Have the Goal Posts Shifted? Implications of the Supreme Court King Salmon Decision

13 May 14

The purpose of the RMA is to achieve “sustainable management”. In general terms the Courts have determined whether this purpose is met by taking an overall judgment approach to the economic benefits and environmental effects of a plan or consent proposal. New Zealand’s highest Court has now shed doubt on the appropriateness of an overall judgment, preferring an approach that applies a strict interpretation of planning documents, when they are worded in prescriptive terms.

On 17 April 2014 the New Zealand Supreme Court released its decisions on two appeals in relation to New Zealand King Salmon’s (“King Salmon”) proposals to establish salmon farms in the Marlborough Sounds. The decision on Environmental Defence Society Inc (“EDS”) appeal will have a direct effect on decisions made on district and regional plans, fundamentally changing the approach away from an “overall judgment” to a more specific disciplined focus. The Supreme Court decision’s influence on resource consent decision making is yet to be determined.

The decision will affect the manner in which the New Zealand Coastal Policy Statement (NZCPS), and potentially other National Policy Statements (NPS), are applied in relation to Part 2 of the RMA. The decision finds that decision makers need not turn to Part 2 at all, when considering the making or changing of a plan within the scope of the NZCPS. Whether or not this reasoning applies to other NPS is likely to depend on the particular drafting of that NPS and the circumstances in a particular case.

The decision is significant for the findings it makes in respect of the application of an overall judgment, and environmental bottom lines.

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