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FYI
Naturally Resourceful
25 Sep 2008
Living Earth: integrity and regional policy statements
The recent Court of Appeal decision in Auckland Regional Council v Living Earth Limited [2008] NZCA 349 resolves the previous uncertainty about whether, in the context of a resource consent application, the integrity of regional planning instruments requires separate evaluation to the integrity of district planning instruments under s104(1) of the Resource Management Act 1991 (RMA). It also clarifies how the permitted baseline test should be applied to resource consent applications. This FYI backgrounds the case and looks at those two important issues in more detail.
Background
The Court of Appeal decision is the latest round in Living Earth Limited's battle to establish a composting facility on Puketutu Island in the Manukau Harbour. Living Earth applied for resource consents from Manukau City Council and the Auckland Regional Council (ARC) for the facility in 2004. The ARC was the consent authority in respect of consents for discharge of contaminants from the facility into air and to land; to divert and discharge stormwater; and for earthworks in excess of 0.25 hectares. Land use consent was also required under the Manukau District Plan, which makes no provision for composting or waste management in the relevant zone, so that the facility was assessed as a non-complying activity.
Both councils refused to grant the consents. The ARC's decision was based primarily on the proposal being inconsistent with the policies and objectives in its Auckland Regional Policy Statement (ARPS). Its key concern was the appropriateness of permitting an industrial activity in an area lying outside the metropolitan urban limit (MUL), in light of strategic policy 3 of the ARPS which states that expansion of urban activities outside the MUL is not permitted.
Living Earth successfully appealed both councils' decisions to the Environment Court. The Environment Court accepted that the composting facility was contrary to the objectives and policies of the ARPS, which do not allow urban activities outside the metropolitan urban limits. However, the Court ultimately approved the consents, concluding that the proposal would not have any of the adverse effects identified as threats posed by urban development, despite not serving the strategic direction and urban growth provisions of the ARPS.
In assessing the applications, the Environment Court did not explicitly address the impact of granting the consents on the integrity of the ARPS except indirectly via its assessment of the impact on the integrity of the Manukau District Plan. However, it had explicitly found that the activity was "not appropriate in the general terms of the strategic direction of the ARPS". The ARC appealed the Environment Court's decision to the High Court on questions of law, but its appeal was dismissed. It then appealed to the Court of Appeal.
Issues in the Court of Appeal
The Court of Appeal was asked to address three questions of law, which were in summary:
- Whether the effect of a proposal on the integrity of regional planning documents requires a separate evaluation to its effect on the integrity of district plans;
- Whether the approach taken by the Environment Court when considering the ARPS was correct: in particular, its use of "themes" in dealing with the planning documents rather than the specific wording of the key provisions; and
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Whether the scale, intensity, duration and frequency of effects are irrelevant when comparing a proposed activity and permitted activity for the purpose of a permitted baseline assessment.
Integrity of regional planning documents
The Court of Appeal held that there is no legal requirement on a consent authority to have specific and explicit regard to the impact of granting consent on the integrity of regional planning instruments. It noted that the RMA makes no reference to the need to consider integrity, coherence, precedent effect, or public confidence in the administration of planning instruments. These are all concepts introduced by court decisions trying to articulate a principled approach to the consideration of district plan objectives and policies. The Court therefore endorsed the observations made by Cooper J in Rodney District Council v Gould [2006] NZRMA 217 that the application of these concepts is not mandatory.
The Court observed that issues relating to the integrity of planning instruments are most obviously applied to the planning instrument that directly constrains the activity in question. In the case of land use consents this will be district plans. The Court noted the importance of keeping in mind that strategic policy 3 of the ARPS, stating that the expansion of urban activities outside the MUL was "not permitted", was a policy and not a rule. Further, it noted that the ARC was unable to identify any cases involving land use consents where a court had expressly addressed the impact of granting consent on the continuing integrity of a regional policy statement.
The Court also recorded that the RMA requires consistency between district plans and regional planning instruments. Where, as in this case, no issues as to consistency between the between district and regional documents arise, a finding that granting an application does not challenge the integrity of a district plan effectively means it does not challenge the integrity of the regional planning instruments either, even if no specific reference is made to this fact.
The use of themes when considering the ARPS
Secondly, the ARC had questioned whether it was sufficient for the Environment Court to address "themes" in the ARPS, rather than the specific wording of material provisions. The Court of Appeal found that the Environment Court was not required to set out all the alleged relevant sections of the ARPS. Its thematic approach was necessarily a summary of relevant planning documents, but that was not a material error. Indeed, the Court said that such an approach was "entirely sensible and desirable". Accordingly, the decision held that it was not compulsory for the Court to set out and construe all allegedly relevant sections of the ARPS in its decision.
The permitted baseline test
In making their permitted baseline assessments, the lower courts in Living Earth had compared the odour effects of pig farming, which is a permitted activity on Puketutu Island under the Manukau District Plan, with the odour effects associated with the composting facility. The ARC had taken particular exception to the High Court's statement that when considering s 104(2):
Scale, intensity, duration and frequency are irrelevant. If a consent authority is satisfied that a permitted activity and proposed activity each produce an adverse effect of the same type - be it noise, odour, visual effect or whatever, the threshold for applying the baseline is established. So the first question is, “Can the baseline apply?” The Authority then has to decide whether, in its discretion, the baseline should apply.
The Court of Appeal took a pragmatic approach to this statement, stating that the High Court could "hardly have meant that a certain adverse effect of trivial significance (eg noise) which is part of the permitted baseline warrants ignoring the same sort of effect, no matter how serious, associated with a proposal". Instead, the Court of Appeal presumed that the High Court simply meant that differences in "scale, intensity, duration and frequency" are irrelevant only where the adverse effects of permitted activities are "broadly the same as, or similar to, the corresponding effects likely to be associated with the proposed activity".
In any event, the Court held that the permitted baseline approach was not critical to the Environment Court's decision because that Court had concluded that the relevant odour effects were no more than minor independently of the permitted baseline test.
Conclusion
The Court of Appeal found that the Environment Court's approach to this case had been "very orthodox". It confirmed that for land use consents, where a district plan is consistent with a regional policy statement, it is not necessary to specifically and explicitly assess the impact of a proposal on the integrity of that document.
Further, when applying the permitted baseline test in s 104(2), the Court confirmed that a precise correlation between effects permitted by a district plan and those associated with a proposal is not fundamental. Instead, it is sufficient for the adverse effects of permitted activities to be broadly the same as, or similar to, the corresponding effects likely to be associated with the proposed activity.
In our view these findings are to be welcomed, as they confirm the approach to integrity issues set out by the High Court in Gould. They spare consent authorities from having to undertake what the Court described as a "sterile analysis" of the impact that granting land use consent would have on the integrity of a regional policy statement. Finally, they allow consent authorities to adopt a straightforward, common-sense approach should they choose to apply the permitted baseline.
Authors
Padraig McNamara
Partner - Public Sector
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James Winchester
Partner - Public Sector
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Michelle van Kampen
Senior Associate - Public Sector
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In This Article:
The Court of Appeal also clarifies how the permitted baseline test should be applied to resource consent applications.
