ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED v OTAGO REGIONAL COUNCIL [2019] NZHC 2278

ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED v OTAGO REGIONAL COUNCIL [2019]NZHC 2278 [11 September 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2018-412-000094[2019] NZHC 2278BETWEEN ENVIRONMENTAL DEFENCE SOCIETYINCORPORATEDAppellantAND OTAGO REGIONAL COUNCILRespondentPORT OTAGO LIMITED,ROYAL FOREST AND BIRDPROTECTION SOCIEITY OFNEW ZEALAND INCMARLBOROUGH DISTRICT COUNCILInterested PartiesHearing: 5 – 6 June 2019Appearances: D A Allan for AppellantA J Logan and T M Sefton for RespondentL A Andersen for Port Otago LimitedP D Anderson for Royal Forest and Bird Protection Society ofNew Zealand IncJ Maasen and B Mead for Marlborough District CouncilJudgment: 11 September 2019JUDGMENT OF GENDALL JThis judgment was delivered by me on 11 September 2019 at 3:30 p.m. pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 11 September 2019Table of ContentsPara NoIntroduction [1]Background [6]The Environment Court decision [18]The context [22]Policies 6 and 7 [26]Policy 9 [32]The Avoidance Polices – Policies, 11, 13, 15 and 16 [34]The relationship between the NZCPS Policies [38]The authorities – King Salmon and the Bay of Plenty Regional Council decision [44]King Salmon [46]The Supreme Court's correct approach to interpreting NZCPS Policies [58]Bay of Plenty Regional Council decision [61]The present appeal [70]Appeals under s 299 of the Act [70]First alleged error of law – is there a conflict? [76]The words used: no distinction between NZCPS Policy 9 and Policy 6 [95]Proposed resolution of the alleged conflict by recourse to NZCPSPolicy 7(1)(b)(ii)?[97]Second alleged error of law – failure to give effect to NZCPS [103]Assertion that adverse effects are to be avoided in "almost all"circumstances[106]Assertion that the Court may give some effect to the Avoidance Policieswithout giving full effect[108]Reference back to Part 2 of the Act to resolve perceived conflict? [109]Undertaking of s 32 of the Act analysis [110]Conclusion [113]Costs [117]Introduction[1] This is an appeal from a decision of the Environment Court issued on28 September 2018 and described as an "Interim Decision". The appeal is broughtpursuant to s 299 of the Resource Management Act 1991 (the Act).[2] At the heart of this appeal is a question as to what rules should be in a proposedplan governing the specific management of resources in the Otago region.[3] The Act in s 60 requires the respondent, the Otago Regional Council (theRegional Council), to have a Regional Policy Statement for the Otago Region. ARegional Policy Statement is an overview of the policies and methods required tomanage the natural and physical resources of that region.[4] The Act provides for a hierarchy of planning documents providing direction onhow use, development, and protection of resources can occur. As observed by theSupreme Court in Environmental Defence Society v New Zealand King SalmonCompany1 (King Salmon), the hierarchy of planning documents goes from the moregeneral to the more specific, with each level being required to "give effect to"(meaning to implement) those above it. Under the Act, a Regional Policy Statementmust give effect to the New Zealand Coastal Policy Statement (NZCPS).2[5] At issue in this appeal is how to provide for the ports in the Otago region in amanner which gives effect to the NZCPS. The answer lies in a broad reconciliation ofthe policies of the NZCPS.Background[6] The Regional Council prepared a Proposed Otago Regional Policy Statement(PORPS) which was publicly notified on 23 May 2015. Businesses, environmentalgroups and others made submissions on the PORPS. The Regional Council releaseda decision which specified the rules it was to adopt in October 2016.1 Environmental Defence Society v New Zealand King Salmon Company Ltd [2014] NZSC 38,[2014] 1 NZLR 593, (King Salmon).2 Resource Management Act 1991, s 62(3).[7] The contentious provision is in relation to the ports in Otago. This is Policy4.3.7 in the PORPS which provides:Policy 4.3.7 Recognising port activities at Port Chalmers and DunedinRecognise the functional needs of port activities at Port Chalmers andDunedin and manage their effects by:(a) ensuring that other activities in the coastal environment do notadversely affect port activities;(b) providing for the efficient and safe operation of these portsand effective connections with other transport modes;(c) providing for the development of those ports' capacity fornational and international shipping in and adjacent to existingport activities;(d) providing for those Ports by:(i) recognising their existing nature when identifyingoutstanding or significant areas in the coastalenvironment;(ii) having regard to the potential adverse effects on theenvironment when providing for maintenance ofshipping channels and renewal/replacement ofstructures as part of ongoing maintenance;(iii) considering the use of adaptive management as a toolto avoid adverse effects;(e) where the efficient and safe operation of port activities cannotbe provided for while achieving the policies under objective3.1 and 3.2 avoid, remedy or mitigate adverse effects asnecessary to protect the outstanding or significant nature ofthe area; and(f) otherwise managing effects by applying policy 4.3.4.[8] The appellant, the Environmental Defence Society Incorporated (EDS), and 24others appealed to the Environment Court the Regional Council's decision regardingthe PORPS. It said that the rules in the PORPS governing the established ports inOtago (one at Port Chalmers and one at Dunedin) failed to give effect to the NZCPS.In particular, this was with respect to what are known as the "Avoidance Policies" setout in the NZCPS.[9] The issue went to mediation run by the Environment Court in 2017. When thatdid not resolve the issues between the parties, it went to hearing in the EnvironmentCourt in 2018.[10] Before the Environment Court, EDS, the Regional Council and the RoyalForest and Bird Protection Society of New Zealand Inc (Forest and Bird) argued thatthe PORPS was in breach of the NZCPS. This argument, they said, was advanced inreliance on the statutory provisions in the Act, the directive nature of the "AvoidancePolicies" and particularly the interpretation and application of those policies by theSupreme Court in King Salmon.[11] In response, Port Otago Limited (Port Otago) argued that there was norequirement that the provisions of the POPRS required port activities in all cases toavoid the effects in the "Avoidance Policies". The Environment Court adopted thatview in its 28 September 2018 Interim Decision (the Interim Decision).3[12] The present appeal is from that Interim Decision. It is brought by EDS and theappeal is supported by Forest and Bird and the Regional Council.[13] The grounds for this appeal are that the Environment Court erred in failing togive effect to the NZCPS and misinterpreted the NZCPS in material ways.Consequently, it is said the policy for the Dunedin and Port Chalmers Ports formulatedby the Environment Court failed to give effect to the NZCPS and was unlawful. Inconsidering these issues, the question put to this Court is as follows:Must the provisions of a Regional Policy Statement like the PORPS requireport activities to:(a) Avoid adverse effects on the values/areas listed in the NZCPS;policy 11(a) regarding specified coastal biodiversity;policy 13(1)(a) regarding areas of outstanding coastal naturalcharacter;policy 15(a) regarding coastal outstanding natural landscapes;policy 16 regarding nationally significant surf breaks.3 Port Otago Ltd v Otago Regional Council [2018] NZEnvC 183.(together the Avoidance Policies)(b) Avoid significant adverse effects in terms of Policy 11(b) (regardingspecified coastal biodiversity) and other landscape and naturalcharacter values under Policies 13(1)(b) and 15(b) of NZCPS?[14] EDS in this appeal maintains the Interim Decision was in error and that in thecoastal environment the PORPS directly requires the avoidance of adverse effects onwhat are described as outstanding coastal sites. This, it says, is in order to "give effectto" the NZCPS as required by the Act. The only exception to that obligation it issuggested would arise if the NZCPS contained an equally directive provision thatwould enable activities that had such effects. EDS says that no such provision ispresent in the NZCPS with respect to the position of the Otago Ports. EDS, and theother parties that support this appeal, submit that it was the intention of Parliament inpassing the Act that it would establish environmental bottom lines or limits set at thepoint necessary to ensure the capacity of the environment to sustain itself. In thecoastal environment those limits, it is said, are set by the NZCPS, and, in particular inthe "Avoidance Policies". The interpretation put on all this by EDS is that theseAvoidance Policies require that the PORPS makes provision that Port Otago mustavoid adverse effects on the environment.[15] In response, both Port Otago and the Marlborough District Council (MDC),who oppose this appeal, contend that there is only a conflict where the provisionscannot be resolved without one taking precedence over the other. They say that is notthe case here. They seek to advance an interpretation of the Avoidance Policies thatthe Port can avoid those effects as far as practicable and otherwise remedy, mitigate,or use adaptive management to address those effects.[16] The essential issue for this court is to determine whether the PORPS complieswith the NZCPS. This issue, as I have noted, requires a broad reconciliation of theprovisions of each. Underlying this case is what is essentially a trade-off betweenbroad commercial interests involving development and the wellbeing of thecommunity on the one hand and preservation of the coastal environment on the other.[17] The competing issues are broadly encapsulated in submissions advancedbefore me on behalf of the EDS as follows:The environmental context for the question asked is the Otago Region, whichis endowed with habitats of indigenous coastal species such asOtago Harbour's seagrass beds which act as nursery grounds and its uniquestring of shell islands which provide seabird roosts; with unique naturalcharacter formed through volcanism; spectacular landscapes and naturalfeatures like Hayward Point; and four nationally significant surfbreaks; TheSpit, Karitane, Whareakeake, and Papatowai. At the same time the PortActivities undertaken at Port Chalmers and Port Otago are of regional if notnational importance due to their logistical function, economic benefits andemployment benefits.The Environment Court Decision[18] In its Interim Decision, the Environment Court reiterated that the "generalissue" here was "how to provide for ports under the Proposed Otago Regional PolicyStatement ... in a manner that gives effect to the New Zealand Coastal PolicyStatement".4[19] The Environment Court set out the port-specific policy proposed in the PORPSby Port Otago (the appellant in the Environment Court) which I have outlined at [7]above and which was used as the starting point of analysis.[20] The Court identified the points of contention as (d), (e) and (f) of Policy 4.3.7.Those points are usefully repeated:(d) providing for those Ports by:(i) recognising their existing nature when identifyingoutstanding or significant areas in the coastalenvironment;(ii) having regard to the potential adverse effects on theenvironment when providing for maintenance ofshipping channels and renewal/replacement ofstructures as part of ongoing maintenance;(iii) considering the use of adaptive management as a toolto avoid adverse effects;(e) where the efficient and safe operation of port activities cannotbe provided for while achieving the policies under objective3.1 and 3.2 avoid, remedy or mitigate adverse effects as4 Port Otago Ltd v Otago Regional Council, above n 3 at [1].necessary to protect the outstanding or significant nature ofthe area; and(f) otherwise managing effects by applying policy 4.3.4.[21] The key issue before the Environment Court was whether Policy 4.3.7 had torequire port activities to avoid adverse effects on Outstanding Coastal Sites. The EDSand Forest and Bird said (e) – with its options to "avoid, remedy or mitigate adverseeffects as necessary" – did not give effect to the avoidance provisions of the NZCPS,specifically Policies 11(a), 13(1), 15(a) and (b), and 16. It said those provisions wereframed in absolute terms and that the Environment Court's interpretation did not giveeffect to them.The context[22] Before outlining the scheme of the PORPS, the Environment Court set out thecontext of the appeal. It described the Otago Harbour, Port Otago and Port Dunedin,key habitats, potential high or outstanding natural landscapes, and the two proximate"nationally significant surf breaks". It outlined the activities undertaken in those portsand the resource consents recently granted to Port Otago which cover extension of theport and maintenance activities and gave some example scenarios.[23] The Court outlined four scenarios which Port Otago said would need to beprohibited if the Avoidance Policies were given effect to according to their terms. Theeffect, Port Otago submitted, would be that the Port might have to shut down. TheCourt accepted there were factual difficulties but acknowledged they proved usefulillustrations.[24] It went on to summarise the Act and Regional Policy Statement requirements.These included the requirement for the PORPS to "give effect to" the NZCPS whichthe Interim Decision recognised "is intended to constrain decision-makers". This isfollowed by a summary of the policy evaluation process required under ss 32 and32AA of the Act.[25] The Environment Court then went on to provide a summary of King Salmonincluding an outline of the relevant NZCPS policies. The Interim Decision sets out:(a) Policy 6 (Activities in the coastal environment),(b) Policy 7 (Strategic Planning),(c) Policy 9 (Ports),(d) Policy 11 (Indigenous biological diversity),(e) Policy 13 (Preservation of natural character),(f) Policy 15 (Natural features and natural landscapes),(g) Policy 16 (Surf breaks of national importance).Policies 6 and 7[26] The Environment Court set out Policies 6 and 7 and quoted Policy 15 toprovide a flavour of the policies requiring avoidance of adverse effects on particularcoastal values. Of Policy 6 it quoted certain parts:Policy 6 Activities in the coastal environment(1) In relation to the coastal environment:(a) recognise that the provision of infrastructure, thesupply and transport of energy including thegeneration and transmission of electricity, and theextraction of minerals are activities important to thesocial, economic and cultural well-being of peopleand communities;(b) consider the rate at which built development and theassociated public infrastructure should be enabled toprovide for the reasonably foreseeable needs ofpopulation growth without compromising the othervalues of the coastal environment;(j) where appropriate, buffer areas and sites ofsignificant indigenous biological diversity, or historicheritage value.(2) Additionally, in relation to the coastal marine area:(a) recognise potential contributions to the social,economic and cultural wellbeing of people andcommunities from use and development of the coastalmarine area, including the potential for renewablemarine energy to contribute to meeting the energyneeds of future generations:(b) recognise the need to maintain and enhance the publicopen space and recreation qualities and values of thecoastal marine area;(c) recognise that there are activities that have afunctional need to be located in the coastal marinearea, and provide for those activities in appropriateplaces;[27] The Environment Court described Policy 6 as directing local authorities toconsider the rate at which public infrastructure should be enabled withoutcompromising the other values of the coastal environment.[28] Policy 7 expands Policy 6 in scope. It stipulates that regional policy statements(and plans) should consider where, how and when to provide for "other activities" inthe coastal environment, and to determine areas where they reasonably could be placedand others where they might be inappropriate. It states:Policy 7 Strategic planning(1) In preparing regional policy statements, and plans:(a) consider where, how and when to provide for futureresidential, rural residential, settlement, urban developmentand other activities in the coastal environment at a regionaland district level, and:(b) identify areas of the coastal environment where particularactivities and forms of subdivision, use and development:(i) are inappropriate; and(ii) may be inappropriate without the consideration ofeffects through a resource consent application, noticeof requirement for designation or Schedule 1 of theAct process;and provide protection from inappropriate subdivision, use,and development in these areas through objectives, policiesand rules.(2) Identify in regional policy statements, and plans, coastal processes,resources or values that are under threat or at significant risk fromadverse cumulative effects. Include provisions in plans to managethese effects. Where practicable, in plans, set thresholds (includingzones, standards or targets), or specify acceptable limits to change, toassist in determining when activities causing adverse cumulativeeffects are to be avoided.[29] The Environment Court referred to statements of the Supreme Court inKing Salmon which addressed Policy 7:[54] Policy 7 is important because of its focus on strategic planning. Itrequires the relevant regional authority to look at its region as a wholein formulating a regional policy statement or plan. As part of thatoverall assessment, the regional authority must identify areas whereparticular forms of subdivision, use or development "are"inappropriate, or "may be" inappropriate without consideration ofeffects through resource consents or other processes, and must protectthem from inappropriate activities through objectives, policies andrules. Policy 7 also requires the regional authority to consider adversecumulative effects.[55] There are two points to be made about the use of "inappropriate" inpolicy 7. First, if "inappropriate", development is not permitted,although this does not necessarily rule out any development. Second,what is "inappropriate" is to be assessed against the nature of theparticular area under consideration in the context of the region as awhole.[30] The Environment Court noted that Policy 15(a) states in part that:To protect the natural features and natural landscapes (including seascapes) ofthe coastal environment from inappropriate subdivision, use, anddevelopment:(a) avoid adverse effects of activities on outstanding naturalfeatures and outstanding natural landscapes in the coastalenvironment; [31] The Court suggested that, while at first blush there is a conflict between suchpolicies, it quoted King Salmon which said:[129] When dealing with a plan change application, the decision-makermust first identify those policies that are relevant, paying carefulattention to the way in which they are expressed. Those expressed inmore directive terms will carry greater weight than those expressed inless directive terms. Moreover, it may be that a policy is stated in suchdirective terms that the decision-maker has no option but toimplement it. So, "avoid" is a stronger direction than "take accountof". That said however, we accept that there may be instances whereparticular policies in the NZCPS "pull in different directions". But weconsider that this is likely to occur infrequently, given the way that thevarious policies are expressed and the conclusions that can be drawnfrom those differences in wording. It may be that an apparent conflictbetween particular policies will dissolve if close attention is paid tothe way in which the policies are expressed.[130] Only if the conflict remains after this analysis has been undertaken isthere any justification for reaching a determination which has onepolicy prevailing over another. The area of conflict should be kept asnarrow as possible. The necessary analysis should be undertaken onthe basis of the NZCPS, albeit informed by s 5. As we have said, s 5should not be treated as the primary operative decision-makingprovision.Policy 9[32] The Environment Court said that essentially, Policies 6 and 7 provide fordevelopment in the coastal environment, and Avoidance Policies provide for generallimitations of inappropriate coastal development. However, the Court considered thiscase was different to the others as it pertained to ports, which were specifically dealtwith in Policy 9. That provision states the Regional Council must:(Policy 9 Ports)Recognise that a sustainable national transport system requires an efficientnational network of safe ports, servicing national and international shipping,with efficient connections with other transport modes, including by:(a) ensuring that development in the coastal environment doesnot adversely affect the efficient and safe operation of theseports, or their connections with other transport modes; and(b) considering where, how and when to provide in regionalpolicy statements and in plans for the efficient and safeoperation of these ports, the development of their capacity forshipping, and their connections with other transport modes.[33] The Environment Court then said the primary legal issue for its decision waswhether Policy 9 (Ports) was less deferential to the Avoidance Policies than Policy 8(the Aquaculture Policy relevant in King Salmon) or Policy 6 (the Infrastructure Policyin the later decision of this Court, Royal Forest and Bird Protection Society Inc v Bayof Plenty Regional Council5 (BOP Regional Council decision). The EnvironmentCourt held that:5 Royal Forest and Bird Protection Society Inc v Bay of Plenty Regional Council [2017] NZHC3080, (2017) 20 ELRNZ 564.(a) While much of the language of Policy 9 is discretionary or flexiblerather than prescriptive, a prescriptive verb – "requires" – is used toensure an efficient national network of safe ports. The core of Policy 9is strongly prescriptive even if there is some discretion as to where, howand when ports are to be located and developed.(b) Policy 9 contemplates not only the existing ports around New Zealandin their current state but also the potential development of new portsand the development and improvement of existing ports.(c) Policy 9(b) requires consideration of "where, how and when" toprovide for the safe and efficient operation of ports, the developmentof their capacity for shipping and their connections with other transportmodes. There is no discretion about "if" they must be put in place toensure New Zealand shipping services can continue. While Policy 9 ismore resolute than Policies 6 and 7 it is not wholly prescriptive. Newports need to be supplied but not in any particular place or at anyparticular time, and existing ports cannot necessarily expandindefinitely and whenever their operators want. All these are part ofthe questions "where, when and how?"The Avoidance Policies – Policies 11, 13, 15, and 16.[34] The Environment Court then went on to set out the Avoidance Policies. By wayof example, Policy 11 provides:Policy 11 Indigenous biological diversity (biodiversity)To protect indigenous biological diversity in the coastal environment:(a) avoid adverse effects of activities on:(i) indigenous taxa that are listed as threatened or at riskin the New Zealand Threat Classification Systemlists:(ii) taxa that are listed by the International Union forconservation of Nature and Natural Resources asthreatened;(iii) indigenous ecosystems and vegetation types that arethreatened in the coastal environment, or are naturallyrare;(iv) habitats of indigenous species where the species areat the limit of their natural range, or are naturally rare;(v) areas containing nationally significant examples ofindigenous community types; and(vi) areas set aside for full or partial protection ofindigenous biological diversity under otherlegislation; and(b) avoid significant adverse effects and avoid, remedy ormitigate other adverse effects of activities on:(i) areas of predominantly indigenous vegetation in thecoastal environment;(ii) habitats in the coastal environment that are importantduring the vulnerable life stages of indigenousspecies;(iii) indigenous ecosystems and habitats that are onlyfound in the coastal environment and are particularlyvulnerable to modification, including estuaries,lagoons, coastal wetlands, dunelands, intertidalzones, rocky reef systems, eelgrass and saltmarsh;(iv) habitats of indigenous species in the coastalenvironment that are important for recreational,commercial, traditional or cultural purposes;(v) habitats, including areas and routes, important tomigratory species; and(vi) ecological corridors, and areas important for linkingor maintaining biological values identified under thispolicy.[35] The Environment Court found that the strong avoidance thrust of Policy 11needs to be given full weight because it is a well-known fact that New Zealand'sindigenous biodiversity is generally declining.[36] A further example is Policy 16 which addresses surf breaks and states:Policy 16 Surf breaks of national significanceProtect the surf breaks of national significance for surfing listed in Schedule1, by:(a) ensuring that activities in the coastal environment do notadversely affect the surf breaks; and(b) avoiding adverse effects of other activities on access to, anduse and enjoyment of, the surf breaks.[37] As to Policy 16, the Environment Court considered that only sub-policy (a)relates to activities in the coastal environment (and their effects). Sub-policy (b) dealswith the effects of activities outside the coastal environment. The Court noted thatPolicy 16(a) used the phrase "do not adversely affect" the surf breaks. It consideredit notable that the usual formula of "avoid adverse effects" was not used here (but isin Policy 16(b)). The Court was of the view that the phrase "do not adversely affect"is deliberately used to allow some flexibility over the way it is to be applied given boththe complexity of the coastal marine area and the nature of human activities in thecoastal environment.The relationship between the NZCPS Policies[38] The Court also considered the decision of the High Court in the BOP RegionalCouncil decision.6 That case was not dissimilar to the present case. It was concernedwith policies in the NZCPS and certain objectives, policies and rules in a proposedregional plan relating to the provision of "regionally significant infrastructure". ThereWylie J held:7In King Salmon, the Supreme Court reconciled policies 8, 13 and 15 (policy 8recognises the contribution of aquaculture and provides for it to be recognisedin regional policy statements and plans in appropriate places). The majorityconsidered that policies 13 and 15 are in more directive terms, and that theycarry greater weight than policy 8 - which is in more [sic] prescriptive terms.The majority held that policy 8 does not permit aquaculture in areas where itwould adversely affect an outstanding natural landscape.It is difficult to see that policies 6 and 7, which provide for regionallysignificant infrastructure, are stronger or more directive than policy 8. Thereare differences in wording, but I doubt that those differences are sufficient tojustify a decision-maker reaching an outcome different from that reached bythe Supreme Court in relation to policy 8.As I have noted, the Environment Court's consideration of the NZCPS policieswas brief and incomplete. The Court concluded that policy 11 (a) is "notabsolute or binary" but it did not attempt to reconcile policy 11, or policies 136 The BOP Regional Council decision, above n 5.7 At [120]-[123].and 15, with those policies which recognise regionally significantinfrastructure and development in the coastal marine area.In my judgment, the Environment Court erred in approving policies and a rulethat do not give effect to the requirements set out in policies 11 (a), 13(1)(a)and 15(a).[39] The Environment Court endeavoured to suggest that the BOP RegionalCounsel decision was potentially in conflict with King Salmon. It noted that KingSalmon, as a decision of the Supreme Court, was authoritative but held that the presentcase could be distinguished on the basis of the direct application of Policy 9.[40] It reached the view that if the NZCPS Avoidance Policies are considered onlywith Policy 9, "then there appears to be a conflict". Its reasoning was that "Policy 9does not have the deferential qualification that the infrastructure policy (6(1)(b)) has(the phrase " without compromising the other values of the coastal environment")".[41] The Environment Court was of the view that it would be difficult to see thatPolicy 9 could be read as deferring to Policies 11 and 16 whenever there is aprobability of more than minimal adverse effects on the values protected by Policies11 and 16. Instead, it considered that Policy 7 could be used to identify areas wheredevelopment is appropriate and others where it is inappropriate.[42] Ultimately it said, when read as a whole, the NZCPS contemplates that adverseeffects of port structures on certain landscapes or ecosystems are to be avoided inalmost all circumstances but not in all. It concluded "we consider provision should bemade in Policy 4.3.7(e) [in the PORPS] for port activities for safety and transportefficiency to be able to override the policy for surf breaks"[43] The Environment Court concluded that there should be an "extension" toproposed Policy 4.3.7 in the PORPS to give effect to Policy 9 NZCPS. It said that itwould be useful if the Policy was to give guidance as to the "different standards" thatmight be expected of port activities in relation to different resources (where theseriousness of the potential for adverse effects increases from surf breaks, to naturalcharacter and to biodiversity). The Court concluded that Policy 4.3.7 need not requireport activities to avoid adverse effects on Outstanding Coastal Sites, and suggested areformulation of Policy 4.3.7 (Port Activities) from (d) onward to that effect:(d) if any of the policies under objective 3.2 cannot be implemented whileproviding for the safe and efficient operation of Port Otago activitiesthen apply policy 4.3.4 which relates to naturally and regionallysignificant infrastructure and prevails (in certain circumstances) overobjective 3.2;(e) if in turn (d) cannot be achieved because the operation or developmentof Port Otago may cause adverse effects on the values that contributeto the significant or outstanding character identified in policy4.3.4(1)(a)(i) to (iii) then, through a resource consent process, requireconsideration of those effects and whether they are caused by safetyconsiderations which are paramount or by transport efficiencyconsiderations and avoiding, remedying or mitigating the effects(through adaptive management or otherwise) accordingly;(f) in respect of naturally significant surf breaks to avoid, remedy ormitigate the adverse effects of port activities.The authorities – King Salmon and the BOP Regional Council decision[44] The question at issue here is not a new one. EDS, the Regional Council andForest and Bird contend that the question has been answered by the Supreme Court inthe context of aquaculture in King Salmon8 and subsequently by the High Court inrelation to regionally significant infrastructure in the BOP Regional Council decision.9[45] In these decisions the Supreme Court and the High Court respectively foundthat the specific and unqualified Avoidance Policies in the NZCPS prevailed over itsless directive provisions, those less directive provisions being relevantly Policy 8(Aquaculture) and Policy 6 (Activities in the coastal environment). Accordingly, boththose last-mentioned activities, it was said, must avoid adverse effects on outstandingcoastal sites. In the present case, the words used in NZCPS Policy 9 (Ports), being thepolicy that is to be reconciled with the Avoidance Policies in this case, it is suggestedare analogous to those of Policies 8 and 6.King Salmon[46] At issue in King Salmon was a proposed change to the Marlborough SoundsResource Management Plan. The proposal was to change salmon farming from aprohibited activity to a discretionary activity in eight locations. A Board of Inquiry8 King Salmon, above n 1.9 The BOP Regional Council decision, above n 5.was established which considered the NZCPS and also Part 2 of the Act. It made anassessment of Policy 8 (aquaculture) and compared it to Policies 13 and 15. The Boardconsidered that these policies conflicted, and that it was therefore required to balancetheir requirements and make a broad overall judgment.[47] The Board found that there would be adverse effects on areas with outstandingnatural attributes, but nonetheless decided to grant the application for a plan change inrespect of four of the sites, and to grant the resource consents sought for the same foursites, subject to conditions. The Environmental Defence Society and others appealed.The appeal was unsuccessful in the High Court.10 The appeal then went directly to theSupreme Court.11[48] The majority in the Supreme Court allowed the appeal. The Court held thatthe Act provides for a hierarchy of planning documents providing direction on howthe use, development and protection of resources can occur. The hierarchy of theseplanning documents goes from the more general to the more specific with each levelbeing required to "give effect to" those above it. The Supreme Court held that to "giveeffect to" means to implement. It is a strong directive creating a firm obligation onthe part of those subject to it.12[49] The decision of the Supreme Court in King Salmon confirms that a council likethe Regional Council here is constrained in preparation of its PORPS by therequirement to give effect to the NZCPS in its Policy Statement. The Court said theNZCPS gives substance to the provisions in Part 2 (i.e. the purpose and principles) ofthe Act in relation to the coastal environment.13 Therefore, by giving effect to theNZCPS, in principle a regional council is necessarily acting "in accordance" withPart 2 of the Act and there is no need to refer back to that part when determining aplan change.1410 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2013] NZHC 1992,[2013] NZRMA 371.11 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 1.12 At [77].13 At [85].14 At [85].[50] In doing so, the Supreme Court rejected the "overall broad judgment" approachto interpreting and giving effect to the NZCPS's objectives and policies, which hadcommonly been applied prior to its judgment in King Salmon. Instead, it held that theNZCPS objectives and policies are not merely "a listing of potentially relevantconsiderations, which will have varying weight in different fact situations". Ratherthe NZCPS "is a carefully expressed document" that "reflects particular choices" forcoastal management at a national level, and the difference between those choicesmatter:15[90] To illustrate, s5(2)(c) of the RMA talks about "avoiding, remedyingor mitigating any adverse effects of activities on the environment" ands 6(a) identifies "the preservation of the natural character of thecoastal environment (including the coastal marine area) and theprotection of [it] from inappropriate subdivision, use anddevelopment" as a matter of national importance to be recognised andprovided for. The NZCPS builds on those principles, particularly inpolicies 13 and 15. Those two policies provide a graduated scheme ofprotection and preservation based on the features of particular coastallocalities, requiring avoidance of adverse effects in outstanding areasbut allowing for avoidance, mitigation or remedying in others. Forthese reasons, it is difficult to see that resort to Part 2 is eithernecessary or helpful in order to interpret the policies, or the NZCPSmore generally, absent any allegation of invalidity, incompletecoverage or uncertainty of meaning. The notion that decision-makersare entitled to decline to implement aspects of the NZCPS if theyconsider that appropriate in the circumstances does not fit readily intothe hierarchical scheme of the RMA.(emphasis added)[51] The Court in King Salmon held that the proposed plan change would havesignificant adverse effects on an area of outstanding natural character, and that thedirections in Policies 13(1)(a) and 15(a) of the NZCPS would not be given effect to ifthe applications were to be granted. Sections 62(3), 67(3) and 75(3) of the Act requirethat a Regional Policy Statement, a regional plan and a district plan respectively mustgive effect to the NZCPS. The Supreme Court held that the Board in King Salmonhad failed to give effect to the NZCPS and the plan change therefore did not complywith s 67(3)(b) of the Act.15 At [127].[52] The significance of the PORPS in the present case is that, when rules aredeveloped for the coastal marine area in Otago, then those rules need to be inaccordance with the policies in the NZCPS. Implementation of the Avoidance Policesin the NZCPS inevitably results in rules creating prohibited activities that cannotobtain a resource consent unless the NZCPS itself allows less than absolutecompliance with the Avoidance Policies because of some conflict with another policyin the NZCPS. The Supreme Court noted in King Salmon that the requirements of theAct for regional and district planning documents like the PORPS to "give effect to"the NZCPS, "is a strong directive, creating a firm obligation on the part of thosesubject to it"16 It was "intended to constrain decision-makers"17 The Supreme Courtalso stated at [80]:There is a caveat however. The implementation of such a directive will beaffected by what it relates to, that is, what must be given effect to. Arequirement to give effect to a policy which is framed in a specific andunqualified way may, in a practical sense, be more prescriptive than arequirement to give effect to a policy which is worded at a higher level ofabstraction.[53] In some instances, a choice has been made in the NZCPS to allow regionalcouncils flexibility in implementing objectives and policies in lower order planningdocuments and in others it has not. A NZCPS policy may be so specific and directivethat it has "the effect of what in ordinary speech would be a rule". The statutoryframework confirms it is intended that the NZCPS can "contain policies that were notdiscretionary but would have to be implemented if relevant", and which are "bindingon decision-makers" The majority in the Supreme Court observed that policies13(1)(a) and (b) and 15(a) and (b) in the NZCPS are so directive that they "providesomething in the nature of a bottom line".18[54] On all of this, Port Otago responds here that it needs to ensure an activityrequired for safety or operational purposes at the two ports is not prohibited by a rule.Its position is that it would not have any difficulty with compliance with the AvoidancePolicies if minor breaches were permissible or potential adverse effects could beavoided or managed, as it contended in its submissions before the Environment Court.16 At [77].17 At [91].18 At [126] – [132].[55] That submission, however, does not fit easily with the decision in King Salmon.In that decision the Supreme Court confirms that Avoidance Policies will inevitablyresult in prohibited activities.19 The prohibition is not just of an activity that breachesthe Avoidance Policies but also of a potential breach. Most significantly such aprohibition does not allow the use of adaptive management whereby predicted effectsthat carry an element of risk are avoided or managed by having monitoring andchanging behaviour in accordance with that monitoring.[56] Port Otago has relied on this adaptive management process to manage inparticular its dredging of channels and harbour areas and the disposal of spoil at sea itsays to avoid or mitigate adverse effects in an uncertain and changing environment.[57] According to Port Otago, there is a difference in approach here adopted bythose supporting the appeal:(a) The EDS and the Regional Council claim there is no conflict despitethe planners before the Environment Court agreeing there was aconflict at the conference undertaken by that Court. According to PortOtago, the EDS and the Regional Council do not address the situationwhere the Avoidance Policies do not allow the safe and efficientoperation of the ports.(b) It is said that Forest and Bird accepts the conflict, but elevates theAvoidance Policies so that it is a requirement that the ports operatesafely and efficiently without breaching those policies, even if thatmeans, as Port Otago contends, that they might for a time be unable tooperate.The Supreme Court's correct approach to interpreting NZCPS Policies[58] In King Salmon the Supreme Court stated the correct approach when "givingeffect to" the NZCPS is to look at the language and how prescriptively or flexibly thewords are expressed.19 At [132].[59] In its decision, the Supreme Court said that the policies are "not inevitably inconflict or pulling in different directions". Apparent conflict between policies is likelyto dissolve "if close attention is paid to the way in which policies are expressed"20 TheSupreme Court concluded that the requirement to "avoid adverse effects ofinappropriate subdivision, use and development" on areas of outstanding naturalcharacter and on outstanding natural landscapes in NZCPS Policies 13 and 15 wasmore specific and directive than the requirements of NZCPS Policy 8 (aquaculture).As I have noted above, it found that "Policies 13(1)[a] and [b] and 15[a] and [b] do,in our view, provide something in the nature of a bottom line" which were "intendedto, and do, have binding effect".21[60] The Supreme Court added that the word "avoids" in NZCPS Policies 13 and15 is "strong, meaning 'not allow' or 'prevent the occurrence of'"22 So interpreted, itwas of the view that NZCPS Policies 8, 13, and 15 do not conflict. And the SupremeCourt said:23Policy 8 recognises the need for sufficient provision for salmon farming inareas suitable for salmon farming, but this is against the background thatsalmon farming cannot occur in one of the outstanding areas if it will have anadverse effect on the outstanding qualities of the area.BOP Regional Council decision[61] Recently, the Supreme Court's approach to interpreting and reconcilingNZCPS policies has been applied by the High Court in the BOP Regional Councildecision.24 This was in the context of determining the effects of a management regimeapplying to regionally significant infrastructure, including ports, in areas ofoutstanding natural character, outstanding natural landscapes, and areas with NZCPSPolicy ll(a) biodiversity values. It related to the Bay of Plenty Region's proposedRegional Coastal Plan. The relevant NZCPS policies here were Policies 6, 7, 11, 13,and 15.20 At [126] – [129].21 At [126] – [132].22 At [126].23 At [131].24 Above, n 5.[62] In his decision in the High Court, Wylie J considered whether the EnvironmentCourt had erred in its interpretation and implementation of the requirements of theNZCPS. This was in relation to confirming a policy framework that did not requireadverse effects of regionally significant infrastructure on areas of outstanding naturalcharacter and outstanding natural landscapes, to be avoided but rather allowed forthem to be avoided, remedied, or mitigated. The issue before the Court in that casewas broadly similar to the one at hand.[63] In this decision Wylie J started by examining the Act. His Honour summarisedthe relevant statutory provisions and considered the Supreme Court's decision. In thatcase, as here, the Environment Court had sought to limit the ratio of King Salmon tothe specific policies it discussed. Wylie J, however, held that:25While strictly obiter, all of the majority's observations which led to theconclusions I have set out are highly persuasive. They are observations madeby our highest Court, discussing some of the provisions and issues which aredirectly at issue in the present case. They cannot, in my judgment, be ignoredor glossed over."His Honour concluded that King Salmon could not be distinguished or dismissed asbeing of limited assistance.[64] Wylie J noted too that NZCPS is an instrument at the top of the planninghierarchy. As the Supreme Court had observed, it is a document which reflectsparticular choices, and the notion that decision-makers are entitled to decline toimplement aspects of the NZCPS if they consider that appropriate in the circumstances"does not fit readily into the hierarchical scheme of the [Act]".26[65] His Honour set out the provisions he considered relevant. He carefully wentthrough NZCPS Policies 6 and 7. He concluded that Policies 6 and 7:27are broadly about planning, providing for growth, and the associated provisionof infrastructure, in a sustainable and interpreted way. They are lessprescriptive policies.25 At [80].26 At [108].27 At [113].[66] He then stated that "In contrast, Policy 11 seeks to protect indigenousbiological diversity in parts of the coastal environment, by avoiding adverse effects..." and avoiding significant adverse effects in other areas.28 NZCPS Policies 13 and15 require avoidance of adverse effects on outstanding natural character areas andoutstanding natural landscapes. His Honour said:29[120] In King Salmon, the Supreme Court reconciled policies 8, 13 and 15(policy 8 recognises the contribution of aquaculture and provides forit to be recognised in regional policy statements and plans inappropriate places). The majority considered that policies 13 and 15are in more directive terms, and that they carry greater weight thanpolicy 8 – which is in more prescriptive terms. The majority held thatpolicy 8 does not permit aquaculture in areas where it would adverselyaffect an outstanding natural landscape.[121] It is difficult to see that policies 6 and 7, which provide for regionallysignificant infrastructure, are stronger or more directive than policy 8.There are differences in wording, but I doubt that those differencesare sufficient to justify a decision-maker reaching an outcomedifferent from that reached by the Supreme Court in relation to policy8.[122] As I have noted, the Environment Court's consideration of the NZCPSpolicies was brief and incomplete. The Court concluded that policy11(a) is "not absolute or binary" but it did not attempt to reconcilepolicy 11, or policies 13 and 15, with those policies which recogniseregionally significant infrastructure and development in the coastalmarine area.(citations omitted)[67] His Honour considered the same hierarchy and the direct language used hereapplied to NZCPS Policy 11 as they did to Policies 13 and 15. He considered thosePolicies were directive and noted the Supreme Court's comments that there is "nojustification for reading down or otherwise undermining the clear terms in which thosetwo policies have been expressed."30[68] His Honour held that the Supreme Court's approach to reconciling NZCPSPolicies 8, 13, and 15 should be applied. He said Policies 6 and 7 are no stronger or28 At [114].29 These passages were also quoted with some approval by Gordon J in this Court in the recentdecision of Auckland Council v Cabra Rural Developments Limited [2019] NZHC 1892 (theAuckland Council decision) which also adopted and followed King Salmon and the BOP RegionalCouncil decision.30 At [118] citing King Salmon at [146].more directive than Policy 8. There are differences in wording, but those differencesare not sufficient to justify a different outcome to that reached by the Supreme Court.[69] Wylie J concluded that the Environment Court had erred in its interpretationand implementation of the NZCPS, in adopting a "proportionate response" to givingeffect to the NZCPS (effectively adopting an overall broad judgment approach), andin "approving policies and a rule that do not give effect to the requirements set out inPolicies 11(a), 13(1)(a) and 15(a)".31The present appealAppeals under s 299 of the Act[70] Section 299 allows for appeals against interim decisions. The decision at issuehere is interim as the parties have been directed to redraft PORPS Policy 4.3.7 to"correct concerns expressed by the court over the versions put forward by the parties."Despite the interim status of the Environment court decision, it is appropriate that theappeal is brought at this time. The Interim Decision finally determines substantiveissues, as I see it, in a way that brings an appeal in that regard within the scope of s 299of the Act.[71] An appeal under s 299 is limited to questions of law. Both Port Otago andMDC argue that there is no error of law in the Environment Court's Interim Decisionthat would give rise to the current appeal. I disagree.[72] I am satisfied that in determining that avoidance of "adverse effects" was notrequired, the Environment Court failed to "give effect to" the NZCPS as required bys 62(3) of the Act. In this case, the Environment Court would have reached a legalfinding and not a factual one. This finding, arguably based on an incorrect legal test,materially affected the outcome and may have given rise to an error of law that canproperly be appealed to this Court. The Environment Court Interim Decision was notone reached simply by applying different weighting to the policies of the NZCPS.Rather, an issue arises here as to whether the Environment Court failed to properly31 At [123].implement the NZCPS in the Regional Council's PORPS contrary to the guidanceprovided by the Supreme Court in King Salmon. I am satisfied this constitutes an errorof law.[73] On a question of law like the present, this Court will interfere with decisionsof the Environment Court only if it considers that the Court:(a) applied a wrong legal test;(b) came to a conclusion without evidence or one to which on the evidence,it could not reasonably have come;(c) took into account matters which it should not have taken into account;or(d) failed to take into account matters which it should have taken intoaccount.[74] The first alleged error here is that the Environment Court erred in itsinterpretation of the NZCPS (in particular NZCPS Policies 6, 7, 8, 9, 11, 13, 15 and16), as a consequence of which it wrongly concluded that:(a) There is a "conflict" between NZCPS Policy 9 (Ports) and theAvoidance Policies.(b) The perceived conflict between NZCPS Policy 9 (Ports) and theAvoidance Policies can be resolved by recourse to "procedural"NZCPS Policy 7(1)(b)(ii) (Strategic planning).(c) The direction in NZCPS Policy 16(a) (Surf breaks) that activities "donot adversely affect" identified surf breaks of national significance isless directive than a requirement to avoid adverse effects.[75] The second alleged error is that as a consequence of the first error, theEnvironment Court failed to "give effect to" the NZCPS in the PORPS, as it is requiredto do pursuant to s62(3) RMA, including by:(a) Finding adverse effects on Outstanding Coastal Sites are to be avoidedin almost all circumstances but not all.(b) Finding that the proposed PORPS may give some effect to NZCPSPolicy 9 (Ports) without giving full effect to the Avoidance Policies.(c) Finding that reference back to Part 2 of the Act was required to resolvea perceived conflict between NZCPS Policy 9 (Ports) and theAvoidance Policies.(d) Undertaking a cost-benefit analysis under s 32 of the Act to decidewhether the PORPS must require adverse effects on OutstandingCoastal Sites to be avoided.(e) Recommending amendments to PORPS Policy 4.3.7 (Port Activities)to provide for adverse effects of port activities, in particular thoseassociated with safety and efficiency, on Outstanding Coastal Sites tobe avoided, remedied, or mitigated rather than simply to be avoided.First alleged error of law – is there a conflict?[76] At the outset, I note here, as did Wylie J in the BOP Regional Council decisionthat the NZCPS is an instrument at the top of the planning hierarchy.[77] As to this first alleged error of law outlined above at [74], EDS maintains herethat, in terms of the conflict between NZCPS Policy 9 and the Avoidance Policies, theEnvironment Court did consider the approach of the Supreme Court in King Salmonbut failed to apply it correctly. EDS says that, contrary to King Salmon and the BOPRegional Council decision, the Environment Court did not look carefully at the verbsused in each NZCPS policy, at the objects/outcomes to which they apply, and thencompare them.[78] EDS submits that the language in NZCPS Policies 11, 13 and 15 all requires"avoidance of adverse effects" on the elements identified in Policy 11(a) (Indigenousbiodiversity), Policy 13(1)(a) (Areas of outstanding natural character), and Policy15(a) (Outstanding natural landscapes). Avoidance of significant adverse effects isrequired on elements addressed in NZCPS Policy 11(b) and on other coastal naturalcharacter and landscape values under Policies 13(1)(b) and 15(1)(b).[79] As I have noted above, in King Salmon the Supreme Court has confirmed that"avoid" in the context of these policies means "not allow" or "prevent the occurrenceof". The word "avoid" is "specific and directive".[80] NZCPS Policies 13 and 15 go on to state that the adverse effects of"inappropriate" development must be avoided. What is inappropriate is to be assessedagainst the characteristics of the environment that Policies 13 and 15 seek to preserve.[81] The words used in NZCPS Policy 16 are different but they have the samemeaning. Protection of surf breaks of national importance is to be achieved by:(a) ensuring that activities in the coastal environment do not adverselyaffect the surf breaks; and(b) avoiding adverse effects of other activities on access to, and use andenjoyment of the surf breaks.[82] NZCPS Policy 16 requires that adverse effects are avoided, despite usingslightly different formulation to that which is specified in Policies 11, 13, and 15. Therequirement in Policy 16(a) to "ensure" is directive. It requires the decision-maker to"make certain that something will turn out in a particular way". Under Policy 16(a),what decision-makers must make certain is that activities in the coastal environment"do not adversely affect" important scheduled surf breaks. A requirement to "ensure"activities "do not adversely affect" part of the environment has the same meaning as arequirement to "avoid adverse effects" on that area. The Environment Court's findingto the contrary was in error.[83] Adopting the Supreme Court's approach, whether NZCPS Policy 9 providesan exception to the environmental bottom line in the Avoidance Policies for portsdepends on the specificity of the words used. If Policy 9 is more specific and directivewith respect to the provision of ports and the management of their effects onOutstanding Coastal Sites, then the requirement to "avoid" or "not allow" adverseeffects will not apply. If it is not, then avoidance is required.[84] EDS submits that NZCPS Policy 9 is less directive than the Avoidance Policies.To reiterate, it states in part:Policy 9 PortsRecognise that a sustainable national transport system requires an efficientnational network of safe ports, servicing national and international shipping,with efficient connections with other transport modes, including by: [85] EDS says that the word recognise is flexible and not directive. By analogy, inthe BOP Regional Council decision the High Court reached the same conclusion withrespect to the same policy direction in NZCPS Policy 6 (i.e. to "recognise" or"consider") applying to regionally significant infrastructure.[86] In analysing the words of NZCPS Policy 9 in the present case, the EnvironmentCourt focussed on the word "requires" as a "prescriptive verb ... used to ensure anefficient network of safe ports" and wrongly concluded that "the core of Policy 9 isaccordingly strongly prescriptive."[87] EDS says the word "requires" is an adverb attaching to the "national transportsystem" describing what the system needs to be sustainable. It is not a direction todecision-makers (i.e. decision-makers are not told to "require" certain actions oroutcomes). The verb (or action) directed at decision-makers is only to "recognise",not to "require". Forest and Bird agrees that the word 'requires' is used as part of adescription of the attributes required by a sustainable national transport system.Policy 9 directs decision-makers to recognise the requirements of a sustainablenational transport system and consider where, when and how to provide for ports.[88] EDS contends that decision-makers must "recognise" that a sustainablenational transport system "requires" an efficient national network of ports, and theyare told to recognise that requirement in two specific ways in subparagraphs (a) and(b) of Policy 9 by:a. ensuring that development in the coastal environment does notadversely affect the efficient and safe operation of these ports, or theirconnections with other transport modes; andb. considering where, how and when to provide in regional policystatements and in plans for the efficient and safe operation of theseports, the development of their capacity for shipping; and theirconnections with other transport modes.[89] EDS submits that subparagraph (a) was largely ignored by theEnvironment Court, apart from noting the use of the word "efficient".[90] Subparagraph (a) is specific and directive with respect to the interplay betweenthe safe and efficient operation of ports and their transport connections, and other"development in the coastal environment". Decision-makers "must make certain" thatother coastal development does "not adversely affect" those specific elements of aport's operation, for example competing boat moorings, aquaculture or marinas thatcould affect shipping channels. It does not address the interplay between ports and the"protection" required by Policies 11, 13, and 15. Protection is distinct fromdevelopment. It requires decision-makers to keep identified values "safe from harm,injury or damage". The requirement to "avoid adverse effects" on those areas is notdisplaced.[91] The words of subparagraph (a) would likely support a stringent approach toundertaking non-port related development in proximity to a port, for example in anidentified Port Zone or an identified shipping channel. Those words do not, however,support the Environment Court's revised Policy 4.3.7 (Port Activities) and its morelenient approach to managing adverse effects on Outstanding Coastal Sites.[92] The direction to decision-makers in subparagraph (b) of Policy 9 is to"consider". The common meaning of consider is to: "think carefully about".Decision-makers must think carefully about "where, how and when" to provide forthe efficient and safe operation and development capacity of ports in planninginstruments.[93] That direction is broad; there are multiple places, methods and times to providefor ports. The phrase implies:(a) There may be places where ports should not be located, or expansionwill not be available (the "where").(b) That concerns about adverse effects may necessitate controls onintensity, scale, and method (the "how").(c) That management and provision for ports may require a stagedapproach (the "when").[94] Constraints on "where, how, and when" ports are provided for are found inother NZCPS policies, including the Avoidance Policies. EDS says that on its facesubparagraph (b) of Policy 9 does not support an interpretation of "where, how, andwhen" which means that avoidance of adverse effects of ports (or any other coastaldevelopment) on Outstanding Coastal Sites is not required.The words used: no distinction between NZCPS Policy 9 and Policy 6[95] A second error alleged by EDS here is that the Environment Court erred indistinguishing NZCPS Policy 9 (Ports) from NZCPS Policy 6 (Activities in the coastalenvironment). This is on the basis that NZCPS Policy 9 does not have the deferentialqualification that the infrastructure Policy 6(1)(b) has. The phrase "withoutcompromising the other values of the coastal environment" is included in Policy6(1)(b) but not in Policy 9. Because of the absence of that phrase the EnvironmentCourt concluded there was a "conflict" between NZCPS Policy 9 and the AvoidancePolicies.[96] I am satisfied here that this conclusion reached by the Environment Court wasin error because:(a) NZCPS Policy 8 at issue in King Salmon (which uses similar languageto Policy 9) does not contain that phrase either, yet this was notconsidered by the Supreme Court to result in a conflict between thatPolicy and Policies 13 and 15.(b) NZCPS Policy 9 must be read on its terms, alongside the AvoidancePolicies. There is nothing in Policy 9 which directs that the AvoidancePolicies do not apply, regardless of the absence of the phrase "withoutcompromising the other values of the coastal environment".Proposed resolution of the alleged conflict by recourse to NZCPS Policy 7(1)(b)(ii)?[97] In my view, the Environment Court erroneously concluded, too, that there wasan irreconcilable "conflict" between NZCPS Policy 9 (Ports) and the AvoidancePolicies. The Environment Court looked to NZCPS Policy 7 (Strategic planning) asproviding "a procedural resolution for a substantive conflict" through a requirementthat "a resource consent be applied for and determined having regard to purposivelyframed objectives and policies"[98] Policy 7 provides:Strategic planning(1) In preparing regional policy statements, and plans:(a) consider where, how and when to provide for futureresidential, rural residential, settlement, urban developmentand other activities in the coastal environment at a regionaland district level, and:(b) identify areas of the coastal environment where particularactivities and forms of subdivision, use and development:(i) are inappropriate; and(ii) may be inappropriate without the consideration ofeffects through a resource consent application, noticeof requirement for designation or Schedule 1 of theAct process;and provide protection from inappropriate subdivision, use,and development in these areas through objectives, policiesand rules.(2) Identify in regional policy statements, and plans, coastal processes,resources or values that are under threat or at significant risk fromadverse cumulative effects. Include provisions in plans to managethese effects. Where practicable, in plans, set thresholds (includingzones, standards or targets), or specify acceptable limits to change, toassist in determining when activities causing adverse cumulativeeffects are to be avoided.[99] EDS explains, and I agree, that NZCPS Policy 7(1)(b) requires the Council toidentify areas of the coastal environment where particular activities or forms ofdevelopment are inappropriate (as specified in subs (i)) or may be inappropriate (asspecified in subs (ii)). It says the Avoidance Policies will inform those decisions.Policy 7 is not, however, a means of circumventing an implementation of theAvoidance Policies in a regional policy statement, as the Environment Court has donein this case.[100] EDS says the requirement to avoid adverse effects on Outstanding CoastalSites is not contextual. The context will inevitably show whether there will be anadverse effect, but context does not justify a lower standard of protection. In the caseof Otago Harbour, the context includes an existing operating port. OutstandingCoastal Sites have been identified in the immediate vicinity, notwithstanding the co-existence of that port.[101] NZCPS Policy 7 sets out methods and mechanisms to be used in preparingregional policy statements and plans. It relates to the process to be used in givingeffect to the NZCPS, but it does not:(a) Alter the meaning of other NZCPS policies.(b) Alter the relationship between other NZCPS policies including whetherand to what extent one policy should have priority over another in anygiven circumstance.[102] The Supreme Court did not see NZCPS Policy 7 as providing a means ofcircumventing the requirement to avoid adverse effects on those other policies. If ithad, it would have reached a different decision.Second alleged error of law – failure to give effect to NZCPS[103] As to the second alleged error of law outlined above at [75], EDS summarisesthe requirement in the NZCPS for the PORPS to "give effect to" as meaning to"implement". As the authorities have noted, it is "a strong direction, creating a firmobligation" on the Regional Council. Its implementation depends on what is beinggiven effect to. A requirement to "give effect to" a specific and unqualified policy isprescriptive and binding on decision-makers. The statutory framework confirms it isintended that a NZCPS can "contain policies that were not discretionary but wouldhave to be implemented if relevant'", which are "binding on decision-makers".[104] The Avoidance Policies are prescriptive. NZCPS Policy 9 (and NZCPSPolicies 6 and 7) are not. This means that the PORPS must require port activities to"avoid adverse effects" on Outstanding Coastal Sites, including activities associatedwith safety and efficiency. Ports are treated the same as aquaculture and otherregionally significant infrastructure. The Environment Court, in my view, erred in itsrecommendation otherwise.[105] EDS submits that the Court made the following errors of law:Assertion that adverse effects are to be avoided in "almost all" circumstances.[106] EDS says this points to the Environment Court's conclusion the NZCPS "as awhole contemplates that adverse effects of port structures on certain landscapes orecosystems are to be avoided in almost all circumstances but not in all ...".32 It wenton to say that "it seems that effects of port activities on these resources [naturalcharacter and outstanding natural landscapes] might have a (slightly) lower standardapplied when requiring a resource consent be obtained."33[107] I agree with EDS that those findings are inconsistent with the NZCPS. Policies11, 13, and 15 require the PORPS to avoid the specified adverse effects. NZCPSPolicy 16 uses the alternative formulation of ensuring activities do not adversely affectlisted surfbreaks, to similar effect. As King Salmon found, these are a bottom line and,indeed, carry greater force under the "environmental bottom line approach" rather thanthe "overall judgment" type approach that the Environment Court sought to adopt.3432 Port Otago Ltd v Otago Regional Council, above n 3 at [100].33 At [129].34 King Salmon, above n 1 at [81].Assertion that the Court may give some effect to the Avoidance Policies without givingfull effect.[108] Similarly, statements from the Environment Court that the PORPS should"give some effect to Policy 9 NZCPS supported by Policy 8 without giving full effectto one or more of the Avoidance Policies in the NZCPS ...", as I see it, do not applythe correct legal test. That is an adoption of the overall broad judgment approach toimplementing the NZCPS which was rejected by the Supreme Court in King Salmon.Reference back to Part 2 of the Act to resolve perceived conflict?[109] The NZCPS gives substance to Part 2 RMA in the coastal environment. Thismeans that "by giving effect to the NZCPS, a regional council is necessarily acting 'inaccordance with' Part 2 and there is no need to refer back to that part when determininga plan change"35, absent one of three exceptions: invalidity, uncertainty, lack ofcoverage.36 I agree with submissions advanced before me on behalf of Forest andBird that the King Salmon decision represents a sea change in resource managementlaw which is continuing here with decisions such as the BOP Regional Councildecision and the Auckland Council decision. The findings by the Environment Courtin its Interim Decision for an overall judgment approach and suggesting that theplanning framework should provide for a case by case approach to adverse effects onoutstanding or significant coastal biodiversity, landscape and natural character sitesand nationally significant surf breaks, which provides for effects on those sites orvalues to be avoided, remedied or mitigated, is an approach roundly rejected by themajority in King Salmon and one that is no longer available.Undertaking of s 32 of the Act analysis.[110] As a consequence of what I have found to be its erroneous conclusion that, interms of PORPS Policy 4.3.7 (Port Activities), adverse effects on Outstanding CoastalSites needed to be avoided "in almost all circumstances but not all", the EnvironmentCourt considered it was able to undertake a s 32 cost benefit analysis to determine theeffects management framework for Port Activities in those areas. That conclusion is35 King Salmon at [33], [85], [90].36 King Salmon at [88].wrong, in my view. Proposed PORPS Policy 4.3.7 (port activities) must provide foravoidance of adverse effects on Outstanding Coastal Sites[111] The PORPS's objectives and policies must be evaluated under s 32 of the Actand any changes re-evaluated under s 32AA. In the coastal environment therequirement to "give effect to" the NZCPS limits the objective and policy optionsavailable to decision-makers. The requirement for an evaluation report is a proceduralobligation and does not remove the necessity for a proposed regional policy statementor plan to "give effect to any New Zealand coastal policy statement".[112] This is consistent with the scheme of the RMA and the "elaborate"New Zealand coastal policy statement development process. The NZCPS "reflectsparticular choices" made at a national level for how the coastal environment is to bemanaged. One of those choices is that, of the effects management options in s 5(2) ofthe Act, only avoidance should apply to adverse effects of subdivision, use anddevelopment in Outstanding Coastal Sites:37The notion that decision-makers are entitled to decline to implement aspectsof the NZCPS if they consider that appropriate in the circumstances does notfit readily into the hierarchical scheme of the RMA.Conclusion[113] For the reasons I have outlined above, I find that the Environment Court erredin its interpretation of the NZCPS and, as a consequence, failed to "give effect to" theNZCPS in its Interim Decision. Consequently, the Environment Court made errors oflaw here which were material and affected its ultimate determination. Accordingly, Ifind that the Environment Court failed to properly implement the NZCPS in thePORPS contrary to the guidance provided by the Supreme Court in King Salmon.[114] The relief sought by EDS here requests that the Interim Decision of theEnvironment Court be quashed and that this Court either:(a) confirms the PORPS Policy 4.3.7 as sought by EDS; or37 At [90].(b) directs the Environment Court to reconsider its decision on thoseprovisions in light of this Court's judgment.[115] Having due regard to my findings that the Environment Court here erredmaterially in its interpretation and application of the King Salmon decision and ofvarious provisions in the NZCPS and the PORPS, in my view, its Interim Decisionshould be set aside. But, given that the Environment Court is a specialist Court, as Isee the position, it is appropriate that it reconsiders the issues rather than this Courtdoing so. This is also what occurred in the recent Auckland Council decision.38[116] For all the reasons I have outlined, this appeal is allowed and I now makeorders:(a) setting aside the Interim Decision of the Environment Court; and(b) remitting the matter to the Environment Court to reconsider in light ofthis judgment.Costs[117] My preliminary view is that, as the successful parties here, EDS and the partiessupporting it on this appeal are entitled to costs. However, as no formal submissionswere made on this by counsel, I reserve the issue of costs. I encourage counsel for theparties to liaise with a view to endeavouring to resolve the question of costs. In theevent that costs cannot be resolved between the parties then counsel may filememoranda (sequentially) on the issues which are to be referred to me and, in theabsence of any party indicating they wish to be heard on the question of costs, I willdecide that issue on the basis of the memoranda filed and all the other material beforethe Court....................................................Gendall J38 The Auckland Council decision, above n 29.Solicitors:Ellis Gould, AucklandRoss Dowling Marquet Griffin, DunedinLeonard Andersen, Barrister, DunedinCopies to Interested Parties