Supreme Court clarifies conflicting NZCPS policies
Supreme Court clarifies conflicting NZCPS policies
Monday 28 August, 2023
Last Thursday's release of the Supreme Court’s decision in Port Otago Ltd v Environmental Defence Society Inc reverses the earlier decision of the Court of Appeal and has now confirmed that the New Zealand Coastal Policy‘s (NZCPS) ports policy is not subordinate to its avoidance policies.
The NZCPS port and avoidance policies are all national directives, and, by their nature, they are expressed as broad principles. Careful attention should be paid to the language of the policies when interpreting them along with purpose and context.
The Supreme Court found that any potential conflict between the policies should be addressed at the regional policy statement and regional plan level as far as possible. At this level, decision makers considering projects have the most information available to them to make decisions on whether consent might be granted.
The Court provided general guidance as to what decision-makers need to satisfy themselves of if there is a potential conflict between the NZCPS’ ports policy and avoidance policies:
(a) The proposal is required (and not merely desirable) to ensure the safe and efficient operation of the port in question;
(b) Assuming the proposal is required, all options to deal with the safety or efficiency needs of the port have been considered and evaluated. Where possible, the preferred option should be one that will not breach the relevant avoidance policies. Whether the avoidance policies will be breached must be considered in light of the discussion about what is meant by “avoidance”; including whether consent conditions can be imposed that avoid material harm; and
(c) If a breach of the avoidance policies cannot be averted, any conflict between the port policy and the avoidance policies should be kept as narrow as possible so that any breach of an avoidance policy is only to that extent required to provide for the safe and efficient operation of the port.
The Court noted that even if a decision-maker has satisfied themselves of the above, it does not necessarily follow that resource consent should be granted, particularly if a grant of consent could result in one policy consistently being favoured over the other. Resource consent applications should be decided on their own facts, on a case-by-case basis.
