a) The King Salmon test applies to Resource Consent applications, that is where the planning documents are invalid, have incomplete coverage or uncertainty of meaning the decision maker should refer to Part 2 for assistance. (para 259 and 260)
(b) Guidance was provided as to when Part 2 should be referred to in Resource Consent applications (para 262):
(c) Referring to Part 2 in the way provided above is not an ‘overall judgement’ test. The scope of the judgement is dependent upon the following factors. Rather the breadth of ‘judgement’ depends upon the following matters in the Plan (para 263):
(i)The status of the activity for which consent is applied;
(ii) The particularity (or lack of it) in the relevant objectives and policies about the effects of the activity; and
(iii) The existence of any uncertainty, incompleteness or illegality (in those plans or in any higher order instruments).
(d) In referring to Part 2 an assessment of s7(b) should ask the question, Having particular regard to section 7(b) RMA by assessing (at least) is the proposal more efficient in implementing the policies and achieving the objectives of the relevant plan than the status quo (or the permitted activities in the plant)? (para 265)
High Court Decision
The High Court held:
(a) The King Salmon test applies to Resource Consent applications, that is where the planning documents are invalid, have incomplete coverage or uncertainty of meaning the decision maker should refer to Part 2 for assistance. (para 75)
(b) General referral to Part 2 would not be in accordance with the scheme of the RMA or the King Salmon approach. (para 77)
(c) Referral to Part 2 cannot result in cherry picking sections, sections 5 to 8 must be referred to (as they apply) as a whole without giving pre-eminent consideration to one section. (paras 82 to 86)
Court of Appeal Decision
The Court of Appeal held:
(a) The King Salmon test does not prevent referral to Part 2 in Resource Consent application decisions, rather it applies but in a more flexible fashion, with the decision maker being required to have regard to Part 2 and achieving that by referring to adequate planning documents or referring to Part 2 directly. (para 47, 66, 76 )
(b) S104 requires a decision maker to have ‘regard to Part 2’ however this may have been achieved by the hierarchy documents having regard to Part 2. (para 51 and 52) To determine when the decision maker should specifically refer to Part 2 rather than rely on a planning document, the Court gave the following guidelines:
(i) If the application is affected by the NZCPS and the activity is demonstrably in breach of the NZCPS, no referral to Part 2 is required. This is because the NZCPS has been confirmed as complying with Part 2 by the Supreme Court. (para 71)
(ii) If the application is affected by the NZCPS but it is unclear from the NZCPS itself as to whether it should be granted or refused, the decision maker would need to exercise judgement. The decision maker would refer to Part 2 for assistance. (para 72)
(iii) If the application relates to regional and district plans, the decision maker should assess the objectives and policies of the plan against Part 2. The outcome of that being:
- The plan has been prepared having regard to Part 2 and has a coherent set of policies designed to achieve clear environmental outcomes. The decision maker does not need to refer to Part 2 further than applying the policies and objectives of the plan as in doing so it is referring to Part 2 as required under s104. (para 74 and 75); or
- It appears the plan has not been prepared in a manner that appropriately reflects the provisions of part 2. The decision maker must refer to Part 2 in determining the application. (para 74).
- NZCPS has prescriptive guidelines which make a general overall judgement approach inappropriate (para 59), s58 empowered the Minister to set priorities policies and objectives that are to be carried into lower order plans (para 60 to 63), the process of developing the NZCPS is elaborate unlike private plan changes (para 65) and ‘overall judgement’ would create uncertainty (para 69).
Where to now?
Applicants
There is an onus on the applicant to undertake an assessment of how their proposal fits the planning documents and Part 2. If the view is taken that the planning documents do not fulfil Part 2 then the applicant should prepare to extend their assessment to include Part 2 in addition to those matters raised in the planning documents. They may undertake this assessment when preparing their application or wish to discuss it with the planner during the processing of their application.
Decision Makers
When determining resource consent applications a preliminary assessment of the planning documents must be undertaken and the result recorded in the s42A report of the planner or Decision document. The following checklist forms the basis of this preliminary assessment:
(a) Is the application proposal clearly contrary to NZCPS policies? If yes, no referral to Part 2 is required as breach of NZCPS which is fatal to the application would be an inconsistency with Part 2 and also fatal to the application.
(b) Is the application proposal affected by the NZCPS but the NZCPS does not clearly indicate granting or refusing the application? If yes, refer to Part 2.
(c) Is the application proposal subject other NPS and NES documents? If yes, do they:
(i) Have prescriptive policies/provisions?
(ii) Can central government officers determine priorities, policies and objectives for regional and district plans?
(iii) Is the development of the document carried out with prescribed consideration of Part 2?
(iv) Has a higher order Court determined the document to be compliant with Part 2?
(v) Will the exercise of ‘overall judgement’ create uncertainty?
(vi) Is the process of developing the document elaborate (as is the NZCPS process)?
If yes to all or most of the above, determine if the document can be confidently relied on to meet Part 2. If it can then no referral to Part 2 is required.
If the decision maker is not confident referral to Part 2 in determining the decision is required.
(d) Where the application proposal is subject to regional and district plans that are not subject to higher order planning documents, do the policies and objectives meet Part 2 (coherent set of policies designed to achieve clear environmental outcomes, complete coverage and certainty of meaning)? If yes, then no referral to Part 2 is required. If no, referral to Part 2 in determining the decision is required.
