Case overview
In this case, the Court of Appeal considered the King Salmon precedent.
The Court put the issue of the case simply: whether a proposed regional policy statement that provides that adverse effects in outstanding natural landscape areas will be “avoided, remedied or mitigated” gives effect to the NZCPS requirement that such effects be “avoided” (in Policy 13). The Court found that it was “obvious” that the policy statement did not give effect to the NZCPS as required by s 62(3) of the RMA (at [78]–[79]). The Court gave the caveat that this does not pre-empt decision making about activity status (by, for example, requiring activities to have a prohibited status). Rather, it is the effects that must be avoided (at [85]).
Additionally, the Court engaged in some commentary about King Salmon:
- The bottom-line approach reflects the original intent of the RMA. The overall broad judgement (OBJ) approach is overruled by King Salmon at planning stages superior to resource consent applications (at [55]).
- Because the NZCPS was produced against the OBJ approach, there is a “regulatory mismatch” where a policy instrument sets out “quasi-rules” (at [57]). The King Salmon decision may have made the NZCPS more rigorous that the Minister intended (at [57]). Nonetheless, the Court is bound by it.
It also noted that the NZCPS contains its own “directive hierarchy” (at [82]). The avoidance policies (policies 11, 13, 15 and 16) set the bottom lines within which the other policies must operate, including the strategic planning policy (policy 7) and the ports policy (policy 9).
Overall, the decision continues to entrench the validity of the bottom-line approach. It will be important to watch the implications of the case for the new National Planning Framework and the future of the NZCPS in light of oceans reform.
