ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED and SUSTAIN OUR SOUNDS v THE NEW ZEALAND KING SALMON COMPANY LIMITED [2013] NZHC 1992

ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED and SUSTAIN OUR SOUNDS v THE NEW ZEALAND KING SALMON COMPANY LIMITED [2013] NZHC 1992 [8 August 2013]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYCIV-2013-406-056CIV-2013-406-057[2013] NZHC 1992UNDER the Resource Mangement Act 1991IN THE MATTER OF appeals under s 149V of the Act against adecision of a Board of Inquiry intorequests for plan changes and applicationsfor resource consents by The New ZealandKing Salmon Company LtdBETWEEN ENVIRONMENTAL DEFENCESOCIETY INCORPORATEDSUSTAIN OUR SOUNDSAppellantsAND THE NEW ZEALAND KING SALMONCOMPANY LIMITEDRespondentHearing: 27-30 May 2013Counsel: R B Enright, B McDonald and N de Wit for EnvironmentalDefence Society IncorporatedM S R Palmer and J Ironside for Sustain Our SoundsD A Nolan, J D K Gardner-Hopkins and D Minhinnick for TheNew Zealand King Salmon Company LimitedS F Quinn for Marlborough District Council (Interested Party)P A McCarthy and E Jamieson for Minister of Conservation andMinistry for Primary Industries (Interested Parties)Judgment: 8 August 2013RESERVED JUDGMENT OF DOBSON JContentsIntroduction ....................................................................................................................................... [1]The parties ......................................................................................................................................... [2]The legislative structure .................................................................................................................. [10]King Salmon's applications ............................................................................................................ [19]The Board's decision ....................................................................................................................... [23]The planning documents ................................................................................................................. [32]The SOS appeal ............................................................................................................................... [39]The alleged sequential error ........................................................................................................... [42]Substantive errors ........................................................................................................................... [72]Failure to apply the precautionary approach ............................................................................... [73]Incorrect application of legal test ................................................................................................. [86]Decisions contrary to the evidence ............................................................................................... [90]Unlawful delegation and restriction on MDC's on-going discretion ..........................................[114]EDS appeal..................................................................................................................................... [129]Failure to give effect to the NZCPS? .......................................................................................... [131]A hierarchy of importance in the NZCPS? ................................................................................. [139]Failure to assess alternatives ..................................................................................................... [157]Summary ........................................................................................................................................ [175]Costs ............................................................................................................................................... [176]Introduction[1] This judgment determines two appeals alleging that errors of law were made by a Board of Inquiry (the Board) in a combined decision dated 22 February 2013.1That decision made determinations under the Resource Management Act 1991 (theRMA) making changes to the Marlborough District Council's Combined Regional District and Coastal Plan (the Sounds Plan), and granting resource consents for four salmon farms at specified locations in the Marlborough Sounds (the Sounds).The parties[2] The respondent to both appeals is The New Zealand King Salmon Company Limited (King Salmon), which was the initiator of the request for a plan change, and the applicant for resource consents for nine salmon farms at various locations in the Sounds. At the time of its applications, it operated six salmon farms in the Sounds, producing approximately 7,000 to 7,500 tonnes of king salmon per annum. The resource management initiatives were undertaken to pursue King Salmon's intention to significantly increase its production.1 Final Report and Decision of the Board of Inquiry into the New Zealand King Salmon Proposal, 22 February 2013 [Board decision].[3] Sustain Our Sounds (SOS) is an unincorporated interest group representing residents and recreational users of amenities in the Sounds, concerned with the on-going quality of the environment in the Sounds. SOS was represented at theBoard hearings. Its appeal sought the quashing of the Board's decision on all aspects of the plan changes, to deprive King Salmon of the prospect of resource consents being granted at any of the four sites.[4] Environmental Defence Society Incorporated (EDS) was established in 1971 and focuses on policy and regulatory issues that are of regional and national significance. It was represented at the Board hearing and called evidence in relation to the impact of the proposed salmon farms on the landscape and natural character of the Sounds. EDS supports aquaculture in appropriate locations but is opposed to salmon farms being located in areas of outstanding landscape and natural character.[5] EDS sought the quashing of the plan change decision in respect of sites at Port Gore and Waitata, with the consequence that if the plan changes were not introduced, then there could be no issue of resource consents for salmon farming activities at those two locations.[6] The Marlborough District Council (MDC) is a unitary authority with responsibilities as both a regional and district council. In 1995, it had prepared the Sounds Plan, which came into effect in 2003. Given the statutory procedure adoptedfor considering King Salmon's applications, as described below, the MDC had noresponsibility as a decision-maker and instead was represented at the Board hearingsas a submitter. The MDC opposed King Salmon's proposal on the basis that theexisting zones in the Sounds Plan that respectively permitted (on a discretionary basis) and prohibited aquaculture activities struck the appropriate balance. That zoning had allowed 576 marine farms (the vast majority being mussel farms) to operate whilst still excluding commercial marine farming activities from large parts of the Sounds.[7] The MDC confined its submissions on the appeals to support for certain ofthe appellants' arguments on alleged errors of law, appropriately acknowledging itson-going responsibilities to administer whatever extent of plan change and resource consents survive the appeal process.[8] The Minister of Conservation had a role in initiating the Board's inquiry, and advanced an interest essentially in support of the Board's decision. Similarly, theDirector-General of the Ministry for Primary Industries acknowledged an interest and made confined submissions on certain of the arguments raised by the appellants. In all respects, submissions presented on behalf of the Minister and the Director-General by Crown Law were supportive of the Board's decision. I will refer to those submissions as simply those on behalf of the Crown interests.[9] The Board of Inquiry was served with the appeals. The Board appointed counsel but, appropriately, counsel for the Board did not appear at the hearing of the appeals.The legislative structure[10] In 2011, the RMA was amended in a legislative initiative that contemplated more streamlined decisions on resource management applications to authorise marine farming.[11] The amendments reflected a desire to "kick start" further investment inaquaculture.2 The explanatory note on introduction of what began as the Aquaculture Legislation Amendment Bill (No 3) included the following:The current law provides that aquaculture activities can take place only within aquaculture management areas identified in regional coastal plans. This regime has not worked well because of its complexity and poor incentives for councils and industry to plan for and invest in aquaculture. The Bill removes the requirement for aquaculture management areas. This change normalises aquaculture within the Resource Management Act framework by enabling applicants to apply directly for a resource consent in any part of the coastal marine area, subject to the provisions of the relevant regional coastal plan.The Bill makes changes to streamline planning and consenting processes, reduce costs to industry, and provide stronger incentives for industry2 Board decision at [103], citing a Cabinet Paper describing the reforms as aimed at "kick starting" the aquaculture industry to reach a $1 billion potential by 2025.development, while maintaining existing processes for ensuring environmental limits are respected.[12] Apparently as a result of submissions made on behalf of King Salmon to the Primary Production Committee, additional provisions were added to the Bill to enable resource consents to be sought concurrently with a request for a plan change. This recommendation was made earlier in a 2009 report by the Aquaculture Technical Advisory Group.3[13] The 2011 amendments also provided that such resource management initiatives could be lodged with the Environmental Protection Authority (EPA), which has a preliminary role in assessing whether the proposals are complete, and whether they involve matters of national significance. The EPA has a role in recommending to the Minister of Conservation how the applications should be determined.[14] In this case, King Salmon anticipated the introduction of these amendments to the Act on 1 October 2011. Having lodged draft applications in considerable detail before the amendments came into force, on 3 October 2011 King Salmon lodged its request for a plan change and its application for resource consents with the EPA. On 10 October 2011, the EPA recommended to the Minister of Conservation that the King Salmon proposals involved matters of national significance, and that they should be considered by a Board of Inquiry. On 3 November 2011, the Minister of Conservation referred the matter to the Board appointed by the Minister to determine the concurrent applications.4 Consistently with the statutory requirements for the composition of such a Board of Inquiry, it was chaired by retired Environment Court Judge Gordon Whiting, who was joined by four other appointed Board members including Environment Commissioner Helen Beaumont.[15] No issue is taken with the decision to appoint the Board, or any aspect of its composition. The decision-making powers that the Board was exercising are set out in s 149P of the Act which relevantly provides as follows:3 Re-Starting Aquaculture: Report of the Aquaculture Technical Advisory Group, October 2009 at [2.6].4 Acting under ss 147(1), 149J and 149K of the Resource Management Act 1991 (RMA).149P Consideration of matter by board(1) A board of inquiry considering a matter must—(a) have regard to the Minister's reasons for making a direction in relation to the matter; and(b) consider any information provided to it by the EPA under section 149G; and...[16] Section 149P also provides that where the Board is considering an application for a resource consent, the Board must apply those sections that usually apply to such applications (ss 104 to 112 and s 138A) as if the Board were a consent authority. Similarly, subs (6) provides:(6) A board of inquiry considering a matter that is a variation to a proposed regional plan, a proposed regional plan, or a change to a regional plan—(a) must apply clause 10(1) to (3) of Schedule 1 as if it were a local authority; and(b) may exercise the powers under section 293 as if it were the Environment Court; and(c) must apply sections 66 to 70B and 77A to 77D as if it were a regional council.[17] As to the appropriate sequence of decisions, s 149P also provides, in subss (8) to (10) as follows:(8) A board of inquiry considering a plan change request and its concurrent application made under subpart 4 of Part 7A must—(a) firstly, determine matters in relation to the plan change request; and(b) secondly, determine matters in relation to the concurrent application, based on its determination of matters in relation to the plan change request.(9) For the purposes of subsection (8)(b), a board of inquiry must process, consider, and determine the concurrent application as if it were a regional council acting under section 165ZW and that section applies accordingly with all necessary modifications.(10) A board of inquiry must decline a concurrent application if, as a result of the board's determination on the plan change request, theaquaculture activity that the concurrent application relates to remains a prohibited activity.[18] As the Board itself recognised, the legislative initiatives to incentivise aquaculture streamlined the process by which resource consents might be obtained, without altering the terms of the resource management tests that were to apply.5 The 2011 amendments streamlined the process by which resource consent applications could be dealt with and, where they raised a matter of national significance, introduced the prospect of the matters being determined by a different decision- maker. It was quite likely within Parliament's contemplation that a Board of Inquirywould attribute different values in the balance between preservation of environmental attributes and enabling economic activities, than would be applied by a local authority that had provided for these different interests in its relevant plan. That was certainly the case here.King Salmon's applications[19] The resource management controls being administered by MDC at the timeof King Salmon's applications involved two coastal marine zones, CMZ1 andCMZ2. Marine farming was a prohibited activity in CMZ1.6 In CMZ2, marine farming was a discretionary activity and could be undertaken subject to MDC granting a resource consent on individual terms. The 575 consented marine farms were in that zone.[20] King Salmon's request for a plan change was pursued on the basis that theeight sites it had located, all of which were in CMZ1, should be spot zoned as a new CMZ3, specifying marine farming as a discretionary activity for which resource consents would be required on an individual basis.7[21] Annexed to this judgment as Appendix A is a plan of the relevant parts of the Sounds, prepared for King Salmon, showing each of the sites in respect of which5 Board decision at [107].6 This was subject to some exceptions for marine farming activities that preceded the creation of the coastal marine zones.7 King Salmon's initial proposal was for the spot zones to have marine farming as a controlledactivity which would not require individual resource consents, but that aspect was amendedbefore the Board's hearings began.King Salmon requested spot zoning changes. Moving across the Sounds from west to east, a first site was on the western shore of Waitata Reach (Waitata), and three of the sites were on the eastern shores of that water, at Kaitira, Tapipi and Richmond. Next, in the outer sounds at Gore Bay, King Salmon requested zoning for a larger site than all the others on the basis that any permitted farming activity would be rotated between areas within the new zone. That site is also referred to as Papatua. Further east on the eastern shore of Queen Charlotte Sound, spot zone changes were sought in respect of sites at Kaitapeha and Ruaomoko. Finally, adjoining the western shore of Tory Channel, at Ngamahau.[22] In addition to King Salmon's zone change initiatives for those eight sites, italso applied for a resource consent for a site in the existing CMZ2 at White Horse Rock, adjoining the Waitata site.The Board's decision[23] The Board decided to make zoning changes in respect of the Waitata, Richmond, Papatua and Ngamahau sites. Consistently with that, it granted resourceconsents for King Salmon's proposed marine farming operations at each of thosefour sites. The Board declined to make zoning changes in respect of Kaitira, Tapipi, Kaitapeha and Ruaomoko sites. In addition, it declined the resource consent sought for the White Horse Rock site. I have had the outcomes at the respective sites marked on the plan at Appendix A, with ticks for those that were approved, and crosses for those that were not.[24] The Board conducted hearings over a period of 37 days in Blenheim, at the Waikawa Marae and at The Portage. The Board read and, in the majority of cases, heard or received submissions from approximately 181 witnesses and submitters. The transcript of the hearings ran to more than 4,100 pages, and in addition there were 10,400 pages of evidence submitted.[25] The Board's decision runs to 1,357 paragraphs over 372 pages and isaccompanied by numerous appendices, including a sequence of proposals for the conditions that would apply to resource consents if granted, together with theBoard's final conditions of consent on an individual basis for each of the four sitesapproved.[26] A significant issue between those opposed to the application and King Salmon was the impact on the water column and the benthos or seabed, of the extent of fish feed pellets that would be used in the salmon farming operations. Numerous variables were recognised as being likely to influence the extent of adverse effects, without data from existing experience that could be modelled to enable reliable conclusions in respect of each of the proposed sites.[27] Opponents argued that uncertainty over the extent of adverse effects required the Board to decline the request for a plan change. King Salmon's proposal wasadvanced on the basis that the plan change be approved in principle, subject to on-going monitoring to establish, as a result of actual experience at each of the approved sites, the extent of feed that could be released into cages without causing an unacceptable impact on the water column or benthos. These opposing approaches were reflected in the contrasting emphasis on the concepts of a precautionary approach for the opponents, and adaptive management for King Salmon. The appeals raised alleged errors of law in the way in which these two concepts wereapplied in the Board's decision.[28] The Board's decision required better quality baseline information to begathered at all the sites for at least a year before they could be stocked with any fish. That requirement was for two years at the Port Gore/Papatua site.8[29] The Board's decision included extensive additions to the provisions in the Sounds Plan in respect of marine farming in its coastal marine zones, adding new spot zones as CMZ3, and substantially expanding the provisions in respect of discretionary activities in those zones. Some of the new rules were generic to the new CMZ3, such as noise levels and the assessment criteria. Others, such as maximum initial discharge of fish feed, and maximum increases in those tonnages, were specified by reference to each site. The rules for assessing the adverse effects8 Board decision at [461], and condition 77 of the generic version of conditions. The Peer Review Panel that was provided for could extend the initial monitoring period to two years as well at Waitata and Richmond.of discharges into the coastal water prescribed the nature of assessments that were required.9[30] Similarly, the resource consents for the four sites were issued subject to extensive conditions, many of which fleshed out with greater specificity the standards and controls set out in rules added to the Sounds Plan for CMZ3. The final conditions reflected an iterative process in which comments were received on draft terms, and changes made to reflect comments that were accepted as valid.[31] The decision reviews the evidence on diverse factual, scientific, cultural and navigational issues. Any short summary of the effect of the findings would struggle to do justice to the comprehensive analysis, and is not in any event necessary when assessing the issues that arise on the appeals, which are confined to questions of law.10 It is sufficient to introduce the specific context of various findings in describing the various grounds of appeal.The planning documents[32] The context in which the Board had to consider the request for plan changes involved a hierarchy of planning documents of types that are provided for in the Act. First is the New Zealand Coastal Policy Statement 2010 (NZCPS). It is provided for in ss 57 and 58 of the RMA, with the statutory purpose in s 56 of the RMA being to state policies in order to achieve the purpose of the RMA in relation to the coastal environment of New Zealand. It comprises seven objectives and 29 policies. The Board observed in respect of it:11The objectives of the Coastal Policy Statement are of a high and overarching level and are given more specific effect through the more detailed policies that follow. The instrument addresses the characteristics, qualities and uses of the coastal environment, and the challenges that arise from the tension between development and maintaining the ecological integrity, natural character, cultural and recreational values of the coastal environment.[33] The first two of the objectives are to safeguard the integrity, form, functioning and resilience of the coastal environment and sustain its ecosystems; and9 See 35.4.2.10.3 of Appendix 3 to the Board decision.10 RMA, s 149V.11 Board decision at [83].to preserve the natural character of the coastal environment. The sixth objective is to enable people and communities to provide for their social, economic and cultural well-being through subdivision, use and development.[34] The appellants relied particularly on Policy 3, which provides for a"precautionary approach" in the following terms:(1) Adopt a precautionary approach towards proposed activities whose effects on the coastal environment are uncertain, unknown, or little understood, but potentially significantly adverse.(2) In particular, adopt a precautionary approach to use and management of coastal resources potentially vulnerable to effects from climate change, so that:(a) avoidable social and economic loss and harm to communities does not occur;(b) natural adjustments for coastal processes, natural defences, ecosystems, habitat and species are allowed to occur; and(c) the natural character, public access, amenity and other values of the coastal environment meet the needs of future generations.[35] Of the other policies, 8, 13 and 15 were treated as material to the issues raised by the appeals. They provide as follows:Policy 8: AquacultureRecognise the significant existing and potential contribution of aquaculture to the social, economic and cultural well-being of people and communities by:a. including in regional policy statements and regional coastal plans provision for aquaculture activities in appropriate places in the coastal environment, recognising that relevant considerations may include:i. the need for high water quality for aquaculture activities; andii. the need for land-based facilities associated with marine farming;b. taking account of the social and economic benefits of aquaculture, including any available assessments of national and regional economic benefits; andc. ensuring that development in the coastal environment does not make water quality unfit for aquaculture activities in areas approved for that purpose.Policy 13: Preservation of natural character1. To preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use, and development:a. avoid adverse effects of activities on natural character in areas of the coastal environment with outstanding natural character; andb. avoid significant adverse effects and avoid, remedy or mitigate other adverse effects of activities on natural character in all other areas of the coastal environment; including by:c. assessing the natural character of the coastal environment of the region or district, by mapping or otherwise identifying at least areas of high natural character; andd. ensuring that regional policy statements, and plans, identify areas where preserving natural character requires objectives, policies and rules, and include those provisions....Policy 15: Natural features and natural landscapesTo protect the natural features and natural landscapes (including seascapes) of the coastal environment from inappropriate subdivision, use, and development:a. avoid adverse effects of activities on outstanding natural features and outstanding natural landscapes in the coastal environment; andb. avoid significant adverse effects and avoid, remedy, or mitigate other adverse effects of activities on other natural features and natural landscapes in the coastal environment; including by:c. identifying and assessing the natural features and natural landscapes of the coastal environment of the region or district, at minimum by land typing, soil characterisation and landscape characterisation and having regard to: [a series of considerations follow][36] Beneath the NZCPS sits the Marlborough Regional Policy Statement (the MRPS). The appellants did not criticise the parts of the MRPS that had been identified by the Board as potentially relevant. Rather, criticisms were that an insufficient level of respect was given to the policies in the MRPS, treated by the appellants as consistent with the national objectives set out in the NZCPS. Thepolicies specifically identified by the Board from the MRPS were in the following areas:[a] That allocation of space for aquaculture will be based on marine habitat sustainability, habitat protection, landscape protection, navigation and safety, and compatibility with other adjoining activities – Policy 7.2.10(d);[b] The importance of public access to, and recreational use of, the marine resources of the district, for the wellbeing of its community –Policy 7.2.10; and[c] The importance of retaining the open, natural character ofMarlborough's coastal environment, including the land and waterecosystems of the coast – Policy 8.1.6.[37] From the appellants' perspective, an objective in relation to the quality of thecoastal marine water was also important. That stipulated that water quality in the coastal marine area was to be maintained at a level which provides for the sustainable management of the marine ecosystem. Pursuant to that objective was a policy to avoid, remedy or mitigate the reduction of coastal water quality by contaminants arising from activities occurring within the coastal marine area.12[38] These two policy statements are relevant because a regional plan is required to give effect to them.13 Thus, any changes to the Sounds Plan must give effect to the NZCPS and the MRPS.The SOS appeal[39] The SOS challenge to the Board's decision was the more wide-ranging of the two appeals in terms of the grounds of appeal raised, and also in terms of the reliefsought. SOS's appeal raised challenges of three types. First, that the Board erred inthe sequence of its decision-making. Section 149P(8) of the RMA required the respective decisions on a request for a plan change, and on applications for resource consent, to be made sequentially and in that order. SOS argued that the Board failed to adhere to that sequence, in making both decisions together. In terms of outcome, this arguably contributed to a decision on the plan change that depended on, or anticipated, conditions on which specific resource consents might be granted. In12 See objective at 5.3.2 and the policy at 5.3.5 of the MRPS.13 RMA, s 67(3).terms of process, it allegedly caused a confusion of the criteria that ought separately to apply to the two stages if they had been kept distinct.[40] Secondly, SOS argued that the Board made a number of substantive errors in that components of the decision applied an incorrect legal test, that certain findings in its decision were made against the weight of evidence, or the Board's conclusions were not open on the evidence as they found it to be. Findings contrary to the evidence allegedly occurred to an extent that constituted an error of law on the classic formulation in Edwards v Bairstow.14 SOS argued that the conclusions breached the precautionary approach that ought to have governed, and the outcomes failed the test that the Board had posed for itself on adaptive management.[41] A third category of challenge related to unlawful delegation of components of the Board's decision, together with the unlawful restrictions on what ought to have been MDC's discretion in monitoring the conditions of resource consents that werestipulated in the Board's decision.The alleged sequential error[42] The Board expressly acknowledged the sequence in s 149P(8) of the RMA, requiring it to first determine the matters in relation to the plan change request, and secondly to determine matters in relation to resource consents. Notwithstanding that acknowledgement, SOS argued that both decisions were essentially madecontemporaneously, with the Board's view on the range of conditions that it could impose when granting resource consents being relied upon in reaching its decision to accede to some components of the request for a plan change.[43] SOS argued that the Board's decision had conflated the separate tests thatwere required on the two determinations. This failure to apply the discrete legal tests for a plan change and a resource consent on a separate basis resulted in invalid and unlawful decisions. Further, that in assessing factual matters relevant to itsdecisions, the Board "jumbled together" its analysis of those factual matters that were relevant in relation to plan changes, resource consents and consent conditions.14 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL). See also Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.[44] Mr Palmer emphasised the importance of maintaining the proper sequence because a decision-maker at the plan change stage had to have regard to the full range of activities that a proposed plan change could subsequently permit. The decision-maker risked being "blinkered" by the proposed specific activities to whicha contemporaneous resource consent application related, if the two were evaluated together.[45] EDS did not raise this criticism as a ground of its own appeal, but supportedSOS's arguments. EDS submitted that conflating considerations on the plan changethat had been requested with resource consent conditions constituted error by the Board in the present circumstances.[46] The MDC also supported SOS's first ground of appeal. The MDC contended that the Board had adopted an approach of considering individual sites in terms of the request for a plan change, leading it to consider those on a "consent by consent"basis. This epitomised the inappropriate anticipation of conditions of resource consents when considering whether to grant the request for a plan change. The MDC criticised this as being particularly inappropriate for the coastal environment, and inadequate to give due respect to the objectives and policies in the NZCPS and the MRPS. It was submitted that reliance on specific conditions that might be imposed pursuant to resource consents when granting a plan change was likely to leave the Sounds Plan in a form that was inadequate to meet the overall purposes of that plan. In addition, the MDC cited concerns for the adverse consequences for it in on-going administration of the terms of resource consents as granted.[47] Mr Quinn's submissions for MDC referred to procedural concerns about the sequence in which issues were going to be dealt with that had been raised before the Board, but which he stated "were not remedied by the Board". Mr Nolan contested this procedural criticism, submitting that the procedural concerns had been responded to by a memorandum on behalf of King Salmon, and that the Board convened a hearing in chambers, following which an agreed process was adopted. I do not perceive a material criticism as to process that can advance the case for analleged sequential error in the Board's decision-making.[48] King Salmon's response to SOS's first ground of appeal was that the determinations were made in the correct sequence, and took into account the relevant legal criteria at each stage. The Board's combined analysis of contested factual matters was permissible and practical, given that the same factual matters were relevant to both decisions. The extent of cross-over between matters taken into account in considering the request for a plan change, and the likely conditions on which any specific resource consents could be granted, was appropriate in the context of this case and there were no respects in which the appellants could make out reliance on irrelevant legal considerations at either stage.[49] The submissions on behalf of the Crown interests also supported the lawfulness of the approach adopted by the Board.[50] From the outset of the Board's analysis, it was appropriate and legitimate forit to approach the broad issue of whether any additional salmon farms should be permitted in the Sounds by focusing on the nature and extent, location and intended mode of operation of the salmon farms and their associated structures. The nature and extent of any adverse effects would depend on the location and scale of the salmon farming activities. There was therefore a close link between constraints, however imposed, on the nature and extent of any such operations, and decisions on both the request for a plan change and on specific resource consents to operate in any newly created zones.[51] In the Board's review of, and conclusions on, the contested effects of any further salmon farms, the factual matters traversed clearly had potential relevance to both types of determination the Board had been asked to make. This part of thereport extended to some 227 pages. The Board's review of the evidence it had heard, and the factual findings it made on the contested effects of further salmon farming, were set out under the following headings:Assessment of actual and potential economic effectsEcologyNatural character, natural features and landscapesMāori cultural issuesAmenity effects (noise, air quality and odour)Social effectsTourism and recreationNavigationEngineeringIn each section, the Board reviewed the competing contentions and made findings.[52] Parts of that analysis that SOS cited as demonstrating the allegedly jumbled consideration of matters that ought to have been kept separate were in the following:(Emphasis reflecting that used in submissions for SOS.)[320] We acknowledge that there are uncertainties in the modelling of the effects on the seabed particularly with respect to the exact size and shape of the depositional footprints. However, these effects would be controlled by the conditions of consent and the proposed conditions are not dependent upon the outputs of the model. If the effects have been underestimated then King Salmon would be required to reduce the level of effect to that authorised by the conditions.[437] We agree with the experts that the background data and information on water quality, as presented to the Board, is not an adequate description of the existing environment given the scale of the proposed increase in finfish farming and consequential release of nutrients into the marine environment. Some of this deficiency in information can be remedied through the conditions of consent requiring baseline monitoring. Some is expected to be filled by the monitoring currently underway for the Council. However there remains considerable uncertainty as to the nature of the receiving environment, including the trends in other nutrient sources, and consequently the ability of the Sounds to adequately assimilate a significant increase in nutrients.[438] We accept that the modelling of the nutrients introduced to the water column is conservative for the scenarios presented to us. However those scenarios were generally for the initial feed rates for each farm and, for some of the modelling, the (higher) summer loadings. The applications for each salmon farm seek almost double this feed level – the maximum conceivable feed levels as listed in the proposed conditions of consent. The approach taken was in marked contrast to the modelling of effects on the benthoswhich used these maximum feed levels. This astonishing gap in the prediction of effects on the environment cannot be explained away by emphasising that the modelling is conservative and nor can it simply be filled by invoking adaptive management. It is a fundamental failing in the assessment of effects on the environment that we would not expect to see in a project of this magnitude and importance.[439] Accordingly we can only consider granting consent for these graduated increases in feed discharge levels with any increases based on a more robust monitoring and adaptive management regime than that presented in the proposed conditions.[53] Given the scale of the Board's task, reviewing the contested factual matters inthe manner it did was clearly among the options open to the Board. A combined factual analysis of the issues that were likely to be relevant to either or both of the decisions it had to make did not preclude the prospect of the Board applying those factual findings to the different legal considerations required at each stage. Nothing in the analysis of effects undertaken under each of the headings set out in [51] above committed the Board to a particular outcome. If its analysis on the first determination had resulted in a decision that no plan change request would be approved, then the matter would simply have ended there.[54] I accept Mr Nolan's submission for King Salmon that there can be no justification for imposing on the Board a requirement for a repetitive analysis of the same factual matters. These would need to be set out separately for the purposes of the first, and then potentially for the second, of the discrete decisions the Board had to make.[55] A possible rejoinder for SOS is that the Board's combined analysis of factualmatters for the purposes of both decisions created the risk that its combined factual analysis would cloud the different contexts in which those matters might need to be considered for the separate decisions, leading the Board into legal error. That concern has to be tested against the reasoning processes adopted in the later components of the Board's decision where it applied the factual findings to the separate legal tests for both decisions. With one exception, there was no criticism that the Board had applied other than the standard provisions from the RMA, aswould have been the case had the request and applications been processed separately by the local authority in the usual way.15[56] An important aspect of SOS's criticisms on sequence was that in the Board'sassessment of King Salmon's request for a plan change, it relied on the constraints on the extent of salmon farming activity that could be imposed by means of conditions on any resource consents. SOS argued that the Board could not have been satisfied that a plan change was warranted, without relying on conditions that it anticipated could be imposed in a subsequent decision, when granting site-specific resource consents.[57] Near the outset of part of the Board's decision headed "Evaluation of Plan Change", the Board described this aspect of its task in the following terms:16We are to apply the relevant Part II matters when balancing the findings we have made on the many contested issues. Many of those findings relate to different and sometimes competing principles enunciated in Part II of the RMA. We are required to make an overall broad judgment as to whether the Plan Change would promote the single purpose of the RMA – the sustainable management of natural and physical resources. As we have said earlier, Part II is not just the starting point but also the finishing point to be considered in the overall exercise of our discretion.[58] Thereafter, the Board analysed the matters it considered to be relevant that were in favour of, or opposed to, the plan change that had been sought on behalf of King Salmon.[59] In undertaking an appropriate analysis under s 32 of the RMA, the Board determined that the current form of the relevant plan, including the zoning for relevant purposes, did not adequately provide for the requirements for salmon farming. The Board recognised that provisions for salmon farming in the Sounds was a resource management issue that needed to be addressed in the plan. Those opposing the plan change sought retention of the status quo, but the Board did not consider that retaining the status quo was the most appropriate way of achieving the objectives and policies of the plan.17 The Board then acknowledged:1815 SOS criticised the way the Board articulated one test, considered at [86]-[89] below.16 Board decision at [1227].17 Board decision at [1204], [1205].Our analysis of findings on the many contested issues is effectively an evaluation of the various costs and benefits. The conclusion we have come to with respect to the contested issues forms the basis of our evaluation.[60] The Board's decision then summarised those findings. Some were dealt withat a generalised level in relation to the impact on the Sounds of the proposed change to the Sounds Plan. Other effects were necessarily site-specific and they were considered by reference to individual sites.[61] SOS did not submit that the Board failed to have regard to the relevant statutory criteria in undertaking the analysis as to whether to accede to the request for a plan change. I am satisfied that the Board did approach the request for a plan change by applying the relevant statutory considerations.[62] SOS drew particular attention to certain passages from the decision asdemonstrating the Board's confusion as to the sequence required in its decision-making. These extracts come from the Board's "Part 2 assessment" in consideringthe proposed plan change:19Sustainable management is measured against the guiding principles set out in Part II of the RMA. We have given effect to the principles by:[b] Ensuring that adverse effects on the environment are avoided, or at least mitigated – Section 5.Where we have identified adverse effects on the environment for a particular site that on balance weigh against the proposed plan change, we have denied the requests. Where we have approved the request, we have done so aware of the conditions of consent that are designed to mitigate any adverse effects. These matters have been evaluated in that part of this decision under the heading "ContestedEffects;We are satisfied, that for the reasons given throughout this decision, that the precepts enunciated in Part II of the RMA have been applied and balanced in the final analysis. We also consider we have appropriately applied the precautionary principle. In some instances we have been influenced by the degree of uncertainty, at least in part, to the extent that parts of the request have been denied, for example, the uncertainty regarding the King Shag in18 At [1209].19 Board decision at [1277] and [1278].the Waitata Reach. In other instances we have been comforted on matters of uncertainty by the strong proposed adaptive management conditions of consent.[63] The essence of SOS's argument on this point was that the Board's reliance onthe constraints on salmon farming activity that could be imposed by means of conditions on which subsequent resource consents might be granted was an irrelevant consideration. I am not persuaded that it was. The impact of any salmon farming activity that could be conditionally provided for in a plan change as a discretionary activity will depend most importantly on the scale of the salmon farming activity, and the precise locations within the Sounds in which provision is made for it.[64] The Board was standing in the shoes of the MDC in considering the request for a plan change. It would be somewhat artificial for the MDC to disregard the nature and extent of constraints on the scale of salmon farming activities that might be imposed, when assessing a request for a plan change. The evaluations and balancing of interests required under the Act would be hampered if the decision- maker was precluded from having regard to the reduction of the effects of salmon farming that might legitimately be achieved by means of conditions imposed on any resource consent subsequently granted.[65] I am not persuaded that the extracts from the Board's decision quoted in [62]above demonstrate any confusion about the sequence of decision-making that was required. In the context of an activity where its scale and location will be critical in an evaluation of its sustainability, I am satisfied that the Board's analysis was lawful.[66] In EDS's support for SOS's criticism of the alleged "sequential error"committed by the Board, Mr Enright invited analogy with the reasoning of the Courtof Appeal in a 2009 appeal about the scope of a local authority's obligations inconsidering its discretion to require notification of a resource management application.20 The appeal involved a challenge to a local authority's decision not to notify. The appropriateness of a local authority taking into account conditions that20 Auckland Regional Council v Rodney District Council [2009] NZCA 99, [2009] NZRMA 453.would impact on any adverse effects was a context-specific one. The Court cited an earlier High Court decision in which the same Judge had observed:21It would defy common sense if when making the s 93 decision [ie whether to notify an application] the consent authority could not have regard to the practical reality of what adverse effects on the environment would be. To determine that self-evidently requires consideration of conditions that would affect such reality.[67] The pragmatism in that approach is compelling. It reinforces the view I have come to that any absolute rule precluding the consent authority from anticipating the likely range of conditions pursuant to which resource consents might be issued, when undertaking the Part 2 analysis on a plan change application, would be counter-productive, and is certainly not warranted.[68] Accordingly, it was lawful for the Board to have regard to the range of conditions that might subsequently be imposed on a resource consent when considering the request for a plan change. In this case, sequential decisions were to be made in light of extensive evidence. It would risk an illogical outcome if the Board was precluded from considering the likely range of specific conditions it might impose when setting the parameters of the use that would be permitted, in the event that some or all components of the plan change request were granted.[69] I am not dissuaded from that view by Mr Palmer's concern that an applicantin King Salmon's position might get approval for a site-specific plan change, but then not commence the form of activity contemplated at the time, the scope of which was to be defined by conditions of a resource consent. His concern was that a plan change might have made provision for a discretionary activity, being influenced by constraints that then do not govern subsequent activity. This could arise if another operator subsequently applied for and was granted a resource consent for marine farming to be operated differently from that proposed by King Salmon and without the same constraints that were to attach to its resource consent. That concern is notrealistic in the present situation. The Board's decision, including numerous iterations of the extensive conditions on which resource consents would be available to King Salmon, would remain available to the MDC. The decision would no doubt21 At [59] per Baragwanath J, citing from Montessori Pre-School Charitable Trust v Waikato District Council [2007] NZRMA 55 (HC) at [12].influence MDC's approach to any other operator applying for a resource consent in relation to any of the sites to which the plan change approval related, in the unlikely event that King Salmon did not proceed with the activity for which it has now been given specific resource consents.[70] Whilst I accept that, conceptually, the concurrent process for analysing both types of application could give rise to the decision-maker being "blinkered"22 at the first stage by the specific proposals to be addressed at the second stage, I have notfound any aspect in which the Board's reasoning on the first stage involved error of this type.[71] SOS's first ground of appeal cannot be made out.Substantive errors[72] A second group of errors in the Board's decision alleged by SOS related to potential substantive errors of law in the decision. The first of them was the Board'salleged failure to apply the precautionary principle or approach.23Failure to apply the precautionary approach[73] The Board's decision acknowledged that the precautionary approach is derived from international law, and cited principle 15 from the Rio Declaration on Environment and Development 1992. The essence of it is stated in Policy 3 of the NZCPS.24[74] The Board reviewed the application of the precautionary approach as its effect had been distilled in an Environment Court decision reflecting prior Environment Court and High Court decisions. That summary reflected the following points:2522 As foreshadowed at [44] above.23 King Salmon's response on this point treated "precautionary principle" as a misnomer when itsuggested it should more correctly be described as "the precautionary approach". The latter expression is used in the NZCPS and is accordingly adopted here.24 As quoted at [34] above.25 Board's decision at [176], distilled from the summary in Sea-Tow Ltd v Auckland Regional Council EnvC Auckland A066/06, 30 May 2006 at [462].a careful balanced judgement is required; in some cases that may only be achieved by adopting a precautionary approach;the precautionary approach may be applied to influence the exercise of a discretion to the extent consistent with the purpose of the RMA;even if there is a dispute of material fact, that does not necessarily mean that the precautionary approach must be adopted: rather, the obligation is to consider the evidence; anda precautionary approach should only be applied where there is scientific uncertainty or ignorance about the scope or nature of the relevant environmental harm; there needs to be a plausible basis, not just a suspicion or innuendo, for adopting the precautionary approach.[75] The Board followed this summary with its own observation:26The measure of risk and its assessment and the acceptable degree of risk avoidance are matters of fact in each particular case. The RMA is not a "no risk" statute and it is necessary to take a pragmatic approach to both the riskitself and its prevention.[76] The argument for SOS was that the precautionary approach forbids or prevents an activity where there is a scientific uncertainty as to its adverse effects. Mr Palmer argued that had the precautionary approach been upheld, then it would have required the Board to reject all components of the request for a plan change. Alternatively, even if the precautionary approach did not prevent the plan change being made, in any subsequent consideration of resource consents it should have led to their refusal.[77] An aspect of SOS's criticisms of the Board's approach on this point was thatthe Board had allegedly confused the precautionary approach with an adaptive management approach. This was said to be reflected in the following paragraph ofthe Board's decision:2726 At [177] (citations omitted).27 At [179].It is the precautionary approach that has, at least in part, given rise to whathas become known as the "adaptive management" approach. This provides for ongoing monitoring of the effects of an activity, in order to promote careful and informed environmental decision-making, on the best information available. It is a precautionary technique that provides a pragmatic way forward, enabling development while securing the ongoing protection of the environment, in complex cases where there are ecological or technological uncertainties as to the effects of the proposal.Mr Palmer argued that the difference in the two concepts meant that the extent to which a precautionary approach required the decision-maker to find against an application could not be lessened by anticipating that the impact of scientific uncertainty could be managed by an adaptive management approach.[78] EDS and MDC supported this ground of SOS's appeal, but did not add materially to the arguments in support of it.[79] In defending the way in which the Board dealt with the precautionary approach, King Salmon submitted that the Board did take it into account, and that the extent to which it had regard to it was a matter of weight for the Board, so that there was no arguable error of law. Mr Nolan characterised the utilisation of adaptive management as a part of a precautionary approach as entirely conventional, it having been adopted in that way in a number of decisions, particularly in relation to the marine environment.28 Mr Nolan pointed to the reasons for declining the plan change request in relation to four sites as reflecting a precautionary approach where the level of uncertainty about potential adverse effects was relied on by the Board in its decision on those sites.[80] To constitute an error of law in the present context, SOS would have to make out an absolute obligation to apply the precautionary approach in given circumstances. In practical terms, the effect of the argument for SOS was that once the Board found a realistic scientific uncertainty on the potential adverse effects of the salmon farming activity, then the Board was obliged to decline the aspect of the request for a plan change in respect of which that uncertainty arose. However, as28 The Environment Court decisions he cited included Golden Bay Marine Farmers v Tasman District Council EnvC Christchurch W42/01, 27 April 2001; Golden Bay Marine Farmers v Tasman District Council EnvC Wellington W19/03, 27 March 2003 and Minister of Conservation v Tasman District Council HC Nelson CIV-2003-485-1072, 9 December 2003.with many important aspects of the Board's decision-making tasks, the application of the precautionary approach was evaluative, and not definitive.[81] The essence of the Board's approach was that the extent of adverse effects that could not be accurately modelled prior to commencement of a level of salmon farming activity was less important than it would otherwise be, because an adaptive management regime could be used to regulate the level of the activity, and thereby control the risk of unacceptable adverse effects.[82] SOS's challenge to this approach is essentially a parallel to Mr Palmer'searlier argument that there was no lawful scope for the Board to have regard to the potential for constraints imposed as conditions of resource consents, when considering whether a plan change should be made. There is no prohibition, as a matter of law, on a decision-maker dealing with a request for a plan change in reliance on the anticipated scope and utility of conditions pursuant to which resource consents might subsequently be granted. In each case, it will be a question of whether that approach is valid and justified. So, too, the level of concern a decision- maker is obliged to register because of a scientific uncertainty that triggers the precautionary approach can take into account the extent by which such concerns may be ameliorated by the utility of an adaptive management regime.[83] There are likely to be situations in which adaptive management conditions could not reasonably be treated as ameliorating concerns that arise because of uncertainty as to the nature and extent of unknowable adverse effects. In such circumstances, it is to be expected that the precautionary approach would weigh very heavily against granting a resource management application. However, it is for the decision-maker in each factual situation to assess the nature and possible extent of presently unquantified adverse effects, against the prospects that such adverse effects could be controlled sufficiently by an adaptive management regime.[84] In arguing that I could not interfere on this, or any of the other alleged substantive errors of law when the criticism went to the weight given by the Board tovarious factors, Mr Nolan provided a relevant reminder of the narrowness of the task I have, from the following observation by the Court of Appeal:29 As in the Arrigato case, we consider that the decision of the High Court represents more of an independent assessment by the Judge than a consideration by him of whether the conclusion to which the Environment Court came was open to it in law. The Judge did not interpret the objectives and policies and then identify the manner in which they had been misinterpreted or misunderstood by the Environment Court. Rather he worked backwards. He reasoned that because the proposal was not consistent with the objectives and policies, as he saw them, the Court must have misinterpreted or misunderstood them. There is a difficulty with that reasoning. The Environment Court may well have taken a different view from the Judge about whether the proposal was contrary to the objectives and policies. It was not for the Judge to differ on an appeal limited to questions of law.In these appeals, the decision of the Board is the equivalent of that of the Environment Court in the situation the Court of Appeal was commenting on.[85] In the areas where uncertainty as to the projected effects of salmon farming triggered the potential application of the precautionary approach, it was open to the Board to assess the weight that should be given to it, as a component of the influences on a lawful decision. Each context-specific assessment would depend on the extent of the uncertainty, the potential range of adverse effects, and the extent to which the decision-maker was satisfied that the uncertainty of adverse effects could be dealt with by adaptive management. I therefore agree with the response for King Salmon that the weight given by the Board to the precautionary approach was a matter within its decision-making discretion, and the weight it has decided to give it cannot constitute an error of law.Incorrect application of legal test[86] The context in which SOS pursued these challenges included criticism of theBoard as having incorrectly expressed the legal test it had to apply. The Board'sassessment under Part 2 began with the following observations:30Looking at the Proposed Plan Change we think that we have struck the right balance by allowing constrained development in the Sounds. A balance29 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [13].30 Board decision at [1276].between providing for the social and economic well-being of the community and achieving sustainable management of the natural and physical resources of the Sounds. (emphasis added)[87] Mr Palmer submitted that it misconstrues the statutory test to contemplate a balance between provision of social and economic well-being of communities on the one hand, and achieving sustainable management of the natural and physical resources on the other. Rather, he argued that on the purpose of the RMA in s 5, sustainable management had to incorporate social and economic well-being. The consequence of the error was alleged to be a balancing exercise undertaken on a legally incorrect premise.[88] Mr Nolan's response to this for King Salmon was to the effect that theBoard's analysis ought to be tested on its substance, and not by reference to a single expression of how it intended to undertake it. It was urged for King Salmon that the substance of the analysis did undertake a balancing of interests on a lawful basis, applying an approach that was legally open to the Board.[89] Measuring the whole of the Board's assessment under Part 2 of the RMA on the requests for a plan change, I am not satisfied that there was any error in the legal approach adopted. The balancing of the interests to be reflected in the concept of"sustainable management" as defined in s 5(2) of the RMA is not narrowly defined. As always, context will be relevant to its application. In the context of this proposed plan change, one form of balancing predictably undertaken was between the economic and social advancement of the affected communities from increased salmon farming activities, and the extent of adverse effects that activity might involve on the natural and physical attributes of the Sounds. This evaluation is contemplated by s 5(2) in giving effect to the principle of sustainable management.Decisions contrary to the evidence[90] SOS argued that material factual findings made by the Board prevented it lawfully deciding to approve any component of the plan change, and similarly prevented it from granting resource consents. It was submitted that had the Board lawfully applied the purpose and principles of the RMA, as well as the NZCPS and the MRPS, then it could not have arrived at the decisions that it did.[91] Mr Palmer's submissions referred to a series of conclusions made by theBoard in the course of reviewing the contested effects, which he argued should have required the requests for a plan change to be declined. These included the acknowledgement that it was difficult to evaluate the potential economic impact. Mr Palmer was critical of the Board's conclusion that each of the farms would be of economic benefit, but to an unquantifiable extent.[92] The Board's review of the evidence of economic impact concluded that the evidence of one witness for King Salmon, Dr Kaye-Blake was "somewhere close".That projection had been done on the basis that all nine farms were approved. The Board was conscious that the total impact might be affected by the scale of all operations but remained satisfied that each of the farms:31 individually would have economic benefit at a local, regional, and to amuch lesser extent, a national level. We accordingly find that in exercising our judgement, each of the farms, both individually and collectively, would be of economic benefit.[93] A part of Mr Palmer's criticism of the inadequate consideration of economic benefits that might follow from a plan change was the Board's omission to factor in the contingent cost of dealing with a major ecological hazard or even ecological disaster. His argument was that any thorough analysis of the economic benefits would include the full range of costs, and that had not been done unless an amount was included for the contingent costs of remediation and costs of claims against the operators for significant environmental damage. Mr Palmer argued this was anecessary ingredient in light of the definition of "effect" in s 3 of the RMA, which includes adverse future effects regardless of their scale or intensity, and any potential effect of low probability, which has a high potential impact.[94] Mr Gardner-Hopkins responded to this criticism on behalf of King Salmon. He submitted that the way in which the Board considered economic benefits, and the components of that analysis, were a matter entirely for the Board. He invited analogy with the reasoning in Meridian Energy Ltd v Central Otago District Council, where a Full Court of the High Court had rejected the concept of any mandatory requirement for all costs and benefits to be quantified in economic31 Board decision at [268], and see also [262] and [267].terms.32 The Court in Meridian went on to observe that evaluations of the merits of proposals by consenting authorities involved such an evaluation as perceived by the decision-makers:33A degree, even a relatively high degree, of subjectivity is virtually inevitable.[]Parliament has not mandated that the decisions of consent authorities shouldbe "objectified" by some kind of quantification process. Nor does itdisparage, as a lesser means of decision making, the need for duly authorised decision makers to reach decisions which are ultimately an evaluation of the merits of the proposal against relevant provisions of policy statements and plans and the criteria arrayed in Part 2. That process cannot be criticised as"subjective". It is not inferior to a cost benefit analysis. Consent authorities,be they councillors, commissioners or the Environment Court, and upon appeal the High Court Judges, have to respect that reality and approach decision making in accordance with the process mandated by the statute. It is not a good or bad process, it simply is the statutory process.[95] It is understandable that opponents of such a proposal would urge the decision-makers to view the economic benefits less positively, by virtue of the need to make some allowance for the contingency of the costs of the venture causing ecological harm. However, if the decision-makers are not persuaded to incorporate such a factor in their analysis, then there is no way that an opponent can characterise its rejection as an error of law.[96] Mr Palmer also emphasised that the effects on the seabed below the farms would be adverse and likely to persist for some years. The Board accepted that the area beneath the proposed salmon farms would be highly impacted, with greatly reduced biodiversity and significant changes in sediment chemistry. Any recovery from excessive enrichment was found to be difficult at sites with a low tidal flow. SOS also focused on the Board's acknowledgement of a "paucity of data" with "considerable uncertainty" about the existing water quality and "an astonishing gap in the prediction of effects on the environment".34 The Board commented that thiswas a "fundamental failing in the assessment of effects on the environment that wewould not expect to see in a project of this magnitude and importance".35 However,32 Meridian Energy Ltd v Central Otago District Council [2011] 1 NZLR 482 (HC) at [106].33 At [110], [111] (citations omitted).34 Board decision at [372], [437] and [438].35 At [438].the Board considered the inadequacies in data was a matter that could be managed through conditions imposed on the resource consents.36[97] The Board also acknowledged gaps in the information about the rare endemic King Shag, and the ability of those birds to adapt to additional salmon farming activities in the areas where they roost. Again, ultimately the Board was satisfied that adverse impacts on its habitat could be managed through conditions on resource consents, and in particular a requirement for a King Shag management plan.37[98] Given these and other findings by the Board about potential adverse effects of the proposed salmon farms, SOS submitted that the overall purpose of the RMA in s 5 counted heavily against granting the request or applications for resource consents, because of the explicit purpose of promoting the sustainable management of natural and physical resources38 and safeguarding the life-supporting capacity of water.39 To adequately counter-balance these adverse effects on a s 5 analysis, the proposals would have required a clear and robust extent of economic benefit. SOS argued that assuming the existence of any such countervailing advantage was contrary to the evidence when the Board accepted that it could not quantify the extent of economic benefits.[99] SOS also argued that the inevitable outcome of a correct application of the s 5 criteria was supported by the considerations stipulated in ss 6 and 7 of the RMA. Section 6 required a decision-maker in the Board's position to recognise and provide for the preservation of the natural character of the coastal environment and the protection of outstanding natural features and landscapes from inappropriate development.40 Matters to which the Board was required to have particular regard in terms of s 7 included intrinsic values of ecosystems, the maintenance and enhancement of the quality of the environment and the ethic of stewardship. Although Mr Nolan was not specific about s 7 factors, King Salmon's defence of the36 At [439].37 At [533].38 RMA, s 5(1).39 RMA, s 5(2)(b).40 RMA, s 6(a) and (b).Board's decision could have cited s 7 factors including the efficient use and development of natural and physical resources.[100] I am not persuaded that the Board's decision failed to comply with the s 6 obligation to recognise and provide for matters of national importance, or s 7 matters to which it was required to have particular regard. In circumstances where it recognised and rationalised those factors, their influence on its decisions are a matter of weight, for the Board to determine.[101] SOS raised comparable arguments that the Board could not have arrived at the decisions it did, if it complied with its obligation to give effect to relevant provisions in the NZCPS and the MRPS. Both planning documents attribute priority to avoidance of potentially serious environmental effects such as those identified by the Board. The MRPS requires a precautionary approach to assessment of marine farming proposals where they might conflict with the environmental objectives, deferring activity until there is sufficient information about the impact on the relevant environment.[102] In supporting the SOS appeal, MDC raised an allied challenge in respect of the alleged failure by the Board to give effect to the planning documents in its decision. The Board was required by s 67(3) of the RMA to ensure that any changes to the Sounds Plan give effect to the NZCPS, and any regional policy statement (ie the MRPS). MDC argued that the decision failed to do so, constituting an error of law. Predictably, the MDC focused most on the respects in which the Board'sdecision failed to give effect to the MRPS.[103] MDC's submissions highlighted objectives and policies from its MRPS. These included the visual amenity value of the Marlborough Sounds as identified inObjective 7.1.2 and Policy 7.1.7. The Board's analysis of contested effects hadfound that farming at each of the proposed sites would have actual, or at least potential, significant adverse effects on the current visual amenity of the coastal environment. So, too, Objective 8.1.2 and Policies 8.1.3, 8.1.5 and 8.1.6, which seekto ensure that the diversity of Marlborough's landscapes is recognised and notdiminished by land and water-based activities. Mr Quinn summarised theseprovisions as reflecting a theme that the natural character, landscape and recreational values were to take priority in public coastal space. He submitted that the stark contrast between those provisions and the plan change approved, together with theresource consents granted, undermine those provisions so that the Board's decisioncould not be said to give effect to the MRPS.[104] King Salmon responded to each of these criticisms by SOS and MDC by characterising them as matters of weight. Depending on the level of abstraction atwhich the analysis was undertaken, the relevant components of the Board's decisioncould be seen as giving effect to the planning documents, with those components under attack all having been arrived at by the Board taking into account the factors which SOS and MDC listed as counting against the plan change, and the subsequent resource consents granted.[105] Submissions for King Salmon pointed out that the Board appeared to have agreed with the planners who suggested that, in many respects, the MRPS gave little policy direction above that already contained in the RMA.41 King Salmon'ssubmissions also referred to a precautionary observation in a 2005 Environment Court decision involving the MRPS, where the lack, for example, of a "crisper set of objectives and policies" justified planners' concerns that the MRPS " tries to be all things to all people".42[106] King Salmon instanced the approach taken by the Board by citing extracts from its reasoning in respect of the Papatua (Port Gore) site. The first of those extracts is cited at [57] above. The remainder of the extracts cited by King Salmon were as follows:43Port Gore, and in particular Pig Bay, is the site of the proposed Papatua farm. Port Gore, in the overall context of the Sounds, is a relatively remote bay. The land adjoining the proposed farm has three areas of different ecological naturalness ranked low, medium and high, within the Cape Lambert Scenic Reserve. All the landscape experts identified part of Pig Bay adjoining the proposed farm as an area of Outstanding Natural Landscape.41 Board decision at [1187].42 Kuku Mara Partnership v Marlborough District Council (2005) 11 ELRNZ 466 (EnvC) at [86].43 Board decision at [1235]–[1236] and [1241]–[1243].We have found that the effects on natural character at a site level would be high, particularly on the Cape Lambert Reserve, which is recognised as an Area of Outstanding Natural Character. We have also found that there would be high to very high adverse visual effects on an Outstanding Natural Landscape. Thus the directions in Policy 13(1)(a) and Policy 15(1)(a) of the Coastal Policy Statement would not be given effect to.We have, also, to balance the adverse effects against the benefits for economic and social well-being, and, importantly, the integratedmanagement of the region's natural and physical resources.In this regard, we have already described the bio-secure approach, using three separate groupings. The Papatua site is particularly important, as King Salmon could operate a separate supply and processing chain from the North Island. Management of the biosecurity risks is critical to the successof aquaculture and the provision of three "biosecure" areas through the PlanChange is a significant benefit.While the outstanding natural character and landscape values of outer Port Gore count against the granting of this site the advantages for risk management and the ability to isolate this area from the rest of the Sounds is a compelling factor. In this sense the appropriateness for aquaculture, specifically for salmon farming, weights [sic] heavily in favour. We find that the proposed Papatua Zone would be appropriate.[107] It was not argued on this ground of appeal that the Board overlooked, or failed to acknowledge, a statutory requirement or planning document that had to be taken into account in reaching its decisions. Rather, SOS and MDC argued that the Board could not have reached the decisions it did if it had given proper regard to the planning documents which the Board did consider.[108] The Board's analysis proceeded from two relevant premises. First, that theMRPS made inadequate provision for marine farming activities. Secondly, that the planning documents, and in particular the MRPS, contained objectives that were inconsistent, or least reflected potentially contradictory values. It therefore followed that the Board's decision could not uphold, in an absolute sense, every objective andpolicy in the MRPS.[109] This second premise is hardly novel. As Mr McCarthy pointed out for the Crown interests, the Environment Court has previously approached such decisions recognising that different policies overlap, and at times can conflict or pull in different directions. He cited the observations of the Environment Court in thecontext of a development of a port that conflicted with identified Māori cultural andspiritual values:44Some of these policies might in the circumstances of a particular case be irreconcilable. It may not be possible, for example, to preserve the natural character of the coastal environment while providing for the future infrastructural requirements of the Port. Nevertheless, in reaching anintegrated decision it is the Court's duty to seek an outcome of sustainable management [110] The approach relying on those two premises was, as a matter of law, at the very least open to the Board. Once they are accepted, then it follows that the decisions arrived at by considering competing objectives and policies do reflect considerations of weight. A good deal of Messrs Palmer and Quinn's submissions inthis regard would obviously have had a quite different emphasis if this had been a general appeal. I might relatively easily have been persuaded that greater weight ought to have been given to objectives intended to preserve the natural environment of the Sounds. However, the scope for finding error is confined to errors of law.45[111] The ultimate component of this part of SOS's appeal was that the Board'sdecisions were so starkly contrary to the evidence that they involved an error of law. As Mr Nolan submitted for King Salmon, making out a decision inconsistent with the evidence as an error of law requires a plaintiff to surmount a very high hurdle.46In this context, the Supreme Court has adopted expressions from the House of Lords that the state of affairs needs to be one "in which there is no evidence to support the determination" or "one in which the evidence is inconsistent with and contradictory of, the determination" or "one in which the true and only reasonableconclusion contradicts the determination".47[112] The difficulty for SOS and MDC is that they have not criticised the Board, for example, for finding that there were no potentially severe adverse effects on the environment at a given location when the evidence would have forced the Board to the conclusion that there were. Rather, the criticism is that having found such severe44 Te Runanga O Ngai Te Rangi Iwi Trust v Bay of Plenty Regional Council [2011] NZEnvC 402 at [258].45 See Court of Appeal comments in Dye v Auckland Regional Council quoted at [84] above.46 Citing Bryson v Three Foot Six Ltd, above n 14, at [25]–[27].47 Taken from Lord Radcliffe's speech in Edwards (Inspector of Taxes) v Bairstow, above n 14, at 36.adverse effects, the Board has nonetheless weighed that against other relevant considerations and found that, notwithstanding the extent of those adverse effects, the appropriate outcome is to grant a plan change in respect of the particular site. That is not the type of finding within the contemplation of the expression adopted by the Supreme Court in Bryson.[113] I am not satisfied that any of the aspects of the Board's decisions challengedunder this ground of appeal can be made out as determinations that are inconsistent with, and contradictory of, the evidence heard by the Board.Unlawful delegation and restriction on MDC's on-going discretion[114] The final ground of SOS's appeal challenged what it contended was an unlawful delegation of the Board's decision-making power. Associated with this criticism was a complaint that the terms of the decision also unlawfully restricted theMDC's on-going discretion in monitoring compliance with the resource consents granted by the Board.[115] During the course of its hearings, the Board had signalled an intention to structure conditions in the way that is now challenged. The concern that in doing so it would be unlawfully delegating its decision-making function was raised by counsel then appearing for SOS, and the argument was considered and dismissed by the Board in its decision. It described the contentious conditions in the following terms:48[a] A set of "objectives" for water quality and aspects for ecosystemfunction that have been determined to specify what outcomes are to be achieved;[b] Prior to development being undertaken a "baseline report", whichpresents the results from monitoring and analysis undertaken inaccordance with a "baseline plan", is to be produced. It must alsospecify the initial Water Quality Standards. These standards set thresholds for compliance with the determined objectives. This report is to be prepared by an independent person(s);[c] The Baseline Report is to be provided to a peer review panel for its review and assessment;48 At [1287].[d] The peer review panel is to be approved in writing by the Council; and[e] The peer review panel is to review the Baseline Report, including the recommended Water Quality Standards, and make recommendations to the Council for its approval.[116] The Board rejected the criticism, on the basis that it was not delegating a decision-making or judicial function. Rather, its decision would include the relevant qualitative objectives to be achieved and all that it was delegating was the ascertainment of quantitative standards that were to be applied to meet the qualitative objective.[117] Notwithstanding the Board's analysis of the distinction between delegablefunctions in administering conditions from non-delegable decision-making, SOS argued that the processes left by the Board to others did constitute a delegation of the powers which had to be exercised by the Board in imposing conditions. Mr Palmer submitted that a part of the decisions made to grant resource consents would depend on the efficacy of conditions imposed as an aspect of such decisions. When the scope of constraints that would subsequently apply pursuant to conditions could not be assessed by the decision-maker, it followed that the decision-maker was inadequately informed at the time it made its decision. Further, that if the extent of constraint that would subsequently apply depended on a condition that reflected the work of others, then the imposition of that condition had been delegated to those others.[118] Mr Palmer submitted that s 108 of the RMA did not empower the Board to:(a) create new and different bodies to gather and evaluate new information crucial to determining a condition;(b) delegate to them the Authority's power to formulate a condition;(c) require them to make recommendations to another consent authority;(d) require another consent authority (the MDC) to consider or give any weight to the recommendations of such a body.[119] King Salmon's response to these criticisms was that the steps that the Boarddirected should be carried out by others were not part of its decision-makingfunction. Rather, that the Board set the qualitative objective within which all aspects of the subsequent work was to be done, which was clearly within the limits of the decision-maker's function. In contrast, the subsequent analysis and reporting was inthe nature of a quantitative measurement function that could lawfully be delegated. All the steps that the Board's decision contemplates being undertaken by others arewithin the broad terms of conditions of resource consents provided for in s 108 of the RMA.[120] The qualitative component of the Board's decision on which the work to bedone by others depends reflects a matter of judgement. The qualitative standard could have been expressed differently, leading to consent for a greater or lesser extent of salmon farming activities. The Board explicitly acknowledged that it was not in a position to transform the qualitative condition into a quantitative one, until measurements in light of actual experience were available. The outcome of the work in the baseline report, baseline plan and subsequent monitoring of effects will be undertaken in order to produce objectively measurable standards. Although the point was not made on behalf of SOS, it can reasonably be inferred that those with the expertise to carry out this work will, in its detail at least, apply matters of judgement within their expertise as to how the measurements are undertaken and reported. Given the expertise involved, that is inevitable and it does not constitute a component of the decision-making that ought to be carried out by the Board.[121] Section 108 of the RMA does contemplate conditions that will require on-going monitoring in subs (4). Although s 108 does not explicitly contemplate that a consenting authority would require the holder of a consent to procure third party expertise in the process of such on-going monitoring, that is reasonably implicit where the subject matter of the monitoring reasonably requires that.[122] Although not directly relevant, there is an analogy with s 108(2)(e) that provides as follows:108 Conditions of resource consents(2) A resource consent may include any one or more of the following conditions:(e) Subject to subsection (8), in respect of a discharge permit or a coastal permit to do something that would otherwise contravene section 15 (relating to the discharge of contaminants) or section 15B, a condition requiring the holder to adopt the best practicable option to prevent or minimise any actual or likely adverse effect on the environment of the discharge and other discharges (if any) made by the person from the same site or source:That provision contemplates that circumstances may arise in which the obligationwill be not only to adopt " the best practicable option ", but to define what thatis. That is a reasonable analogy with what the Board has directed should occur here.[123] The tasks that the Board has left to others in this case are distinguishable from the further assessment struck down as an unlawful delegation of a judicial function in Director-General of Conservation v Marlborough District Council.49 In that case, the Environment Court had purported to impose, as a condition precedent to the issue of a coastal permit for a marine farm at Clifford Bay, the completion of atwo year survey of the site to monitor the population of Hector's dolphins. TheEnvironment Court had required that the survey had to establish that the site was very probably not a site of special significance to Hector's dolphins, before thepermit could issue.[124] The High Court treated that as requiring an exercise of judgement which ought to have been exercised by the Environment Court itself. It was emphasised that the boundaries of appropriate delegation require an examination of the real nature of the decision which the delegate is required to make, rather than the form in which the power to make it has been conferred.50 That case involved an obligation on the delegate to exercise a judgement that was important to the outcome of the evaluation that the decision-maker was required to undertake. This judgement had a significant bearing on whether consent would have been granted. In contrast, the49 Director-General of Conservation v Marlborough District Council [2004] 3 NZLR 127 (HC).50 At [26]–[27].relevant component of the decision here is the extent to which any deterioration in the water quality would be tolerated, before reduced levels of salmon farming activity would be required. That decision has been made by the Board. Implementing it in quantitative terms is necessarily left until more facts are available.[125] Accordingly, I am satisfied that the Board was correct in law when it rejected the criticism that the proposed structure of its conditions involved unlawful delegation.[126] The other aspect of SOS's last ground of appeal was that the terms on whichdelegated functions were to be carried out by third parties unlawfully constrained the discretion that MDC would have, on an on-going basis, to monitor compliance with the terms of resource consents granted by the Board. The relevant conditions require input from MDC in that the peer review of the reports is to be undertaken by reviewers that MDC must approve.51 Thereafter, MDC will have a right of veto on the definitions implementing the constraints because its approval will be required.[127] Although in administrative law terms, that could never be exercised capriciously and must be exercised rationally for the purpose for which it is created,it is hardly a constraint on MDC's on-going discretion. The Minister ofConservation's decision to take the decisions on King Salmon's request for a plan change and resource consents out of MDC's hands and into the hands of a Board ofInquiry has transferred the decision-making function from the MDC to the Board. It is a consequence of that decision that it is not MDC that settles the conditions subject to which resource consents are granted. In their on-going application, the terms crafted by the Board cannot be seen as improperly confining the on-going discretion of the local authority.[128] MDC will be taking over administration of the conditions of the consents as if it had granted them itself.52 The scope for potential changes to the conditions on which consents have been granted is therefore the same. Section 128 of the RMA51 All but one of the Peer Review Panel must be approved by the MDC, with one member nominated by Te Atiawa Manawhenua Ki Te Tau Ihu Trust.52 RMA, s 149X.specifies circumstances in which a consent authority can review conditions of a consent and, in defined circumstances, change those terms. The conditions imposed by the Board in relation to the work of the Peer Review Panel do contemplate that if the Peer Review Panel identifies matters that should be changed, then MDC can invoke the power under s 128 to make such changes. The subject matter of the PeerReview Panel's work is subject to specialist expertise that MDC could not realistically duplicate and the membership of that panel is, in any event, subject to approval by the MDC. The prospect that the MDC would most likely be responding to any change suggested by the Peer Review Panel, rather than initiating such change itself, cannot, in this context, amount to a constraint on its discretion.EDS appeal[129] EDS pursued two discrete grounds for challenging the Board's decision.These grounds of appeal related only to the Board's decision on the Port Gore (Papatua) and Waitata salmon farms, accepting the plan change decision as it related to the other two sites. EDS argued that the Board had misapplied or misinterpreted the NZCPS in its decision to approve the plan change in relation to Port Gore.[130] EDS's second challenge was to the Board's absence of consideration ofalternatives when assessing the plan change requests in relation to the Port Gore and Waitata sites.Failure to give effect to the NZCPS?[131] EDS argued that the obligation in s 67(3)(b) for a regional plan to "give effect to" the NZCPS was a mandatory obligation for the Board when considering requestsfor a plan change. On its argument, once the Board made the factual finding that granting a plan change to permit salmon farming at Port Gore would not give effect to Policies 13 and 15 of the NZCPS, then the Board could not approve a plan change for salmon farming at that location.[132] EDS argued that it was unlawful for the Board to override the terms of Policies 13 and 15 from the NZCPS by giving effect to that planning document"overall" or "as a whole". This was criticised as an unjustified "mystical" or"chancellor's foot" approach to the interpretation of the NZCPS. In any event, EDS argued that there were no relevant provisions in the NZCPS that were inconsistent with, or unable to be reconciled with, the priorities addressed in Policies 13 and 15.[133] The Board acknowledged its obligation to give effect to the NZCPS,recognising that it was a strong direction and requires "positive implementation".53The Board treated the NZCPS as containing "higher order overarching objectives and policies, that pull in different directions, and thus a judgement has to be made as to whether the instrument as a whole is generally given effect to".54[134] The policies from the NZCPS focused on were 8, 13 and 15, as quoted at [35]above. The Board implicitly treated the advancement of Policy 8 (Aquaculture) as pulling in a different direction from Policies 13 and 15, which deal with the preservation of natural character and protection of natural features and natural landscapes. However, EDS disputed that there was any necessary conflict between these policies. It was submitted that they could all be accommodated and there was therefore no need to approach the obligation under s 67(3)(b) in a way that required some overall value judgement, attributing priority to one value over others.[135] In considering its obligation under s 67(3)(b), the Board had observed:55Planning instruments, particularly of a higher order, nearly always contain a wide range of provisions. Provisions which are sometimes in conflict. Thedirection "to give effect to" does not enjoin that every policy be met. It isnot a simple check-box exercise. Requiring that every single policy must be given full effect to would otherwise set an impossibly high threshold for any type of activity to occur within the coastal marine area.[136] EDS criticised the last sentence of this paragraph as an overstatement that has contributed to what it alleged was an error of law by the Board in failing to give effect to Policies 13 and 15. Those policies could be given effect to by declining a plan change request in relation to Port Gore, without any failure to give effect to Policy 8 when it could be given effect to by granting plan changes in relation to other sites that would not involve activity directly in conflict with Policies 13 and 15.53 At [1180].54 At [1180].55 At [1181].[137] EDS submitted that the gap that otherwise remained in giving effect to the NZCPS could have been bridged if the Board had made a factual finding that salmonfarming was "appropriate" at Port Gore, despite the outstanding values of that location. EDS argued that there was no such factual finding, and in its absence the relevant factual findings were confined to those that recognised Policies 13 and 15 would not be given effect to by a plan change at that site. It necessarily followed that a decision to approve the plan change, so far as it related to Port Gore, would not give effect to the NZCPS.[138] The scenario Mr Enright described was a relevant example of where the Board would be acting outside its lawful powers, as s 67 does not permit a plan change that does not give effect to the NZCPS. If there was no more than the finding that granting a plan change in respect of the Port Gore site would not give effect to NZCPS Policies 13 and 15, then a decision to approve the request in respect of that site, when the decision was required to give effect to the NZCPS, would constitute an error of law.A hierarchy of importance in the NZCPS?[139] EDS also submitted that a hierarchy of relative importance was present on a proper interpretation of the NZCPS. The Board determined that there was no such hierarchy or ranking of the provisions,56 but EDS contended that the hierarchy was signalled both by the structural distinction between objectives, policies and methods, and because of the terms in which various policies are expressed. At the least, the plain meaning rendered some policies more important than others. Mr Enright characterised the terms of Policy 8 as permissive in "recognis[ing]" the contributionof aquaculture, whereas Policies 13 and 15, in mandatory terms, involve anobligation to "preserve" natural character, and to "avoid" adverse effects. Withinthis concept of avoidance, gradations of the extent of obligations are signalled by an obligation to avoid (any) adverse effects in areas of the coastal environment with outstanding natural character, but only to avoid (the more serious level of) significant adverse effects in all other areas of the coastal environment.56 Board decision at [1182].[140] On behalf of the Crown interests, Mr McCarthy submitted that there were numerous indications implicitly inconsistent with the NZCPS having been drafted on the basis of a hierarchy of importance. In particular, the short section at the outset dealing with interpretation observed:Numbering of objectives and policies is solely for convenience and is not to be interpreted as an indication of relative importance;[141] If it was intended that the contents of the NZCPS were to be applied reflecting some form of hierarchy, there was some force in Mr McCarthy's point thatit would be reasonable to have expected the draftsperson to stipulate it, ideally at that point at the outset of the document. There is no such explicit direction.[142] Further, Mr McCarthy disputed that any linguistic indications could be taken, for example from the form in which verbs are used, consistently in the imperative form – "recognise", "avoid", "protect" and so on. Given that it is producedsubordinate to the RMA, Mr McCarthy also suggested it would be reasonable that, if any hierarchy of relative importance was intended, such as the ranking of relative importance apparent from the terms of ss 6 to 8 of the RMA, then that would have been expressed explicitly within the NZCPS.[143] Mr McCarthy submitted that the terms in which various policies in the NZCPS are expressed require an evaluative approach rather than any absolute permissions or prohibitions. He made the point for the Crown interests that the obligation to avoid adverse effects is a step short of prohibiting provisions that would create such effects. His argument was a valid pointer to interpreting the provisions of the NZCPS in an evaluative way, which is a factor against interpreting any of the policies as imposing mandatory obligations.[144] King Salmon characterised EDS's requirement for a hierarchy of relative importance in the provisions in the NZCPS as involving a "veto approach", in thatthe consequence of a proposal being inconsistent with a single provision in the NZCPS perceived to be sufficiently high up the hierarchy would automatically require the rejection of that proposal. It was argued for King Salmon that that wasinconsistent with the purpose of the RMA and the evolved jurisprudence on consideration of proposed plan changes.[145] Mr Enright's rejoinder to this point was to reject "veto" as a misnomer. Heurged that priority had to be given to the policies expressed in words that were nearer to the mandatory or directory end of a continuum, the opposite end of which was policies expressed in permissive terms. He characterised Policy 13 as requiring an"avoidance approach" by reference to use of the verbs avoid, protect and preserve.[146] Mr Enright also argued that for areas of the coastal environment to which Policies 13 and 15 applied (ie in particular areas of outstanding natural character or outstanding natural landscapes), the objectives of those policies were paramount. He contrasted their terms with those of Policy 8, which required recognition of thecontribution aquaculture could make only " in appropriate places in the coastalenvironment ". On Mr Enright's approach to interpreting the respective policies,those parts of the coastal environment protected by Policies 13 and 15 were, bydefinition, excluded from the "appropriate places" contemplated by Policy 8.[147] Mr Nolan's response to EDS's argument for narrowing the application ofPolicy 8 was that "appropriate places" were not to be assessed in that broad way so as to render "inappropriate" any parts of the coastal environment that other policies might suggest should be preserved. Rather, he argued that the nature of places thatwere "appropriate" was to be interpreted in light of the context in which thatexpression was used in subpara a. of Policy 8. Those considerations included the need for high water quality, and the need for land-based facilities associated with marine farming. They suggest that "appropriateness" is to be measured relative tosuitability to conduct marine farming at that location.[148] I incline to Mr Nolan's approach to the interpretation of what are"appropriate places". If the drafters of the NZCPS intended to exclude areas ofparticular natural attributes from places that could be appropriate for Policy 8 purposes, then the scope of that exclusion might reasonably have been made explicit.[149] Further, adopting Mr Enright's approach would involve excluding somecoastal environments from consideration for marine farming activities absolutely, solely by virtue of the quality of their existing natural attributes. I consider that approach would be inconsistent with the evaluative tenor of the NZCPS, when assessed in the round.[150] I do not consider that consenting authorities need to approach their task in giving effect to the NZCPS by discerning a settled hierarchy between the objectives and policies contained in it. In every case, there will be policies having greater relevance than others, and the terms in which particular policies are expressed most likely provide signposts to the relative importance of one policy or another. The Board did not err when it declined to consider policies from the NZCPS by reference to some settled hierarchy.[151] However, that does not necessarily dispose of EDS's more nuanced criticism that the evaluation undertaken here involved an error of law in relegating Policies 13 and 15 in light of the Board's specific finding that the component of the plan change requested in relation to Port Gore did not give effect to those policies. The essenceof EDS's concern is to question the rationale, in resource management terms, for designating coastal areas as having outstanding natural character or features, if that designation does not protect the area from an economic use that will have adverse effects. An answer to that valid concern is that such designations do not afford absolute protection. Rather, they require a materially higher level of justification for relegating that outstanding natural character or feature, when authorising an economic use of that coastal area, than would be needed in other coastal areas.[152] EDS's concern was reflected in its argument that the preponderance of provisions in planning documents throughout the hierarchy down from the RMA required priority to be given at the Port Gore site to preservation of its naturalfeatures. The Board's decision to relegate those considerations, when so many relevant propositions pointed to their being determinative in assessing any request for a plan change, could not be a reasonable exercise of the power to weigh them against countervailing considerations.[153] King Salmon's first response to EDS's arguments disputed EDS's characterisation of the Board's decision as omitting any finding that salmon farmingwould be "appropriate" at Port Gore. King Salmon had advocated for a plan change at the Port Gore site because of its isolation from all the other proposed sites,57which gave it significant advantages in terms of managing biosecurity risks. The Board found that this feature of its location did make it "appropriate". The site-specific analysis, after recognising the "abrupt incursion" that a salmon farm wouldmake into the dramatic landscape in Port Gore, concluded its weighing of the pros and cons in the terms set out in the last three paragraphs of the extract at [106]above. That does indeed conclude that the proposed zone at Papatua (Port Gore) would be appropriate, relying on a decision that the particular advantages of the site outweighed the adverse effects which included the failure to give effect to Policies 13 and 15.[154] As with other criticisms of the Board, King Salmon's ultimate justification is that the criticism of the Board's reasoning goes to the weight it gave various relevantfactors it considered. As a matter of law it was open to the Board to have regard to each of the matters it did, and it was solely a matter for the Board to attribute weight as between those factors.[155] It can reasonably be inferred that the reasons why Parliament confined theright of appeal from the Board's decision to questions of law was that no revisitingof factual determinations was justified. In this case, the recently introduced amendment to the RMA provided for the appointment of the Board, which comprised substantial expertise in evaluating the resource management considerations that arose. The Board of five, including a retired Environment Court Judge and the Environment Commissioner, conducted extensive hearings on all aspects of the issues for and against the proposed plan change. They were substantially better placed to decide on the weight to be given to each of the relevant considerations than a judge could be. The scope of the arguments on the appeal implicitly acknowledged that reality.57 See map at Appendix A.[156] This ground of EDS's appeal could not succeed unless I substantially alteredthe weight given to competing considerations, from that settled after exhaustive analysis by the Board in its decision. I cannot do so, and accordingly am not satisfied that any error of law is made out on this first ground of EDS's appeal.Failure to assess alternatives[157] EDS argued that the Board ought to have assessed alternatives to granting plan changes for the specific sites, as an aspect of its assessment under s 32 of the RMA. Section 32(3) and (4) provide:32 Consideration of alternatives, benefits, and costs(3) An evaluation must examine—(a) the extent to which each objective is the most appropriate way to achieve the purpose of this Act; and(b) whether, having regard to their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives.(4) For the purposes of the examinations referred to in subsections (3) and (3A), an evaluation must take into account—(a) the benefits and costs of policies, rules, or other methods; and(b) the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods.[][158] The Board acknowledged that it had been urged by numerous submitters to consider alternatives. Alternatives were proposed by way of submission without any evidence, apart from cross-examination of witnesses for King Salmon. The Board determined, as a matter of law, that the issue of alternatives did not form part of theevaluation of a private plan change proposal. The Board's decision applied that ofthe High Court in Brown v Dunedin City Council.58 That case involved a site-58 Brown v Dunedin City Council [2003] NZRMA 420 (HC).specific proposed plan change seeking transformation of a private owner's land from rural to residential. Chisholm J decided:59I am satisfied that the theme running through the Environment Court'sdecision is legally correct: s 32(1) does not contemplate that determination of a site-specific proposed plan change would involve a comparison with alternative sites.[159] The Board's decision went on to consider possible alternatives in the contextof the resource consent applications. It dismissed each of a range of suggested alternative means of pursuing additional salmon farming ventures as adversely affecting the entitlement of King Salmon to resource consents for each of the sites that had been the subject of plan change approval.[160] It was argued for EDS that either the decision in Brown was wrong, or that its circumstances were distinguishable from the present. Further, that because thesecond "gateway" of resource consent applications involved far narrower considerations, there was little utility in considering alternatives in that context, whereas there was substantial utility in considering alternatives when undertakingthe wider assessment at the initial "gateway" of a proposed plan change.[161] Mr Enright cited the Court of Appeal's consideration of the differences in approach required at the first stage of initiating a plan change, and at any second stage of considering an application for resource consent, in the Coromandel Watchdog decision.60 It was there observed:Plan changes require a different and more consultative process than that for applications for resource consent in relation to a discretionary activity or a non-complying activity. In essence, the proponent of a plan change faces a higher hurdle. There is the potential for greater community involvement.[162] On the relevance of whether a matter such as alternatives was taken into account at the first or second gateway, Mr Enright distinguished s 104(1)(b)(iv) where, in the context of an application for a resource consent, the consent authorityhas only to "have regard to" the NZCPS. In contrast, when considering a request for a plan change, s 67(3) required the decision-maker to "give effect to" the NZCPS. It59 At [16].60 Coromandel Watchdog of Hauraki Inc v Ministry of Economic Development [2007] NZCA 473, [2008] 1 NZLR 562 at [16].would follow that consideration of alternatives at the second stage was not the equivalent of considering them at the first stage, if a legal obligation to do so arose.[163] Mr Enright argued that Brown was distinguishable because the application for a plan change in that case had originally been made by the owner of private land.The local authority accepted the owner's request and proposed to adopt it, but opponents pursued the issue in the Environment Court. The essential issue was whether the site should remain in a rural zone, or whether it should join a residential zone to which it was adjacent. In contrast in this case, the plan change sought related to occupation of public space in the coastal marine area. In the context of a request brought by the owner of private land, any assessment of the alternatives would focus on alternative sites to that proposed, for the zoning change sought. In contrast, here, alternatives properly considered under s 32 would include alternative modes of carrying out the proposed commercial activity.[164] MDC's submissions strongly supported EDS's argument. Mr Quinnsubmitted that the Board's rejection of the need to consider alternatives at the plan change stage amounted to a significant error of law. He submitted that the decision in Brown was potentially wrong and was at least distinguishable, in circumstances where the relevant provisions in the RMA have been amended since that case was decided.61[165] The submissions for MDC characterised the proposed plan change involved in Brown to have been "Council initiated". The significance of this was said to bethat different requirements apply where a plan change is requested other than by the local authority, as to the content of what has to be addressed. Mr Quinn analysed the requirements in Schedules 1 and 4 of the RMA in support of his submission that, in determining requests for a plan change, the decision-maker had to have regard to alternatives to the plan change being sought. Part 2 of Schedule 1 to the RMA provides, in cls 21 and 22, that any person may request a change to a district or regional plan, including a regional coastal plan, and that the request is to explain the purpose of, and reasons for, the proposed change. Clause 22(2) provides:61 I am not persuaded that the change in cl 23 of Schedule 1 to the RMA since Brown was decided has any bearing on whether the Board was obliged to consider alternatives as an aspect of its evaluation of the request for a plan change.22 Form of request(2) Where environmental effects are anticipated, the request shall describe those effects, taking into account the provisions of Schedule 4, in such detail as corresponds with the scale and significance of the actual or potential environmental effects anticipated from the implementation of the change, policy statement, or plan.[166] Treating this as a request for a plan change that did include environmental effects, an assessment of the type provided for in Schedule 4 had to be undertaken. That provision requires that an assessment of the effects on the environment should include:62Where it is likely that an activity will result in any significant adverse effect on the environment, a description of any possible alternative locations or methods for undertaking the activity:[167] Accordingly, on MDC's analysis, a proper request for a plan change should have addressed the alternatives. Once they were addressed, they ought to have been evaluated by the decision-maker.[168] King Salmon submitted that these points were misconceived, and that the Board adopted a conventional and well-settled approach that does not require consideration of alternatives in the present circumstances. It was submitted for King Salmon that, apart from the reference in the heading to s 32 to "consideration of alternatives", the requirements of that section do not explicitly include a comparison of alternatives, in circumstances where that requirement is explicit in other contexts in the RMA.[169] Mr Nolan cited the Full Court decision in Meridian Energy Ltd v Central Otago District Council, which related to the absence of an explicit requirement to consider alternatives in s 7(b) of the RMA.63 Section 7(b) is a general provision requiring all persons exercising powers under the RMA in relation to managing the use, development and protection of natural and physical resources, to have particularregard to "the efficient use and development of natural and physical resources". In62 Schedule 4, cl 1(b).63 Meridian Energy Ltd v Central Otago District Council, above n 32, at [77].Meridian, the Full Court rejected the proposition that s 7(b) created an obligation for the consenting authority to consider specific alternatives to the resource consents sought in that case for wind farming activities. Chisholm and Fogarty JJ contrasted the terms of s 7(b) against other provisions in the RMA where an obligation toconsider alternatives was "carefully spelled out". In that case, the Environment Court was held to have been entitled to call for a consideration of alternative sites, but had erred in law in deciding that s 7(b) required an analysis of alternative locations.[170] Mr Nolan submitted that, in the context of site-specific applications for plan changes, the requirement under s 32(3) to assess whether a proposed objective is the most appropriate way to achieve the purpose of the RMA, and whether, having regard to their efficiency and effectiveness, the policies, rules or other methods being proposed are the most appropriate for achieving the objectives, involves considerations relating just to the sites in issue. He argued that there was nothing in the wording of s 32 that required any broader evaluation of the relative appropriateness of effecting the proposed plan change at other sites. Mr Nolan cited the observation of this Court from another recent appeal on the "most appropriate"test required by s 32:64Section 32 requires a value judgment as to what on balance, is the mostappropriate, when measured against the relevant objectives. "Appropriate"means suitable, and there is no need to place any gloss upon that word by incorporating that it be superior.That comment was made in dealing with an argument that an assessment of the"most appropriate way" had to be superior to others, rather than a consideration of whether appropriateness could be assessed simply by reference to the site or locations involved, or had to involve a comparison of those with the prospects at other sites.[171] I am not persuaded to adopt a different interpretation of the scope of obligations required by s 32. I respectfully adopt the approach taken by the Full Court in Meridian, where it distinguished the absence of any obligation to64 Rational Transport Society Inc v New Zealand Transport Agency [2012] NZRMA 298 (HC) at [45].consider alternative locations as part of the efficiency analysis under s 7(b), from the appropriateness in given circumstances for the consenting authority to do so.65Although the context is relevantly different from that in Brown, the same practical concerns arise in imposing an obligation on an applicant for a plan change to canvass all alternative locations. If, in the course of contested consideration of a request for a plan change, a more appropriate means of achieving the objectives is raised, then there is nothing in s 32 or elsewhere in the RMA that would preclude the consenting authority having regard to that as part of its evaluation. That is distinctly different, however, from treating such an assessment as mandatory under s 32.[172] Given that s 32, on its own, does not import such an obligation, there is a further issue as to whether other provisions in the schedules to the RMA elevate the consideration of alternatives to a mandatory consideration when dealing with a request for a plan change. The form of request for a plan change required by cl 22 of Schedule 1 does not go beyond addressing matters that are required for the evaluation under s 32. However, in those cases to which cl 22(2) applies (ie when environmental effects are anticipated), the request has to include an assessment of the effects on the environment, as provided for in Schedule 4, cl 1. The relevance of such an analysis being included in the form of a request was acknowledged inBrown.66 Mr Quinn emphasised the relative importance of it being included by pointing out that a failure to adequately address this component in a request entitles the local authority to request further information. If such information is not provided, the local authority can decide to not approve the plan change requested if, as a result, the local authority deems it has insufficient information to enable it to consider or approve the request.67[173] The relative importance of provision of information about alternatives, as inferred from Mr Quinn's analysis of the provisions in Schedules 1 and 4, is distinguishable from the mandatory consideration required of the consenting authority in making a decision. I am not satisfied that the provisions in the schedules transform what is not otherwise a mandatory obligation, into one.65 Meridian Energy Ltd v Central Otago District Council, above n 32, at [86].66 Brown v Dunedin City Council, above n 58, at [14], [16].67 RMA, Schedule 1, cl 23(6).[174] I am therefore not persuaded that the Board committed an error of law in rejecting a requirement to consider alternative locations.Summary[175] For all these reasons, both appeals are dismissed.Costs[176] I do not underestimate the effort required for King Salmon, supported in the limited way it has been by the submissions for the Crown interests, to defend theBoard's decision.[177] Nor would I criticise the appellants or MDC for the points they have taken on their appeals. The legal concepts required to be applied by the Board in its decisions involve value judgements that introduce the prospect of malleable assessments of factual matters that competent resource management counsel exploit in a way that is,with great respect, alien to black letter lawyers. The appellants' urgings for acontrary outcome fall short because critical contested findings involve an assessment of the weight of competing factors, all of which were within the legal parameters available to the Board.[178] In such circumstances, I am reluctant to order costs against the appellants. They have, both competently and responsibly, advanced legitimate public interests. If, notwithstanding this provisional indication, King Salmon wishes to pursue costs, then it should file a memorandum within 28 days of delivery of this judgment. Thereafter, the appellants would have a period of a further 21 days to file submissions in opposition to any claim for costs.[179] Whilst I appreciate the limited contribution made on behalf of the Crown interests, my provisional view is not to order costs in their favour.Dobson JSolicitors:DLA Phillips Fox, Auckland for Environmental Defence Society IncorporatedFletcher Vautier Moore, Nelson for Sustain Our SoundsRussell McVeagh, Wellington for The New Zealand King Salmon Company LimitedDLA Phillips Fox, Wellington for Marlborough District CouncilCrown Law, Wellington for Minister of Conservation and Ministry for Primary IndustriesBuddle Findlay, Wellington for Board of InquiryAppendix A