AUCKLAND REGIONAL COUNCIL V RODNEY DISTRICT COUNCIL AND ANOR CA CA502/2007

AUCKLAND REGIONAL COUNCIL V RODNEY DISTRICT COUNCIL AND ANOR CA CA502/2007 26 March 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA502/2007 [2009] NZCA 99BETWEEN AUCKLAND REGIONAL COUNCIL Appellant AND RODNEY DISTRICT COUNCIL First Respondent AND PARIHOA FARMS LIMITED Second Respondent Hearing: 21 August 2008 Court: William Young P, Ellen France and Baragwanath JJ Counsel: M E Casey QC, R B Enright and L S Fraser for Appellant W S Loutit and J P Hassall for Respondents Judgment: 26 March 2009 at 10 amJUDGMENT OF THE COURT A The appeal is allowed. B We declare that: (a) In deciding whether to notify the application, the Rodney District Council was required to take into account the relevant outstanding landscape classifications of the affected land in the Auckland Regional Policy Statement. (b) There was no need to notify the Auckland Regional Council under s 94.(c) In deciding whether to notify the application, the Rodney District Council was entitled to take into account the conditions which it proposed to impose as part of the consent. B There is no order as to costs.____________________________________________________________________REASONSPara No Baragwanath J [1] William Young P [64] Ellen France J [93]BARAGWANATH J Table of ContentsPara NoIntroduction [1]Issue 1: was the RDC obliged to consider the higher order instruments when considering its notification decision? [8]The High Court decision [9]Submissions [10]Discussion [12]General [12]Specific [20]Purposes and principles [22]The operation of the RMA [33](1) The RMA procedures [33](2) The decision-making power [38](3) The decision-makers [43](4) The interrelation of instruments [44](5) Section 9 [49]Issue 2: is the ARC "affected so it should have been notified"? [52]Issue 3: in making its decision on a notification can a consent authority take into account prospective conditions of consent as mitigating the effects of the activity? [53]Relief [61]Introduction[1] The coastline extending north from Te Henga (Bethells Beach) to Muriwai, some 25 kilometres west of the metropolitan area of the City of Auckland, is of great natural beauty. In 2005 the Rodney District Council (RDC) granted resource consent for the construction of a large house within view of the Te Henga walkway in a manner arguably inconsistent with the Auckland Regional Policy Statement (ARPS) of the Auckland Regional Council (ARC). Acting under s 93 of the Resource Management Act 1991 (RMA), the RDC made a decision that it was not necessary to publicly notify the application, or to inform the ARC before making its consent decision under s 104, which imposed certain conditions. The ARC learned of the project when it received a complaint from a member of the public who saw the construction in progress. [2] Whereas the ARC's regional plan had identified the coastline as of high amenity value, the RDC's district plan did not accord the area the same status, and in its s 93 decision the RDC did not take into account the ARC or national instruments (higher order instruments). The ARC applied to the High Court for judicial review of the decision and was unsuccessful. It now appeals. [3] The ARC does not pursue on appeal its challenge to the consent decision because of the good faith of the applicants for consent, and to that extent the proceeding is moot. But because of the general importance of resolving doubts about the respective roles and responsibilities of the two councils we accepted their joint request to hear argument upon three major questions of general importance. [4] The issues we have agreed to determine are: (1) Was the RDC obliged to consider the higher order instruments when considering its notification decision? (2) Is the ARC "affected" so it should have been notified?(3) In making its decisions on notification, can a council as consent authority take into account prospective conditions of consent as mitigating the effects of the activity? [5] All members of the Court agree that the second question is to be answered no and the third is to be answered yes. We are unable to agree as to the answer to the first question, which Ellen France J would answer no and I would answer yes. It follows that the answer of the Court will be in accord with the intermediate position taken by the President: that in this case, although not as a general rule, the answer is yes. The difference results from an imprecision in the drafting of the RMA which may perhaps warrant Parliament's consideration in its current review of the Act. [6] I record that the challenged determinations were made on 21 July 2005 under ss 93 – 94 of the RMA to process the application without notification, and under s 104 and the associated conditions provision, s108, to grant resource consent. The amendments to relevant sections by the Resource Management Amendment Act 2005 did not come into effect until 9 August 2005 and are therefore to be disregarded. [7] It should be added that the members of the Court recognise that the environment in question is of importance to Māori. But because the tangata whenua were not represented before us we have declined to consider issues of particular concern to them.Issue 1: was the RDC obliged to consider the higher order instruments when considering its notification decision?[8] The answer in my opinion is yes. I begin with Harrison J's approach and outline the parties' submissions before setting out my own analysis.The High Court decision[9] Harrison J was not satisfied that the RDC erred in law by not taking account of Part 2 and the national and regional planning instruments when determining thatthe effects of the proposed activity on the environment would be minor. He discussed the question as follows:[88] Mr Enright [for the ARC] categorises the regional and national planning framework as being of a 'higher order' than the district plan. He relies upon the location of the site within the Auckland Regional Policy Statement's (ARPS) designation of an outstanding landscape (sensitivity rating 6) or of reasonably significant landscape value (sensitivity rating 5). The distinction is not important. Whatever classification is adopted, the area obviously has a unique landscape value. [89] Mr Enright says that, if RDC had taken account of the ARPS, it would have learned of this special zoning, and adopted a much more careful approach. This knowledge would, he submits, have put the decision maker on inquiry that the issue merited more detailed consideration. [90] Mr Enright emphasises certain provisions of the ARPS, advocating a 'precautionary approach' to resource management decision making (but on analysis that dictum comes within advice to a local authority when it is not in a position to fully assess the adverse effects of a proposed activity 'due to inadequate information or understanding of these effects on the environment'). The policy emphasises the importance of controlling 'subdivision, use and development of land': first, to protect landscapes with a sensitivity rating of 6 or 7 'by avoiding subdivision, use and development which cannot be visually accommodated within the landscape without adversely effecting the character, aesthetic value and integrity of the landscape unit as a whole'; and, second, those with a sensitivity rating of 5 are protected by ensuring that use and development can be visually accommodated without adverse effects: para 6.4.19. [91] The ARPS further provides: para 6.4.21: The intention of the policies is to protect the aesthetic and visual quality, character and value of the major and unique landscapes from inappropriate subdivision, use and development. [92] The ARPS also sets out policies for preserving the natural character of the coastal environment, and protection from inappropriate subdivision, use and development, also by avoiding adverse effects on the environment in the areas of high natural character; and for the purpose of preserving and protecting outstanding regionally significant landscapes accordingly: paras 7.4.4 and 7.4.7. [93] Mr Enright says these instruments required RDC to 'change its lens' from the district plan focus. While he concedes the result may not necessarily be different from an evaluation of district planning instruments, it may lead to a different inquiry encompassing different considerations. Mr Enright says that reference to the ARPS requirements to 'avoid' inappropriate locations and 'preserve' landscape values would have put RDC on notice of the need to evaluate alternative locations on the 235 hectare site which would not effect these values, or alternatively effect them to a lesser extent. The emphasis must shift, Mr Enright says, from local to regional interests and values.[94] While acknowledging that RDC's report and notification decision made some reference to visual impact, Mr Enright characterised it as 'limited to district plan criteria' and a 'micro-focus' within that framework, whereas the regional instruments required a different type of assessment – one designed to consider the impact on the 'regional environment values at stake'. [95] Mr Enright's detailed submission begs the question of why it was unreasonable, or of why there was an error of process, for RDC not to take the higher order instruments into account when deciding on notification. It was not until closing that he attempted to articulate the statutory genesis of an obligation on the consent authority. In answer to my inquiry, Mr Enright identified the requirement in Schedule 4, which specifies the requirements for an application for resource consent, for an assessment of environmental effects 'subject to the provisions of any policy statement or plan'. [96] However, I read that phrase 'subject to the provisions of any policy statement or plan' as qualifying or modifying the mandatory obligation for the applicant's assessment of effects to include certain information. The assessment is to be made by the applicant within the prescribed form. Its purpose is to provide 'an assessment of environmental effects in such detail as corresponds with the scale and significance of the effects that the activity may have on the environment': s 88(2)(b). The requirement does not separately or reciprocally oblige the consenting authority to take account of 'the provisions of any policy statement or plan' when deciding on notification. [97] In this respect Schedule 4 serves to identify what is required in terms of assessing 'the effect of the activity on the environment'. The words 'effect' and 'environment', including 'amenity values', are defined. The consent authority's inquiry, when deciding on notification, is directed towards satisfaction 'that the adverse effects of the activity on the environment will be minor'. That inquiry is unaffected by regional policy statements or plans. The 'environment' comprises the defined resources, values, conditions and qualities, all of which are addressed in the district planning instruments. [98] Alternatively, assuming for these purposes that the phrase 'any policy statement or plan' includes both regional and district plans, it links logically to s 9. That provision expressly proscribes contravention of a rule in a district plan, unless expressly allowed by a resource consent granted by the territorial authority: s 9(1); or, similarly contravention of a rule in a regional plan, unless expressly allowed by a resource consent granted by the regional council: s 9(3). Logically, the Schedule 4 reference to 'the provisions of any policy statement or plan' would relate or link back to the type of application for resource consent, whether under a district plan or under a regional plan. The distinction is verified by subsequent provisions – e.g. ss 12, 13, 14 and 15 – to which Mr Loutit refers; all relate to prohibited activities which require a resource consent under a regional plan. [99] I am not satisfied that RDC erred in law by not taking account of the regional planning instruments when satisfying itself that the effects of the proposed activity on the environment would be minor. [100] Also, Mr Enright says that RDC did not sufficiently consider relevant Part II values. He cited a number of general statutory provisions: ss 5, 6(a),6(b), 6(e), 6(f), 7(a), 7(c), 7(f) and 8. With respect to Mr Enright, these provisions are general statements of values which are specifically addressed later in the district planning instruments. RDC's decision gave them express consideration, in any event. This argument, at best one of degree, does not advance ARC's case.Submissions[10] For the ARC Mr Casey QC contended that the Judge was wrong to conclude that the values, objectives or policies of the higher level instruments are, in the Judge's words, "all addressed in the district planning instruments"; and that they are materially the same as or similar to the district planning instruments. That, he submitted, is because the RDC's district plan does not: (a) attribute outstanding character to the landscape (as do the ARPS and Regional Coastal Plan); (b) recognise the national importance of the landscape by reason of its outstanding character; (c) recognise the national importance of the natural character of the coastal environment and the locality of the proposed dwelling; (d) recognise the significance from the regional perspective, of both the landscape and the natural character of the coastal environment; (e) carry over the requirement to have regard to the landscape assessment studies discussed in Appendix E of the Regional Plan: Coastal. [11] Mr Loutit for the RDC submitted that the RDC was right to refer only to the RDC district plan. He contended that the reason why the applicants required consent was because, in terms of s 9, to perform earthworks and build a house without a resource consent contravened the RDC's district plan. No regional council consents were needed in this case. Sections 93 – 95, which deal with notification, make no mention of Part 2 of the RMA, the New Zealand Coastal Policy Statement (NZCPS) or regional documents. The references to "a plan or proposed plan" in ss 94A and 94B, relating to whether adverse effects are minor and to who may be adverselyaffected, can relate only to the plan under which the resource consent is sought. That is the RDC's district plan. That may be contrasted with s 104 (consideration of applications) which, like the designation provisions in ss 168A and 171, does refer to the higher order documents. Mr Loutit submitted that where Parliament intended that Part 2 or regional and national documents be referred to that is specifically stated. That did not occur in ss 93 and 94.DiscussionGeneral[12] The question for the RDC was whether the effects on the environment would be minor. Unless that was the case, it was obliged to notify the application. My analysis differs from that of the High Court Judge. And I do not accept Mr Loutit's submissions. I am satisfied that the RDC did err in law by not taking account of the regional planning instruments in satisfying itself that the effects of the proposed activity on the environment would be minor. My conclusion is a consequence of the statutory scheme, and is borne out by analysis of the specific documents in question. The effects on the environment cannot be considered objectively without reference to the values that are attributed to different aspects of the environment by the relevant instruments. In this case, each of the documents has a slightly different perspective on the environment, and therefore attributes value to it in a different manner. Requirements for protection of important and sensitive values will frequently be expressed at a higher level of specificity in a district plan than in a regional plan, but that will not necessarily be so and was not the case here. [13] Commencing with the considerations mandated by the statute itself, I would reject the RDC's submission that, as Part 2 is not mentioned in ss 93 – 95, it is not relevant to the notification decision. That cannot be right as a matter of conventional statutory interpretation. The purposes and principles must be mandatory relevant considerations. They are expressed as applying to all persons exercising powers under the Act. There is no suggestion that the considerations can be delegated to the district plan or any other instrument. Parliament must have intended that theseprinciples be borne in mind by all decision-makers exercising any discretion under the Act. [14] Moving next to the national and regional documents, the scheme, purpose, and words of the RMA all favour the interpretation that they must be taken into account. [15] It is not clear from the Act that, at least before the amendment of 9 August 2005, the district plan was required to coincide with what was said in the higher level documents. The only document it was specifically required to give effect to was the national policy statement. By s 75(2) the district plan was to be "not inconsistent" with the regional policy statement and plan. This does not seem to prevent the district plan taking a somewhat different perspective, although insofar as it was inconsistent it would be ultra vires. (The 2005 amendment to s 75, requiring a district plan to "give effect to" national policy statements, NZCPS and regional policy statements, now allows less flexibility than its predecessor.) [16] But that does not mean that provisions of Part 2 and of the national and regional instruments could be ignored. Indeed, the fact that the district plan can take a different perspective is a point in favour of the interpretation that the other documents (ie other perspectives) must be considered. [17] Requiring the district council to consider the higher level instruments is also in keeping with the purpose of the Act. For example, s 6 requires that questions of national importance must play their part in the overall consideration and decision. The district plan is not required to address such issues, although failure to do so may not necessarily be inconsistent with higher documents. In that situation it would be necessary for a decision-maker to refer to higher documents in order to properly assess issues of national importance. [18] It would be inconsistent with the statutory hierarchy for a district council to be able to disregard such specific provisions of a regional instrument provided by the regional map and the policies to which it gives effect.[19] My conclusion that district plans do not (and are not required to) cover all of the ground covered in the national and regional instruments is borne out by the documents in question in this case. The protection of the area between Te Henga and Muriwai was expressed with significantly greater emphasis and specificity in the regional plan, not least in the wholly precise demarcation of the "Outstanding Character" discussed in the landscape assessment issues which it cites and which is depicted in the accompanying map. While the RDC's district plan referred in general terms to the value of the area, its account is less focused and emphatic than that of the regional instruments.Specific[20] The difficulty arises from the fact that ss 6 and 7 (stating the principles of the RMA) and also s 104 (requiring the council to have regard to higher order instruments when considering an application for resource consent) suggest that the higher order instruments should be considered by the district council when considering under s 93 whether the adverse effects on the environment will be minor; whereas ss 9 (prohibiting land use contravening a rule in a district plan) and s 93 contain no reference to such instruments. [21] The answer to question 1 depends on which of these provisions are to be regarded as dominant. While I am attracted to the practical sense of the President's approach, my assessment of the text and purpose of the RMA in terms of s 5 of the Interpretation Act 1999 is that ss 6 and 7 of the RMA are dominant provisions and the message they convey is supported by s 104.Purposes and principles[22] Sections 6 and 7 appear in Part 2 of the RMA which is headed "Purpose and principles". It begins with s 5 which states the purpose of the Act, which is to promote sustainable management of natural and physical resources. Section 8 requires that the Treaty of Waitangi be taken into account. [23] Section 6 relevantly provides:In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: (a) The preservation of the natural character of the coastal environment : (b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: (Emphasis added.)[24] And s 7 states:In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to— (c) The maintenance and enhancement of amenity values: (f) Maintenance and enhancement of the quality of the environment:(Emphasis added.)[25] Sections 6 and 7 apply to all persons exercising functions and powers under the RMA in relation to managing the use, development and protection of natural and physical resources. There is no doubt that they apply to the RDC in its decisions on the notification and grant of resource consents. The RDC is therefore required to "recognise and provide for" the factors in s 6, and to "have particular regard to" the factors in s 7. It is necessary to determine in the present context what are "the environment" and the "amenity values" to which they refer. [26] "[E]nvironment" is defined by s 2 to include:(a) Ecosystems and their constituent parts, including people and communities; and (b) All natural and physical resources; and (c) Amenity values; and(d) The social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters:[27] "[A]menity values" are defined in s 2 as:those natural or physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes[28] What are New Zealand's amenity values is assessed by a series of decision- makers: (1) Parliament (in enacting Part 2 which lists inter alia matters of national importance); (2) The Minister for the Environment, who in 1994 made the NZCPS: ss 56 – 58; (3) The regional authority, the ARC, which has made: - the ARPS: ss 59 – 62; - the Auckland Regional Plan – Coastal ("ARPC") ss 63 – 64; (4) The RDC, one of seven local authorities exercising jurisdiction within the greater Auckland area, which has relevantly made: - the Rodney District Reviewed District Plan (the Operative District Plan) : s 75; and has promoted: - Proposed Plan Change 55 (which came into force in April 2006); - Proposed District Plan 2000; (5) The RDC as consent authority, which made the decisions not to notify and to grant consent: Part 6. [29] Section 104 requires the district council to have regard to all of the foregoing when considering an application for resource consent. The question is whether it must also do so when assessing whether the adverse effects on the environment of granting the consent will be more than minor (s 93).[30] The standards of "the environment" referred to by s 93 are stated authoritatively by all the foregoing "instruments", including those of Parliament, the Minister, and the regional council as well as the district council. I prefer the view that, to know what are the relevant amenity values in order to make a worthwhile appraisal of that environment, it is not enough to limit attention to the Operative District Plan or the Proposed District Plan 2000, when (as in the present case) it gives only a partial account of what "the environment" is. [31] That conclusion is supported by s 104's specific requirement that the district council have regard to all of the higher instruments when it makes its substantive decision. Parliament has decided that at that stage the district council must know what is in all of them, in order to "take them into account". To reject the interpretation I propose would not spare the district council effort in educating itself as to these things, since it must be fully familiar with them when it makes its s 104 decision, often immediately after its procedural decision under s 93 – whether the application can be safely dealt with without public notification. It would of course spare the applicant potential opposition and the consequent delay and costs. But my reading of the scheme of the foregoing sections is that, in cases where the higher instruments convey a different message from the district scheme, Parliament has preferred the opposing public interest – of getting the right answer via the objection process. [32] Such conclusion is reinforced by an examination of how the RMA works.The operation of the RMA (1) The RMA procedures[33] Administration of the coastline and its hinterland is governed by the RMA. As already noted, its purpose is to promote the sustainable management of natural and physical resources in a way which enables people and communities to provide for their social, economic and cultural wellbeing while sustaining the potential of the resources to meet the needs of future generations (s 5). This is achieved by the drawing up of district and regional plans, which translate the objectives of the RMAinto rules that apply in specific areas. Permission must be obtained to carry out activities that are restricted or controlled by these rules. That is done by applying for resource consent. [34] In this case, it was necessary for the developers to apply for resource consent because the project infringed rules in relation to size, excavation of materials and earthworks under the Operative District Plan, Proposed District Plan 2000, and Proposed Plan Change 55. [35] Applications to the RDC for resource consent are made under s 88(2), which provides that an application must:(a) be made in the prescribed form and manner; and (b) include, in accordance with Schedule 4, an assessment of environmental effects in such detail as corresponds with the scale and significance of the effects that the activity may have on the environment.[36] Schedule 4 states:Subject to the provisions of any policy statement or plan, an assessment of effects on the environment for the purposes of section 88 should include– (a) a description of the proposal; (b) where it is likely that an activity will result in any significant adverse effect on the environment, a description of any possible alternative locations or methods for undertaking that activity (c) an assessment of the actual or potential effect on the environment of the proposed activity: (g) a description of the mitigation measures (safeguards and contingency plans where relevant) to be undertaken to help prevent or reduce the actual or potential effect: (h) identification of the persons affected by the proposal, the consultation undertaken, if any, and any response to the views of any person consulted: (Emphasis added.)[37] In the High Court, Harrison J (at [96] of his judgment) read narrowly the italicised passage with which Schedule 4 begins so as not to include reference to higher order instruments. But since the district council when considering the application at the s 104 stage is required to have regard to the higher instruments, the application should be prepared with them in mind and, for reasons of efficiency, deal with whichever of them are relevant to the decision. The alternative, that the district council alone is expected to look at them, would make for administrative inefficiency.(2) The decision-making power[38] The decision-making power in question is in ss 93 and 94A. Section 93 states that an application for consent must be notified unless the consent authority is satisfied that the adverse effects of the activity on the environment will be minor. (Notification is also unnecessary if the activity is controlled, but that is not the case here.) So the question is: by what legal standards is the issue whether the effects will be minor to be judged? [39] Section 94A gives guidance as to how a consent authority may decide whether the adverse effects will be minor. Under s 94A the authority:(a) may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect; and (b) for a restricted discretionary activity, must disregard an adverse effect of the activity on the environment that does not relate to a matter specified in the plan or proposed plan as a matter for which discretion is restricted for the activity; and (c) must disregard any effect on a person who has given written approval to the application.[40] A discretionary activity is one for which resource consent is required (s 77B). [41] The section tells us what the district council may or must disregard. Since the present question is what the district council is required to consider when it is deciding whether the effects on the environment will be minor, it is therefore necessary to determine:(a) What is the factual subject-matter of the enquiry? (b) What are the legal criteria? [42] As to (1), since the subject of the enquiry is the "environment", what is the relevant environment must be determined as a question of fact; and whether the effect upon it is minor is to be assessed as a matter of judgment. Neither question can be answered in a vacuum. Both enquiries are structured by (2), the considerations deemed by the RMA to be important. The point may be expressed another way: could the RDC as consent authority lawfully come to a conclusion that adverse effects on the environment will be minor, without first considering Part 2 of the RMA and the regional and national planning instruments? The answer is no. That conclusion arises from the statutory scheme, which sets up a hierarchy of the statutory, national and regional provisions of relevance in addition to the district plan.(3) The decision-makers[43] In Beach Road Preservation Society Inc v Whangarei District Council[2001] NZRMA 176 at [39] (HC) Chambers J noted that the RMA "works from the most general to the most particular and each document along the way is required to reflect those above it in the hierarchy". That statutory hierarchy is described inProgressive Enterprises Ltd v North Shore City Council [2006] NZRMA at [59] (HC). The question is what the implications of this are for decision-makers. Are district council instruments to be seen as including all the implications of the higher documents so that the latter may be disregarded; or are the higher instruments to be considered when they contain a dimension that is omitted or stated with less specificity in the district council instrument? I am satisfied that the latter is the case. The hierarchy of decision-making in the present case has been recorded above at [28].(4) The interrelation of instruments[44] Parliament has sought to avoid inconsistency among the instruments at different levels in the hierarchy. So by s 62(3) a regional policy statement must give effect to a national policy statement or NZCPS. Section 55 (which applies to NZCPSs by s 57) also requires local authorities to give effect to a provision in the national policy statement that affects a regional policy statement or a plan. Under s 61, in preparing or changing a policy statement, the council must take into account the extent to which the regional policy statement needs to be consistent with the policy statements and plans of adjacent regional councils. Likewise, during the material period (1 August 2003 to 9 August 2005) s 75(2) provided:(2) A district plan must give effect to any national policy statement or a New Zealand coastal policy statement and must not be inconsistent with— (a) a water conservation order; or (b) the regional policy statement; or (c) a regional plan for any matter specified in section 30(1). (Emphasis added.)[45] In this case the ARC provided in very specific detail, a precise assessment of how the amenity values of the coastline were to be measured. The following important and very specific provision from the ARPS, and the regional map which gives effect to it, do not appear in the RDC's district plan:6.4.19 Policies: LandscapeThe following policies and methods give effect to Objective to 6.3-4: 1. Subdivision, use and development of land shall be controlled so that in areas identified in Map Series 2 and 3: (i) the quality of outstanding landscapes (landscapes rating 6 and 7) is protected by avoiding adverse effects on the character, aesthetic value and integrity of the landscape unit as a whole; (ii) outstanding landscapes with a sensitivity rating of 6 or 7 are protected by avoiding subdivision, use and development which cannot be visually accommodated within the landscape without adversely affecting the character, aesthetic value and integrity of the landscape unit as a whole.The RDC's district plan depicts the subject property as in an area rated 6. It is immediately adjacent to a coastal area rated 7. Its sensitivity rating is 5. Each is a high and exacting rating. It was the clear intent of the ARC to treat the area as of especial sensitivity. [46] The stipulations of the RDC's plan for amenity values in the area were expressed more generally and were therefore less exacting. [47] It is argued for the RDC that it is immaterial that in this case the higher order instrument of the ARC provided with great specificity for more protection of the environment than did the RDC plan. Because the latter made provision for protection of the Te Henga-Muriwai coastline, counsel for the RDC submitted: (a) It was "not inconsistent" with the more exacting requirements of the ARC instrument; and because the RDC was not required at the s 93 stage to consider the higher order instruments; (b) It acted lawfully in deciding that no notification was required. [48] It is unnecessary to consider (a) because I do not accept the argument as to (b). The result of its acceptance by the High Court is that the higher standards of the ARC instrument were ignored; so a lower standard than they stipulated was accepted on the s 93 decision; and the RDC lacked at the time of its s 104 decision the submissions of objectors who would have brought the ARC instrument to specific attention.(5) Section 9[49] Ellen France J would endorse the reasoning of Harrison J, contrary to the foregoing argument, that the dominant provision is s 9, which when taken with the absence of reference to higher order instruments in s 93 overrides the inference from ss 6, 7 and 104, that the higher instruments must be taken into account, which in myview are decisive. Section 9 is the first in Part 3 "Duties and restrictions under this Act". It states:9 Restrictions on use of land(1) No person may use any land in a manner that contravenes a rule in a district plan or proposed district plan unless the activity is (a) expressly allowed by a resource consent granted by the [district council] responsible for the plan; or (b) an existing use [50] So, it is argued, there being no like prohibition of use that contravenes a provision of the regional plan, Parliament does not seek to prevent such use. [51] But such argument cannot in my view meet s 104, which makes quite clear that it is the duty of the council to "have regard to" the higher order instruments and, by necessary implication, to withhold resource consent unless that has been done. Certainly s 104 provides a less forthright prohibition of infringement of the higher order instruments than does s 9 in relation to rules in the district plan. But there should be no need for s 9 to do the work performed by sub 75(2) (to avoid inconsistency with the regional plan when the district plan is established) and s 104 (when the consent application is determined). Self-evidently, if there is consistency between the district plan and higher instruments there will be no practical need to refer to the latter. But where, as here, the regional instrument is in fact more exacting than the district plan, that difference is material to the s 104 decision. Such decision should be made with the benefit of a s 93 decision that considers the same environment as the s 104 decision, not a different one.Issue 2: is the ARC "affected so it should have been notified"?[52] The answer is no. I agree with the reasons given by the President.Issue 3: in making its decisions on a notification can a consent authority take into account prospective conditions of consent as mitigating the effects of the activity?[53] The answer to this question is yes, in respect of conditions that are inherent in the application, and no, in respect of those which are not. [54] Where public notice is not required under s 93, the application must still be notified to "affected persons", that is, "all persons who, in the opinion of the consent authority, may be adversely affected by the activity" (s 94(1)). [55] The activity is what the applicant wishes to do as expressed in its application. In so far as the application inhibits what it can do the activity will be narrower than would otherwise be the case. In Bayley v Manukau City Council [1999] 1 NZLR 568 at 570 (CA), this Court said that "activity" appears to have the same meaning as "use". [56] The definition of condition includes a term, standard restriction and prohibition (s 2) and is thus a qualification to a consent to a particular use: see Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 at [44] – [46] (CA). Reference was also made in Body Corporate 97010 to s 127, which concerns an alteration to a condition but not an alteration to an activity. This Court said that the question of what is an activity and what is a condition may not be clear-cut and will often be a matter of fact and degree. In differentiating between them the consent authority need not give a literal reading to the particular wording of the original consent. It was stated that it is preferable to define the activity which was permitted by resource consent, distinguishing it from the conditions attaching to that activity, rather than simply asking whether the character of the activity would be changed by the variation: at [46]. An activity may have been approved at a relatively high level of generality which, subject to stipulated conditions, may be capable of being conducted in various ways. [57] The Oxford Dictionary definition of the word "condition" includes "a provision, a stipulation". It may, as in Body Corporate 97010, be added by the decision-maker as a qualification.[58] Here by contrast a form of condition was inherent in the application; the application states "the dwelling has been designed to fit in with its site". The likely external colours for the exterior of the building are designed to reflect the colours of a pebble beach. A stone roof and natural timber sides aid in achieving this. The conditions imposed by the RDC (at 56) give effect to that and are therefore inherent in the application. They are not super-added conditions, which may be what s 127 is about. [59] In Montessori Pre-School Charitable Trust v Waikato District Council [2007] NZRMA 55 (HC) I said (at [12]):It would defy common sense if when making the s 93 decision the consent authority could not have regard to the practical reality of what adverse effects on the environment would be. To determine that self-evidently requires consideration of conditions that would affect such reality.[60] I would confirm that view. It has no application to conditions which are both certain and an integral part of the application so that potential objectors have the opportunity to appraise them when deciding whether to object, to appear and to give or call evidence.Relief[61] The RDC suggests that the Court should exercise its discretion against granting declarations because such orders would not serve any useful purpose. However it does accept that there is a public interest in having the matters at hand determined. [62] The decision of the Court is to allow the appeal and make the following declarations: (a) In deciding whether to notify the application, the Rodney District Council was required to take into account the relevant outstanding landscape classifications of the affected land in the Auckland Regional Policy Statement.(b) There was no need to notify the Auckland Regional Council under s 94. (c) In deciding whether to notify the application, the Rodney District Council was entitled to take into account the conditions which it proposed to impose as part of the consent. [63] As agreed by the parties we make no order as to costs.WILLIAM YOUNG P Table of ContentsPara NoIntroduction [64]In deciding whether to notify the application, the RDC was required to take into account the relevant outstanding landscape classification of the affected land which appears in the ARPS [65]No general requirement for decision-makers under s 93 to take into account regional planning instruments [65]The protection of outstanding landscapes: section 6 of the Act [71]The protection of outstanding landscapes: The New Zealand Coastal Policy Statement [72]The identification and protection of outstanding landscapes: the ARPS [73]The identification and protection of outstanding landscapes: District planning instruments – identification of the primarily relevant instrument [75]The relevant provisions of Proposed District Plan 2000 [78]The error made in the non-notification decision [84]There was no need to notify the Auckland Regional Council under s 94 [88]In deciding whether to notify the application, the Rodney District Council was entitled to take into account the conditions which were proposed in the application [92]Introduction[64] I would allow the appeal and make the following declarations: (a) In deciding whether to notify the application, the Rodney District Council was required to take into account the relevant outstanding landscape classifications of the affected land in the Auckland Regional Policy Statement. (b) There was no need to notify the Auckland Regional Council under s 94.(c) In deciding whether to notify the application, the Rodney District Council was entitled to take into account the conditions which it proposed to impose as part of the consent. I will now explain why.In deciding whether to notify the application, the RDC was required to take into account the relevant outstanding landscape classification of the affected land which appears in the ARPSNo general requirement for decision-makers under s 93 to take into account regional planning instruments[65] This case concerns the relevance of regional planning instruments to the consideration of applications for land use consents and a little context may be of assistance: (a) In many, and perhaps most, circumstances where a district council (or its delegate) is required to determine whether to notify a resource consent application, regional planning instruments will be completely irrelevant. An obvious example is if the resource consent is required because of recession plane requirements in the district plan which are unrelated to anything which appears in the regional planning instruments. (b) Section 75 of the Resource Management Act (at the relevant time) envisaged that a district plan would "give effect to" national policy statements and NZCPSs (see s 75(3)) and "not be inconsistent with" inter alia, the regional policy statement. It should be noted that under the current s 75 a district plan must now "give effect to" the regional policy statement: see Baragwanath J at [15]. (c) Where the relevant rules in the district plan are, in effect, mandated by the regional planning instrument, conformity with s 75 should ensurethat nothing of relevance will be overlooked if the decision-maker focuses solely on the district plan. (d) In any event, in such a case, the decision-maker will usually be well- familiar with the relevant provisions of the regional planning instrument. (e) Section 104(1)(b), which requires a district council to have regard to regional policy statements when considering an application for a resource consent, should serve as an adequate backstop in case anything of relevance has been overlooked. [66] Under s 93, a district council must notify an application for a resource consent unless the application is for a controlled activity or the council is satisfied that the adverse effects of the activity on the environment will be minor. In this case, the application was not for a controlled activity, therefore the only issue was whether the RDC was satisfied that the adverse effects of the activity on the environment would be minor. [67] "The environment", as defined by s 2, has a reality that is independent of what is said about it in planning instruments. So it is perfectly possible to assess, or form views about, the environment without referring to such instruments. An effects assessment requires in the first instance a consideration of externalities associated with the proposed activity on the environment as it exists. District planning instruments are, however, relevant to the assessment of the significance of such effects (eg whether they are likely to be major, minor etc) because these instruments prescribe what activities can occur within the relevant environment. They thus have a necessary role to play where the baseline test (see Bayley v Manukau City Council[1999] 1 NZLR 568 (CA)) is relevant or where it is necessary to envisage a "receiving environment" (see Queenstown Lakes District Council v Hawthorn Estates Ltd [2006] NZRMA 424 (CA)) which, to use a current cliché, requires an assessment of the environment "going forward". In all of this, I think it important to keep the associated exercises required of decision-makers as simple and as grounded in reality as possible. In the case of a section 9(1) resource consent, application ofthe baseline test and assessment of the receiving environment are not usually seen as requiring reference to regional planning instruments. [68] It is important to recognise that where a district planning instrument is not consistent with a regional planning instrument, the regional council's primary concern should be with the statutory processes associated with that district planning instrument. A person dealing with a territorial authority should usually be entitled to assume that that a district plan is consistent with statutory requirements, including requirements as to consistency with regional planning instruments. Resource consent processes should not be used by a regional council as a forum to re-litigate the structure and contents of district plans. [69] For these reasons, which are broadly similar to those given by Ellen France J, I see no general requirement for a s 93 decision-maker to have regard to regional planning instruments. For the sake of completeness, I agree in particular with what she says at [95] – [100] and [103]. [70] That said, there may be some cases where reference to regional planning instruments may be necessary at the s 93 stage. I see this as just such a case, for the very particular reason that that it was not possible to make sense of the district planning instruments without taking into account the regional planning instruments. This is in part because of the role of regional councils in respect of the protection of landscapes which is reflected in the ARPS and in part because of the poor drafting of the relevant district planning instruments. In the succeeding sections of this part of my judgment I will explain why this is so.The protection of outstanding landscapes: section 6 of the Act[71] Section 6(b) of the Act provides:6 Matters of national importanceIn achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: (b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development:The protection of outstanding landscapes: The New Zealand Coastal Policy Statement[72] The 1994 NZCPS provides:Policy 1.1.3It is a national priority to protect the following features, which in themselves or in combination, are essential and important features of the natural character of the coastal environment: (a) Landscapes, seascapes and land forms, including: (i) significant representative examples of each land form which provides the variety in each region; (ii) visually or scientifically significant geological features; and (iii) collective characteristics which gives the coastal environment its natural character including wild and scenic areas; Policy 3.1.2Policy statements and plans should identify (in the coastal environment) those scenic, recreational and historic areas, areas of spiritual or cultural significance, and those scientific and landscape features, which are important to the region or district and which therefore will be given special protection; and that policy statements and plans should give them appropriate protection.The identification and protection of outstanding landscapes: the ARPS[73] Consistently with the direction given in the NZCPS and ss 59 – 62 of the Act, the ARPS identifies outstanding landscapes and makes provision for their protection. Thus paragraph 6.4.1.19 provides:1 Subdivision, use and development of land and related natural and physical resources shall be controlled so that in areas identified in Map series 2 and 3: (i) the quality of outstanding landscapes (landscape rating 6 and 7) is protected by avoiding adverse effects on the character, aesthetic value and integrity of the landscape unit as a whole;(ii) outstanding landscapes with a sensitivity rating of 6 or 7 are protected by avoiding subdivision, use and development which cannot be visually accommodated within the landscape without adversely affecting the character, aesthetic value and integrity of the landscape unit as a whole; (iii) the quality of regionally significant landscapes (landscape rating 5) is protected by avoiding adverse effects on the elements, features and patterns which contribute to the quality of the landscape units; (iv) regionally significant landscapes with a sensitivity rating of 5 are protected by ensuring that any subdivision, use and development can be visually accommodated within the landscape without adversely affecting the elements, features and patterns which contribute to the quality of the landscape unit.Paragraph 6.4.20 specifies as the methods by which this policy is to be given effect to:1 Provision is to be made in district plans and relevant regional plans to give effect to policy 6.4.19 – 1, 2 and 3 3 The ARC will, after consultation with interested persons and organisations, prepare and publish guidelines on the standard methodology for the assessment and the valuation of landscape within the region.[74] Appendix F to the ARPS provides an explanation as to the regional landscape assessments which are reflected in the planning maps. The planning maps themselves are drawn on an unfortunately large scale. But when regard is had to the explanatory material, it is clear that the subject property is itself in an area rated as 6 and adjoins an area rated as 7. The sensitivity rating is 5.The identification and protection of outstanding landscapes: District planning instruments - identification of the primarily relevant instrument[75] There are three relevant district planning instruments – the Operative District Plan, Proposed Plan Change 55 and the Proposed District Plan 2000. Of these instruments the most significant (in terms of weight) might be thought to be Proposed Plan Change 55, given that when the resource consent application was considered, its relevant provisions were no longer open to challenge. But for presentpurposes (associated with the relevance of the ARPS to the notification decision) I think it right to focus on the Proposed District Plan 2000. This is for timing reasons. [76] The Operative District Plan came into force in 1993. A year later, in 1994, the ARPS was notified. The RDC recognised that the ARPS "provided a series of policy directions for managing the rural area, which needed to be implemented", and Proposed Plan Change 55 was drafted as a result. It was notified in 1995. However, as the ARPS did not become operative until 1999, Proposed Plan Change must have been based on the notified ARPS not the operative version. I do not know whether there are any material differences between the notified and operative versions of the ARPS. Because Proposed District Plan 2000, notified in November 2000, post- dates the ARPS there should be no timing issue in relation to the ARPS. For ease of discussion, I will focus on Proposed Plan Change 55 and Proposed District Plan 2000, and leave to one side the Operative District Plan, which is now of some antiquity and also precedes the ARPS. [77] For this reason, I will address in this section of my judgment only the relevant provisions of the Proposed District Plan 2000.The relevant provisions of Proposed District Plan 2000[78] The Proposed District Plan 2000 makes a number of general references to landscape values. For instance:The rural area contains a number of sites of high natural environmental value, including areas of coastal foreshore and headlands. A number of these sites have regional and national significance and all contribute to the to the amenity value of the rural part of the District. These features, combined with topography and features such as the seas, lakes and rivers, and the non- urban context collectively create attractive landscapes, and high amenity values with the rural area. (1) There exist a number of landscapes and natural features of both regional and local significance which have been identified and protected for a number of years. (5)The objectives include enhancement and protection of:[T]he distinctive special character of parts of the District which have a high degree of naturalness and high landscape and amenity values which contribute to the identity of the district.The objectives for the landscape protection rural zone (in which the subject property is situated) include the protection and enhancement of: the natural, coastal, non-urban and "remote" character of the coast between Muriwai and Bethells [and] wherever possible,. the high value landscapes within the zone.[79] Broadly, the policies and rules are consistent and give effect to these objective. For instance there is a policy that: buildings are sited and designed so that they do not detract in any more than a minor way from both highly valued landscapes or significant rural landscapes. (21).And, for the purposes of the land protection zone, there is a policy that:The location, nature and scale of buildings should not adversely affect the high quality landscape within the zone.The explanation of this policy notes:The landscapes in this Zone are characterised by minimal subdivision and development, areas of coast beaches and dunes, and rugged cliffs bush, scrub and the Te Henga Swamp which is of natural/international significance. The area is ranked of outstanding landscape value. [80] The "Muriwai – Bethells" area is described in this way:The land in this area is located on the west coast of the district running down to the boundary between Rodney District and Waitakere City at a number of points. It consists of a rugged coastal strip between Te Henga (Bethells Beach) and Muriwai and the area inland as far as the edge of the hill country west of Waitakere. The inland area extends behind Muriwai as far north as Lake Paekawau. The significant elements making up the character of this area are: The steep rugged indented coastal cliffs along the west coast, with small beaches amid high, rocky headlands, largely uninhabited; Extensive wetlands bordering (but not within) the south western most part of the zone; River estuary (Waitakere River);Rolling to steep hills extending inland from the coast; Areas of regenerating and quality bush; A remote quality created by the combination of the above factors, low density of settlement, particularly along the coast and the lack of roads and other landscape modifications associated with urban development. Limited areas of pasture along the coastal edge behind the cliffs and amidst the bush areas The areas of native bush, wetlands and lakes are of high natural environment value, while the landscape[s], particularly along the coast have been rated as both regionally significant and outstanding.(Emphasis added.)[81] In the passage which I have italicised the word "rated" must refer to the ratings in the ARPS, as it refers to a regional rating. So what comes out of the Proposed District Plan 2000 very clearly is that it refers to, and builds on, the landscape ratings which are incorporated in the ARPS. In the case of the coast between Muriwai and Bethells, the Proposed District Plan 2000 alerts the reader to the fact that landscapes in that area have been rated as regionally significant and outstanding but it is not specific as to which landscapes are so rated. To get that information, the reader must go to the ARPS. Indeed, because of the very large scale of the planning maps in the ARPS, it may be necessary to go behind those maps to the work on which they were based (and which in turn are specified in the ARPS). [82] This allusive and referential style of drafting is far from ideal. Indeed it requires the assiduous reader of the Proposed District Plan 2000 to embark on quite a difficult paper chase. But, unless the Proposed District Plan 2000 is treated as incorporating the landscape ratings provided in the ARPS, it is necessarily incomplete and not in conformity with the statutory requirements as to consistency with the ARPS and the NZCPS (policy 3.1.2). In this context, I think that the courts are required to make the best of a bad job and construe the Proposed District Plan 2000 so that it is consistent (or at least not inconsistent) with the ARPS. This in fact is not too difficult; it primarily involves treating the references in the district planning instruments to outstanding and regionally significant landscapes as referring to those landscapes which have been so identified in the ARPS. If thisinterpretation is adopted the rules in the Proposed District Plan 2000 can be applied in a way which fulfils the relevant policies in the ARPS. [83] Under those rules, the proposed activity fell to be considered as a discretionary activity. The relevant criteria are expressed in a diffuse way and there is no point setting them out here given that there can be no doubt that the values of the affected landscapes were a relevant consideration.The error made in the non-notification decision[84] As discussed above at [66], the RDC was required to notify the application unless it was satisfied that the adverse effects of the activity on the environment will be minor: s 93(1)(b). In the particular context of landscape values, and particularly given s 6(b), I consider that an adverse impact of a type which might be minor (or less than minor) in the context of an "ordinary landscape" might be of more than minor significance if the landscape is rated as outstanding. [85] The Proposed District Plan 2000 was insufficiently precise to enable the decision-maker to determine whether the landscapes affected by the proposal were outstanding. This could only have been determined by going to the ARPS. And, as I have indicated, I am of the view that the Proposed District Plan 2000 incorporates those ratings. [86] It is clear from the affidavits filed in the High Court that there is scope for a difference of opinion as to the significance of the landscape values affected by the proposal. The house has been erected on what was pasture and its immediate environment has obviously been much affected by human activities. The recommendation as to non-notification and the subsequent decision recognised that the affected land was rural and adjacent to coastline. It also discussed the proposal's effect on landscape values by reference only to those general considerations and not the reality that the affected landscape had been rated as outstanding, a rating which engaged a number of the objectives and policies which appear in the district planning instruments.[87] To put this another way, the failure by the decision-maker to go to the ARPS would not have mattered if the decision had been proceeded on the basis (or assumption) that the affected landscapes had an outstanding rating. But the way in which the recommendation and decision as to non-notification (and indeed the decision to grant the resource consent) are expressed makes it clear to me that the decision-maker did not proceed on this basis.There was no need to notify the Auckland Regional Council under s 94[88] If the s 93 decision-maker had recognised the relevance of the ARPS to the notification decision, it is at least likely, although perhaps not inevitable, that the application would have been notified. Where notification under s 93 is required, s 94 is not triggered. So if public notification had been required, the ARC would have been entitled to participate in the process and no s 94 issue would have arisen. This line of thinking suggests that this aspect of the case is artificial because the reasons why the ARC claims that it should have been notified under s 94 are largely the other side of the coin to the reasons why it challenged the s 93 non-notification decision. [89] Obviously a regional council can be affected, in a general sense, by a resource consent which permits activities which are contrary to policies which it has adopted in regional planning instruments. In issue on this aspect of the case is whether an adverse impact of that kind is sufficient to engage s 94(1). The relevant authorities are Discount Brands Ltd v Westfield (NZ) Ltd [2005] 2 NZLR 597 (SC),Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 (HC) and Northcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137 (HC). The current provisions are not in precisely the same form as those in issue in theDiscount Brands case in which a majority (Blanchard, Keith and Richardson JJ) saw a proprietary interest as essential. But it still remains the position that only those affected in an environmental sense are entitled to notification under s 94, cfNorthcote Mainstreet at [188]. Section 94(1) seems to me to read most naturally as referring to adverse environmental effects associated with the externalities of the activity in question. On a common-sense application of that test, the effect on the ARC is not the sort of adverse effect contemplated by s 94.[90] There are other considerations which point in the same direction. Service is required on those who, in the opinion of the consent authority, "may be adversely affected by the activity". The focus is thus on the adverse impact of the activity rather than the granting of consent. This is a pointer away from the approach contended for by the ARC as its real grievance is in relation to the granting of the consent. As well, s 104(1)(b) means that regional planning instruments are relevant to the decision whether to grant a resource consent. There is no indication in the Act as a whole that a regional council is entitled to be notified merely because the provisions of an instrument which it has prepared will be considered by the consent authority. [91] For those reasons, I prefer the view that the adverse impact asserted by the ARC is not of a kind which engages s 94(1).In deciding whether to notify the application, the Rodney District Council was entitled to take into account the conditions which were proposed in the application.[92] I agree broadly with the approach taken by Baragwanath J on this point.ELLEN FRANCE J[93] I take a view which differs from those of William Young P and Baragwanath J on the question relating to s 93. In particular, I do not consider that, in deciding under s 93 whether to notify the application, the RDC was required to take into account the relevant outstanding landscape classifications of the affected land in the ARPS. I explain my reasons briefly below. [94] The applicants in this case needed a resource consent from the RDC only because their proposed use of the land contravened a rule in the Operative District Plan (or Proposed District Plan 2000) and was not an existing use: s 9(1). By contrast, when land use contravenes a rule in a regional plan, a resource consent must be obtained from the regional council: s 9(3).[95] It follows from this dichotomy that the district plan was the focus of the application. It "is a frame within which the resource consent has to be assessed":Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597 at [10] (SC) per Elias CJ. [96] Randerson J in delivering the judgment in the Discounts Brands proceeding in the High Court (Northcote Mainstreet Inc v North Shore City Council HC AK CIV-2003-404-5292 5 February 2004) put it this way (at [48]):But the plan provisions are also relevant to an extent when considering notification issues under s 94. For example, the provisions of the plan or plans will be relevant in identifying the type of activity for which consent is sought. In addition, the plan provisions may be relevant in establishing the permitted baseline as discussed by the Court of Appeal in Bayley v Manukau City Council [1999] 1 NZLR 568, 577 and in other decisions of this court including one of my own in King v Auckland City Council (1999) NZRMA 145, 156-158. The provisions of the District Plan may also be helpful in identifying the Council's view about the importance or significance of adverse effects on the environment and the approach to be taken where there is potential for the kind of adverse effects identified.[97] A focus on the district plan is consistent with the stated purpose of the district and regional plans. As to the latter, s 63(1) states that the purpose of the "preparation, implementation, and administration" of regional plans is to "assist a regional council" to undertake "its" functions so as to achieve the purpose of the Act. Section 72 identifies the same purpose for district plans in relation to territorial authorities. [98] I agree that none of this makes Part 2, which sets out the purposes and principles of the Act, irrelevant. The provisions of Part 2 apply to all decision- makers exercising powers under the Act. But I agree with Harrison J that this does not alter the position in this case. That is because, as the Judge put it at [100], "[the Part 2] provisions are general statements of values which are specifically addressed later in the district planning instruments". It is relevant in this context that there is no statutory definition of the "outstanding natural features and landscapes", the protection of which is referred to in s 6(b) as a matter of national importance. [99] I agree with the respondent that it is also relevant that the Act spells out the circumstances in which reference must be made to the "higher order" documents, iewhen making a decision on a resource consent application: s 104(1)(b). At least in the context of a resource consent application, that suggests that where the legislation is silent on the point it is not necessary to consider the higher order documents. [100] It is also important that the consent authority must not grant a resource consent if the application should have been publicly notified and was not: s 104(3)(d). In the present case, for example, when considering the resource consent application and looking at the regional plan (as required by s 104(1)(b)) the decision- maker could have concluded that the distinction between the two plans was such as to affect the non-notification decision. If that was so, then resource consent could be refused under s 104(3)(d). The ability to decline resource consent on this basis provides a safeguard against the concerns underlying the appellant's complaint in this case. [101] I add that, in any event, I am not entirely sure the differences between the sets of instruments in this case are so critical. Considerable emphasis is placed on the formal "rating" of the landscape in the regional planning instrument. However, the Act and the Coastal Policy Statement require only identification of important areas and appropriate protection of those areas. The RDC's district plan seems to meet that requirement. Ultimately, both sets of instruments recognise the unique nature of the landscape. [102] In my view, the reference in Schedule 4 to "any" plan does not alter the position. Rather, as Harrison J said at [98], "[l]ogically, the Schedule 4 reference to 'the provisions of any policy statement or plan' would relate or link back to the type of application for resource consent, whether under a district plan or under a regional plan". Schedule 4 elaborates on the s 88 requirements imposed on the applicant when lodging an application for resource consent. It can be of little assistance to a s 93 decision on whether to notify a consent application. [103] Finally, looking at the matter overall, the appellant's real complaint is more properly characterised as an objection to the content of the RDC's district plan. I do not see the resource consent process as the proper means of resolving those sorts of issues: see the discussion in Auckland Regional Council v Living Earth (2008)[2009] NZRMA 22 at [41] – [43] and also at [26] – [29] (CA). The importance of this point is emphasised when, as here, we are dealing with a case where there is no live issue. An approach which reads the relevant provisions of the regional instrument into the RDC's district plan ameliorates concerns over the possible abuse of the resource consent process to some extent. But even that approach would require consideration of the regional plan on any decision not to notify simply to ensure there was no difference. I see such a requirement as inconsistent with ss 9 and 104 and as adding an unnecessary administrative burden. [104] I agree that in relation to the second question there was no need to notify the ARC under s 94(1) of the RMA, essentially for the reasons given by William Young P. For the reasons given by Baragwanath J, I also agree that in relation to the third question the RDC was entitled to take into account the conditions which were proposed in the application.Solicitors Kirkland Enright, Auckland for Appellant Simpson Grierson, Auckland for Respondents