COROMANDEL MARINE FARMERS V WAIKATO REGIONAL COUNCIL HC AK CIV 2006-419-000877

COROMANDEL MARINE FARMERS V WAIKATO REGIONAL COUNCIL HC AK CIV 2006-419-000877 7 March 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-419-000877UNDER The Declaratory Judgments Act 1908 and the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 IN THE MATTER OF an application for a declaratory judgment by COROMANDEL MARINE FARMERS ASSOCIATION (INC)CIV 2006-404-007466AND UNDER Resource Management Act 1991 IN THE MATTER OF an appeal under s 299 of the Act BETWEEN COROMANDEL MARINE FARMERS ASSOCIATION INC Appellant AND WAIKATO REGIONAL COUNCIL RespondentCIV 2006-404-007598AND UNDER The Resource Management Act 1991 IN THE MATTER OF an additional appeal on points of law under s 305 of the Act BETWEEN THE AUCKLAND YACHT AND BOATING ASSOCIATION INC Appellant AND WAIKATO REGIONAL COUNCIL First Respondent2 AND COROMANDEL MARINE FARMERS ASSOCIATION INC Second Respondent AND I AND M JAMES Third Respondent Hearing: 14 November 2007 Appearances: J K MacRae and A Buchanan for Coromandel Marine Farmers Association Inc. K Parker for Waikato Regional Council P T Cavanagh QC for I and M James R B Brabant and J C Brabant for Auckland Yacht and Boating Association Inc. Judgment: 7 March 2008JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 7 March 2008 at 9.30 a.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: DLA Phillips Fox, PO Box 160, Auckland Tompkins Wake, PO Box 258, Hamilton McVeagh Fleming, PO Box 4099, Auckland Copies to: P T Cavanagh QC, PO Box 4338, Shortland Street, Auckland RB & JC Brabant, PO Box 106-215, AucklandThe proceedings[1] Three proceedings have been heard together. The first is an application under the Declaratory Judgments Act 1908 made on 11 August 2006 by the Coromandel Marine Farmers Association (Inc) ("CMFA"). The second is an appeal by CMFA against a decision of the Environment Court delivered on 10 November 2006. The third is an appeal by the Auckland Yacht and Boating Association (Inc) ("AYBA") against the same decision of the Environment Court. [2] The three proceedings have been heard together because they all relate to the historic and future status of a marine farm situated in Coromandel Harbour, to the east of Esk Point. The issues between the parties concern the validity of a marine farming permit issued by the Ministry of Fisheries under s 67J of the Fisheries Act 1983 on 7 May 1998, the validity of a purported Certificate of Compliance issued by the Waikato Regional Council on 29 April 1998 prior to the issue of the marine farming permit and what provision should be made in the proposed Regional Coastal Plan for the marine farm. [3] In its declaratory judgment application, CMFA seeks a declaration from this Court that:Marine Farming Permit MFP 364 is and has been since 1 January 2005 a deemed coastal permit under the Resource Management Act 1991 in accordance with s 20(2) of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004.[4] The Environment Court decision, from which both CMFA and AYBA have appealed, involved a range of different matters. First, there was a reference by I and M James concerning the provisions of the proposed Regional Coastal Plan relevant to the marine farm. CMFA made an application for orders under s 293 of the Resource Management Act with a view to further provisions being made in the proposed Regional Coastal Plan. CMFA had also made two applications for declarations under s 311 of the Act during the course of the proceedings concerning the reference. Finally, Mr and Mrs James had themselves made an application for declaration under s 311 of the Act.[5] The first declaration sought by CMFA in the Environment Court was that:The approvals as granted by the Ministry of Transport between 1982 and 1986 for aquaculture structures at the site known as MFP 364 situated east of Esk Point, in the Coromandel Harbour, are deemed coastal permits under s 384(1) of the RMA.[6] The Environment Court declined to make that declaration, and there is no appeal against that part of its decision. [7] The second application by CMFA was for a declaration that: marine farming permit MFP 364 issued under s 67J of the Fisheries Act 1983 is a deemed coastal permit under the Resource Management Act1991.[8] The James's application for a declaration in the Environment Court was that the Regional Council's letter to CMFA dated 29 April 1998 did not constitute a Certificate of Compliance pursuant to s 139 of the Resource Management Act 1991. As the Environment Court noted at [21], the subject matter of the several declaration applications was interrelated and concerned the history of the establishment of the marine farm over the last two and a half decades. [9] In their reference appeal, the relief sought by Mr and Mrs James, in accordance with an amendment that the Environment Court approved, was that MFP 364 should be deleted from the relevant schedule in the proposed plan, and that the Court should also delete:Any other reference in the Proposed Regional Coastal Plan to the unlawful marine farming activity noted as MFP 364 because in its terms it purports to record a marine farm as a permitted activity when in fact it is clearly an unlawful activity which should bring into play the provisions of clause 6.1.2 which require that the existing structures in the CMA which were not lawfully established are either authorised or removed. Removal is the only option because mussel farming in this area is a prohibited activity. (Refer Rule 7.1.3)[10] For one reason or another, the parties have now been engaged for many years in litigation about the lawfulness of the marine farm. There have been four previous hearings in this Court, and the Environment Court noted that the decision which issubject to appeal was the eighth in a series of decisions that that Court had been called upon to deliver.Preliminary issue[11] As has been seen, CMFA's application to this Court under the Declaratory Judgments Act 1908 pre-dated the Environment Court's decision of 10 November 2006. There was a preliminary issue raised by counsel for the Waikato Regional Council, joined by counsel for AYBA, as to whether it was appropriate to allow the application for declaratory judgment to proceed. Mr Parker pointed out that on 30 August 2006, a joint memorandum of all counsel had been filed in this Court in anticipation of the first case management conference scheduled for 4 September 2006. After referring to the Environment Court proceeding and noting that the hearing was imminent, the memorandum recited that there was a question about the jurisdiction of the Environment Court to make the declarations sought by CMFA, and the parties agreed that it would not be appropriate to take further steps in relation to the High Court proceeding until the Environment Court had disposed of the declaration applications. In the circumstances, an adjournment was sought pending the Environment Court's decision. [12] In the event, the Environment Court hearing had taken place without any party raising jurisdictional issues. Mr Parker submitted that it was procedurally irregular and inappropriate for CMFA to proceed with the High Court declaratory judgment application when the Court was already seized of the relevant issues in the context of the CMFA appeal from the Environment Court decision. [13] In response, Mr MacRae for CMFA pointed out that the parties had, in a joint memorandum of 8 December 2006, after the Environment Court hearing had taken place, sought directions that the CMFA and AYBA appeals be tried at the same time as the declaration proceedings. Subsequent steps had been taken on that basis and finally, although the same issue was raised in the CMFA appeal as in the declaration judgment application, Mr MacRae maintained out that the Environment Court had in fact failed to make any finding on the issues of law involved.[14] The outstanding jurisdictional difficulty potentially affecting the Environment Court arose from the fact that, although that Court may make declarations on all of the matters set out in s 310 of the Act, there is no reference there to statutes other than the Resource Management Act. In the present case, as will later emerge, the arguments of the parties turned to a great extent on the meaning to be given to s 20(1) and (2) of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004. CMFA asserts that, pursuant to those provisions, it has a deemed coastal permit granted under the Resource Management Act 1991. [15] It is apparent that the Environment Court did not regard itself as affected by any jurisdictional restriction in dealing with the relevant issues. At [63], the Court referred to a previous decision of the Environment Court Coalition of Residents Association Inc v Wellington City Council (W56/2001, 23 July 2001) in which the Court had observed (at [45]):there are occasions when a Court in reaching a decision on a matter which is within its jurisdiction is required to interpret matters which would normally be beyond its jurisdiction if that is essential to reaching the conclusion.[16] Section 310 of the Resource Management Act provides in (a) that a declaration made by the Environment Court may declare the existence or extent, amongst other things, of any right or duty under the Act. Here, the question of whether or not CMFA has an effective coastal permit granted under the Act is plainly a question arising about a right under the Act. That question, however, cannot be addressed without reference to other statutory provisions including, pre- eminently, those in the Aquaculture Reform (Repeals and Transitional Provisions) Act. I am in no doubt that if, in order to make a declaration on a matter which is plainly within one of the paragraphs in s 310 of the Resource Management Act, it is necessary for the Environment Court to refer to any other statutory or regulatory provision, it may do so. Indeed, where another statutory provision is relevant to an application for declaration, the Court will have a duty to do so. [17] There was, for these reasons, no jurisdictional inhibition on the Environment Court dealing with the matters raised by the declarations. Further, I do not consider that the Court regarded itself as inhibited in any way. Nevertheless, I do not see thatthere is any "procedural impropriety", as Mr Parker put it, arising from the fact that CMFA have sought relief both under the Declaratory Judgments Act, and by means of the appeal filed under s 299 of the Act. I indicated during the hearing my preliminary view to that effect, which I now confirm. In doing so, I also note that there has been no application to stay or strike out the declaratory judgment proceeding.High Court decision of 22 October 2002 and relevant background facts[18] I have referred earlier to the fact that issues relevant to this litigation have previously been before the High Court on a number of occasions. Most importantly, in 2001 the Waikato Regional Council commenced a proceeding under the Declaratory Judgments Act in relation to the lawfulness of the reliance by the Ministry of Fisheries on the Regional Council's letter of 29 April 1998 as a Certificate of Compliance, and the related issue of the validity of the marine farming permit issued to CMFA by the Ministry of Fisheries on 7 May 1998. With the exception of AYBA, all of the parties to the present proceeding were represented at the hearing of the Waikato Regional Council's application by Ellen France J on 8 and 9 July 2002. All of the parties to the present matter referred in argument to her decision, which was delivered on 22 October 2002. [19] It will be useful now to summarise that decision, both because it is inherently relevant to the present matter (and the Environment Court itself applied those parts of the decision which it judged to be binding on it), and also because it will serve to explain the factual background to the present dispute. In fact, Ellen France J dealt in some detail with the facts. It was not suggested that there was any error in her findings and Mr Cavanagh QC took me through them in some detail without demur by any other party. [20] At [7] to [11] of the judgment, she said:[7] Around August 1979 the then Minister of Agriculture and Fisheries determined that no further applications for marine farms would be granted in the Coromandel area until the then Ministry of Agriculture and Fisheries ("the Ministry") had conducted a planning study of the area. The purpose of this study was to identify areas suitable for farming and those that should notbe available for leasing or licensing under the MF Act. Accordingly, in November 1981, the Ministry initiated a study to determine areas between Wilson's Bay and Otautu Bay that could be suitable for mussel and oyster farming having regard to biological factors and the criteria in s 7(1) of the MF Act. [8] A consultation process followed and a report was then released. The report provided, among other things, that:"An eighteen hectare site east of Esk Pt appears suitable as a cleansing area... This site is also suitable for spat collection, holding and use as a nursery. The area for cleansing, spat collection and a nursery is identified as 'MAF' on plan MAF197." (para 5.4)[9] The report continued:"It is proposed that this area be made available for marine farming purposes, but be set aside by you for cleansing, spat catching and nursery only, and not leased or licensed for farming. The operation of this facility would be by this Ministry." (para 5.5)[10] Various submissions were received on the report including one from Mr I G and Mrs M James. As a result of the various submissions received the total area originally proposed as available for marine farms was reduced by nearly half to preserve navigational access. [11] In 1981 a MAF scientist had trialed some seaweed containing mussel spat from Ninety Mile Beach, known as Kaitaia spat in the disputed area. It appears that this trial was successful and was an indication of the suitability of the area for spat catching and holding.[21] The references to the MF Act are to the Marine Farming Act 1971. I infer that the reference at the end of [11] to the "disputed area" is a reference to the area that was subsequently the subject of MFP 364, granted on 21 May 1998, in circumstances soon to be recounted. [22] Ellen France J continued at [12] to [15]:[12] On 17 May 1983 a Gazette notice was issued declaring an area from Wilson's Bay to Otautu Bay on the West Coast of the Coromandel Peninsula not available for leasing or licensing under the MF Act except for specified areas identified in accompanying maps. The accompanying Map 198 identified an area east of Esk Point as "Proposed spat catching nursery and purification area (if needed) not available for application." The area which was not available for leasing or licensing under the Act included the disputed area. [13] The Ministry established the disputed area using it initially to determine best cultivation techniques for the Coromandel area for some spat catching and for holding seed mussels from other locations before setting them up to grow in more exposed waters.[14] Subsequently, the Ministry gave approvals to various licensees to put long lines in the disputed area for these purposes. Mr Gilbert James, for example, received such an approval on 10 March 1983 and the requisite Ministry of Transport approval in May 1983. Mr Gilbert James said that he had attempted to catch mussel spat in the area but was unsuccessful. He explained that spat catching involves placing long lines in the water and suspending spat catching ropes from the lines so the spat or spawn of mussels, which are released by mussels periodically, can attach themselves to the rope. When first "caught", the spat is microscopic and millions of spat may attach themselves to the rope. Once enough spat has been caught, the ropes are either removed from the water and the spat taken from the ropes and "seeded" back on the lines at a lower density or left to on-grow to seed which involves holding the seed to up to approximately 60mm. [15] Mr Gilbert James also explained that although spat catching was unsuccessful in the disputed area, the on-growing of Kaitaia spat was successful in the area. On-growing of Kaitaia spat involves transporting seaweed from Ninety Mile Beach which is laden with spat, to the disputed area and attaching the seaweed to the ropes. Eventually, the spat migrates from the weed to the ropes and the seaweed falls away. Thus, once the Kaitaia spat proved successful, Mr Gilbert James said that each mussel farmer's long line in the area was used for holding Kaitaia spat and that this continues to date. Mr Gilbert James also said that oysters were brought into the disputed area to be purified through the 1980s and 1990s. This involves transferring oysters to the disputed area from the oyster racks for the final few weeks of growth. The oysters are placed in cages and the cages submerged and suspended from the long lines. The "clean" water at the communal area allows the oysters to "purify" themselves. Again, this practice continues today.[23] On 1 October 1992, the Resource Management Act came into effect. One consequence of that was that the Regional Council became responsible for activities and structures in the coastal marine area. By virtue of s 370 of the Resource Management Act, the 1983 Gazette notice became part of the deemed Regional Coastal Plan for the area. [24] Ellen France J's judgment continued as follows, at [20] to [27]:[20] On 3 September 1992, the Ministry wrote to marine farmers noting, amongst other matters, that there had never been any provisions in the MF Act to declare an area as a nursery or as a purification area. The only provision was for the declaration of a spat catching area. Reference was then made to the approvals given for long lines and the subsequent advice to the Ministry that such an operation had no legal basis. The Ministry requested farmers to reply, giving their options on either having the communal area formally declared a spat catching area under s 14E or the allocation of space on the basis of one line per licensee.[21] The next relevant step was that in August 1994 the WRC notified its proposed regional coastal plan ("PRCP") which included Rule 48. Rule 48 provides:"Aquaculture 48) Mussel Holding Area (Permitted Activity) The mussel holding area (co-ordinates S 11; 289-854) [the disputed area] is a permitted activity provided it complies with the conditions stated in this rule. Conditions: (i) The structure is not extended or re-located in any other position. (ii) Each corner of the area shall be marked with flashing lights. These lights shall be yellow and flash five times every 20 seconds within a range of one mile. Principal Reason for Adopting: This is an existing structure established by the MAF Fisheries and operated by industry representatives, which had our previous consent. Licence(s) are required from MAF Fisheries to locate and grow spat on the structure."[22] On 5 February 1998, the CMFA wrote to WRC in the following terms:"Our Association is seeking a Certificate of Compliance for the Mussel Holding Area in the Coromandel Harbour. We have applied for Fisheries Permit but need the Certificates of Compliance before the permit can be issued."[23] On 12 February 1998 the WRC responded referring to the CMFA's request for a "certificate of compliance for the mussel holding area". The letter continued:"Rule number 48 in the Proposed Regional Coastal Plan make[sic] this a permitted activity once this plan becomes operative. For the plan to be fully operative it requires the signature of the Minister of Conservation, at this stage the Minister has not given his agreement. Also this rule has received two appeals both in relation to lighting. The first has requested that the lights be 2 metres above water level and visible from 3 nautical miles and the second requires that the lights flash 5 times every 20 seconds. It is likely that if the lighting of the structure conforms to these more stringent requirements and the structure is not re-located to any other position it will conform to the permitted activity rule in the plan."[24] The Association replied on 18 March 1998 stating that the CMFA would accept the requirements outlined in the letter of 12 February 1998. The letter concluded:"Can you thus inform us if you can therefore proceed with the certificate of compliance."[25] The WRC responded on 29 April 1998. Mr Parker for the WRC suggested that this letter was perhaps the central document. The letter stated:"We acknowledge receipt of your correspondence dated 18 March in respect of the mussel holding area in the Coromandel Harbour. The Regional Coastal Plan under rule 48 makes the use of this area for marine farming a permitted activity as long as it conforms to certain conditions. It is our understanding that these conditions are being met and as such we consider that this activity is a permitted activity under this plan."[25] This is the letter that CMFA relies on as a certificate of compliance and it remains central to the outcome of this litigation. Ellen France J continued at [26]- [27]:[26] The CMFA then formally applied to MOF for a marine farming permit under s 67J of the Fisheries Act 1983. [27] The application was considered by an official in the Ministry in a memorandum dated 5 May 1997. The recommendation that the permit be granted was accepted because the CMFA was notified by letter dated 21 May 1998 that a marine farming permit had been granted. MF 364 authorises the activity of marine farming of green mussels and pacific oysters within the defined area being the disputed area.[26] At [28], Ellen France J noted that the Regional Council did not proceed with the aquaculture chapter (which included rule 48) of its proposed Regional Coastal Plan. Instead, it notified a variation to the proposed plan, to deal with marine farming on a comprehensive basis. That variation listed MFP 364 as a current marine farm. Rule 3 of the proposed variation provided, as controlled activities, for "the replacement of a current marine farming lease or licence granted under the Marine Farming Act 1971 with a coastal permit, or the renewal of a current coastal permit, for the use of, or occupation of space by any marine farm structure in the CMA". Mr and Mrs James made submissions on that provision to the Waikato Regional Council and, being dissatisfied with the Council's decision on the submissions, filed the reference against the Council's decision which has given rise to the present appeal. As has been seen, the reference had not been determined by the date of Ellen France J's decision. [27] At [31] of her judgment, Ellen France J referred to the current use of the area of the marine farm as follows:[31] The disputed area today is used predominantly for holding Kaitaia spat and for purifying oysters. Mr Gilbert James deposes that the disputed area is very important to the industry and to the individual farmers having long lines in the area. He explains that 40 long lines are used for holding Kaitaia spat and each one seeds about 10 mussel lines. He states that this spat would provide for 50% of the Coromandel production. In terms of the oyster long lines his evidence is that Pacific Marine Farms transfers about 20% of their production through the disputed area.[28] The present application for a declaration was accompanied by two affidavits. One, sworn by Mr Shaun O'Neill, a registered surveyor, attached a plan showing the extent of the water space described in MFP 364. [29] The second affidavit was by Mr Gilbert James, the CMFA's chairman. At paragraphs 5 to 12 of his affidavit, he deposed:5 The plaintiff runs the bio-toxin and sanitation programmes for the Hauraki Gulf. These programmes are set by MAF to USFDA (United States Food and Drug Administration) standards to allow aquaculture produce to be exported. Every marine farm licence holder in the Hauraki Gulf is a member of the plaintiff automatically as payers of levies for the water quality programmes. The plaintiff also looks after all collective issues that arise in relation to aquaculture in the Coromandel area, especially those relating to central and local government requirements and policy. 6 Since the early 1980s the plaintiff and its members have used aquacultures lines and other structures in an area of approximately 22.5 ha of water space on the west coast of the Coromandel Peninsula east of Esk Point (the site) for green shell mussel spat catching and spat holding and oyster purification activities. 7 The plaintiff is the body responsible for the aquaculture activities undertaken on the site. 8 In May 1998, the plaintiff applied for a marine farming permit under s.67J of the Fisheries Act 1983 for the site. A copy of the application is attached marked 'A'. 9 On 7 May 1998, marine farming permit number MF 364 was issued to the plaintiff under s.67J for marine farming activities (as defined in the Act) in an area of water space within stated co-ordinates. 10 That area is more particularly described as being situated in Coromandel Harbour commencing at a point bearing 352° 805m from Trig 238 Tuhana and bounded by the lines running 90° 750m, 360° 300m, 270° 750m, 180° 300m to the point of commencement, P as shown on MAF plan 198A attached to the permit. 11 The permit commenced on 7 May 1998 and expires on 31 December 2023. A copy of the permit is attached and marked 'B'.12 MFP 364 remains in effect and the structures at the site have been confirmed as being in accordance with the permit by a survey conducted by Shaun O'Neill, registered surveyor, in January 2003. There has been no material change in the location of the structures since that survey.[30] The permit which he attached authorised CMFA to undertake the activity of marine farming (as defined under the Fisheries Act 1983), of green mussels and Pacific oysters in the area described, for the period from 7 May 1998 down to 31 December 2023. The permit recorded on its face that it had been issued pursuant to s 67J of the Fisheries Act 1983, and was subject to a number of terms and conditions. One of those conditions, condition 2, assumed some importance in the argument on appeal, and will be discussed later in this judgment. [31] In her judgment, having discussed a number of provisions in the Resource Management Act, and the Marine Farming Act, Ellen France J noted that under s 67J of the Fisheries Act 1983, no person may farm any fish or aquatic life without, inter alia, a marine farming permit. Under s 67J(2) of the Act, a marine farming permit may only be issued to a person who holds a coastal permit (i.e. a resource consent "to do something in the coastal marine area that otherwise would contravene any of ss 12, 14, 15, 15A and 15B of the Resource Management Act") or a Certificate of Compliance (under s 139 of the Act) for the relevant area. [32] Ellen France J concluded on the facts that no Certificate of Compliance could validly have been issued. Essentially, that was because of the status of the Gazette Notice of 17 May 1983, as a deemed transitional regional coastal plan under s 370(2)(b) of the Resource Management Act. The proposed Regional Coastal Plan was not operative, and s 19 of the Act did not apply. The CMFA had no existing use rights. The effect of the Gazette Notice had been to make the use of the area for mussel farming (which had in fact been carried out) unlawful. In the circumstances, a Certificate of Compliance could not have been validly issued, with the consequence that there had been no power to issue the marine farming permit. [33] In the circumstances, as Ellen France J acknowledged, it was not necessary to decide whether the letter of 29 April 1998 from the Waikato Regional Council to the CMFA was in fact in a form capable of being a Certificate of Compliance.However, in case she was wrong on the first issue, she went on to consider that question. In [92] to [96] she set out her reasons for concluding that the letter was sufficient to be a Certificate of Compliance, as follows:[92] If I am wrong on the first issue, I would have said that the letter was a certificate [of compliance]. Although not very formal (contrast Culpan v Vose (1993) 2 NZRMA 380), it is clear that it was intended to be a certificate and was treated as such by the Ministry of Fisheries and by CMFA. The Court of Appeal in Goldfinch v Auckland City Council [1996] NZRMA 329 at 334 identified three of the critical elements as the certificate, the proposal, and compliance. [93] I hold there is sufficient in the letter to meet the "certificate" requirement although the word "certificate" is absent. There is an overlap with the "compliance" aspect as the letter states "we [WRC] consider that this activity is a permitted activity under [the] plan." [94] The plaintiff argues that the description of the particular activity (s 139(4) and (5)) is inadequate. The letter of 29 April 1998 refers to both "mussel holding" and "marine farming". It is clear, however, that the "activity" referred to is "marine farming". This element is present also. [95] The plaintiff also submits the letter does not refer to the "location" specifically, except as "the mussel holding area in Coromandel Harbour". An affidavit was filed from Mr Morrison James Dunwoodie on behalf of Mr and Mrs James. Mr Dunwoodie is a registered surveyor. He deposes that the co-ordinates in Rule 48 are not sufficient to precisely define the location and limits of the marine farm. However, in the context, taking into account all of the correspondence between WRC and CMFA on this issue, there is no doubt in practice about the area referred to. Further, Mr G James' evidence was that the CMFA had a survey map. [96] Finally, the plaintiff says the letter is inadequate in not referring to the need or otherwise for a resource consent. It is submitted a resource consent was required under s 12 of the RMA which prevents structures in the coastal marine area unless expressly allowed by a rule in a regional coastal plan, or relevant PRCP or a resource consent. I do not consider the absence of this information invalidates the certificate.[34] Notwithstanding this conclusion, she had, however, already concluded that a Certificate of Compliance could not validly have been issued. The question then was whether, in the exercise of her discretion, she should make the declarations sought by the Waikato Regional Council. In that respect, she declined to issue two of them on the basis that the marine farming permit had been issued by the Ministry of Fisheries, and had had nothing to do with the Waikato Regional Council. That left declarations that the Council had sought as to whether its letter dated 29 April 1998 to the CMFA was a Certificate of Compliance pursuant to s 139 of the ResourceManagement Act, and, if so, whether it was valid. She held that she was not willing to grant those declarations, for three reasons, set out as paragraphs [a] to [c] within paragraph [98] of the judgment:[a] In reaching the conclusion that the certificate of compliance could not validly issue, I have had to make factual findings both as to the status of the PRCP and as to the CMFA's use rights. Those findings are not disputed in the sense envisaged in the authorities but they are close to that margin. This is not a case where the Court has no jurisdiction (as submitted for CMFA) because of the nature of the factual findings but it is one where the nature of those findings required is relevant to the Court's discretion. [b] Some four years have elapsed since the CMFA received the letter of 29 April 1998. While the plaintiff cannot be criticised for not acting sooner in the circumstances the passage of time is such as to have altered the position for the CMFA. For example, if the present permit was quashed, the effect of the acquaculture moratorium (Part 6A RMA) is to prevent WRC from dealing with or processing new applications for acquaculture activities. Mr Parker submits that the CMFA should not have got the certificate in the first place. That is the case, but time has elapsed since it did so and the delay in having the matter clarified earlier does now affect the CMFA. [c] Finally, Mr and Mrs James have a reference to the Environment Court which will address some, although not all, of the issues raised in these proceedings. Given that there are factual matters in issue, there is merit in the specialist body considering the issue.The Environment Court's decision[35] I have earlier summarised the various proceedings that were determined by the Environment Court's decision of 10 November 2006. By the time that the Environment Court embarked upon the hearing on 2 November 2006 which was to result in that decision, there had been further related High Court proceedings and some seven previous decisions of the Environment Court, four of which had been delivered on interlocutory applications made after the Environment Court had initially embarked upon the hearing of the James's reference in July 2003. What is plainly a very long story may be cut short by noting that, by the time it resumed the hearing in November 2006, the relevant rule in the variation to the proposed Regional Coastal Plan had been altered to read:16.5.3 Current# marine farm structures (discretionary activity)The use of, or occupation of space by any marine farm structure in the CMA, and associated discharges to water and air, and the disturbance of and deposition on the seabed, for the same activity and location as covered by a current marine farming lease or licence granted under the Marine Farming Act 1971 or a current coastal permit under the Resource Management Act 1991- is a discretionary activity, provided it complies with the standards and terms stated in this Rule.[36] As has previously been noted, in their reference, the James sought deletion of provision for MFP 364 of the proposed Regional Coastal Plan, maintaining that the existing structures should be removed. [37] As has also been seen, the first of CMFA's Environment Court declaration applications concerned approvals granted by the Ministry of Transport between 1982 and 1986 for aquaculture structures at the site of MFP 364. That application was declined, and the Environment Court's decision in that respect has not been pursued on appeal. [38] The second declaration sought by CMFA in the Environment Court was that MFP 364 issued under s 67J of the Fisheries Act was a deemed coastal permit under the Resource Management Act. CMFA relied on the fact that the coastal permit had been in force immediately before the commencement of the Aquaculture Reform (Repeals and Transitional Provisions Act) 2004. That Act provided in ss 20(1) and (2), as follows:20 Marine farming permits deemed to be coastal permits(1) This section applies to every marine farming permit that— (a) has been granted under section 67J of the principal Act; and (b) is in force immediately before the commencement of this Act. (2) On and from the commencement of this Act, each marine farming permit is deemed to be a coastal permit granted under the Resource Management Act 1991 for the species of fish, aquatic life, or seaweed and area referred to in the permit and on the same conditions as applied to the permit immediately before the commencement of this Act.[39] It was relevant and necessary, in dealing with this application, for the Environment Court to refer to Ellen France J's judgment of 22 October 2002, which,of course, had pre-dated the enactment of the Aquaculture Reform (Repeals and Transitional provisions) Act 2004. The Environment Court held at [73] that it was bound by "relevant findings of fact and law" in the High Court judgment but that (at [78]) it could not be bound by the manner in which the High Court had exercised its discretion in relation to the applications for declaration before it. The Environment Court also expressed doubts about whether the Regional Council's letter of 29 April 1998 could, in form, constitute a valid certificate of compliance. In fact, it held (at [87]) that it could not properly be regarded as a Certificate of Compliance; that, rather, it was simply a letter containing advice that was inaccurate. In differing from the opinion expressed by Ellen France J in this respect, the Court had earlier characterised her observations on this issue as obiter dicta. [40] Before resolving either of CMFA's declaration applications, or the James's declaration application, the Environment Court turned to a consideration of the merits of the James's reference. The issue was whether MFP 364 should remain scheduled as a "current marine farm" with the status of a discretionary activity or whether, as sought by Mr and Mrs James, it was to be deleted, with the result that it would become a prohibited activity pursuant to another rule in the proposed Regional Coastal Plan. It should be noted that CMFA's stance in relation to the James's reference was mainly supportive of the proposed coastal plan provision as it then stood, although it sought certain additional provisions and for that purpose made an application under s 293 of the Resource Management Act. [41] I observe parenthetically that under s 293 the Environment Court, when dealing with proceedings relating to a proposed plan, may direct changes to that plan. There is a set procedure that must be followed when the Court contemplates making such as order and is also of the view that an opportunity should be afforded to interested parties to consider the proposed changes. The procedure involves the Court giving a general indication of the nature of the proposed changes, specifying the persons who may make submissions, indicating the manner in which those submissions are to be made and requiring the relevant local authority to give public notice of the change and of the opportunities being given for persons to be heard. The section can be salutary if there is a desirable outcome for district plan references that is unable to be achieved because of the way in which parties have limited therelief sought in the pleadings. Given the public nature of the Court's jurisdiction, amendment of the relief that has been sought in a reference, even if requested by the referrer, may not be an appropriate response, because of the potential effects on persons not before the Court. In appropriate circumstances, s 293 can be used to overcome any such difficulties. [42] In the present case, CMFA asked the Court to act under s 293 so as to incorporate into the proposed regional coastal plan modified provisions referring to "the current marine farm structure" and conferring discretionary activity status on it. However, the Court declined to exercise its powers under the section. It held that granting CMFA's request would be tantamount to denying the Jameses the relief that they had sought. [43] On the reference, after summarising the evidence that it had received, the Environment Court said at [105]:Having considered all the evidence carefully, including answers given by witnesses cross-examined in 2003 as well as this month, we have come to the view that there seems to exist evidence quite strongly favouring the point of view of each of the two groups of parties. Further, because of the view overall that we have come to about the merits, and its impact on the manner in which we should exercise our discretions on the declaration applications, we think it appropriate to refrain from making definitive findings on the various issues of fact and expert opinion, or to accord relative weightings to them as though in determination of a resource consent application. We have come to the conclusion overall, that it would be inappropriate that activities in the water space occupied by MFP 364 should be constituted prohibited activities. This is despite the convoluted history of how it came to be established, which, while it does not reflect particularly well on the marine farming interests, has more to do with extremely poor administration on the part of the relevant authorities at the time.[44] And at [106]-[107] it said:[106] Being careful not to pre-empt or colour decision-making that will need to be undertaken in the future, it seems that there may be reasonably significant employment and other economic benefits being derived by the Coromandel community and perhaps others, from the operation of MFP 364. On the other hand opponents may to one degree or another present cogent material on other relevant factors such as visual, landscape, navigation and recreational boating. [107] It also seems to us that there are factors working both ways when regard is had to relevant statutory instruments, in respect of which once again it would be inappropriate on the evidence currently before us, to makedefinitive findings and apply final weightings. We have in mind various objectives and policies in the Regional Coastal Plan, many of which derive in large measure from the New Zealand Coastal Policy Statement, which in turn amplifies various provisions of the Act, particularly in Part 2. They address such things as natural character, ecology, coastal processes, water quality, and social and economic benefits to the local, regional and national economy.[45] The Court nevertheless took the view that "some relief" should be granted to Mr and Mrs James. At [120] it said:The relief we favour is the establishment of a modified Rule 16.5.3 which requires the proprietors of MFP 364 to apply for discretionary activity consent (and take the risk as to whether the same may be granted or refused) in the shorter rather than the longer term. It may seem ironic to Mr and Mrs James that the relief suggested by CMFA in the context of its application under s 293, is quite close to the relief that we have in mind in the reference. But for reasons totally different to those that caused us to refuse the s293 application, we consider that MFP 364 should be permitted to seek discretionary activity consent in respect of a limited number of operational activities, within a tight time-frame.[46] And at [121]:Hence, Rule 16.5.3 in its present form should have a sentence added just prior to the subheading "Standards and Terms":The current marine farm structure referred to as MFP 364 (but limited to the activities of mussel spat-collection, mussel spat holding and oyster purification) in the Schedule of the Current Marine Farms in Appendix III of the Plan is a discretionary activity, provided it complies with the Standards and Terms stated in this Rule.[47] The Court also directed (at [122]) that there be an additional provision under the heading "Standards and Terms" as well as other consequential changes. The additional provision was to read:vii In the case of MFP 364 an application for a coastal permit must be made within 6 months of this Rule becoming operative under clause 20 of the First Schedule to the Resource Management Act 1991. Pending the Council's decision on the application, and the determination of any appeals, the current marine farming structures at MFP 364, and existing activities thereon, may continue. If an application is not made within that time, or is ultimately refused, MFP364 shall cease to have discretionary activity status.[48] It explained that the six-month time frame specified within which an application for resource consent was to be made was not derived technically froms 20A of the Resource Management Act. That section relevantly provides that if, as a result of a rule in a regional plan becoming operative, an activity requires a resource consent, the activity may continue after the rule becomes operative if certain criteria are met, one of which is that the person carrying on the activity has applied for a resource consent from the appropriate consent authority within 6 months after the date the rule became operative and the application has not been decided or any appeals have not been determined. [49] At [113], the Court stated that in the exercise of its discretion it would refuse all three applications for declarations. Its reasons for rejecting the first application sought by CMFA had previously been clearly stated. That could not be said in relation to the second CMFA application, or the application made by Mr and Mrs James. [50] As to CMFA's second application, it was discussed at [59]-[79] without any firm conclusion being reached. The discussion can be summarised by noting that the Court held it was "not appropriate to go deeply into the arguments for and against invalidity" because of the binding nature of the relevant findings of fact and law by Ellen France J; that it doubted that the Waikato Regional Council's 29 April 1998 letter could be a valid Certificate of Compliance; that it was not bound to exercise its discretion in conformity with what had occurred in the High Court; but that its "inclination" would be to favour the arguments of parties asserting that the "Certificate of Compliance should be held void from the beginning on account of flagrant invalidity". [51] The next mention of the application is at [86] and [87] where the Environment Court said:[86] Our findings on the legal issues are substantially driven by findings of fact and law in the decision of France J. In areas where we are not so bound, our own findings tend to favour the position of the opposition parties, and not CMFA. [87] In particular we would hold that the letter of 29 April 1998 could not be properly interpreted as being a certificate of compliance, but rather simply a letter containing (inaccurate) advice.[52] Then, at [92] the Court noted that it had a discretion to exercise, and again that it was not bound by the considerations on which Ellen France J had exercised her discretion. [53] At [113] the Court also observed that it had earlier "effectively held on the facts and the law that there might be a case for granting the application for declaration made by Mr and Mrs James, but that we would refuse the declarations sought by CMFA". However, its only determination had been in respect of the first of the CMFA applications; the fate of the second had, in my view, been left open until that point. Now, however, the Court said that it would refuse all three applications for declaration. The reasons which were then given were all related only to the application by Mr and Mrs James, the Court referring to the "merits of the cases put forward by the several parties in the reference as found above" and to the time that had elapsed since the Regional Council's letter of 29 April 1998. [54] In the result, the CMFA's application was rejected with no reasons being expressed, other than indirectly, by reference to Ellen France J's decision. It was not possible to rely on Ellen France J's decision, however, because of the argument that the CMFA had addressed based upon the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004, enacted after her decision had been delivered. Further, since the Court had been at pains to state that Ellen France J's decision was not binding in relation to the exercise of discretion, it was necessary for the Court to state why it was rejecting CMFA's application. That is something which, as I read its decision, it failed to do. [55] Having discussed the background, and the Environment Court's decision which is subject to the appeals, I now turn to the substantive issues that must be resolved in this Court.The Declaratory Judgments Act application[56] I have previously set out the declaration that is sought by CMFA. [57] In support of its application, Mr MacRae argued on the basis of s 20 of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 that all marine farming permits falling within s 20(1) of the Act are deemed under subs (2) to be coastal permits granted under the Resource Management Act. Only two requirements must be met. First, the marine farming permit must have been granted under s 67J of the principal Act. Secondly, the permit must be in force immediately before the commencement of the Act on 1 January 2005. [58] Mr MacRae argued that the first of those matters was clear on the face of the permit itself. It recited that it had been granted under s 67J of the Fisheries Act. [59] As to the second requirement, he maintained that the marine farming permit had been in force immediately before the commencement of the Act, because it had not been set aside by a Court of competent jurisdiction. He submitted that any invalidity remained latent. In advancing these arguments, Mr MacRae referred to the statement of principle in A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at 4, where Cooke J said:When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity,ultra vires. Weight is given rather to the seriousness of the error and all the circumstances of the case. Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account.[60] Mr MacRae also relied on the extensive discussion of relevant principles by Fisher J in Martin v Ryan [1990] 2 NZLR 209, highlighting observations made at p 236 (lines 15-24), and at pp 236-237 (lines 49- 5). In the former, Fisher J said:The demise of the absolute theory of invalidity foretold by Lord Radcliffe inSmith v East Elloe at pp 769-770, and reinforced by Lord Wilberforce inCalvin v Carr at pp 589-590, is at least for New Zealand purposes now complete . The current approach is that "Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside." (Per Cooke J in Burr v Blenheim Borough Council at p 4).[61] In the second passage, Fisher J said:Only when the legal status of the decision has been determined by a Court in the light of all the circumstances since the original decision will the legal consequence of the original decision be known. It is difficult to reconcile the notion that a vitiated decision is void ab initio with the possibility that, due to subsequent circumstances and the favourable exercise of a discretion, the decision may for all practical purposes be treated as if it not only is now, but always has been, legally impeccable. In the meantime, the impugned decision has presumptive validity which may support, for example, an interim injunction requiring obedience in the normal way.[62] Mr MacRae referred also to Duncan v Dunedin City Council (2004) 10 ELRNZ 315 in which Chisholm J had found a Certificate of Compliance to be a "nullity" on the grounds that the City Council did not have jurisdiction to issue it. Nevertheless, the Court recognised that the certificate would be valid until it was set aside. [63] Mr MacRae argued further that the proper proceedings for determining whether MFP 364 should be set aside would have been an application for judicial review seeking orders that, if it had been issued unlawfully, the decision to issue it should be set aside. No such application had been made in the more than nine years since it had been issued. [64] He rejected the argument made by the other parties based on the concept of "flagrant invalidity". Basing his submission on the discussion in Martin v Ryan at p 239, he contended that the concept of "flagrant defects" was one directed towards lay people who might be left in a position of choosing whether or not to rely on a decision affecting them in some way. This had not been the position adopted by any of the parties in the present matter: CMFA and its members the Regional Council, when making provision for MFP 364 as an aquaculture site in the proposed Regional Coastal Plan, Mr and Mrs James in lodging submissions in relation to the proposed Regional Coastal Plan and in supporting the Council's application to the High Courtfor a declaration as to the legal status of the permit, had all treated MFP 364 as having legal consequences. [65] Mr Parker, for the Regional Council, adopted a neutral stance on this issue while pointing out that Ellen France J had declined to make a declaration which would or could have had the effect of requiring the immediate removal of the structures comprised in MFP 364. [66] Mr Cavanagh, for Mr and Mrs James, maintained that in accordance with Ellen France J's judgment, MFP 364 should not have been issued. The Certificate of Compliance which the Regional Council issued was itself invalid, and inaccurate. In the result, MFP 364 had never been subject to a legitimate approval process pursuant to the applicable statutory regimes and the rights of the Jameses had accordingly been adversely affected. He argued that the defects in the purported Certificate of Compliance (both in terms of the process that led wrongly to its issue, and its form) were so fundamental that there could be no residual discretion available to the Court permitting it to overlook them. In so far as Ellen France J had reached a different view as to the form of the certificate, Mr Cavanagh argued that she had been incorrect. The Environment Court's findings to the contrary were to be preferred. If his argument as to flagrant invalidity were not accepted, then Mr Cavanagh argued that, at the very least, the defects in the purported Certificate of Compliance were so fundamental, that any finding of unlawfulness or invalidity must have retrospective effect. [67] Mr Jeremy Brabant addressed argument that was generally supportive of Mr Cavanagh's submissions. He introduced, however, a further argument which he said should lead independently to the same result. Thus he argued that even if the Court were to find that MFP 364 was properly issued, the fact that the Certificate of Compliance was invalid meant that, pursuant to condition 2 of the marine farming permit, the permit did not come into force. [68] Condition 2 was in the following terms:2. Resource Consents The permit holder shall obtain and keep in full force and effect any resource consent required by any enactment, or by any Regional Coastal Plan, during the period of this permit. The permit holder shall comply with the provisions of any such resource consent. This permit shall be void and of no effect if any such required resource consent is not granted, expires, is surrendered or is otherwise howsoever terminated.[69] Based on the wording of this condition, Mr Brabant submitted that even if the MFP 364 had been properly issued on the basis of the Certificate of Compliance, the defects in the Certificate of Compliance were such that an essential condition of the term of the permit was and could never be satisfied without a resource consent. Since the Certificate of Compliance was inadequate, the permit must be void and of no effect. Further, and in any event, the activities of CMFA had in fact required a resource consent. No resource consent had been obtained. This argument, as it was developed will be discussed in more detail below. [70] Mr Parker, for the Regional Council, supported this reasoning. In addition, he pointed to s 20(6) of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004, which provides:A coastal permit referred to in subs (2) does not, of itself, authorise the holder to occupy a coastal marine area.[71] Even if the CMFA were correct in its argument that the marine farming permit was deemed to be a coastal permit granted under the Resource Management Act, any occupancy of the coastal marine area would require further authorisation by way of a resource consent.Discussion[72] None of the other parties suggested that there had been any significant developments in the law since the cases on which Mr MacRae relied were decided. The difference between the parties was as to how the law set out in those cases should be applied and in particular whether it was appropriate to describe either MFP 364 or the alleged Certificate of Compliance upon which it had been partly based as flagrantly invalid.[73] I take it as settled law that, as Cooke J put it in A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at 4, in the passage I have already quoted above:Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluations; the discretionary nature of judicial remedies is taken into account.[74] Cooke J did not elaborate on what he meant by "flagrant invalidity". InMurray v Whakatane District Council [1999] 3 NZLR 276, Elias J held, at p 320:It is settled law that every unlawful administrative act, except perhaps in extreme cases of clear usurpation of power, is operative until set aside by a Court. Even where a decision is challenged by a plaintiff entitled to do so in appropriate legal proceedings, the Court is not compelled to set aside the decision: Smith v East Elloe Rural District Council [1956] AC 736 at p 769 per Lord Radcliffe; A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at p 4 per Cooke J. The validity of the decision is therefore a concept which is "relative" depending upon the court's willingness to grant relief in any particular situation": Wade and Forsythe,Administrative Law(7th ed, 1994) at p 341; Martin v Ryan [1990] 2 NZLR 209. The Court's wide discretion is emphasised by ss 4 and 5 of the Judicature Amendment Act 1972. It does not follow from the fact of the illegality in the decision making that the decision will be set aside or, if it is, that it will be set aside ab initio. Matters relevant to the determination of the Court as to the form of relief will include the gravity of the error and its effect upon the applicant, the inevitability of the same outcome or the futility of granting relief, and questions of delay and prejudice to third parties.[75] In that case, Elias J said that she was satisfied that the errors went to the heart of the process that had been undertaken in relation to a subdivision by the respondent Council. As a result, she held that the decisions were fundamentally flawed and should be set aside from the beginning. [76] In Martin v Ryan, Fisher J discussed at some length the concept of "flagrant invalidity". He was inclined to trace its origins to observations made by Lord Hailsham in London & Clydeside Estates Ltd v Aberdeen District Council [1979] 3 All ER 876, noting that the Lord Chancellor had referred (at p 883) to decisions that were so patently deficient that "the subject may safely ignore what has been done and treat it as having no legal consequences on himself". Because of that language, Fisher J wrote (at p 237) that the utility of "singling out a special category of 'flagrant' cases attracting the absolute theory of invalidity may in practice be verylimited – perhaps limited solely to the extra-legal decisions for those dealing with the practical consequences of deficient decisions and to situations of collateral challenge. As to the former, Lord Hailsham was clearly thinking of the parties rather than the Courts." [77] Fisher J also observed, at p237, that any such classification would lose its utility once the matter came before a Court on an application for judicial review. The question then would be whether or not the decision should be invalidated and depending on the decision reached, the original decision would be just as void "whether the defect had been marginal or flagrant". At pp 237-238, Fisher J posed the following question:Could one ever say in advance of judicial review that regardless of the ameliorating effects of any future appeal, disqualifying conduct by the applicant, the acquisition of property rights by innocent third parties, or events which might make any remedy futile or impracticable, a superior Court would be powerless to withhold a declaration of nullity?[78] Continuing, at p 238, he observed:To be irrevocably void ab initio, one would have to be able to confidently postulate at the time of the purported decision that the defects were so fundamental that regardless of such subsequent events, no Court acting according to recognised legal principles could ever in the exercise of its discretion withhold a remedy. That test might be very difficult to satisfy in practice. At all events, such a test would seem to provide the point of reconciliation between the 'retrospective invalidation' theory on the one hand and recognition of the absolute theory of invalidity for rare 'flagrant' cases on the other.[79] I accept that reasoning. Mr MacRae, of course, makes the point that the Regional Council sought declarations from this Court in 2002 which, had they been granted, would have determined whether or not the marine farming permit purportedly issued on 7 May 1998 was valid, and whether or not the Regional Council's letter of 29 April 1998 was a valid Certificate of Compliance. Ellen France J declined to make the declarations sought. So far as the validity of the coastal permit was concerned, as I read [97] of her judgment, she declined to issue the relevant declarations because the permit had been issued by the Ministry and had nothing to do with the Regional Council, and there had been "no substantive consideration given in the pleadings to the relevant provisions of the Fisheries Acts."I am not sure that I fully understand why those considerations were fatal to the grant of the declarations sought. However, in respect of the other two declarations, concerning the validity of the Certificate of Compliance, relief was declined on the merits in the exercise of Ellen France J's discretion. In all the circumstances, I agree with Mr MacRae that it is difficult to fit this case into the category of "flagrant invalidity" given that the High Court had been asked to grant declaratory relief, but declined to do so. [80] I accept Mr Cavanagh's argument that the Regional Council's letter of 29 April 1998 was insufficient, in form, to constitute a valid Certificate of Compliance under the Resource Management Act. In that respect, I respectfully disagree with the conclusion reached by Ellen France J. The text of the letter has earlier been set out. Under s 139(1) of the Resource Management Act, Certificates of Compliance may be issued where an activity could be lawfully carried out without a resource consent in respect of any particular location. Where that applies, local authorities are required, upon being requested to do so, to issue a certificate "that a particular proposal or activity complies with the plan in relation to that location." It seems plain that the letter's reference to "rule 48" was a reference to the proposed Regional Coastal Plan, not to the Operative Regional Coastal Plan. In so far as the latter was concerned, I was not advised in any detail as to the content of that plan, save for the fact that the Gazette Notice of 17 May 1983 had become a deemed Regional Coastal Plan with the coming into force of the Resource Management Act, in October 1991. Under the terms of the Gazette notice, the area of the marine farm was not available for leasing or licensing under the Marine Farming Act 1971. Ellen France J accepted that, at the relevant time, the proposed Regional Coastal Plan was not operative and s 19 of the Resource Management Act did not apply. Since the CMFA did not have any existing use rights, Ellen France J concluded that the use of the site for mussel farming was unlawful and no Certificate of Compliance could validly issue for that reason. [81] With respect, I do not see how one can move from those conclusions to a further conclusion that the Regional Council's letter of 29 April 1998 was a proper Certificate of Compliance. Crucially, it did not deal with the position under the Operative Plan. Although s 139(3) of the Resource Management Act sets out aparticular rule that applies where a proposed plan has been notified, its provisions are in addition to, and not in substitution for those set out in s 139(1). The content of a Certificate of Compliance is governed by subs (1) and also subs (4). Both are to the same effect. But they relate to an operative plan, and I consider it is clear that the Regional Council's letter of 29 April 1998 did not do so. [82] My agreement with Mr Cavanagh's argument to that effect, however, does not materially assist his argument based on flagrant invalidity. Notwithstanding her different view on the adequacy of the terms of the Regional Council's 29 April 1998 letter for the purposes of s 139 of the Resource Management Act, Ellen France J had already expressed the view that no certificate could validly issue. Thus, she had already arrived at the point that the necessary substratum for the issue of the marine farming permit under s 67J(2) of the Fisheries Act did not exist. Yet she declined to make declarations as to the validity of either the Certificate of Compliance or the marine farming permit. In the result, it would be difficult for this Court, five years later, to reach the view that the certificate and permit were flagrantly invalid. [83] There are other considerations which lead to the same result. First, it is plain that the parties themselves have treated the marine farming permit as effectively in force. That, of course, is true of CMFA and its members who have relied on the permit to conduct their activities in the area which it covers. But in addition, as Mr MacRae pointed out, the Regional Council has made specific provision for the site in the proposed Regional Coastal Plan, and Mr and Mrs James have engaged with that provision in the submission and reference process under the Resource Management Act. [84] The situation in the present proceeding is, of course, not that any party opposed to the continuance of the CMFA's activities has sought a declaration or made an application for review designed to quash the permit or the certificate of compliance. Had there been such a proceeding on foot, it would have been relevant to consider, at this point in time, how various issues relevant to the exercise of the Court's discretion stood. The position of individual members of the association who have acted in reliance on the permit would obviously have had to be explored. So too would their ability to relocate elsewhere in the Coromandel region. However,the nature of the present proceeding is not one which requires consideration of matters that might be relevant to the exercise of the Court's discretion if it was being asked to make a decision quashing the Certificate of Compliance or the permit. [85] Here, the question raised is whether the permit is, and has been since 1 January 2005, a deemed coastal permit under the Resource Management Act 1991 in accordance with s 20(2) of the Aquaculture Reform (Repeals and Transitional Provisions) Act. Under that question lie the two "qualifying" factors, i.e. whether the permit was granted under s 67J of the Fisheries Act 1983, and whether it was in force on 31 December 2004. I do not think that there is any doubt that the permit was granted under s 67J of the principal Act, albeit that it was improperly granted in the circumstances that have been recounted. [86] Leaving on one side for the moment the argument that was addressed by Mr Jeremy Brabant based on the terms of the permit, applying the Court of Appeal's decision in A J Burr Ltd v Blenheim Borough Council I favour the view that because there had been no order setting it aside, the marine farming permit was "in force" as at 31 December 2004. There is considerable room for doubt as to whether Parliament would have consciously intended, in passing s 20 of the Aquaculture Reform (Repeals and Transitional Provisions) Act effectively to validate improperly granted marine farming permits. However, the words "in force", used in s 20(1)(b) can in context only be construed as meaning "having legal force and effect". The relative theory of invalidity in administrative law would treat the present permit as being in force (subject to what I am about to say) and the result of that would be that s 20(2) then applied. The marine farming permit would be deemed to be a coastal permit granted under the Resource Management Act. [87] It is at this point, however, that Mr Jeremy Brabant's argument must be confronted. It does not depend upon the application of general principles of administrative law. Rather, it rests on the wording of the permit itself. As has been seen from the terms of condition 2 which have earlier been set out, CMFA was obliged to obtain and keep in full force and effect any resource consent required by any enactment, or by any regional coastal plan, during the period of the permit. Further, the permit was to be void and of no effect if any such required consent wasnot granted, expired, was surrendered, or was otherwise terminated. Section 87 of the Resource Management Act provides for various kinds of resource consent. Relevant here are coastal permits, referred to in subs(87)(c) as consents:to do something in a coastal marine area that otherwise would contravene any of ss 12, 14, 15, 15A, and 15B (in this Act called a coastal permit).[88] The various prohibitions set out in ss 12, 14, 15, 15A and 15B of the Act can only be avoided where there is the express authority of a rule in a regional coastal plan or proposed regional coastal plan, for a resource consent, unless s 20A applies (or prior to 1 August 2003, s 20). Section 20A deals with existing use rights in the context of proposed regional plans (as did its predecessor) and no party suggested that it was relevant here. [89] Condition 2 made no reference to certificates of compliance. It is on such a certificate, wrongly issued in the circumstances that have been discussed, that CMFA relied. Normally, of course, a Certificate of Compliance would not be issued unless a particular proposal or activity complied with the relevant plan. Any omission to refer to a Certificate of Compliance in condition 2 of the marine farming permit cannot be regarded as a shortcoming; rather, the wording of the condition went straight to the point, that is to say, it required there to be a resource consent if one was required by any enactment, or the regional plan itself. [90] Mr Brabant maintains that the Regional Coastal Plan did not allow the activity, and a resource consent was therefore required. Such a resource consent was never obtained. The permit was therefore void, under its own terms. Where, as in this case, the permit itself spells out the consequences of its requirement not being met, no Court order setting aside the permit is required. Putting the matter another way, if the terms of the consent from the outset are limited by the requirement that any necessary resource consent be obtained and that, in default of that, the permit is expressed, in its own terms, to be "void and of no effect", it cannot be said that there is a latent defect which needs to be the subject of a Court order setting aside the permit.[91] Mr Brabant did not refer to s 139(6) of the Resource Management Act. That subsection provides:Subject to ss 10, 10A and 20A(2), a certificate of compliance shall be deemed to be an appropriate resource consent issued subject to any conditions specified in the plan, and the provisions of this Act shall apply accordingly .[92] Mr MacRae objected to Mr Brabant's reasoning on the basis that there was a Certificate of Compliance in the present case which would be deemed to be an appropriate resource consent, inter alia for the purposes of condition 2 of the marine farming permit. However, Ellen France J held that no Certificate of Compliance could have validly issued and I have earlier held that the Regional Council's letter of 29 April 1998 was not in form a valid certificate. [93] In this context, I do not consider that CMFA can necessarily rely on the latent nature of the invalidity of the certificate of compliance. The question raised by the wording of condition 2 of MFP 364 is whether any necessary resource consents have been obtained, and if they have not been the permit becomes void and of no effect. Here, the purported certificate related to "marine farming" and was apparently confined to the provisions of the proposed Regional Coastal Plan. It made no mention of the operative (transitional) Regional Coastal Plan. I do not consider that s 139(6) of the Resource Management Act can have the effect of deeming a resource consent to have been issued in relation to conformity with a plan which has not been mentioned in the certificate itself. [94] One of the principal reasons for the certificate of compliance provisions in the Resource Management Act is to give the successful applicant for a certificate a period of certainty during which there will be protection from the effects of subsequent changes to the plan. The holder of the certificate is put in the same position as the holder of a resource consent under such provisions as s 125 (the lapsing of consents). The result of s 139(6) is also to give the holder of the certificate the benefit of s 134 (land use and subdivision consents attached to land) and ss 135-137 (the transferability of consents). But the fact that s 139(6) deems a certificate of compliance to be an appropriate resource consent does not have the consequence that the resource consent that is deemed to have come into existencecan be a consent under an operative plan which is not mentioned in the certificate. Such an outcome would be without merit, indeed absurd. [95] Here, the purported certificate of compliance did not in its terms cover the position under the operative Regional Coastal Plan, and whatever its deemed effect is, it cannot have obviated the need to obtain any necessary resource consents under that operative plan. [96] These considerations then give rise to the issue of whether or not a resource consent had in fact been required to authorise any of the activities of CMFA when the purported certificate of compliance was issued on 29 April 1998. That is because condition 2 of MFP 364 turned on the obtaining of any required resource consents. If a resource consent were not necessary, then the condition would not have the consequences on which Mr Brabant relies. [97] It will be recalled that Mr Gilbert James, CMFA's chairman had deposed that since the early 1980s CMFA and its members had used the area in question for green shell mussel spat catching, spat holding and oyster purification activities. At the hearing in this Court Mr MacRae had submitted that no resource consent had been required for the activities carried out by the CMFA and its members. [98] I have earlier referred to the lack of detail before the Court about the content of the operative Regional Coastal Plan at the relevant time. On this issue I called for further submissions after the conclusion of the hearing. Mr MacRae in his submissions maintained that Ellen France J had not determined that the operative Regional Coastal Plan precluded spat catching, "spat nursery" and oyster purification activities. I assume that he used the expression "spat nursery" to embrace the activities referred to by Mr James as "spat holding". He argued then that under the terms of the Gazette Notice (constituting the operative (transitional) Regional Coastal Plan), those activities were authorised. [99] The actual Gazette Notice was not submitted in evidence for the purposes of the hearing, but has been provided by counsel for CMFA in response to my request for further submissions. It is very brief. After referring to the area to which itrelates, it records the determination of the Minister of Agriculture and Fisheries that the area:.. shall not be available for leasing or licensing under the Act [in context the reference is to the Marine Farming Act 1971] except those outlined in red etc.[100] Ellen France J held, and indeed it is common ground, that the area to which MFP 364 relates is within the area stipulated by the Gazette Notice to be not available for leasing or licensing under the Act. Because the Gazette Notice was a determination under the relevant provisions of the Marine Farming Act, a Regional Coastal Plan was deemed to be constituted for the region under s 370(1) in the transitional provisions of the Resource Management Act. The Gazette Notice was deemed by s 371(2) to be a regional rule "having the effect of making marine farming within the meaning of the Marine Farming Act 1971 a prohibited activity in any areas specified in that determination". [101] Mr MacRae pointed out that Ellen France J had referred to evidence given by Mr Gilbert James in the proceeding before her that some mussels had been grown "in the early years" in the disputed area. Further, the Regional Council's letter of 29 April 1998 had referred to "marine farming", a matter to which Ellen France J had referred at [94] of her judgment. However, he contended that the words "marine farming" in the letter should not be accorded their statutory meaning in terms of the Marine Farming Act 1971. Rather, the term had simply been used as a convenient general phrase to incorporate the activities for which the site was in fact being used at the time. [102] Mr MacRae argued that the activities of CMFA and its members were not "marine farming" and so not caught by the prohibition derived from the Gazette Notice. He also contended that it was "clear on the face" of the Gazette Notice that spat catching, spat nursery and oyster purification were permitted activities in the area of MFP 364. [103] In relation to the first of those propositions, Mr MacRae relied on the decision of the Planning Tribunal in Southern Scallop Fishery Quota Holders v Tasman District Council and Kiwi Marine Farms Ltd (Decision W 24/94, 15 June1994). In that case, there was a Gazette Notice constituting an operative (transitional) Regional Plan using similar (but not identical language) to that employed in the Gazette Notice which is relevant in this case. There, the Gazette Notice provided that a defined area should "not be available for marine farm leasing or licensing under the Act". The Planning Tribunal held that at first sight the Gazette Notice constituted a prohibition on spat catching. It then referred to the definition of "farming" in the Marine Farming Act 1971, noting that the definition referred to the "breeding, cultivating and rearing of any fish". Although the Court conceded that it could be argued that spat catching and the growing of spat in a spat catching environment was the start of a "rearing programme", it indicated its preference for regarding those activities as "obtaining seed preliminary to a type of sowing akin to a land cropping regime whereby the farmer buys seed and sows it and from that point the crop is reared to harvest". [104] The Planning Tribunal then made reference to s 14E of the Marine Farming Act, which it held recognised that spat catching is not in fact marine farming, because it "deems it to be so for certain purposes". [105] The latter was presumably a reference to s 14E(5) of the Marine Farming Act. Rather than being a deeming provision of the kind referred to by the Planning Tribunal, it seems to me that that subsection simply reflected the fact that in s 14E a special regime had been established for spat catching areas yet it was desired to apply provisions of the Act, applicable to marine farms generally, to the new spat catching areas. Consequently, the drafting technique was adopted of applying other provisions of the Act to spat catching areas as if, amongst other things, the catching of spat by the holder of a permit issued under the section was marine farming. I consider that this drafting approach did not really have the implications on which the Planning Tribunal purported to rely. [106] However, it is interesting to note that in s 14E, "spat" was defined as the "young or fry or spawn of any fish". According to the Oxford English Dictionary, "spat" means the "spawn of oysters or other shell-fish". It gives as the definition of spawn the "minute eggs of fishes and various other oviparous animals" and also "the young brood hatched from such eggs, while still at an early stage ofdevelopment". The dictionary defines "fry" as being "the roe of a female fish or young fishes just produced from the spawn". Section 14E's wide definition of "spat" to include the fry or spawn of any fish obviously means that "spat" embraces a wider range of species than the ordinary usage of the word given by the Oxford English Dictionary. [107] Be all that as it may, it seems to me that, of the CMFA's activities, at the very least the "spat holding" or "spat nursery" as Mr MacRae put it, falls reasonably naturally within the definition of "farming" in s 2 of the Marine Farming Act which so far as is relevant gives as the meaning of the word in relation to any species of fish, "the breeding, cultivating, and rearing of any such fish". [108] It is also worth recalling at this point that the application for the permit subsequently issued as MFP 364 described the activities to be carried out as "farming by suspended culture, ropes and trays from Japanese long-lines" and gave, as "species to be farmed" mussels and oysters. As already noted, the permit when issued authorised udertaking the activity of marine farming as defined under the Fisheries Act 1983. Under that Act, by virtue of an amendment inserted in 1993, there was a wide definition of marine farming which included the activity of "breeding, hatching, cultivating, rearing, or on-growing of fish". MFP 364 was issued on 7 May 1998. [109] I reiterate my view that, at least the spat holding and oyster purification activities of CMFA fell within the definition of "farming" in the Marine Farming Act 1971. Since the activities were taking place outside the area permitted by the Gazette Notice, the activities were prohibited in accordance with s 371(2) of the Resource Management Act. But even if that conclusion were wrong, and it was supposed in CMFA's favour that the activities were not part of "marine farming", it would be incorrect, in my opinion to argue that the consequence of that was that CMFA's activities were permitted. [110] As I have noted above, Mr MacRae made a submission that it was clear on the face of the Gazette Notice that the activities were permitted. I simply do not accept that that is the case. There is nothing in the wording of the Notice itself thatcould have that effect. The map which accompanied the Gazette Notice referred to the area in question as "proposed spat catching nursery and purification area (if needed) not available for application". In my opinion those words would plainly be insufficient to make those activities permitted. [111] As both Mr Cavanagh and Mr Brabant have pointed out, under the Resource Management Act as it stood at the relevant time, in order for activities to be authorised in the coastal marine area, there must generally be either a rule in an operative (and any proposed) regional coastal plan or a resource consent, expresslyallowing the activity. Under s 12 of the Act that applied to both positive activities (including the erection of structures over the seabed (s 12(10(b)) and to mere occupation of the coastal marine area (s 12(2)(a)). Apart from the Gazette Notice, I have not been referred to any relevant provision of the operative transitional regional coastal plan which could have authorised CMFA's activities. It is to be noted that, insofar as r 48 of the proposed regional coastal plan was concerned (which rule was as I understand it not proceeded with in any event), the rule related to "mussel holding" and not the activities of CMFA as they are now described. In any event, s 12 of the Resource Management Act requires activities to be authorised by a rule in both an operative and proposed regional coastal plan and it is insufficient to assert that an activity was permitted by a proposed regional coastal plan only. I have already concluded that the Gazette Notice (i.e. the operative (transitional) Regional Coastal Plan) did not authorise them. CMFA's activities therefore required resource consent under s 12 of the Resource Management Act. [112] No resource consent was in fact obtained for CMFA's activities. Condition 2 is so worded that in the absence of the necessary resource consent, the marine farming permit never came into effect. It was certainly not in effect on 31 December 2004. [113] Consequently, I consider that the logic of Mr Brabant's argument is inescapable and CMFA is not entitled to the declaration which it seeks under the Declaratory Judgments Act 1908.[114] In case I am wrong in that conclusion, I record that, had I been in a position to decide that the marine farming permit was in force as at 31 December 2004, I would have granted the declaration sought. Whilst one has sympathy for the position of Mr and Mrs James, neither they nor any other party have taken any formal action to quash the marine farming permit notwithstanding being aware of arguments as to its invalidity for many years. Although there might be room for doubt as to whether Parliament intended, by the enactment of s 20 of the Aquaculture Reform (Repeals and Transitional Provisions) Act to deem marine farming permits to be coastal permits when they had been invalidly granted, the qualifying considerations (whether they had been granted, and whether they were in force immediately before the commencement of the Act) were expressed in clear language, able to be applied in a straightforward way. [115] However, because of the conclusion that I have reached, it is not necessary to prolong the discussion of this point.The CMFA appeal[116] The CMFA's appeal from the Environment Court's decision essentially raises three questions of law, all of which are interrelated. The questions raised are whether the Environment Court erred in law, first, by failing to make a substantive finding as to whether the marine farming permit is a deemed coastal permit under the Resource Management Act. The second question is whether the Environment Court applied a wrong legal test when it held that the validity of the Certificate of Compliance was determinative of the validity of the coastal permit. The third issue is whether the Court erred in exercising its discretion by failing to take into account matters which were relevant, in particular the fact that the marine farming permit was in force immediately before the commencement of the Aquaculture Reform (Repeals and Transitional Provisions) Act. [117] In view of the conclusions that I have already expressed in the context of the application for a declaratory judgment, it is not necessary for the appeal to be dealt with at any length. I accept, as Mr MacRae argued, that the Environment Court did not in fact make a substantive finding as to whether or not the marine farming permitwas a deemed coastal permit under the Resource Management Act. However, I have reached the view that the marine farming permit was not in force, at the relevant time, because of the consequences of condition 2. [118] As to the Certificate of Compliance, Mr MacRae argued that the Environment Court had been wrong to proceed on the basis that the validity of the Certificate of Compliance was determinative of the validity of the marine farming permit. He argued that the Certificate of Compliance was in force and effect at the time that the marine farming permit was issued in May 1998, and it remains in effect to this day because it has not been set aside by a Court of competent jurisdiction. [119] That part of Mr MacRae's argument depends upon this Court reaching a conclusion that the Regional Council's letter of 29 April 1998 was a Certificate of Compliance. Although Ellen France J declined in her discretion to grant a declaration that it was invalid, I have earlier held that I do not consider that it was a Certificate of Compliance, being defective in form. In particular, it did not relate to the operative regional coastal plan. [120] Mr MacRae argued in this part of the appeal that in any event the Certificate of Compliance is irrelevant to the status of the marine farming permit as a deemed coastal permit under s 20 of the Aquaculture Reform (Repeals and Transitional Provisions) Act. I understand his argument to be that that Act simply refers to the marine farming permit, and not to whatever may have led to its issue. That argument is, of course, correct so far as it goes. However, it does not overcome the difficulty that arises from my conclusion that the marine farming permit was not in force at the relevant time. [121] The last alleged error of law fails on the same ground. It follows that the CMFA's appeal must be dismissed.The AYBA appeal[122] The AYBA's appeal was argued by Mr Richard Brabant. Its focus was the Environment Court's decision to amend the proposed regional coastal plan bymodifying rule 16.5.3 so as to require the proprietors of the marine farming permit to apply for discretionary activity consent on standards and terms set out in the modified rule and described in [121] and [122] of the decision. [123] The principal argument raised on the appeal was an allegation that the Environment Court had not had jurisdiction to grant the relief that it purported to do on the James's reference. That argument was based in part upon the pattern of the other provisions in the variation by which the aquaculture provisions in the proposed regional coastal plan are being advanced. Secondly, it was based upon the terms of the relief that the James had sought in their reference. [124] As to the former, Mr Brabant pointed out that the structure of the provisions in the variation involved establishment of a zoned area or "Aquaculture Management Area" (AMA) for new aquaculture activities, coupled with a prohibition on marine farming outside the AMA other than for prescribed special purposes (not relevant here). Existing lawfully established marine farms are able to continue occupying the coastal marine area, in the locations shown on maps in Appendix III of the proposed Regional Coastal Plan, and in reliance on existing authorisations specified for the existing marine farms in the Schedule. That provision applies until the date on which the existing consent or licence expires. At that point, a discretionary consent is required should the marine farmer wish to continue aquaculture activities in the same location. The other option is to relocate into an AMA where space might be available and the consent has a longer period to run. [125] Mr Brabant submitted that if, as appeared to be the Environment Court's conclusion, the marine farm subject to MFP 364 has no lawful consent or authority to be in its present location, then it must be removed from the schedule and map, and thereby lose its status as an existing marine farm. In that eventuality, the provision enabling a discretionary consent to be sought on expiry of the existing consent would be irrelevant. By providing for a new discretionary activity rule specific only to this particular marine farm, the Court had in effect created an entirely new provision where none had been requested by any appellant. Mr Brabant argued that there was no appeal before the Court on which it would have been able to found the creation of the new rule and the Court had no jurisdiction to do so.[126] The relief sought by Mr and Mrs James has already been discussed. In summary, it was removal of provision for the marine farm in question from the proposed regional coastal plan. Mr Brabant pointed out that the Court itself had not given any explanation of its jurisdiction to make the decision that it did. [127] In reply, Mr MacRae relied on the Environment Court's decision in Tasman Agriculture Ltd v Waitaki District Council (C113/03,12 August 2003), at [11], where it was said:The scope of the Minister's reference is extremely broad as it seeks the deletion of the rule in its entirety. It would normally be the case that any relief that falls on the continuum between that outcome and the status quo represented by the plan as proposed would be within the scope and thus within the Court's jurisdiction.[128] Here, the James had sought deletion of the references to MFP 364 in the Schedule and planning maps so that no provision would be made for this site in the proposed Regional Coastal Plan. That would mean that there would be no lawful basis for the structures to remain and they would have to be removed. [129] Mr MacRae argued that an alternative outcome would have been for the Court to have made provision for the marine farm in the same way as for other marine farms in the coastal marine area, namely by recognising the existing structures until the marine farming permit expired. I observe, however, that the Court could hardly have taken that step, which would have been to treat the farm as lawfully established, when it was of the view that it had not been lawfully established. [130] Nevertheless, Mr MacRae argued that the Court had in fact chosen a middle path. It had granted the marine farm interim recognition pending the outcome of a future application for a coastal permit. The result was to confer on CMFA more rights than it would have received had the James's appeal been allowed in its terms, but less than it would have received had full provision been made for the marine farm in the proposed plan. [131] The powers of the Environment Court in dealing with a reference are the same as those of the Council when dealing with submissions on a proposed plan(Resource Management Act, s 290(1)). It is in the exercise of those powers, that the Court may amend or cancel a decision to which an appeal relates (s 290(2)). The Council's relevant powers are set out in Part 1 of Schedule 1 of the Act. In broad terms, councils are empowered to accept or reject submissions and to make consequential alterations to the plan in accordance with those decisions (see clause 10). It is accepted, however, that both councils at first instance, and the Environment Court on an appeal, are not bound by the precise terms of the relief that has been requested and may grant relief which is within the overall scope of relief which has been sought in a submission or reference as the case may be. [132] In the present case, the Court clearly thought that it was granting, at least in part, the relief that had been sought by Mr and Mrs James. Under the proposed plan provisions following the decision of the Council on the James's submission, CMFA would have been able to carry on its activities within the scheduled area down to the expiry of the current licence. On the face of it, to require the activities to undergo a discretionary activity consent at this stage reflected a tension between the Court's evident doubts about the lawfulness of the existing structures and its view, expressed straightforwardly at [119], that to grant the relief sought by Mr and Mrs James would have been "too draconian and final". It can also be said that, by contemplating that the marine farming structures should be removed if the discretionary activity application were unsuccessful (Standard and Term vii, in [122] of the Environment Court's decision), the Environment Court may be seen to have gone some way to granting the James the relief that they sought. [133] However, as Mr Brabant pointed out, the issue has to be looked at in the context that, unless entitled to the benefit of a current consent, MFP 364 should not be mentioned in the schedule of current marine farms in the appendix to the proposed Regional Coastal Plan. It is only lawful activities which are so scheduled. In that context, it seems to me that the various provisions proposed for the marine farm by the Environment Court's decision cannot fairly be described as a partial grant of the relief sought by Mr and Mrs James. What the Court has done in effect is to create a new and one-off provision applicable only to the subject marine farm. It offers a vehicle by which the marine farm might obtain appropriate resource consents. Whatever the reasonableness of that response by the Court, it is, in myview, not possible to describe it as an outcome within the relief sought by Mr and Mrs James. [134] For that reason, I would allow AYBA's appeal. I note at this point that the relief sought in the appeal was that the amendments made by the Court to rule 16.5.3 of the proposed regional coastal plan be cancelled, or alternatively, that the matter be remitted back to the Environment Court with directions as to the scope of the Court's jurisdiction in terms of potential amendments to the variation. [135] The latter form of relief may reflect a point which Mr Brabant conceded during the course of argument. That is, that if the solution that had found favour with the Environment Court was not available to it in terms of the James's reference, it might be possible to reach the same outcome under s 293 of the Act. Mr MacRae went so far in argument as to suggest that the Court had in effect exercised that power even though it had rejected the CMFA's own application under s 293, and not referred to the section in disposing of the James's reference. I agree with Mr Brabant that there is no proper basis upon which this Court could conclude that the Environment Court had been purporting to exercise s 293 of the Act. This must especially be the case where the procedural steps contemplated by s 293 have not been carried out. [136] In the circumstances, an appropriate way of disposing of the present appeal would be to refer the matter back to the Environment Court for further proceedings in accordance with this judgment and, if the Court thinks it appropriate to do so, the consideration of exercise by it of its powers under s 293 of the Act. [137] Such a process also commends itself because of an issue that was raised by Mr Parker. While sympathetic to the course that the Environment Court took in its decision on the James's reference, Mr Parker agreed with Mr Brabant that the relief granted was outside the scope of the reference. He raised the additional difficulty that, although the Environment Court's decision established discretionary activity status for the marine farm structure, the area that it occupied would not be an AMA unless this Court decided that MFP 364 was in force and effect at 31 January 2004, with the result that the permit would be a deemed coastal permit. In other words, therelief that the Environment Court purported to grant did not go far enough and, under the terms of the proposed change as they now stand, having regard to the decision which I have earlier reached on CMFA's application for declaration and its appeal, the marine farm could not lawfully be implemented. Further, the new Standard and Term [vii], proposed in [122], which would authorise the continued occupation of the area pending a decision on the resource consent application and the determination of any appeals, would, in the circumstances, be contrary to s 12A of the Resource Management Act. [138] It is fair to say that these difficulties reflect the decisions that I have felt able to make in this Court, and I intend no criticism of the Environment Court by mentioning them. Indeed, they were raised by Mr Parker in the same spirit, and with the intention of ensuring that a workable solution may be able to be reached.Result[139] For the reasons I have given, CMFA's application for a declaration under the Declaratory Judgments Act 1908 is dismissed. [140] CMFA's appeal under s 299 of the Resource Management Act is also dismissed. [141] AYBA's appeal under s 299 of the Resource Management Act is allowed. The Environment Court's decision on the James reference is set aside. The matter is remitted back to that Court for further proceedings in accordance with this judgment and, if thought appropriate, for the exercise by that Court of its powers under s 293 of the Act. [142] I reserve questions of costs. If costs are sought and cannot be agreed, I will receive memoranda within 21 days of the date of delivery of this judgment.