Environmental / Resource Management
The Court of Appeal has released its judgment on RJ Davidson Family Trust v Marlborough District Council. The judgment clarifies the application of Part 2 of the RMA when considering resource consent applications. It follows a period of jurisdictional uncertainty arising from the High Court’s consideration of the case.
The High Court had extended the Supreme Court’s judgment in King Salmon to apply to resource consent applications.
The Court of Appeal found:
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There is a distinction between section 104 of the RMA which expressly refers to Part 2, and plan making provisions in the RMA, which do not.
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The Supreme Court in King Salmon did not intend to prohibit the consideration of Part 2 by a consent authority when considering resource consent applications.
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Plan provisions should be considered and brought to bear on a resource consent application in accordance with section 104(1)(b) of the RMA.
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If it is clear that a plan has been prepared having regard to Part 2, and with a coherent set of policies designed to achieve clear environmental outcomes, the result of a genuine process that has regard to those policies should suffice and reference to Part 2 would likely not add anything, nor result in a different outcome.
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On the contrary, if it appears a plan has not been prepared in a manner that appropriately reflects the provisions of Part 2, the consent authority will be required to give emphasis to Part 2.
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If there is any doubt that a plan has been competently prepared in accordance with the RMA, it will be appropriate and necessary to refer to Part 2.
What does this mean for local authorities?
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It appears to be a relatively pragmatic approach to the application of Part 2 by the Court of Appeal. When assessing resource consent applications, local authorities should keep Part 2 in the back of their minds in their consideration of an application against plan provisions.
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Where a local authority can be confident that its plan effectively gives effect to Part 2, detailed consideration of Part 2 is not necessary for every resource consent application. In our opinion, if a plan has recently been through a plan review and concluded through an Environment Court appeal process, an authority can probably be confident its plan has been robustly tested against the RMA, including Part 2.
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Referring to Part 2 is necessary. The extent to which it is relevant will depend on the matters set out in the Court’s judgment.
You can read the full judgment from the Court of Appeal here.
We would be happy to discuss the matters raised in the judgment in further detail with you.
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