PORT OTAGO LIMITED v ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED [2023] NZSC 112

PORT OTAGO LIMITED v ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED [2023] NZSC 112[24 August 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 6/2022[2023] NZSC 112BETWEEN PORT OTAGO LIMITEDAppellantAND ENVIRONMENTAL DEFENCE SOCIETYINCORPORATEDFirst RespondentOTAGO REGIONAL COUNCILSecond RespondentROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDThird RespondentMARLBOROUGH DISTRICT COUNCILFourth RespondentHearing: 11–12 May 2022Court: Winkelmann CJ, Glazebrook, Ellen France, Williams andWilliam Young JJCounsel: L A Andersen KC and S M Chadwick for AppellantD A Allan, M C Wright and C S S Woodhouse for FirstRespondentS J Anderson and T M Sefton for Second RespondentM C Smith, S T Shaw and M Downing for Third RespondentJ W Maassen and B D Mead for Fourth RespondentV E Casey KC, V S Evitt and J W E Parker for Waka Kotahi |New Zealand Transport AgencyR B Enright for Ngāti Whātua Ōrākei Whai Maia LimitedP F Majurey and K Ketu for Ngāti Maru Rūnanga Trust, Te ĀkitaiWaiohua Waka Taua Incorporated, Ngāi Tai ki Tāmaki Trust andNgāti Tamaoho TrustG C Lanning and C J Ryan for Auckland CouncilJudgment: 24 August 2023JUDGMENT OF THE COURTA The appeal is allowed.B The order remitting the matter to the Environment Court isset aside.C The Otago Regional Council is directed to consult theparties and any other persons it considers appropriate on aredrafted policy 4.3.7(d)–(e) in the proposed OtagoRegional Policy Statement either:(a) along the lines in paragraph [87] of this judgment orto similar effect; or(b) otherwise to give appropriate effect to the policies ofthe NZCPS and their inter-relationships.D Costs are reserved.____________________________________________________________________REASONS(Given by Glazebrook J)Table of ContentsParaNoIntroduction [1]Factual background [4]The NZCPS [9]Proposed Regional Policy Statement [14]Decisions of the Courts below [18]Environment Court decision [18]High Court decision [35]Court of Appeal decision [36]The submissions of the parties [42]Port Otago [42]Marlborough District Council [47]Environmental Defence SocietyOtago Regional Council[49][51]Royal Forest and Bird [52]Other submissions [55]Issues [58]Relationship between the NZCPS avoidance policies and the portspolicy [59]Interpretation of the NZCPS [60]NZCPS avoidance policies [64]NZCPS ports policy [69]Potential for conflict [71]Where conflicts should be addressed [72]How any conflicts should be addressed [75]Summary of decision [83]Suggested policy amendment [85]Disposition [90]Result and costs [92]Introduction[1] This appeal raises important issues about the relationship between the policiesin the New Zealand Coastal Policy Statement (NZCPS) and how such policies shouldbe reflected in lower-order planning documents.1 Resolving these issues requires usto address the principles established by this Court in Environmental Defence Society vThe New Zealand King Salmon Co Ltd (King Salmon)2 and Sustain Our Sounds Inc vThe New Zealand King Salmon Co Ltd (Sustain Our Sounds)3 in a different context.At issue in King Salmon and Sustain Our Sounds was the effect of the NZCPS onproposed plan changes to enable the establishment of salmon farms in particularlocations. This appeal concerns the relationship between the policies in the NZCPSrequiring aspects of the natural environment to be protected and the NZCPS policy onports as it relates to Port Otago, which is critical existing infrastructure.[2] In particular, the appeal relates to the validity of a policy relating to portscontained in a proposed Otago Regional Policy Statement (proposed regional portspolicy) and the suggested modification by the Environment Court.4 This requires aconsideration of the following issues:1 "New Zealand Coastal Policy Statement 2010" (4 November 2010) 148 New Zealand Gazette3710.2 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38,[2014] 1 NZLR 593 [King Salmon].3 Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 40, [2014] 1 NZLR673 [Sustain Our Sounds].4 For the original proposed regional ports policy, see below at [14]. For the suggested wording ofthe Environment Court, see below at [32].(a) the relationship between policy 9 of the NZCPS relating to ports (theNZCPS ports policy) and a number of other policies that requireadverse effects of activities to be avoided (the NZCPS avoidancepolicies): policy 11 (indigenous biological diversity (biodiversity)),policy 13 (preservation of natural character), policy 15 (natural featuresand natural landscapes) and policy 16 (surf breaks of nationalsignificance);5(b) whether any potential conflicts between the NZCPS ports policy andthe NZCPS avoidance policies should be addressed in regional policystatements and plans or at the consent level under ss 104 or 104D of theResource Management Act 1991 (RMA); and(c) how any conflicts between those policies should be addressed.[3] Before considering the above issues, we first give a brief factual backgroundand set out the relevant parts of the NZCPS and the proposed regional ports policy.We then summarise the decisions in the courts below and the submissions in this Court.Factual background6[4] The Otago | Ōtākou Harbour is the only significant natural port locationbetween Timaru | Te Tihi-o-Maru and Bluff | Motupōhue. Port Otago Ltd operates twoports: at Port Chalmers | Kōpūtai and Dunedin | Ōtepoti. Port Chalmers is now one ofNew Zealand's two deepest container ports and the country's third largest port byproduct value. Port Otago employs over 300 staff.[5] Harbour dredging in Port Chalmers began in 1865 and in Dunedin in 1881.Dredging with regard to both ports still remains necessary to remove sediment as the5 We have assumed for these purposes that there will be no conflict among the various avoidancepolicies.6 A fuller factual background is provided in the Environment Court's decision Port Otago Ltd vOtago Regional Council [2018] NZEnvC 183 [EnvC interim judgment] at [8]–[21]; theHigh Court decision in Environmental Defence Society Inc v Otago Regional Council[2019] NZHC 2278, (2019) 21 ELRNZ 252 [HC judgment] at [6]–[17]; and the Court of Appealdecision in Port Otago Ltd v Environmental Defence Society Inc [2021] NZCA 638,[2022] NZRMA 165 [CA judgment] at [2]–[15].channel fills in. A sand bar at the entrance of the harbour initially restricted the sizeof vessels that could enter. In the late 1880s, this was rectified by the building of themole at Aramoana.[6] The proposed Regional Policy Statement does not itself identify naturallandscapes of high or outstanding natural character within the harbour. Suchclassifications are contained in derivative plans, not yet completed. Two relevantplaces where the ports operate were identified in evidence by Port Otago before theEnvironment Court as potentially being within areas of high or outstanding naturalcharacter or features.7[7] There are also key habitats in the harbour that could potentially be affected byworks related to the ports. For example, seagrass beds in the lower Otago Harbourprovide nursery grounds for inter-tidal invertebrates and fish, as well as feeding areasfor fish and birds. Part of the seagrass beds off Harwood (on the south side of thelower harbour) fall within a coastal protected area in the Otago Regional Plan. Thesalt marsh at Aramoana, adjacent to The Spit,8 is another coastal protection area in theOtago Regional Plan and classified as an area of significant conservation value in theDunedin City District Plan. There are also important rocky shore habitats, cockle bedsand shell banks. The last of these were described in the Environment Court decisionas "unique within Otago Harbour and very rare locally, nationally and internationallywith birds using the banks in the harbour for roosting".9[8] Finally, there are nationally significant surf breaks at The Spit, Aramoana andat Whareakeake, the latter outside the harbour to the west of Heyward Point.The Environment Court noted that the surf break of The Spit is maintained in part bymanaged disposal of dredged sediment from the main harbour channel and that therewas some evidence that this also applies to the break at Whareakeake.107 Namely, the Heyward Point dredging disposal site and the shipping channel: see EnvC interimjudgment, above n 6, at [13].8 The Spit is another stretch of land extending into the harbour, almost perpendicular to theAramoana mole.9 EnvC interim judgment, above n 6, at [11(f)].10 At [14].The NZCPS[9] The NZCPS ports policy reads:11Recognise that a sustainable national transport system requires an efficientnational network of safe ports, servicing national and international shipping,with efficient connections with other transport modes, including by:(a) ensuring that development in the coastal environment does notadversely affect the efficient and safe operation of these ports, or theirconnections with other transport modes; and(b) considering where, how and when to provide in regional policystatements and in plans for the efficient and safe operation of theseports, the development of their capacity for shipping, and theirconnections with other transport modes.[10] Turning to the relevant NZCPS avoidance policies, policies 11, 13 and 15 havea similar structure. First, they define the circumstances in which adverse effects mustbe avoided. In the case of policy 13, this covers areas of the coastal environment withoutstanding natural character. In policy 15, this is with regard to outstanding naturalfeatures and outstanding natural landscapes in the coastal environment. In policy 11,this relates to certain species and areas listed, for example indigenous ecosystems andvegetation types that are threatened in the coastal environment or are naturally rare, aswell as areas containing nationally significant examples of indigenous communitytypes. Moving one step down on the hierarchy of protection, the policies then providethat, in other cases, significant adverse effects must be avoided and other adverseeffects avoided, remedied or mitigated.[11] As an example of these two levels of protection we set out policy 13(1)(a)and (b):(1) To preserve the natural character of the coastal environment and toprotect it from inappropriate subdivision, use, and development:(a) avoid adverse effects of activities on natural character in areasof the coastal environment with outstanding natural character;and(b) avoid significant adverse effects and avoid, remedy ormitigate other adverse effects of activities on natural characterin all other areas of the coastal environment;11 "New Zealand Coastal Policy Statement 2010", above n 1, policy 9.[12] Policy 16, relating to surf breaks of national significance, provides:12Protect the surf breaks of national significance for surfing listed in Schedule 1,by:(a) ensuring that activities in the coastal environment do not adverselyaffect the surf breaks; and(b) avoiding adverse effects of other activities on access to, and use andenjoyment of the surf breaks.[13] Policy 7, relating to strategic planning, was referred to by theEnvironment Court. It provides:(1) In preparing regional policy statements, and plans:(a) consider where, how and when to provide for futureresidential, rural residential, settlement, urban developmentand other activities in the coastal environment at a regionaland district level; and(b) identify areas of the coastal environment where particularactivities and forms of subdivision, use and development:(i) are inappropriate; and(ii) may be inappropriate without the consideration ofeffects through a resource consent application, noticeof requirement for designation or Schedule 1 of theAct process;and provide protection from inappropriate subdivision, use,and development in these areas through objectives,policies and rules.(2) Identify in regional policy statements, and plans, coastal processes,resources or values that are under threat or at significant risk fromadverse cumulative effects. Include provisions in plans to managethese effects. Where practicable, in plans, set thresholds (includingzones, standards or targets), or specify acceptable limits to change, toassist in determining when activities causing adverse cumulativeeffects are to be avoided.Proposed Regional Policy Statement[14] A proposed Otago Regional Policy Statement was prepared by theOtago Regional Council (the Council) and publicly notified on 23 May 2015. Theproposed regional ports policy was:12 Footnote omitted.Policy 4.3.7 Recognising port activities at Port Chalmers and DunedinRecognise the functional needs of port activities at Port Chalmers andDunedin and manage their effects by:(a) Ensuring that other activities in the coastal environment do notadversely affect port activities;(b) Providing for the efficient and safe operation of these ports andeffective connections with other transport modes;(c) Providing for the development of those ports' capacity for nationaland international shipping in and adjacent to existing port activities;(d) Providing for those ports by:(i) Recognising their existing nature when identifyingoutstanding or significant areas in the coastal environment;(ii) Having regard to the potential adverse effects on theenvironment when providing for maintenance of shippingchannels and renewal/replacement of structures as part ofongoing maintenance;(iii) Considering the use of adaptive management as a tool toavoid adverse effects;(e) Where the efficient and safe operation of port activities cannot beprovided for while achieving the policies under Objective 3.1 and 3.2avoid, remedy or mitigate adverse effects as necessary to protect theoutstanding or significant nature of the area; and(f) Otherwise managing effects by applying policy 4.3.4.[15] The proposed regional ports policy refers to objectives in the proposedRegional Policy Statement. Objectives 3.1 and 3.2 in the proposedOtago Regional Policy Statement are:Objective 3.1 The values (including intrinsic values) of ecosystems andnatural resources are recognised and maintained, or enhanced where degradedObjective 3.2 Otago's significant and highly-valued natural resources areidentified and protected, or enhanced where degraded[16] Proposed policy 4.3.4 is also referred to. It provides:Policy 4.3.4 Adverse effects of nationally and regionally significantinfrastructureManage adverse effects of infrastructure that has national or regionalsignificance, by:(a) Giving preference to avoiding its location in all of the following:(i) Areas of significant indigenous vegetation and significanthabitats of indigenous fauna in the coastal environment;(ii) Outstanding natural character in the coastal environment;(iii) Outstanding natural features and natural landscapes, includingseascapes, in the coastal environment;(iv) Areas of significant indigenous vegetation and significanthabitats of indigenous fauna beyond the coastal environment;(v) Outstanding natural character in areas beyond the coastalenvironment;(vi) Outstanding natural features and landscapes beyond the coastalenvironment;(vii) Outstanding water bodies or wetlands;(viii) Places or areas containing historic heritage of regional ornational significance;(b) Where it is not practicable to avoid locating in the areas listed in (a)above because of the functional needs of that infrastructure:(i) Avoid adverse effects on the values that contribute to thesignificant or outstanding nature of (a)(i)–(iii);(ii) Avoid significant adverse effects on natural character in allother areas of the coastal environment;(iii) Avoid, remedy or mitigate, as necessary, adverse effects inorder to maintain the outstanding or significant nature of(a)(iv)–(viii);(c) Avoid, remedy or mitigate, as necessary, adverse effects on highlyvalued natural features, landscapes and seascapes in order to maintaintheir high values;(d) Avoiding, remedying or mitigating other adverse effects;(e) Considering offsetting for residual adverse effects on indigenousbiological diversity.Where there is a conflict, Policy 4.3.4 prevails over the policies underObjectives 3.2 (except for policy 3.2.12), 5.2 and Policy 4.3.1.[17] In relation to surf breaks, there are two particularly relevant proposed policies.The first repeats the NZCPS in recognising surf breaks of national importanceincluding The Spit and Wharekeake.13 The second policy provides:Policy 3.2.12 Managing surf breaks of national importanceProtect surf breaks of national importance, by all of the following:(a) Avoiding adverse effects on the natural and physical processescontributing to their existence;(b) Avoiding adverse effects of other activities on access to, and use andenjoyment of, those surf breaks.Decisions of the Courts belowEnvironment Court decision[18] The Environmental Defence Society Incorporated (EDS) and 24 othersappealed the decision of the Council regarding the proposedRegional Policy Statement to the Environment Court. They said that the proposedregional ports policy in (e) with its options to "avoid, remedy or mitigate adverseeffects as necessary" failed to give effect to the NZCPS and in particular policies 11(a),13(1), 15(a) and (b), and 16.14[19] Mediation did not resolve the issue and the appeal was heard by theEnvironment Court in 2018. In September of that year, the Environment Court issuedan interim decision.[20] The Environment Court took the view that there was a potential conflictbetween the ports policy and the avoidance policies in the NZCPS. The Court notedthe use of the prescriptive verb "requires" in the ports policy and considered that thiswas used to ensure that there would be an efficient network of safe ports. It said:15These must be able to service both national and international shipping, withthe implication that even large ships need to be catered for if not necessarilythe very largest supertankers or container ships. The core of policy 9 isaccordingly strongly prescriptive even if there is some discretion as to where,when and how ports are to be located and developed.13 Proposed policy 3.2.11.14 EnvC interim judgment, above n 6, at [5].15 At [114].[21] The Court considered that policy 7 (strategic planning) could be used to resolvethe conflict between the ports policy and the avoidance policies. It said that someactivities that have the potential to cause adverse effects (and therefore breach theavoidance policies) may need to be "considered on a case by case basis so that thepotential adverse effects can be considered in the context of a specific factual andpredictive situation".16 Policy 7 suggests that subordinate plans can provide themethod for resolving such conflicts by "requiring a resource consent be applied forand determined having regard to purposively framed objectives and policies".17 Inshort, the Court held "that reference to policy 7(1)(b)(ii) may be used to resolve anyconflict between the directory provisions of policy 9 (Ports) and the even moredirectory avoidance policies of the NZCPS".18[22] Various parties in the Environment Court had put forward suggested wordingto replace the wording in the regional ports policy.19 The Court went on to evaluatethese suggestions.[23] In terms of efficiency considerations,20 the Court noted that any analysis ofefficiency had to compare the status quo against the other policy options, havingparticular regard to the efficient use and development of the resources.21 The partieshad, however, not attempted to quantify the net benefits of the options.22 The Courtheld that there was no jurisdictional bar to considering the express costs ofenvironmental protection but held that:23equally the analysis needs to make an – in this case unquantified – valuejudgment about the benefits of protecting the life-supporting capacity of thebiodiversity estuarine and near-shore (neritic) ecosystems, and of protectingthe natural character of the coastal environment.16 At [91].17 At [91].18 At [92].19 Set out at [94]–[95].20 The Environment Court considered efficiency due to the effect of s 32AA of theResource Management Act 1991 [RMA] which requires an assessment under s 32 and iscomplemented by s 7(b). Section 7(b) requires decision-makers to have particular regard to"the efficient use and development of natural and physical resources".21 EnvC interim judgment, above n 3, at [96].22 At [97].23 At [100].[24] The Environment Court identified the safe operation of the ports as a matter ofnational importance.24 We comment that this highlights the importance the Courtplaced on safety considerations.[25] The Environment Court then made some comments on the relevant policies inthe NZCPS and proposed Otago Regional Policy Statement and provided someconsiderations that could be taken into account when reconciling them.[26] The Court noted that the NZCPS ports policy contemplated not only existingports in their current state but the potential development of new ones and thedevelopment and improvement of existing ports.25 It considered that the most relevantand detailed part of policy 9 is sub-policy (b) which it viewed as requiring localauthorities (and the court on appeal) to consider where, when and how to provide forthree matters:26(a) the efficient and safe operation of existing and future ports;(b) the development of their capacity for shipping; and(c) connecting shipping with other transport modes.[27] The Court commented that, while there are choices to be made as to where,when and how port facilities are to be provided, they must be put in place to ensureNew Zealand shipping services can continue. Policy 9(b) also contemplates thedevelopment of ports beyond their existing characteristics.27 The Court neverthelesscommented that policy 9 is not wholly prescriptive:28New ports need to be supplied but not in any particular place or at a particulartime; and even existing ports cannot necessarily expand indefinitely andwhenever their operators want. All these are part of the questions "where,when and how"?24 At [107].25 At [118].26 At [119].27 At [120].28 At [121].[28] In terms of the avoidance policies, the Court referred to Part 2 of the RMA ands 6 in particular. It pointed out that, unlike s 6(a) and (b) of the RMA which onlyprotect the coastal environment and outstanding natural landscapes from inappropriatedevelopment and use, s 6(c) of the RMA (protection of areas of significant indigenousvegetation and habitats of indigenous fauna) is more absolute in its terms. In theCourt's view, this reinforces the strength of the avoidance aspect of policy 11(a) of theNZCPS.29 The Court considered that the effects of port activities on natural characterand natural landscapes (policies 13 and 15) might have a (slightly) lower standardapplied with regard to conflicts between directive policies and the assessment as towhether a resource consent should be granted in a particular case.30 We agree that thismay be the case, but it would depend on the circumstances.[29] Moving on to surf breaks, the Court noted the complex relationship betweenport operations and the surf breaks in that dredging was related, at least partly, to thecreation and shape of the surf breaks.31 The Court considered that the straightavoidance provision in the proposed Regional Policy Statement would not only causeproblems of proof as to causation, but also cause practical problems in decidingwhether port activities were improving or harming the surf breaks. In light of thosepractical difficulties the Court found it difficult to understand why policy 3.2.12 of theproposed Regional Policy Statement contains an avoidance policy when policy 16(a)of the NZCPS does not. In terms of that latter point, we comment that, whilepolicy 16(a) does not contain the word "avoid", it does have the directive term"ensuring". Otherwise, we have some sympathy for the view that natural surf breaksmay be more worthy of protection than ones created artificially and we agree that thereare problems with proof of effects and also practical problems in ascertaining the effectof port activities on surf breaks.[30] The Environment Court considered that 4.3.7(d) to (f) of the proposed regionalports policy should be amended to make their place in the overall policy statementeasier to understand and to make a distinction between management of the effects of29 At [128].30 At [129]. We comment that, if this lower standard did apply, it would apply to determiningwhether an effect was sufficiently harmful to breach an avoidance policy not to the strength of theoperative verb "avoid" (which would be equivalent in both cases).31 At [130].ensuring safety and the effects of transport efficiency.32 It also considered that it mightbe useful if the policy were to give "some guidance as to the different standards thatmight be expected of port activities in relation to different resources".33 The hierarchythe Court proposed in terms of protection started with surf breaks, then increased inseriousness to effects on outstanding natural character or landscapes and finally effectson biodiversity. It said:34The reasons for that view are that the effects on human enjoyment of surfingand landscapes, while very important – and in the latter case, are of nationalimportance – are largely reversible and potentially amenable to mitigation.Effects on biodiversity values may be irreversible.[31] As an aside, we agree that the question of whether effects may be irreversibleis an important consideration but question the view that the provisions related tooutstanding natural character and landscapes are related to human enjoyment only.These values are subject to the protections in the NZCPS for their own sake also. Thesame may apply to surf breaks. It is difficult, in any event, to separate out the policiesin this way as they will often be inter-dependent. For example, some outstandingnatural landscapes, such as pristine indigenous forests, are outstanding in part becauseof their biodiversity.[32] In light of its analysis summarised above, the Environment Court proposed thefollowing wording to be inserted after 4.3.7(c) of the proposed regional ports policy:35(d) if any of the policies under objective 3.2 cannot be implemented whileproviding for the safe and efficient operation of Port Otago activitiesthen apply policy 4.3.4 which relates to nationally and regionallysignificant infrastructure and prevails (in certain circumstances) overobjective 3.2;(e) if in turn (d) cannot be achieved because the operation or developmentof Port Otago may cause adverse effects on the values that contributeto the significant or outstanding character identified in policy4.3.4(1)(a)(i) to (iii) then, through a resource consent process, requireconsideration of those effects and whether they are caused by safetyconsiderations which are paramount or by transport efficiencyconsiderations and avoiding, remedying or mitigating the effects(through adaptive management or otherwise) accordingly;32 At [134].33 At [134].34 At [134].35 At [135]. Compare the wording of the original proposed regional ports policy: above at [14].(f) in respect of [nationally]36 significant surf breaks to avoid, remedy ormitigate the adverse effects of port activities.[33] The wording suggested was provisional because it is for the Council and notthe Court to set the wording. The Court commented that, to save time, it may beappropriate for the parties to agree on the above version of policy 4.3.7 or similar andto leave the suggested different management of the harbour's different resources to theregional plan. If that occurred, the Court considered that the Council may not have todo more than consult with the parties, and anyone else thought appropriate, beforereporting back to the Court. It said that, if more detail were added to the policies, forexample distinguishing further between safety and transport efficiency or between thetypes of resources affected, then this might require wider consultation and publicnotification.37[34] In the formal orders of the Court, the Council was directed:(a) to redraft proposed policy 4.3.7 to correct concerns expressed by theCourt about the versions put forward by the parties;(b) consult the parties and any other persons it considers appropriate on aredrafted policy 4.3.7(d) to (e) of the proposed Regional PolicyStatement either(i) along the lines of the Environment Court draft set out above; or(ii) otherwise to give effect to the policies of the NZCPS and theirinter-relationships as explained by the Court in its judgment.High Court decision[35] An appeal to the High Court by EDS was heard in June 2019. In Septemberof the same year, Gendall J allowed EDS's appeal.38 He held that, among other things,36 The Environment Court decision refers to "naturally" but, in-line with policy 16, we consider thiswas likely a typographical error.37 At [137].38 HC judgment, above n 6.the Environment Court erred in recommending wording that did not give effect to theprescriptive NZCPS avoidance policies, contrary to s 62(3) of the RMA.39 As a resulthe set aside the interim decision of the Environment Court and remitted the matter tothe Environment Court to reconsider in light of his judgment.40Court of Appeal decision[36] The Court of Appeal dismissed the appeal against the High Court decision.41Kós P and Gilbert J held:42[87] At the end of the day, the short answer in this appeal is that a regionalpolicy statement fails to give effect to an NZCPS policy requiring adverseeffects in an area of outstanding natural character to be avoided, by insteadproviding for adverse effects in such areas to be avoided, remedied ormitigated. Correct application of the principles laid down in King Salmoncompel that conclusion.[37] Kós P and Gilbert J did not consider that the NZCPS ports policy is sufficientlytextually or contextually different from the aquaculture policy in King Salmon so as toenable a different outcome from that case.43 Both policies require recognition of theimportance of port and aquaculture activities respectively. They did not accept thatthe operative verb in the ports policy is "requires". In their view, policy 9(b) isdistinctive in providing a far lower level of direction than policy 9(a) and is broadlyconsistent with the provision for strategic planning in policy 7.44[38] Kós P and Gilbert J did not see policies 7 and 9 as in conflict with the avoidancepolicies. They held that policy 7 directs, in an entirely generalised sense, theconsideration of providing for future development and identification of wheredevelopment is, or may be, inappropriate, accepting the submission that policy 7 is"essentially process-driven".45 They said:4639 At [72], [104] and [113].40 At [116].41 CA judgment, above n 6.42 They identified two errors in the High Court decision relating to adaptive management andprohibited activities but said they were immaterial to the result: at [88]–[91].43 At [81] discussing King Salmon, above n 2.44 At [81].45 At [82].46 At [82].The avoidance policies contain relatively clear environmental bottom lines;policies 7 and 9 contain lower level degrees of direction as to developmentand other activities in the coastal environment. To describe these policies asequally directive would be incorrect. Reconciliation is not a complex taskbecause the NZCPS contains a clearly discernible prioritisation of valueswithin its text.[39] Miller J agreed that the appeal should be dismissed but partially dissented fromsome of the reasoning of the majority.47 As a matter of construction, he did not agreethat the NZCPS ports policy was subject to the NZCPS avoidance policies in thissetting.48 He considered the key verb in the NZCPS ports policy in this case is not"recognise" but "requires". The provision for ports is not optional for the Council,with a port already existing at Port Chalmers, and the Regional Council has no choiceas to where the port is situated. Consequently, the ports policy requires the Council toprovide for the existing port's safe and efficient operation. This distinguished it fromthe aquaculture policy at issue in King Salmon.49[40] Miller J held that "it is both lawful and prudent to provide for the possibilitythat [the policies] cannot be fully reconciled".50 Nevertheless, he said that theEnvironment Court erred by deciding that the NZCPS ports policy would ultimatelyprevail should it prove irreconcilable with the NZCPS avoidance policies. TheEnvironment Court envisaged a resource consent process whereby adverse effectswould be avoided, remedied or mitigated.51[41] In Miller J's view, the possibility that the NZCPS avoidance policies willpreclude any development of port facilities by Port Otago should remain open untilPort Otago's needs and the existence, nature and extent of any adverse effects arebetter known. The Judge said that, in his view, "the Regional Council should returnto the drawing board".5247 At [97] and [113].48 At [112].49 At [111].50 At [112].51 At [113].52 At [115].The submissions of the partiesPort Otago[42] Port Otago's position is that the decision of the Court of Appeal majorityincorrectly creates an absolute prohibition on Port Otago breaching the valuesprotected by the NZCPS avoidance policies, including not permitting Port Otago toavoid potential adverse effects on the protected values by the use of adaptivemanagement. Port Otago supports the dissenting judgment of Miller J.[43] The potential problems for Port Otago arise from its location and the likelihoodthat some activity will be required in the future that is necessary for the safe andefficient operation of the ports that may have effects that breach the values protectedby the NZCPS avoidance policies. One example given is the possibility that theshipping channel may need to be widened to accommodate large ships with the resultthat it would further encroach into the Aramoana salt marsh.[44] Port Otago submits that reading the NZCPS avoidance policies and the NZCPSports policy together requires the ports to operate safely and efficiently while avoidingthe effects protected by the NZCPS avoidance policies. It is only where that cannothappen that there is a conflict that needs to be resolved. This conflict is not reconciledby making the ports policy subject to the avoidance policies but rather through anactivity specific evaluation.[45] Port Otago proposes instead that the following replace paragraphs (e) and (f)of the Environment Court's draft:(e) if in turn (d) cannot be achieved because the operation or developmentof Port Otago may cause adverse effects on the values that contributeto the significant or outstanding character identified inPolicy 4.3.4(1)(a)(i) to (iii) or to surf breaks identified as beingnationally significant, Port Otago may apply for a resource consentfor the operation or development which cannot be granted unlessPort Otago establishes the adverse effects from the operation ordevelopment are the minimum necessary in order to achieve theefficient and safe operation of its ports[46] Port Otago submits that the issue of reconciliation should be dealt with at theregional policy statement level so that the principles are set. It is not satisfactory toleave this solely to the resource consent stage as this would create major uncertaintyand have a stultifying effect.Marlborough District Council[47] Marlborough District Council (MDC) supports Port Otago's appeal.53 Itsubmits that the Court of Appeal majority erroneously interpreted King Salmon tomean that the NZCPS avoidance policies are akin to regulation. The majority'sapproach would, in MDC's submission, unlawfully fetter the evaluative task ofregional councils in developing regional policy statements under ss 61–62 of theRMA.[48] It is submitted that it is inappropriate for objectives and policies in the NZCPSto be subjected to the rigid textual analysis applied by the Court of Appeal majoritywithout regard to the nature of the policies and objectives, the NZCPS as a whole anda consideration of the potential environmental consequences at the regional level.Environmental Defence Society[49] EDS supports the approach of the Court of Appeal majority. EDS submits thatthe proposed Regional Policy Statement must "give effect to" the NZCPS.54 This is astrong directive intended to constrain decision-makers. On the specific NZCPSpolicies in question, EDS describes the "avoid" requirements under the NZCPSavoidance policies as "a strong and specific direction". The NZCPS ports policyrequires subordinate planning documents to consider "where, when and how" toprovide for the safe and efficient operation of ports but does not alter the approach tomanaging the adverse effects of port activities as provided for under the NZCPSavoidance policies.[50] EDS submits therefore that the NZCPS avoidance and ports policies do notconflict with each other and are reconcilable. The NZCPS ports policy can be appliedaccording to its terms, within the bounds of the NZCPS avoidance policies. It is at the53 Note that the Marlborough District Council does not, however, support all of Port Otago'ssubmissions.54 RMA, s 62(3).level at which consent is granted where possible residual conflict between the relevantpolicies can be resolved.Otago Regional Council[51] The Council's position is that the Court of Appeal was correct to dismiss theappeal. It takes essentially the same approach as EDS, although the Council acceptsthat any apparent conflict between the relevant policies can be resolved at both theconsent stage and the regional policy planning stage.Royal Forest and Bird[52] Royal Forest and Bird (RFB) submits that the proposed formulation byPort Otago still allows for adverse effects in areas of significant biodiversity,outstanding natural character or significant surf breaks, where they are "the minimumnecessary in order to achieve the efficient and safe operation of its ports". RFB saysthat this does not give effect to the NZCPS avoidance policies which require sucheffects to be avoided.[53] RFB submits that the Court of Appeal majority decision in this case is anorthodox application of King Salmon. In its submission, there is no material differencebetween the NZCPS ports and the aquaculture policies at issue in King Salmon whichcould warrant a different outcome from the one reached in that case. The policies canbe properly reconciled without conflict. The NZCPS ports policy is applicable butwithin the bounds set by the more directive NZCPS avoidance policies which providesomething in the nature of a bottom line.[54] Alternatively, if it is considered that there is an irreconcilable conflict, RFBsubmits that the conflict must be resolved in favour of the NZCPS avoidance policies.Other submissions[55] We heard submissions not only from the parties in this case but also from theparties and interested parties in Royal Forest and Bird Protection Society ofNew Zealand Inc v New Zealand Transport Agency (the East-West Link appeal).55 TheCourt of Appeal decision in this case was not available when we heard theEast-West Link appeal and some similar issues arise.[56] In brief, Waka Kotahi | New Zealand Transport Agency submits that the issuesshould be resolved at the consent level where "avoid" would be a strong policydirective and weighty consideration, but would not operate as an absolute veto. TheAuckland Council takes a similar position, as do Ngāti Maru Rūnanga Trust, Te ĀkitaiWaiohua Waka Taua Inc, Ngāi Tai ki Tāmaki Trust and Ngāti Tamaoho Trust.[57] Ngāti Whātua Ōrākei Whai Maia Ltd submits that any conflicts between thedifferent NZCPS policies can be resolved at both the level of regional policystatements and at the consent level. It largely takes the same position as RFB in termsof reconciling any such conflict.Issues[58] As noted above at [2], the issues in this appeal are:(a) the relationship between the NZCPS avoidance policies and the portspolicy;(b) whether conflicts should be addressed in regional policy statements andplans or at the consent level; and(c) how any conflicts between those policies should be addressed.Relationship between the NZCPS avoidance policies and the ports policy[59] We begin our discussion on this issue with some comments on how the NZCPSshould be interpreted and on the meaning of "avoid" as used in the avoidance policies.We then consider whether the ports policy is directive –– in essence, whether theCourt of Appeal majority or minority view of the ports policy in the NZCPS is correct.55 Our decision on the appeal from Royal Forest and Bird Protection Society of New Zealand Inc vNew Zealand Transport Agency [2021] NZHC 390, [2021] NZRMA 303 [East-West LinkHC judgment] is currently reserved in this Court.Finally, we assess whether there is a conflict between the ports and the avoidancepolicies.Interpretation of the NZCPS[60] The meaning to be accorded to the NZCPS should be ascertained from the textand in light of its purpose and its context.56 This means that close attention to thecontext within which the policies operate, or are intended to operate, and their purposewill be important in interpreting the policies. This includes the context of theinstrument as a whole, including the objectives of the NZCPS, but also the widercontext whereby the policies are considered against the background of the relevantcircumstances in which they are intended to and will operate. National directives likethe NZCPS are by their nature expressed as broad principles.[61] The language in which the policies are expressed will nevertheless besignificant, particularly in determining how directive they are intended to be and thushow much or how little flexibility a subordinate decision-maker might have. As thisCourt said in King Salmon, the various objectives and policies in the NZCPS havebeen expressed in different ways deliberately. Some give decision-makers moreflexibility or are less prescriptive than others. Others are expressed in more specificand directive terms. These differences in expression matter.57[62] A policy might be expressed in such directive terms, for example, that adecision-maker has no choice but to follow it, assuming no other conflicting directivepolicy. As this Court said in King Salmon:58 although a policy in a New Zealand coastal policy statement cannot be a"rule" within the special definition in the RMA, it may nevertheless have theeffect of what in ordinary speech would be a rule.56 Legislation Act 2019, s 10(1) which applies to both Acts of Parliament and to secondarylegislation: s 5 definition of "legislation". A national policy statement is secondary legislation:RMA, s 52(4). See also RI Carter Burrows and Carter Statute Law in New Zealand (6th ed,LexisNexis, Wellington, 2021) at 206.57 King Salmon, above n 2, at [127].58 At [116]. See also Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board[2021] NZSC 127, [2021] 1 NZLR 801 [Trans-Tasman] at [242] per Glazebrook and[292] per Williams J.[63] Conflicts between policies are likely to be rare if those policies are properlyconstrued, even where they appear to be pulling in different directions.59 Any apparentconflict between policies may dissolve if "close attention is paid to the way in whichthe policies are expressed".60 Those policies expressed in more directive terms willhave greater weight than those allowing more flexibility.61 Where conflict betweenpolicies does exist the area of conflict should be kept as narrow as possible.62NZCPS avoidance policies[64] It is clear from this Court's decision in King Salmon that the NZCPS avoidancepolicies have a directive character. This Court said that the term "avoid", as used inthe NZCPS, has its ordinary meaning of "not allow" or "prevent the occurrence of",63meaning that the policies at issue in that appeal provided "something in the nature ofa bottom line".64 The Court noted, however, that what was to be avoided with regardto those policies was, in that case, the adverse effects on natural character and thatprohibition of minor or transitory effects would not likely be necessary to preserve thenatural character of coastal environments.65[65] This Court in Trans-Tasman said that the standard was protection from materialharm, albeit recognising that temporary harm can be material.66 Although in adifferent context, the comments are nonetheless applicable to the NZCPS.67 It is clearfrom Trans-Tasman that the concepts of mitigation and remedy may serve to meet the"avoid" standard by bringing the level of harm down so that material harm is avoided.[66] In summary, the Court in Trans-Tasman said that decision-makers must eitherbe satisfied there will be no material harm or alternatively be satisfied that conditionscan be imposed that mean:6859 King Salmon, above n 2, at [129].60 At [129].61 At [129]. See also at [152].62 At [130].63 At [96].64 At [132].65 At [145].66 Trans-Tasman, above n 58, at [252] per Glazebrook J, [292]–[293] per Williams J and [309]–[311]per Winkelmann CJ. See also at [5]–[6] of the summary.67 Trans-Tasman concerned the assessment of applications for marine discharge consents under theExclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.68 Trans-Tasman, above n 58, at [261] per Glazebrook J, [292] per Williams J and [318]–[319] per(i) material harm will be avoided;(ii) any harm will be mitigated so that the harm is no longer material; or(iii) any harm will be remedied within a reasonable timeframe so that,taking into account the whole period harm subsists, overall the harmis not material[67] Adaptive management may also have a role to play, again if the effect is toavoid material harm.69 In Sustain Our Sounds, this Court held that, before an adaptivemanagement regime can be considered, there must first be an adequate evidentialfoundation to provide reasonable assurances that an adaptive management approachwill achieve the goals of "sufficiently reducing uncertainty and adequately managingany remaining risk".70 If that threshold question is answered in the affirmative, theoverall question is whether any adaptive management regime can be consideredconsistent with a precautionary approach and this depends on:71 an assessment of a combination of factors:(a) the extent of the environmental risk (including the gravity ofthe consequences if the risk is realised);(b) the importance of the activity (which could in somecircumstances be an activity it is hoped will protect theenvironment);(c) the degree of uncertainty; and(d) the extent to which an adaptive management approach willsufficiently diminish the risk and the uncertainty.[68] All of the above means that the avoidance policies in the NZCPS must beinterpreted in light of what is sought to be protected including the relevant values andareas and, when considering any development, whether measures can be put in placeto avoid material harm to those values and areas.72Winkelmann CJ. See also at [5] of the summary.69 Trans-Tasman did not discuss whether adaptive management could be used to bring harm underthe material threshold because adaptive management is not permitted in the context of marinedumping and discharge consents: Exclusive Economic Zone and Continental Shelf(Environmental Effects) Act, s 64(1AA).70 Sustain Our Sounds above n 3, at [125].71 At [129] (footnote omitted). The Court at [133] noted that factor (d) was the "vital part of thetest" dealing with "the risk and uncertainty and the ability of an adaptive management regime todeal with that risk and uncertainty" and noted four factors appropriate to assess the issue, at leastin that particular case.72 The position is summarised in Trevor Daya-Winterbottom "The meaning of sustainablemanagement: applying King Salmon" [2020] NZLJ 52 at 54.NZCPS ports policy[69] Turning to the NZCPS ports policy, we broadly agree with theEnvironment Court and Miller J that "requires" is a key verb in the policy.73 We acceptthat "recognise" is also an operative verb and that the clause begins with it. However,the verb "requires" colours what the decision-maker is being asked to "recognise". Inother words, the decision-maker is being directed to recognise that a port network isrequired. To recognise that something is required is to accept that it is mandatory. So,the directive nature of the ports policy arises from the two verbs taken together.[70] The ports policy in the NZCPS must also be interpreted in light of the existenceof an already established ports network, including those operated by Port Otago, andthe need to maintain the safe and efficient operation of the ports in that network. AsMiller J says:74For the Regional Council, provision for ports is not optional. There alreadyexists a port at Port Chalmers which is essential infrastructure, forming partof a national ports network and servicing national and international shipping.The NZCPS deems such infrastructure important to community wellbeing.The Regional Council has no choice about deciding whether to provide for theport, and no choice about where to situate it. It follows that what policy 9requires of the Regional Council is that it consider how and when to providein its plans for the port's efficient and safe operation, the development of itscapacity for shipping, and its connection with other transport modes. In myopinion these requirements are imperative, which sufficiently distinguishesthem from the aquaculture policy at issue in King Salmon.Potential for conflict[71] It follows from what we say above that the NZCPS avoidance policies and theports policy all have a directive character. Port Otago is responsible for the safe andefficient operation of ports that are part of an established national network operatingnecessarily in the coastal environment. There is a potential therefore for the portspolicy to conflict with the avoidance policies where measures may be needed for the73 See above at [20] and [39].74 CA judgment, above n 6, at [111] per Miller J (footnotes omitted). Contrast the view of themajority at [81].safe and efficient operation of a particular established port.75 The next issues thereforeare where and how such conflicts should be addressed.Where conflicts should be addressed[72] We accept Port Otago's submission that reconciliation of any conflict betweenthe NZCPS avoidance policies and the ports policy should be dealt with at the regionalpolicy statement and plan level as far as possible. This means those consideringparticular projects will have as much information as possible to allow them to assesswhether it may be worth applying for consent and, if so, what matters should be thesubject of focus in any application. Equally, decision-makers at the consent level willhave as much guidance as possible on methods for addressing conflicts betweenpolicies.[73] Leaving resolution of all possible conflicts to the consent stage would beunsatisfactory, given the large degree of uncertainty (and possible inconsistencies ofmethodology and results) that would ensue. Having said that, the extent to which aplan can anticipate conflicts and the means of resolving them may be limited by theamount of information available to the drafters of a regional planning instrument. Itmight not be possible or desirable for a regional planning instrument to do more thanidentify, where it can, the location and activities that may generate conflicts in theregion and set out general principles for addressing the conflict, leaving particularcases to be dealt with at resource consent level.[74] Dealing with conflicts, as far as possible, in regional planning instruments isconsistent with this Court's decision in Sustain Our Sounds. That decision largelyrelated to adaptive management, but an issue also arose as to whether a decision-makerconsidering a proposed plan change could take proposed consent conditions intoaccount. The Court noted that it was common practice, albeit not mandatory in allcircumstances, for regional plans to include assessment criteria for determining75 We do not disagree with the Environment Court when it says that policy 9 of the NZCPS alsoapplies to new ports and we also agree with its comment that this directive does not apply in anyparticular place or at a particular time: EnvC interim judgment, above n 6, at [118] and[120]–[121]; and see above at [27]. No issue relating to new ports is, however, before us in thisappeal and the judgment is not therefore to be understood as dealing with new ports.whether a discretionary activity should be granted a resource consent.76 The Courtcommented that:77[153] If, however, a consent for a particular activity would only be grantedon certain conditions, then it would certainly be good practice (and may insome circumstances be a requirement) that this be made clear in the plan,either as standards or as assessment criteria. Otherwise consent applicationsmay not address relevant criteria and a future consent authority may riskmaking a decision on a basis that was not contemplated by the planningauthority.[154] Assessment criteria are designed to give guidance to those applyingfor consents as to the types of information and analysis that will be requiredof applicants. They also give the community information on how suchconsents will be assessed. How any conflicts should be addressed[75] As there is not sufficient information before us to attempt any detailedreconciliation between the ports policy and the avoidance policies, we provide onlygeneral guidance as to how a decision-maker at the resource consent level mightapproach the reconciliation between the ports policy and the avoidance policies.[76] If there is a potential for conflict between the ports policy and the avoidancepolicies with regard to any particular project, the decision-maker would have to besatisfied that:(a) the project is required to ensure the safe and efficient operation of theports in question (and not merely desirable);78(b) assuming the project is required, all options to deal with the safety orefficiency needs of the ports have been considered and evaluated.Where possible, the option chosen should be one that will not breachthe relevant avoidance policies. Whether the avoidance policies will bebreached must be considered in light of the discussion above on what76 Sustain Our Sounds, above n 3, at [151].77 Footnote omitted.78 Our comments are limited to the efficient and safe operation of existing ports. Because it is notbefore us, we do not deal with expansion of the operations of the ports, although the line betweenexpansion and efficiency will not necessarily be fixed. As the Environment Court remarked,"even existing ports cannot necessarily expand indefinitely and whenever their operators want":EnvC interim judgment, above n 6, at [121] (see also above at [27]).is meant by "avoidance";79 including whether conditions can beimposed that avoid material harm; and(c) if a breach of the avoidance policies cannot be averted, any conflictbetween the policies has been kept as narrow as possible so that anybreach of any of the avoidance policies is only to the extent required toprovide for the safe and efficient operation of the ports.[77] Even where the decision-maker is satisfied of the above, this does not meanthat a resource consent will necessarily be granted. There can be no presumption thatone directive policy will always prevail over another. In this case, for example, alwaysfavouring the ports policy over the avoidance policies or vice versa would not alignwith the fact that both the ports policy and the avoidance policies are directive.[78] The appropriate balance between the avoidance policies and the ports policymust depend on the particular circumstances, considered against the values inherentin the various policies and objectives in the NZCPS (and any other relevant plans orstatements).80 All relevant factors must be considered in a structured analysis to decidewhether, in the particular factual circumstances, the resource consent should begranted. This means assessing which of the conflicting directive policies shouldprevail, or the extent to which a policy should prevail, in the particular circumstancesof the case.[79] In the course of the structured analysis, decision-makers will of course assessthe nature and importance of the particular safety or efficiency requirements theproject addresses. In this regard, we comment that safety issues may have greaterweight than efficiency requirements.81 Decision-makers will also identify theimportance and rarity of the environmental values at issue in the particularcircumstances and consider these against the background of the NZCPS's recognitionof the intrinsic worth of the protected environmental values. As this Court said in79 See above at [64]–[66].80 Reference to Part 2 of the RMA may also assist.81 This was the view of the Environment Court: see above at [24], the draft policy set out aboveat [32] and the remarks summarised above at [33].King Salmon, protection of environmental values is an element of sustainablemanagement.82[80] We comment that port safety and efficiency are largely instrumentalconsiderations more capable of measurement, while preservation of the environmentlargely involves value judgments which are often not measurable in concrete terms.83[81] We also comment that the structured analysis is not the same as the"overall judgment" approach rejected by this Court in King Salmon. This involved"an overall broad judgment of whether a proposal would promote the sustainablemanagement of natural and physical resources" under s 5 of the RMA.84 The"overall judgment" approach tended to subordinate the preservation and protection ofthe environment to the promotion of sustainable management.85 It did not give fullrecognition to the fact that protection of the environment is an element of sustainablemanagement and therefore it did not reflect the proper relationship between ss 5 and 6of the RMA. Nor did it reflect the approach of the NZCPS.86 Of course, judgmentsmust still be made by consent authorities in accordance with the purpose of the Act,but they are not loose "overall" evaluations. Rather they are disciplined, through theanalytical framework we have provided, to focus on how to identify and resolvepotential conflicts among the NZCPS directive policies.[82] The proposed regional ports policy, even as modified by theEnvironment Court, does not reflect all of the considerations identified above at [76].Further, the Environment Court's proposed para (e) could well be interpreted asfavouring the ports policy over the avoidance policies in the event of any remainingconflict.87 We recognise that, in some cases, there may be enough information82 King Salmon, above n 2, at [24(d)], [132], [146] and [148]–[150]; and RMA, ss 5(2) and 6.83 See the comment in the EnvC interim judgment, above n 6, at [100], quoted above at [23].84 North Shore City Council v Auckland Regional Council (1996) 2 ELRNZ 305 (EnvC) at 347 citedin King Salmon, above n 2, at [41]. See more generally discussion in King Salmon at [39]–[42]of the overall judgment approach.85 See, for example, New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC)at 85 cited in King Salmon, above n 2, at [147].86 King Salmon, above n 2, at [147]–[149].87 This was Miller J's view: CA judgment, above n 6, at [113]. But [121] of the EnvC interimjudgment, above n 6, may suggest otherwise: see the earlier discussion in this judgment above at[27]. It may be therefore that the Environment Court envisaged a structured analysis to occur atthe resource consent level similar to the analysis we have outlined above.available as to possible conflicts that may arise in future to be able to give, at theregional plan level, more guidance on the likely outcome of the structured analysis inparticular factual circumstances. There was, however, not sufficient informationbefore the Environment Court to allow a conclusion favouring the ports policy to bedrawn on a global basis (if indeed that is what the Environment Court intended).Resolution of any conflict, through a structured analysis, will have to occur at resourceconsent level with regard to particular projects.Summary of decision[83] We now summarise our conclusions on the issues identified above at [2] and[58]:88(a) The relationship between the NZCPS ports policy and the NZCPSavoidance policiesWe conclude that the avoidance policies and the ports policy are alldirective.89 Further, the ports are part of an existing networknecessarily operating in the coastal environment. There is thuspotential for conflict between the ports policy and the avoidancepolicies.90(b) Whether any potential conflicts between the NZCPS ports policy andthe NZCPS avoidance policies should be addressed in regional policystatements and plans or at the consent level under ss 104 or 104D ofthe RMAWe conclude that the issue of the reconciliation of any potential conflictbetween the NZCPS avoidance policies and ports policy should beaddressed at the regional policy statement and plan level as far aspossible.9188 This is a summary only and the judgment must be read in full.89 Above at [64]–[69].90 Above at [71].91 Above at [72]–[74].(c) How any conflicts between those policies should be addressedWhere there is a potential conflict between the avoidance policies andthe ports policy with regard to a particular project, the decision-makerwould have to be satisfied that:92(i) the work is required (and not merely desirable) for the safe andefficient operation of the ports;(ii) if the work is required, all options for dealing with these safety orefficiency needs have been evaluated and, where possible, theoption chosen should not breach the avoidance policies;(iii) where a breach of the avoidance policies is unable to be averted,any breach is only to the extent required to provide for the safeand efficient operation of the ports.[84] Even where the option chosen encroaches on the avoidance policies only to theextent necessary for the safe and efficient operation of the ports, this does not meanthat a resource consent would necessarily be granted.93 In deciding whether to granta resource consent all relevant factors would have to be considered in a structuredanalysis, designed to decide which of the directive policies should prevail, or the extentto which a policy should prevail, in the particular case.94Suggested policy amendment[85] In this case there could be a continuum of legally acceptable versions of apolicy providing guidance on the reconciling of the ports and avoidance policies in aregional planning instrument. These would differ primarily as to their specificity. Asnoted above, a non-specific policy may be necessary where the evidence is limited ornon-existent.95 In this case there are two ports in a particular harbour, a factualsituation which provides a reasonable basis for assumptions as to the likely future92 Above at [76].93 Above at [77].94 Above at [78]–[81].95 Above at [73].needs of the ports and the potential impacts on the environment of meeting thoseneeds. A completely non-specific policy would probably be legal (in the sense of notbeing ultra vires) but would not be particularly consistent with the general scheme ofthe RMA (in terms of a downwards cascade, with increasing specificity, of national,regional and district planning instruments). More importantly perhaps, such anon-specific policy would not be very helpful. An example of a non-specific policymight be one that simply provided that, in the event of conflict between the ports andavoidance policies, the issue should be determined in accordance with the NZCPS(presumably via the resource consent process).[86] On the other hand, it will usually not be possible to predict with precision whatthe future needs of ports will be and how they can be met and the extent to whichmeeting those needs will cause effects which are to be avoided under the avoidancepolicies. That being the situation here, it will not be possible for regional planningdocuments to be expressed with a level of specificity that obviates the need for futurefactual inquiry (through a structured analysis during the resource consent process) asto how best to reconcile the ports and avoidance policies in respect of the two ports inOtago Harbour in the particular circumstances.[87] In light of this and our analysis of the required steps above, we providesuggested wording to be inserted after para (c), replacing (d)–(f), of the proposed portspolicy (4.3.7):(d) if any of the policies under objective 3.2 cannot be implemented whileproviding for the safe and efficient operation of Port Otago activitiesthen apply policy 4.3.4 which relates to nationally and regionallysignificant infrastructure and prevails (in certain circumstances) overobjective 3.2;(e) if in turn (d) cannot be achieved because the operation or developmentof Port Otago may cause adverse effects on the values that contributeto the significant or outstanding character identified inPolicy 4.3.4(1)(a)(i) to (iii) or to surf breaks identified as beingnationally significant, Port Otago may apply for a resource consentfor the operation or development where:(i) the proposed work is required for the safe and efficientoperation of its port or ports; and(ii) Port Otago establishes that the adverse effects from theoperation or development are the minimum necessary in orderto achieve the efficient and safe operation of its port or ports.[88] As noted above, even when para (e) is satisfied, whether or not a resourceconsent will be granted will depend on the outcome of the structured analysis in theparticular case.96[89] We have taken (d) above from the Environment Court draft.97 We have largelytaken (e) from the draft in the submissions of Port Otago but have added that the workmust be required.98 We have not included the Environment Court's wording aboutsafety being paramount because, while we consider safety very important, we do notconsider safety considerations will always prevail over the avoidance provisions asthe use of the word paramount might imply. That will depend on the particularcircumstances which would be assessed at the resource consent level in the structuredanalysis.99 We have included surf breaks as in Port Otago's draft but note that weagree with most of the Environment Court's comments about these, as explained aboveat [29].Disposition[90] As will be clear, we are in general agreement with the Environment Court'sreasons, except where we have signalled otherwise. Therefore we do not consider itnecessary to send the matter back to the Environment Court for further consideration.Instead, we would make similar orders to those made in the Environment Court butsubstitute a reference to our suggested draft.[91] We stress that our wording set out at [87] above is a suggestion only and thatit is for the Council to decide on the appropriate wording taking into account thepolicies in the NZCPS and their inter-relationships as outlined in this judgment.96 Above at [77]–[78].97 EnvC interim judgment, above n 6, at [135] and set out above at [32].98 See above at [45] and [76].99 Above at [78]–[81].Result and costs[92] The appeal is allowed.[93] The order remitting the matter to the Environment Court is set aside.[94] The Council is directed to consult the parties and any other persons it considersappropriate on a redrafted policy 4.3.7(d)–(e) in the proposed Otago Regional PolicyStatement either:(a) along the lines in paragraph [87] of this judgment or to similar effect;or(b) otherwise to give appropriate effect to the policies of the NZCPS andtheir inter-relationships.[95] Costs are reserved. If costs cannot be agreed, the parties should file memorandaon costs on or before 21 September 2023.Solicitors:McMillan & Co, Dunedin for AppellantEllis Gould Lawyers, Auckland for First RespondentRoss Dowling Marquet Griffin, Dunedin for Second RespondentGilbert Walker, Auckland for Third RespondentB D Mead, Marlborough District Council, Blenheim for Fourth RespondentBuddle Findlay, Auckland for Waka KotahiN T E Strong, Ngāti Whātua Ōrākei Trust, Auckland for Ngāti Whātua Ōrākei Whai Maia LimitedMcCaw Lewis, Hamilton for Ngāti Maru Rūnanga Trust, Te Ākitai Waiohua Waka Taua Incorporated,Ngāi Tai ki Tāmaki Trust and Ngāti Tamaoho TrustSimpson Grierson, Auckland for Auckland Council