ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NZ INC v BAY OF PLENTY REGIONAL COUNCIL [2017] NZHC 3080

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NZ INC v BAY OF PLENTY REGIONALCOUNCIL [2017] NZHC 3080 [12 December 2017]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2017-470-000057[2017] NZHC 3080IN THE MATTER of an appeal under s 299 of the ResourceManagement Act 1991BETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDAppellantAND BAY OF PLENTY REGIONALCOUNCILRespondent/ContdHearing: 31 October and 1 November 2017Appearances: S Gepp and M Wright for Royal Forest and Bird ProtectionSociety of New Zealand IncorporatedR B Enright and J Pou for Ngāti Mākino Heritage TrustM H Hill for Bay of Plenty Regional CouncilH A Ash and T Fischer for Tauranga City CouncilV J Hamm and K Jordan for Te Tumu Kaituna 14 Trust, FordLand Holdings Pty Ltd, Carrus Corporation Ltd and PowerCoLtdL H Hinchey for Transpower New Zealand LtdM Gribben for the New Zealand Transport AgencyJudgment: 12 December 2017RESERVED JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 12 December 2017 at 3.30pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:/Contd.AND TAURANGA CITY COUNCILTE TUMU KAITUNA 14 TRUSTFORD LAND HOLDINGS PTY LIMITEDCARRUS CORPORATION LIMITEDPOWERCO LTDTRANSPOWER NZ LTDNGĀTI MĀKINO HERITAGE TRUSTNEW ZEALAND TRANSPORT AGENCYSection 301 partiesSolicitors/counsel:Royal Forest and Bird Protection Society of New Zealand Incorporated (Nelson)Tu Pono Legal Ltd, RotoruaCooney Lees Morgan, TaurangaSimpson Grierson, AucklandHolland Beckett, TaurangaChapman Tripp, AucklandBuddle Findlay, AucklandContents ParagraphIntroduction ............................................................................................................ [1]The respondent's RCEP – the changes sought by Royal Forest and Bird ............. [7]The Environment Court's Decision ..................................................................... [25]The Notice of Appeal ........................................................................................... [35]Appeals from the Environment Court – Errors of Law ....................................... [39]Did the Environment Court err in its interpretation and application of theKing Salmon decision?......................................................................................... [45](a) What did King Salmon decide? ................................................................. [45](b) How did the Environment Court approach King Salmon? ........................ [58](c) The parties' submissions as to King Salmon ............................................. [63](d) Analysis ..................................................................................................... [71](i) The Act ............................................................................................. [71](ii) Is King Salmon limited or can it be distinguished? .......................... [75](iii) The hierarchy of planning documents – what is it necessaryto refer to? ........................................................................................ [82](iv) Tension – should an attempt have been made to resolve it? ............ [94](v) Avoid ................................................................................................ [99](vi) A Proportionate Response? ............................................................ [103]Did the Environment Court err in its interpretation and implementation of theNZCPS and the RPS? ........................................................................................ [107]Did the Environment Court err in its interpretation and implementation ofrelevant RCEP objectives? ................................................................................. [130]Did the Environment Court err in its interpretation of ss 87A, 104 and 104Din the Act ............................................................................................................ [136]Materiality .......................................................................................................... [143]Relief .................................................................................................................. [144]Result ................................................................................................................. [145]Costs................................................................................................................... [147]Introduction[1] This is an appeal from a decision of the Environment Court, issued on 31 March2017.1 It is brought pursuant to s 299 of the Resource Management Act 1991 (the "Act").[2] The appeal relates to the wording of various provisions in the Bay of PlentyRegional Council's proposed Regional Coastal Environment Plan (the "RCEP") relating tonatural heritage. It involves the wording of policies NH 1, NH 5, NH 11 and rule S 10, allin relation to the location of regionally significant infrastructure in areas identified in theRCEP as being Indigenous Biological Diversity Areas A.[3] Annexed to this decision is a table showing the RCEP provisions which are indispute.(a) The first column shows the wording of the policies as they stood when thismatter was before the Environment Court.(b) The second column shows the relief sought by the appellant, the Royal Forestand Bird Protection Society Incorporated ("Royal Forest and Bird"), whenthe matter was before the Environment Court, and again on this appeal. Therelief sought is highlighted in green.2 New text sought to be interpolated isunderlined. Text sought to be deleted is struck through.(c) The third column shows the wording of the proposed RCEP as approved bythe Environment Court in the decision under appeal. Changes from theversion which was before the Environment Court at the commencement ofthe hearing are either underlined or struck through as the circumstancesrequire.As will be readily apparent, the numbering of some of the subparagraphs in the variouspolicies is confused. I was advised by counsel that this will be tidied up when the RCEP isultimately finalised.1 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty Regional Council[2017] NZEnvC 045.2 The only exception appears to be the words "and attributes" in policy NH 5(c).[4] At issue is whether, in determining the disputed policies and rule in the RCEP, theEnvironment Court erred in its approach to the consideration of various provisionscontained in the New Zealand Coastal Policy Statement (the "NZCPS"), the National PolicyStatement on Electrical Transmission (the "NPSET"), perhaps the National PolicyStatement on Urban Growth (the "NPSUG"), the respondent's Regional Policy Statement(the "RPS"), and unchallenged objectives contained in the RCEP.[5] Much of the discussion before me focussed on the effect of the Supreme Court'sdecision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd("King Salmon").3[6] It is Royal Forest and Bird's argument that the Supreme Court's decision in KingSalmon represented a sea change in New Zealand resource management law. It submittedthat the Supreme Court recognised that higher order planning documents can providemandatory directions about how the development and protection of natural and physicalresources is to be reconciled, and that where this has occurred, subordinate documents mustgive effect to the higher order documents. It suggested that it is no longer correct to take anoverall broad judgment approach to the promulgation of plans, and that it is not open toregional councils proposing regional plans to depart from national instruments or from theirown regional policy statements where they recognise the directives contained in the nationalinstruments, on the ground that regional or activity-specific context requires a departure.The respondent's RCEP – the changes sought by Royal Forest and Bird[7] The respondent's proposed RCEP is a combined document, incorporating not onlythe RCEP but also the Regional Coastal Plan required by s 64 of the Act. The plan coversthe entire coastal environment, and it seeks to deal with resource management issues thatcross the land/water divide.[8] The RCEP records as an issue for the region that some uses and development, suchas regionally significant infrastructure, have significant social and economic benefits, and3 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1NZLR 593.can either only be located in the coastal environment, or, due to technical and operationalreasons, cannot avoid crossing this area.4[9] Part Two contains various objectives including Objective 1, which seeks to achieveintegrated management of the coastal environment, and Objective 2, which seeks to protectthe attributes and values of outstanding natural features and landscapes in the coastalenvironment from "inappropriate" subdivision, use, and development. Objective 2A seeksto safeguard the integrity, form, functioning and resilience of the coastal environment and tosustain its ecosystems by "protecting" what are called Indigenous Biological DiversityAreas A, and "maintaining", "promoting", "enhancing or restoring" other areas ofindigenous biodiversity (including Indigenous Biological Diversity Areas B) or indigenousbiodiversity generally. Objective 3 seeks to prevent the further loss of the quality and extentof rare and threatened habitats in the coastal environment of the region.[10] There are then various objectives dealing with activities in the coastal marine area.Objective 25 provides that activities and structures that depend upon the use of natural andphysical resources in the coastal marine area, or that have a functional need to be located inthe coastal marine area, should be recognised and provided for "in appropriate locations",recognising the positional requirements of some activities. Similarly, Objective 25Arecognises and enables "in appropriate circumstances" the operation, maintenance andupgrade of existing regionally significant infrastructure and Objective 25B provides for theestablishment of new regionally significant infrastructure "in appropriate locations".Objective 26 provides that activities and structures in the coastal marine area should belocated, designed and undertaken in a manner that "is appropriate" given the values andexisting uses of their location.[11] The plan then moves to the policies derived from these objectives.[12] The natural heritage policies appear in Part 3 of the RCEP. They recognise the areascalled Indigenous Biological Diversity Areas A; these are areas that meet the criteriacontained in policy 11(a) of the NZCPS. The various areas are identified on maps in theRCEP, and summary information detailing why each mapped area is identified as an4 Proposed Bay of Plenty Regional Coastal Environment Plan (2015) version 9.1(h) - Part Two, 1.1 Issue1A at 11.indigenous biological diversity area A is set out in a schedule to the plan.5 There are 23such areas, many of them in Tauranga Harbour. They are said to contain flora, avifauna,fish, or other fauna all under threat and are classified as either regionally significant ornationally significant.[13] Policy NH 1 is set out in the annexure to this decision. In summary it provides, inrelation to the natural heritage of the coastal environment, that activities can be consideredappropriate if they contribute to the restoration and rehabilitation of natural heritage orcultural values associated with natural heritage or if they involve the operation,maintenance, upgrading or development of existing regionally significant infrastructure, orhave a functional need to be located in or near the coastal environment in general, or in ornear a specific part of the coastal environment, and no reasonably practicable alternativelocations exist. They must also be compatible with the existing built environment and levelof modification to the environment; be compact; be of appropriate form, scale and design;and they should not, either by themselves, or in combination, have significant adverseeffects on the natural processes or ecological functioning of the coastal marine area. Thereis an express exception for the national grid, which is provided for in the NPSET. TheEnvironment Court also added an advice note, requiring that particular consideration begiven to, inter alia, policies NH 4, 5 and 11 if an activity could have adverse effects on thevalues and attributes of an Indigenous Biological Diversity Area A.[14] Royal Forest and Bird seeks to amend policy NH 1 by making it subject to policyNH 4.[15] Policy NH 4 provides that adverse effects must be avoided on the values andattributes of, inter alia, any Indigenous Biological Diversity Area A, and that adverse effectsmust be avoided on taxa. It is recorded that the values and attributes of IndigenousBiological Diversity Areas A are those set out in Schedule 2 to the plan, briefly summarisedabove.[16] Policy NH 5 is also set out in the annexure to this decision. In summary, it providesfor consideration to be given to subdivision, use and development proposals that willadversely affect the values and attributes associated with the areas listed in policy NH 45 Schedule 2, Table 1,(relevantly, Indigenous Biological Diversity Areas A) only where, after an assessment inaccordance with policy NH 4A, transient or minor adverse effects are found to beacceptable, or, under para NH 5(a), the proposal relates to the construction, maintenance orupgrading of regionally significant infrastructure; relates to the provision of access tooffshore islands; relates to the operation, maintenance and protection of existing river orland drainage schemes; relates to the continuation of a use that was lawfully established onor before 22 June 2014; provides for the restoration or rehabilitation of indigenousbiodiversity, or provides for public recreational access to or along the coastal marine area.[17] Royal Forest and Bird seeks to limit the exceptions to the policy set out in NH 5(a)(i)to the construction, maintenance or upgrading of the national grid but excluding theconstruction, maintenance or upgrading of other regionally significant infrastructure. It alsoseeks to add the words "and attributes" in NH 5(c) – presumably to tie in with policy NH 4.[18] Policy NH 11 – also in the annexure – provides that an application for a proposallisted in policy NH 5(a) must demonstrate that there are no practical alternative locationsavailable outside the areas listed in policy NH 4, that the avoidance of the effects requiredby policy NH 4 is not possible, that the route or site selection has considered the avoidanceof significant natural heritage areas, or, where avoidance is not practicable, has consideredutilising the more modified parts of those areas, that adverse effects are avoided to theextent practicable, and that adverse effects which cannot be avoided are remedied ormitigated.[19] Royal Forest and Bird seeks to amend this policy by reverting to the original versionof the rule, but adding a new subparagraph requiring that significant adverse effects must beavoided, other than in relation to the national grid.[20] Policy NH 11A provides for offsetting. It is also set out in the annexure. It recordsthat the respondent council can consider allowing a biodiversity offset in certaincircumstances.[21] Structures and the occupation of space in the coastal marine area are dealt with inPart 4 of the plan.[22] Policy SO 1 recognises that some types of structures are appropriate in the coastalmarine area, subject to, inter alia, Policies NH 1, 4, 5 and 11. Policy SO 2 requires thatstructures in the coastal marine area are to be consistent with the requirements of theNZCPS, in particular policies 6(1)(a) and 6(2), and where relevant, consistent with theNPSET and with the requirements of the RPS in relation to the coastal environment. PolicySO 3 requires that adverse effects from the use of structures in the coastal environmentshould be controlled to appropriate levels, having regard to the values of the site, or avoidedaltogether.[23] The rules are set out in section 1.2 of Part 4 of the plan. Relevantly:(a) Some activities are permitted – for example occupation of the commonmarine and coastal area for recreational activities.(b) Rule SO 11 provides that the occupation of any part of the common marineand coastal area, the erection or removal of structures, and changes in the useof existing structures that are not in an Indigenous Biological Diversity AreaA and that are not otherwise controlled, are discretionary activities.(c) Rule SO 10 provides that the occupation of any part of the common marineand coastal area, the erection of new structures, and the maintenance orremoval of existing structures and any change in the use of existing structuresin the coastal marine area, in an indigenous Biological Diversity Area A, thatis not otherwise permitted, is a discretionary activity where the structure isfor one or more of various identified purposes, including:(i) providing protection, restoration or rehabilitation of biodiversityvalues;(ii) improving water quality;(iii) providing educational, scientific or passive recreational opportunities;(iv) navigational aids;(v) structures erected prior to the date when the plan was notified, or;(vi) the operation, maintenance and protection of existing and newregionally significant infrastructure.Royal Forest and Bird seeks to limit (vi) above to existing regionallysignificant infrastructure and the national grid.(d) Rule SO 12 deals with non-complying structures in Indigenous BiologicalDiversity Areas A. It provides that the use, erection, reconstruction,maintenance, placement, alteration or extension of any structure on theforeshore or seabed in, inter alia, any Indigenous Biological Diversity AreaA, is a non-complying activity, provided that the structure has a functionalneed to be located in the coastal marine area, except where the structure oruse is a permitted activity under rules SO 4, 6, 6A, 7 or 8, or a discretionaryactivity under rule SO 10.(e) Other new structures proposed in Indigenous Biological Diversity Areas Aare prohibited unless the structure is a relevant activity under rules SO 4, 6,10 or 12 – rule SO 14.[24] Some of the words used in the plan are defined. Relevantly, I note the very widedefinition given to the words "Regionally Significant Infrastructure". The RCEP providesas follows:(a) Regionally Significant Infrastructure: is infrastructure of regional and/ornational significance and includes:Rotorua International, Whakatane and Tauranga airports.The regional strategic transport network as defined in the Bay of PlentyRegional Land Transport Strategy or state highways defined in the NationalState Highway Classification System.The Bay of Plenty Rail network.Commercial port areas including Tauranga Harbour and its channelsnecessary for the operation of ports and adjoining land and storage tanks forbulk liquids.The national electricity grid, as defined by the Electricity Industry Act 2010.Facilities for the generation and/or transmission of electricity where it issupplied to the national electricity grid and/or the local electricitydistribution network. This includes supply within the local electricitydistribution network.Broadband and strategic telecommunication facilities, as defined in section 5of the Telecommunications Act 2001.Strategic radio communications facilities, as defined in section 2(1) of theRadio Communications Act 1989.Local authority water supply network and water treatment plants.Local authority wastewater and stormwater networks, systems andwastewater treatment plants.Pipelines for the distribution or transmission of natural or manufactured gasor petroleum and other energy sources.Regional parks.Tauranga, Rotorua and Whakatāne public hospitals.The Environment Court's Decision[25] The Environment Court started by recording that the case raises issues as to howvarious imperatives from the NZCPS, the RPS, the NPSET, and the objectives of the RCEPare to be incorporated into the RCEP.6 The Court noted that there was no disagreementbetween the parties that the respondent's RPS, which was made operative in June 2015,reflects the NZCPS and other national planning documents, and that the RCEP's objectivesare in keeping with the superior documents and with Part 2 of the Act.7 The Courtaccordingly considered that the question for it was which of the particular words contendedfor by the parties were most appropriate to give effect to the RCEP's objectives.8[26] Given the agreement between the parties, the Court began its detailed discussion byreferring to the relevant objectives in the RCEP. It discussed Objectives 1, 2, 2A, 3, 4, 15and 25A, 25B and 26. It considered that these objectives point to "the tension between thevarious elements and interests within the coastal environment and derived from the superiordocuments".96 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil, above n 1, at [2].7 At [3].8 At [4].9 At [21].[27] The Court then turned to consider infrastructure in the coastal marine area byreference to various objectives contained in the RPS. The Court considered that the RPSemphasises the need for integrated management of the coastal environment.10 It noted thatthe RPS covers a significant range of issues, broader than those covered by other theNZCPS and the NPSET. The Court opined that it is clear from its "Objective framework"that the RCEP is intended to reflect the RPS as it relates to the coastal environment. Itconsidered that "[t]here is nothing within the RPS, or in the RCEP, which isolates oneissue or objective as being the pre-eminent consideration in creating methods or rules", andthat both planning documents seek to integrate the various issues and objectives within thebroader context of the other documents relevant to the region.11[28] The Court noted the concerns expressed by Royal Forest and Bird about theprovisions for regionally significant infrastructure contained in the draft RCEP. It thenreferred to the NZCPS, and set out its view that that document also recognises the"distinction and tensions between various elements within the coastal environment".12 TheCourt considered that the question for it was whether the requirement to avoid the adverseeffects of activities on indigenous biological diversity areas is absolute. It considered thisargument was difficult, given Royal Forest and Bird's acceptance that both the RPS and theRCEP give effect to the NZCPS. The Court concluded that, to the extent that there is anydoubt as to whether or not the NZCPS addresses tensions between the various elementswithin it, the RPS and the RCEP give effect to that tension in terms of the recognitioncontained within those planning documents.13[29] The Court then proceeded to consider what it termed "a proportionate response" byreference to the King Salmon decision. The Court quoted from King Salmon in relation tothe meaning of the words "appropriate" and "inappropriate". It considered whether or notthe words "must be avoided" discussed by the Supreme Court in King Salmon and used inthe RCEP – NH 4 – require "a simple binary calculation as to whether or not all effects areavoided or not".14 The Court considered that the Supreme Court, in interpreting the word"appropriate", acknowledged that its meaning varies by context. The Court concluded that10 At [22].11 At [30].12 At [35].13 At [38].14 At [43]."even for words such as avoid, the context must go further than simply the wording of theplan, but context of the individual case or application".15 It considered that the RCEP is "anattempt to take a proportionate response to the actual activity envisaged, and the potentialimpacts of that activity, within the particular environment".16 It considered that the planunequivocally seeks to avoid adverse effects through policy NH 4, but that other policies –in particular policy NH 5 – recognise some circumstances where consent might beappropriate on a full evaluation.17 It concluded that a proportionate response could beadopted, having regard to the particular activity in question, and all other factors which goto its appropriateness.18[30] It considered the RCEP policies and rules in issue, and concluded that their wordingis clear, and that there is no assumption of general appropriateness. The Court agreed thatthe initial wording in the notified version of the RCEP before it was not as explicit as itshould have been in addressing the criteria that would need to be addressed on any resourceconsent application for regionally significant infrastructure proposing to locate in the coastalmarine area. It took into account the core purpose of the Act (the sustainable managementof natural and physical resources), as well as Objective 1 of the NZCPS, and variousprovisions in the RPS. It concluded that these various objectives and policies require anintegrated approach to individual consents within high value areas.19[31] It rejected an argument advanced for Royal Forest and Bird that non-complyingactivity status for such activities would best avoid adverse effects on Indigenous BiologicalDiversity Areas A, and expressed the view that the status of an activity as non-complyingmight have less prospect of avoiding adverse effects than according it discretionary activitystatus.20[32] The Court:(a) concluded that policy NH 1 should not be made subject to policy NH 4, albeitaccepting that policy NH 4 was clearly relevant, and would need to be taken15 At [43].16 At [46].17 At [46].18 At [48].19 At [51].20 At [53].into account on any application for a resource consent for regionallysignificant infrastructure;21(b) made various amendments to policy NH 5, but rejected Royal Forest andBird's argument that the exceptions contained in that policy should not applyto regionally significant infrastructure, but only to the national gridrecognised by the NPSET. It considered the question of what infrastructureshould be addressed, and its relevant importance and impacts, should be bestaddressed on a case by case basis, through an application for resourceconsent;22(c) preferred the Regional Council's wording in Policies NH 11 and NH 11A;23and(d) preferred the Regional Council's wording of rule S 10.24[33] The Court considered that the wording accepted by it was the most appropriateoption under s 32 of the Act, noting that the option of using non-complying status, asproposed by Royal Forest and Bird, would be a relatively inefficient method, which wouldcreate uncertainty, and could lead to agitation for a plan change. The Court concluded thatthe best way of identifying and assessing the benefits and costs of regionally significantinfrastructure locating in the coastal environment, is to require such activities to obtainresource consent, on a fully discretionary activity basis. It considered that the appropriatemethod to address issues raised by such a proposal is on a case by case basis, given the widevariety of circumstances that could arise, and the wide variety of indigenous biodiversityareas within the region.25[34] The decision is an interim decision, given that the Court has not as yet issued adecision on iwi resource management issues.26 The Court directed that, following therelease of its decision on these issues, the parties would have 20 working days within which21 At [58].22 At [62].23 At [66].24 At [67].25 At [70]-[71].26 I was advised by counsel that the hearing on iwi resource management issues is to be held in December2017.to file memoranda as to whether or not they were seeking further changes to the RCEPprovisions, in light of whatever decision is given in relation to the iwi resource managementchapters of the RCEP.The Notice of Appeal[35] Although the Environment Court's decision is an interim decision, it was commonground that it finally determines substantive issues in such a way as to engage the right ofappeal created by s 299 of the Act.[36] There are four errors of law alleged in the appeal, each of which was advanced bycounsel for Royal Forest and Bird. The alleged errors of law are as follows:(a) the Environment Court erred in its interpretation and application of the KingSalmon decision;(b) the Environment Court erred in its interpretation and implementation of, andfailed to give effect to, various provisions in the NZCPS and in the RPS;(c) the Environment Court erred in its interpretation and implementation ofrelevant RCEP objectives; and(d) the Environment Court erred in its interpretation of ss 87A, 104 and 104D inthe Act.[37] Royal Forest and Bird was supported on issues 1 and 2 by Ngāti Mākino HeritageTrust.[38] The respondent council and the s 301 parties (other than Ngāti Mākino) opposed theappeal, either in whole or in part.Appeals from the Environment Court – Errors of Law[39] As noted, the appeal is brought pursuant to s 299 of the Act. Such appeals arelimited to questions of law. It was common ground that this Court should only overturn adecision of the Environment Court, if it considers that the Court: 27(a) applied the wrong legal test;(b) came to a conclusion without evidence, or one to which, on the evidence, itcould not reasonably have come;(c) took into account matters which it should not have taken into account;(d) failed to take into account matters which it should have taken into account.[40] Here, each of the errors raised by Royal Forest and Bird assert that the EnvironmentCourt applied a wrong legal test.[41] The onus of establishing any error of law rests on the appellant.28[42] The weight to be afforded to relevant considerations is a question for theEnvironment Court, and is not a matter of law available for reconsideration by this Court asa question of law.29[43] Where there has been an error of law, relief will not necessarily be granted, unless itcan be established that the error identified materially affected the result found by theEnvironment Court.30[44] Against this background, I turn to consider each of the alleged errors of law in turn.27 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC).28 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC).29 Moriarty v North Shore City Council [1994] NZRMA 433 (HC).30 Royal Forest and Bird Protection Society Inc v WA Habgood Ltd (1987) 12 NZTPA 76 (HC); BP Oil NZLtd v Waitakere City Council [1996] NZRMZ 67 (HC).Did the Environment Court err in its interpretation and application of the KingSalmon decision?(a) What did King Salmon decide?[45] In King Salmon, the respondent had applied for changes to the Marlborough SoundsResource Management Plan, to change salmon farming from a prohibited activity to adiscretionary activity in eight locations. At the same time, it applied for resource consentsto undertake salmon farming at those locations, and at one other location, for a term of 35years. The Minister of Conservation decided that the applications involved matters ofnational importance, and that they should be decided by a Board of Inquiry. The Boardappointed by the Minister considered the NZCPS and also Part 2 of the Act. It referred topolicy 8 in the NZCPS, and also to Policies 13 and 15. It considered that these policiesconflicted, and that it was therefore required to balance their requirements and make a broadoverall judgment. It found that there would be adverse effects on areas with outstandingnatural attributes, but nonetheless decided to grant the application for a plan change inrespect of four of the sites, and to grant the resource consents sought for the same four sites,subject to conditions. The Environmental Defence Society and others appealed. The appealwas unsuccessful in the High Court.31 The appeal then went directly to the Supreme Court.[46] The majority judgment was delivered by Arnold J, for himself, and for Elias CJ,McGrath and Glazebrook JJ. William Young J issued a separate decision.[47] The majority allowed the appeal. It found that the proposed plan change would havesignificant adverse effects on an area of outstanding natural character, and that the directionsin policies 13(1)(a) and 15(a) of the NZCPS would not be given effect to if the applicationswere to be granted. It held that the Board was obliged to give effect to the NZCPS. It hadfailed to do so and the plan change therefore did not comply with s 67(3)(b) of the Act. Itrejected the "overall broad judgment approach" taken by the Board.[48] Relevantly, the majority noted that, under the Act, there is a three-tiered managementsystem – national, regional and district, and that a hierarchy of planning documents isestablished. The hierarchy of planning documents is as follows – first those documents31 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2013] NZHC 1992, [2013]NZRMA 371.which are the responsibility of central government – specifically national environmentalstandards, national policy statements and New Zealand coastal policy statements. Policystatements of whatever type state objectives and policies, which must be given effect to inlower order planning documents. Secondly, there are those documents which are theresponsibility of regional councils – namely regional policy statements and regional plans.Thirdly, there are those documents which are the responsibility of territorial authorities –specifically district plans.32[49] The Court referred to ss 66 and 67 of the Act, and recorded that s 67(3) provides thata regional plan must "give effect to" any national policy statement, any New Zealandcoastal policy statement, and any regional policy statement. The majority considered thatthe words "give effect to" simply mean to implement, and that, on the face of it, this is astrong directive, creating a firm obligation on the part of those subject to it. The majorityconsidered that there is a caveat however – namely the implementation of the directive willbe affected by what it relates to, that is, what must be given effect to. It observed that therequirement to give effect to a policy which is framed in a specific and unqualified waymay, in a practical sense, be more prescriptive than a requirement to give effect to a policythat is worded at a higher level of abstraction.33[50] The majority went on to observe that the NZCPS gives substance to the provisions ofPart 2 contained in the Act in relation to the coastal environment, and that, in principle, bygiving effect to the NZCPS, a regional council is necessarily acting in accordance with Part2, and that as a result there is no need to refer back to Part 2 when determining a planchange. There were, however, three caveats to this "in principle" observation. First, wherethere is a challenge to the validity of the NZCPS or any part of it; if there is such achallenge, it needs to be resolved before it can be determined whether a decision-maker whogives effect to the NZCPS as it stood is necessarily acting in accordance with Part 2.Secondly, there may be instances where the NZCPS does not "cover the field", and thedecision-maker will have to consider whether Part 2 provides assistance in dealing with thematters not covered. Thirdly, if there is uncertainty as to the meaning of particular policies32 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 3, at [11].33 At [75]-[80].in the NZCPS, reference to Part 2 may well be justified to assist in a purposiveinterpretation.34[51] The majority considered that there was no conflict between the policies in theNZCPS at issue in the case before it. It discussed the correct approach to be taken to theinterpretation of the policies in the NZCPS. It noted that their language is "significant", andthat the various policies are not inevitably in conflict or pulling in different directions.Rather it considered that the objectives and policies in the NZCPS are expressed indeliberately different ways, and that some give decision-makers more flexibility, or are lessprescriptive. In contrast, other polices are expressed in more specific and directive terms,and these differences in the policies matter. The majority expressed the view that whendealing with a plan change application, the decision-maker must first identify thoseprovisions that are relevant, paying careful attention to the way in which they are expressed.Those expressed in more directive terms will carry greater weight than those expressed inless directive terms. Moreover, it may be that a provision is stated in such directive termsthat the decision-maker will have no option but to implement it.35[52] The majority recognised that there may be instances where particular provisions"pull in different directions", but observed that this is likely to occur infrequently. Itconsidered that apparent conflict may dissolve if close attention is paid to the way in whichthe provisions are expressed.36 The Court considered that there will only be justification forreaching a determination which has one provision prevailing over another if the conflictremains after the required analysis has been undertaken. It observed that the area of conflictshould be kept as narrow as possible, and that the necessary analysis should be undertakenon the basis of the higher order document being considered, albeit informed by s 5 of theAct. Section 5 should not, however, be treated as the primary operative decision-makingprovision.37[53] The majority observed that policies 13(1)(a) and (b) and 15(a) and (b) in the NZCPSare so directive that they "provide something in the nature of a bottom line".38 It considered34 At [85] and [88].35 At [129].36 At [129].37 At [130].38 At [126]-[132].that their most relevant feature is that "they state policies of avoiding adverse effects ofactivities on natural character in areas of outstanding natural character".39[54] The majority addressed the word "avoid", used in the Act and in various policies inthe NZCPS, holding that it has its ordinary meaning of "not allow", or "prevent theoccurrence of".40[55] It also considered the meaning of the words "inappropriate", "appropriate" and"appropriate places" in various places in the Act and in the NZCPS. It observed as follows:(a) First, in discussing s 6 of the Act:41 a protection against "inappropriate" development is notnecessarily a protection against any development. Rather, itallows for the possibility that there may be some forms of"appropriate" development.(b) And a little later:42The scope of the words "appropriate" and "inappropriate" is, ofcourse, heavily affected by context. For example, where policy 8refers to making provision for aquaculture activities "inappropriate places in the coastal environment", the contextsuggests that "appropriate" is referring to suitability for the needsof aquaculture (for example, water quality) rather than to somebroader notion. That is, it is referring to suitability in a technicalsense. By contrast, where objective 6 says that the protection ofthe values of the coastal environment does not preclude use anddevelopment "in appropriate places and forms, and withinappropriate limits", the context suggests that "appropriate" is notconcerned simply with technical suitability for the particularactivity but with a broader concept that encompasses otherconsiderations, including environmental ones.[56] The majority addressed the reconciliation of those policies that provide for activitiesin appropriate places and the protective "avoid" type policies.43We agree with Mr Kirkpatrick that the language of the relevant policies in theNZCPS is significant and that the various policies are not inevitably in conflict or39 At [58] and [61]-[63].40 At [24(b)], [62], [92]-[96].41 At [29(b)].42 At [100]-[101]; and see generally [100]-[105].43 At [126].pulling in different directions. Beginning with language, we have said that "avoid" inpolicies 13(1)(a) and 15(a) is a strong word, meaning "not allow" or "prevent theoccurrence of", and that what is "inappropriate" is to be assessed against thecharacteristics of the environment that policies 13 and 15 seek to preserve. While weacknowledge that the most likely meaning of "appropriate" in policy 8(a) is that itrelates to suitability for salmon farming, the policy does not suggest that provisionmust be made for salmon farming in all places that might be appropriate for it in aparticular coastal region.And:44A danger of the "overall judgment" approach is that decision-makers may concludetoo readily that there is a conflict between particular policies and prefer one overanother, rather than making a thoroughgoing attempt to find a way to reconcile them.In the present case, we do not see any insurmountable conflict between policy 8 onthe one hand and policies 13(1)(a) and 15(a) on the other. Policies 13(1)(a) and 15(a)provide protections against adverse effects of development in particular limited areasof the coastal region — areas of outstanding natural character, of outstanding naturalfeatures and of outstanding natural landscapes (which, as the use of the word"outstanding" indicates, will not be the norm). Policy 8 recognises the need forsufficient provision for salmon farming in areas suitable for salmon farming, but thisis against the background that salmon farming cannot occur in one of the outstandingareas if it will have an adverse effect on the outstanding qualities of the area. Sointerpreted, the policies do not conflict.[57] Clearly the decision of the majority is wide-ranging and detailed. The Court ofAppeal has described it as leading to an "inevitably more restrictive regime".45 The samepoint was made by William Young J in his dissenting judgment. He drew attention to thepotentially wide reach of the restrictions resulting from the majority's decision havingregard to the definition of the word "effect" in s 3 of the Act. He considered that the effectof the majority's judgment is that regional councils will be obliged to make rules thatspecify activities as prohibited if they have "any perceptible adverse effect, even temporary,on areas of outstanding natural character".46(b) How did the Environment Court approach King Salmon?[58] The Environment Court made relatively little express reference to King Salmon.Nowhere in its decision did it endeavour to analyse in any comprehensive way what theSupreme Court decided.44 At [131].45 Man O'War Station Ltd v Auckland Council [2017] NZCA 24 at [60].46 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 3, at [201].[59] The Environment Court did note that, although the King Salmon decision was at theforefront of much of the discussion before it, what it was required to deal with involvedmultiple national policy statements – the NZCPS, the NPSET, and arguably the NPSUG, aswell as their application to the RPS and the objectives of the RCEP itself.47 It appears tohave considered that, in this situation, King Salmon was of limited assistance.[60] The Environment Court recorded a "concession" made by Royal Forest and Bird,namely that the RPS reflected the current NZCPS, and other national planning documents.It was on this basis that the Court began its discussion with the reference to theunchallenged objectives contained in the RCEP.48 Although the Court did not say so, itappears that in doing so, it was following a King Salmon type approach. King Salmon dealtwith the interaction between Part 2 of the Act and the NZCPS. The Environment Courtappears to have extended the Supreme Court's observations in this regard to all planningdocuments, regardless of their place in the planning hierarchy. This is consistent with theapproach taken by another division of the Environment Court,49 although this decision wasnot referred to either.[61] There was express reference to King Salmon when the Court turned to discuss its"proportionate approach". It cited two paragraphs from King Salmon and observed asfollows:50Of critical importance in this regard is whether or not the word "must be avoided"used in RCEP Policy NH 4 requires a simple binary calculation as to whether or notall effects are avoided or not. It is clear that the Supreme Court, in interpreting theword "appropriate", acknowledged that its meaning varied by context. We haveconcluded that even for words such as avoid, the context must go further than simplythe wording of the plan, but the context of the individual case or application.[62] The Court concluded that "the purpose of the resource consenting process and theRCEP is an attempt to take a proportionate response to the actual activity envisaged, and thepotential impacts of that activity, within the particular environment".51 The Environment47 Royal Forest and Bird Protection Society New Zealand Incorporated v Bay of Plenty Regional Council,above n 1, at [2].48 At [3] and [11].49 Appealing Wanaka Incorporated v Queenstown Lakes District Council [2015] NZEnvC 139 at [43]-[45].50 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil, above n 1, at [43].51 At [46].Court then observed that King Salmon was not incompatible with other decisions cited by it,and stated as follows:52In each a proportional response is adopted, having regard to the particular activityand all of the other factors which go to its appropriateness.(c) The parties' submissions as to King Salmon[63] Royal Forest and Bird argued that the Environment Court failed to follow theSupreme Court's approach in King Salmon. It noted that the Environment Court consideredthat there is a tension between some of the relevant policies in the higher order planningdocuments, but that it did not attempt to find a way to reconcile that tension. It submittedthat the Environment Court erred in holding that the meaning of the word "avoid" iscontextual, and submitted that this interpretation is inconsistent with King Salmon. Itargued that the Environment Court erred when it identified some RCEP objectives whichuse the word "appropriate", and found that this tells against an avoidance approach. Itsubmitted that this interpretation is at odds with the reconciliation that the majority in theSupreme Court undertook of policies 8, 13, and 15 in the NZCPS. It also argued that, whenthe Environment Court held that the tensions it considered are apparent in the NZCPS, theRPS and the RECP permit a proportionate response. It pointed out that a broad overalljudgment approach was rejected in King Salmon.[64] Ngāti Mākino also took issue with the Environment Court's adoption of theproportionate approach – submitting that it is simply a variant of the overall broad judgmentapproach rejected by the majority in King Salmon. It argued that the requirement to giveeffect to the NZCPS contained in the Act is intended to constrain decision-makers. It wenton to submit that the total avoidance of adverse effects is not required by the relevantdirective policies in the NZCPS, and that pursuant to King Salmon, there is a requirement toavoid, or prevent, only those adverse effects that are more than minor or transitory. Itsubmitted that this requirement should have been given effect to in the proposed RCEPprovisions relevant to regionally significant infrastructure in Indigenous Biodiversity AreasA.52 At [48].[65] The respondent council submitted that the Environment Court did not adopt anoverall judgment approach in the sense discussed by the majority in King Salmon, either byreverting to Part 2 of the Act, or by failing to reconcile the various NZCPS provisions. Itsuggested that Royal Forest and Bird and Ngāti Mākino place an unreasonable gloss on theproportionate concept discussed by the Environment Court. It argued that the EnvironmentCourt was entitled to rely on the proposed plan's settled objectives which had not beenappealed, and on Royal Forest and Bird's concession that those settled objectives give effectto the higher order planning documents. It further argued that the Environment Court'sfindings can be construed in a manner consistent with King Salmon, submitting that theEnvironment Court's decision allows for the location of regionally significant infrastructure– both existing and new – in high value areas, but only in the narrowest of circumstanceswhere no practical alternative locations exist, the avoidance of effects is not possible, andany residual adverse effects are remedied or mitigated as far as practicable or offset.[66] Tauranga City Council also argued that Royal Forest and Bird and Ngāti Mākinomisapplied King Salmon, suggesting that they seek to elevate various comments made bythe Supreme Court into legal tests, and that in so doing, they ignore the different context inwhich the Environment Court's decision was made. It was argued that there are manyfactual and policy distinctions between King Salmon and the Environment Court's decisionand that the Environment Court did not err when it compared, interpreted and ruled on theobjectives and policies in the lower order documents. It submitted that the EnvironmentCourt was entitled to make findings favouring a proportionate response, given the lack ofpre-eminence within the lower order planning provisions, and that an overall broadapproach, in the sense discussed in King Salmon, was not adopted.[67] The Te Tumu Landowners – comprising Te Tumu Kaituna 14 Trust, Ford LandHoldings Pty Ltd and Carrus Corporation Ltd – argued that there are many distinctionsbetween King Salmon and the situation which confronted the Environment Court. Theyreferred to the factual context, noting that King Salmon involved a "spot zone" private planchange which sought to authorise specific proposals. They also noted that the RPS is recentand settled. It was argued that King Salmon did not promulgate a "bright line test" and thatthe Supreme Court did not endorse a blanket or absolute prohibition for development evenin areas of high natural value. They argued that the reconciliation of policies 8, 13 and 15,undertaken by the Supreme Court, does not constitute a blueprint for the reconciliation ofpolicies that involve public infrastructure and strategic planning.[68] The same submissions were advanced on behalf of PowerCo Ltd.[69] Transpower's submissions understandably focussed on the national grid. It didsuggest that the Supreme Court in King Salmon was faced with resolving policy tensionswithin the same policy document, but not tensions between different planning documents.Nevertheless, it accepted that helpful guidance can be derived from King Salmon wheretension exists between different documents. Further, it agreed with Royal Forest and Bird'ssubmission that the presumption that the RCEP's unchallenged objectives implement thehigher order planning documents does not mean that the Environment Court could considerthose objectives in isolation from the higher order planning documents. It argued that whereregional plan objectives could lead to more than one policy framework, it is necessary fordecision-makers to check whether their chosen policy framework gives effect to the higherorder planning documents. Essentially it submitted that the Act requires decision-makers toadopt a "checks and balances" approach to the hierarchy of planning documents.[70] The New Zealand Transport Agency acknowledged that a "simplistic" reading of theSupreme Court's decision in King Salmon, and the various statements made by the majorityin relation to "environmental bottom lines", might suggest that all activities that have morethan minor adverse effects upon the high value areas protected by policies 11, 13 and 15 ofthe NZCPS need to be protected. It argued for a more careful reading of the decision takinginto account the context in which it was delivered. The Agency expressed its concern withwhat it termed the "absolutist" reading of the NZCPS it suggested occurred in King Salmon,and argued that the decision is limited to the matters that were before the Supreme Court. Itargued that only limited guidance was provided by the Supreme Court in relation to howother statutory requirements relevant to the formation of plans should be implemented. Itreferred to subsequent decisions – namely, Man O'War Station Ltd v Auckland Council,53and Royal Forest and Bird Protection Society of New Zealand Incorporated v AucklandCouncil54 – and suggested that they are authority for the proposition that a contextualassessment can be appropriate.53 Man O'War Station Ltd v Auckland Council, above n 45.54 Royal Forest and Bird Protection Society of New Zealand Inc v Auckland Council [2017] NZHC 980.(d) Analysis(i) The Act[71] The starting point must be the provisions contained in the Act. Broadly, the relevantstatutory provisions can be summarised as follows:(a) The purpose of regional plans is to assist regional councils to carry out theirfunctions in order to achieve the purpose of the Act. Specifically, the purposeof the preparation, implementation and administration of regional coastalplans is to assist regional councils, in conjunction with the Minister ofConservation, to achieve the purpose of the Act in relation to the coastalmarine areas of their regions.55(b) A regional council may prepare a regional plan for the whole or any part ofits region for any of the functions specified in s 30(1)(c), (ca), (e), (f), (fa),(fb), (g) or (ga).56 Relevantly, s 30(1)(ga) refers to the function ofestablishing, implementing and reviewing objectives, policies and methodsfor maintaining indigenous biological diversity.(c) A regional council must prepare and change any regional plan in accordancewith, inter alia, the provisions of Part 2 of the Act, and the council'sobligation to prepare an evaluation report in accordance with s 32.57 Anevaluation report is required to examine the extent to which:58(i) the objectives of the proposal being evaluated are the mostappropriate way to achieve the purpose of the Act; and(ii) the provisions in the proposal are the most appropriate way to achievethe objectives.55 Resource Management Act, s 63(1) and (2).56 Section 65(1).57 Section 66(1)(b) and (d).58 Section 32(1)(a) and (b).(d) A regional plan must give effect to any National Policy Statement, any NewZealand Coastal Policy Statement, a National Planning Standard and anyRegional Policy Statement.59(e) A regional plan must state the objectives for the region, the policies toimplement the objectives, and the rules (if any), to implement the policies.60[72] The documents listed in s 67(3), which a regional plan must give effect to, areconjunctive and not disjunctive.[73] The statutory provisions require that a proposed plan give effect to both any NewZealand coastal policy statement and any regional policy statement. The requirement that aproposed plan's policies implement the proposed objectives is a separate and distinctobligation. The requirement for an evaluation report under s 32 to examine, inter alia, theextent to which the proposed provisions are the most appropriate way to achieve theobjectives, is a procedural obligation. Neither the obligation to implement a proposed plan'sobjectives, nor the requirement for an evaluation report, removes the necessity for aproposed plan to give effect to both the any New Zealand coastal policy statement and anyregional policy statement.[74] The leading authority considering the inter-relationship of planning documents andthe effect of s 67(3), is the decision of the Supreme Court in King Salmon. Is its effectlimited as the Environment Court appears to have thought, or can it be distinguished as therespondent council and numerous of the s 301 parties submit?(ii) Is King Salmon limited or can it be distinguished?[75] As noted at [59], the Environment Court appears to have considered that KingSalmon was of limited assistance, because, unlike the Supreme Court, it was required to dealwith multiple national policy statements, the RPS and the unchallenged parts of the RCEP.[76] I acknowledge that King Salmon was concerned with the resolution of tensions in theone planning document, the NZCPS. I do not, however, consider that King Salmon is of59 Section 67(3). No National Planning Standard has been developed to date.60 Section 67(1).limited assistance where the tensions are in multiple documents. First, the EnvironmentCourt thought that the tensions it considered existed were manifest in each document fromthe NZCPS downwards. They were not between documents, but rather in each document.Secondly, the approach discussed by the majority in King Salmon is applicable in eithercontext. It seems to me that if there is a tension perceived in a lower order document, theapproach taken by the majority in King Salmon should be applied to try and resolve thattension. If the tension cannot be resolved, then recourse should be made to the higher orderplanning documents to see if the tension is more apparent than real. I agree with counsel forTranspower that, where regional plan objectives could lead to more than one policyframework, it is incumbent on decision-makers to check whether their preferred policyframework gives effect to the higher order planning documents. That is what s 67(3)requires.[77] Turning to the submissions that were made, I acknowledge the point made by thosewho suggest that King Salmon can be distinguished – the decision related to a privatelyinitiated plan change, which effectively sought spot zoning of certain areas in the coastalmarine area, and resource consents for some of those areas.[78] I do not consider that this factor is of any great relevance. A regional plan must beprepared in accordance with Schedule 1 to the Act.61 Any person may request that aregional council change a regional plan,62 also in the manner set out in Schedule 1. Thelocal authority to which the request is made – which is defined to include a regionalcouncil63 – is required to consider the request. It can adopt the request; if it does so, theprovisions of Part 1 of Schedule 1 apply. It can accept the request in whole or in part, andproceed to notify the request under clause 26.64 If the request is accepted, Part 1 ofSchedule 1, with all necessary modifications applies to the change requested.65 Theprocedure is the same, whether or not a plan change is initiated by a regional council of itsown initiative, or pursuant to a private request.61 Section 65(2).62 Schedule 1, cl 21(1), but not a regional coastal plan – see cl 21(2).63 Section 2.64 Schedule 1, cl 25(2)(a) and (b).65 Clause 29(1).[79] Other differences suggested by the parties are also of little assistance. For example,it does not matter that the RPS at issue in this case is recent and settled. That is irrelevant,both in terms of the statutory scheme and the Supreme Court's observations in King Salmon.Nor does it matter that the plan change in issue in King Salmon was accompanied byresource consent applications. This factor did not colour the Supreme Court's observationsin relation to plan changes generally. Similarly, in my view, it does not matter that theSupreme Court's decision was given in circumstances where the Board of Inquiry hadalready found that there would be adverse effects on areas with outstanding naturalattributes. That is simply a reflection of the stage in the process at which the case camebefore the Supreme Court.[80] I accept that the ratio of King Salmon is relatively narrow. I have endeavoured tosummarise what I understand it to be in [47] above. While strictly obiter, all of themajority's observations which led to the conclusions I have set out are highly persuasive.They are observations made by our highest Court, discussing some of the provisions andissues which are directly at issue in the present case. They cannot, in my judgment, beignored or glossed over.[81] I do not consider that King Salmon can be distinguished, or that it is of limitedassistance only.(iii) The hierarchy of planning documents – what is it necessary to refer to?[82] As noted, the Environment Court started by focusing on the documents lowest in theplanning hierarchy – namely the unchallenged objectives in the RCEP. It then referred tosome provision in the RPS, but only briefly, and then, even more briefly, to a very fewprovisions in the NZCPS. It adopted this approach in reliance on what it termed a"concession" by Royal Forest and Bird, and, perhaps, implicitly, on the approach taken bythe Supreme Court, to the need to refer to Part 2 when considering provisions in theNZCPS.[83] I do not consider that the Environment Court was entitled to take the approach ittook – namely focusing largely on the unchallenged provisions in the RCEP.[84] There is nothing in the majority's observation in King Salmon which suggests that adecision-maker can confine his, her or its attention to unchallenged parts of the planningdocument in issue or to the planning document immediately above the document underconsideration, and ignore or gloss over higher order planning documents.[85] Counsel pointed to the decision of this Court in Thumb Point Station Ltd v AucklandCity Council66 and some argued that it supports the approach taken by the EnvironmentCourt. I disagree. In Thumb Point, Andrews J described the effect of King Salmon in thisregard as follows:In most cases, the Environment Court is entitled to rely on a settled plan as givingeffect to the purposes and principles of the Act. There is an exception, however,where there is a deficiency in the plan. In that event, the Environment Court musthave regard to the purposes and principles of the Act and may only give effect to theplan to the degree that it is consistent with the Act. As such, it is necessary to assesswhether the highlighted anomaly required the Court to have regard to the widercontext of the Act.I do not consider that this observation supports the Environment Court's approach. Thereference to the purpose and principles of the Act is clearly a reference to Part 2 of the Act.In my judgment, the Supreme Court in King Salmon and this Court in Thumb Point, weresimply referring to the extent to which Part 2 is required to be considered when giving effectto a national policy statement or a settled plan. Neither decision was considering whetherand when higher order planning documents need to be considered when lower orderplanning documents are settled or parts of them are not challenged.[86] Counsel also referred me to Appealing Wanaka Inc v Queenstown Lakes DistrictCouncil Inc, where the Environment Court held as follows: 67The recent decision of the Supreme Court in EDS v NZ King Salmon sets out anamended — and simpler — approach to assessing plan changes The principle inEDS v NZ King Salmon is that if higher order documents in the statutory hierarchyexisted when the plan was prepared then each of those statutory documents isparticularised in the lower document. It appears that there is, in effect, a rebuttablepresumption that each higher document has been given effect to or had regard to (orwhatever the relevant requirement is). Thus there is no necessity to refer back to anyhigher document when determining a plan change provided that the plan issufficiently certain, and neither incomplete nor invalid. This seems to have beenaccepted by the High Court in a recent decision — Thumb Point Station Ltd vAuckland City Council. 66 Thumb Point Station Ltd v Auckland Council [2015] NZHC 1035, [2016] NZRMA 55 at [31].67 Appealing Wanaka Inc v Queenstown Lakes District Council Inc, above n 49, at [43].We respectfully agree provided that the reference to giving effect to the "purposesand principles" of the Act includes giving effect to the higher order statutoryinstruments, and indeed to the consideration of the other statutory documentsreferred to in sections 74 and 75 of the RMA.[87] As I have already noted, the Environment Court in the case before the Court did notrefer to the Appealing Wanaka decision, but it appears to have adopted the same approach.[88] I have reservations about the approach taken by the Environment Court in AppealingWanaka. First, I do not consider that it accurately records what was said in King Salmon orby this Court in Thumb Point. Secondly, and perhaps more importantly, in my view there isa distinct risk that the intent and effect of higher order plans can be diluted, or even lost, inthe provisions of plans lower in the planning hierarchy. Put colloquially, the story can belost in the re-telling. Indeed, a similar point was noted in Appealing Wanaka, where theCourt sounded a warning in the following terms:68While the simplicity of that process may sometimes be more theoretical than real,since in practice plans may be uncertain, incomplete or even partly invalid, it iseasier than the exhaustive and repetitive process followed before the Supreme Courtdecided EDS v NZ King Salmon.In my judgment, there are dangers in the truncated approach taken in Appealing Wanaka andby the Environment Court in this case.[89] In my judgment, the Environment Court erred when it proceeded primarily byreference to the RCEP's objectives, with only limited reference to the RPS and the NZCPS.Its approach in effect ignored the statutory directive contained in s 67(3). That subsection isclear in its terms. It requires that decision-makers promulgating regional plans must "giveeffect to", inter alia, National Policy Statements and Regional Policy Statements. TheEnvironment Court failed to have regard to the majority of the Supreme Court's finding thatthe words "give effect to" mean to implement, and that this is a strong directive, creating afirm obligation on the part of those subject to it.68 At [47].[90] The "concession" by Royal Forest and Bird does not assist. The Environment Courtrecorded the concession by reciting from Royal Forest and Bird's submissions before it asfollows:69 the Court is entitled to rely on the proposed plan's settled objectives and does notneed to venture further into the higher order planning documents unless it considersthat the proposed plan's objectives are deficient in one of the ways described inThumb Point or King Salmon. It is submitted there is no such deficiency. Thehigher order planning documents are entirely consistent with the proposed plan'ssettled objectives, and reinforce their clear meaning.However, the interpretation of the proposed plan's objectives contended for by therespondent [council] and opposing [section 301] parties would be deficient, asbecomes apparent from a review of the higher order planning documents that theproposed plan's objectives are meant to give effect to.[91] Before me, Royal Forest and Bird did not seek to resile from these submissionsmade to the Environment Court, but it disagreed that they amounted to a concession. Itargued that its submissions before the Environment Court did no more than say that, if theEnvironment Court accepted Royal Forest and Bird's interpretation of the RCEP, then therewas no need to go further, but that if it considered that there was a conflict in the lowerorder documents, recourse should be made to the higher order documents in an attempt toresolve that conflict.[92] I am sympathetic to Royal Forest and Bird's argument, and it seems to me that theEnvironment Court erred when it treated the submissions it recited as a concession. Further,as a matter of law, it is not open to a party to waive the statutory requirements put in placeby s 67(3). The concession, if that is what it was, was irrelevant, and in any event, NgātiMākino, supporting the appeal, did not concede the issue. It was a s 274 party before theEnvironment Court, and it could not be bound by any concession made by Royal Forest andBird.[93] The Environment Court also appears to have assumed that it was unnecessary for itto consider the NZCPS in any detail, because there was no evidence to suggest that theRCEP's objectives were not "entirely in keeping with the superior documents, including the69 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil, above n 1, at [3].NZCPS, the NPSET, or, if relevant, Part 2".70 With respect, this was not an issue ofevidence. Interpretation of the relevant planning documents and their interrelationship wasfor the Environment Court, and it does not matter whether or not there was evidence on theissue.(iv) Tension – should an attempt have been made to resolve it?[94] The Environment Court considered that the RCEP objectives raised a tensionbetween the various elements in play in recognising regionally significant infrastructure,while at the same time recognising kaitiakitanga, the avoidance of adverse effects, and,since 2017, the need to provide for urban growth management areas.71[95] The Court also discussed the RPS briefly, noting that it emphasises the need for theintegrated management of the coastal environment, that it also discusses natural characterand ecological functioning of the coastal environment, and that it nevertheless addresses theuse and allocation of coastal resources. The Court commented on those provisions in theRPS which deal directly with regionally significant infrastructure, and which identifymatters of national importance, including protection of areas of significant indigenousvegetation and significant habitats of indigenous fauna. The Court did not expressly statethat there was tension in the RPS, but it did observe that the RCEP's objective frameworkwas intended to reflect the RPS.72 Given that the Environment Court considered that therewas a tension in the "[o]bjective framework" in the RCEP, it would seem to follow that itmust also have considered that there was tension in the RPS, at least insofar as it relates tothe coastal environment, the provision of infrastructure and the protection of areas ofsignificant indigenous vegetation and significant habitats of indigenous fauna.73[96] The Environment Court also referred briefly to the NZCPS, discussing some, but notall of its objectives. It considered that the NZCPS itself recognises "the distinction andtensions" between the various elements within the coastal environment.7470 Royal Forest and Bird Protection Society Incorporated v Bay of Plenty Regional Council, above n 1, at[4].71 At [12] and [21].72 At [30].73 At [38] and [44].74 At [35].[97] The Environment Court used these identified tensions to justify the proportionateresponse it considered appropriate. It did not seek to analyse the tension it considered thevarious policies evince.[98] The Environment Court's approach was, in my judgment, in conflict with the variousobservations of the Supreme Court in King Salmon. As noted above in [50]-[52], themajority discussed the correct approach to be taken to the interpretation of the, at firstglance, disparate policies in the NZCPS. It set out the obligations of decision-makersconsidering those policies, and what they should do if they consider that particularprovisions pull in different directions. These observations were made in relation to theNZCPS. This was one of the documents the Environment Court was called upon toconsider in this case. Further, and as I have already noted, the majority's observations inKing Salmon are equally applicable to documents lower in the planning hierarchy whichseek to implement higher order documents. The Environment Court did not follow theapproach the majority in the Supreme Court considered appropriate. It made no attempt toresolve the tensions and it failed to make "a thoroughgoing attempt to find a way toreconcile"75 the provisions it considered to be in tension.(v) Avoid[99] In my judgment, the Environment Court also erred in the interpretation it gave to theword "avoid". As I have noted, it concluded that "even for words such as avoid, the contextmust go further than simply the wording of the plan".76[100] The Supreme Court discussed the word "avoid" used both in the Act and in variouspolicies in the NZCPS. It held that it has the ordinary meaning of "not allowed" or "preventthe occurrence of".77[101] As I discuss shortly, in my judgment the Environment Court should have consideredthe relevant avoidance or environmental bottom line policies – policies 11, 13 and 15, in theNZCPS. It should have acknowledged and applied the view of the majority in King Salmon75 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 3, at [131].76 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil, above n 1, at [43].77 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 3, at [92]-[93] and[129].that policies 13 and 15 seek to avoid the adverse effects of activities on natural character inareas of outstanding natural character and are so directive that they provide something in thenature of an environmental bottom line.[102] By finding that the word "avoid" is contextual, and that it is necessary to go furtherthan simply the wording of the plan, the Environment Court has, in my judgment, failed toproperly apply the directive provisions contained in the NZCPS and the majority'sobservations in King Salmon.(vi) A Proportionate Response?[103] The Environment Court's proportionate response is also inconsistent with theapproach taken by the Supreme Court in King Salmon. The majority roundly rejected thebroad overall judgment taken by the Board of Inquiry in that case, and the proportionateresponse adopted by the Environment Court in this case is an overall judgment approach –albeit by a different name. The more restrictive regime flowing from the Supreme Court'sdecision in King Salmon does not permit the proportionate, or contextual, response taken bythe Environment Court.[104] Context may be relevant in considering whether an activity will have adverse effects.This could depend both on the activity itself and on the values and characteristics of thenatural area in issue. By way of example, in Man O'War Station Ltd the Court of Appealsaid as follows:78In the present case, as the Environment Court noted, it was agreed that the areas towhich the ONLs [Outstanding Natural Landscape classifications] were applied aresufficiently natural for the purposes of s 6(b) of the Act. It is also clear that there area number of different elements currently forming part of the ONLs. Thus significantareas of native vegetation and pastoral land are both elements of ONL 78 togetherwith buildings (albeit said to be subservient to other elements) and vineyard andolive grove activities. Although natural, it is not pristine or remote. As MrO'Callahan acknowledged on behalf of Auckland Council, it is in that setting the78 Man O'War Station Ltd v Auckland Council, above n 45, at [66]; In Royal Forest and Bird Society of NewZealand Incorporated v Auckland Council, above n 54, at [34], Whata J discussed this paragraph and thefollowing paragraph from Man O'War Station and stated as follows: "The Court of Appeal also noted,with respect orthodoxically, that the requirement to "avoid" adverse effects is contextual, so that whetherany new activity or development would amount to an adverse effect must be assessed in both in thefactual and broader policy context". The comment that the requirement to avoid adverse effects iscontextual cannot to be seen in isolation from that which follows, it explains that the context beingreferred to is whether any new activity or development would amount to an adverse effect. Readcarefully, the observation is consistent with Man O'War.question of whether any new activity or development would amount to an adverseeffect would need to be assessed.[105] While the requirement to avoid adverse effects on high value areas pursuant topolicies 13 and 15 in the NZCPS is not contextual, the factual question, whether any activityseeking to locate or operate in a high value area will have an adverse effect, may becontextual.[106] In my judgment, in taking its proportionate response, the Environment Court was notreferring to context in this sense. Rather it was considering context in the round. It wassuggesting that the benefits and costs of regionally significant infrastructure, seeking tolocate in Indigenous Biological Diversity Areas A and that could have adverse effects onsuch areas, should be assessed on a case by case basis, having regard to all relevant factors.Given the majority's decision in King Salmon, this approach was not available to it.Did the Environment Court err in its interpretation and implementation of the NZCPSand the RPS?[107] Given my conclusions set out above, I can deal with the remaining points on appealrelatively quickly.[108] The NZCPS is an instrument at the top of the planning hierarchy. As the SupremeCourt observed in King Salmon, it is a document which reflects particular choices, and thenotion that decision-makers are entitled to decline to implement aspects of the NZCPS ifthey consider that appropriate in the circumstances "does not fit readily into the hierarchicalscheme of the [Act]".79[109] The Environment Court referred only to objectives 2, 3, 4, 5 and 6 when discussingthe NZCPS.80[110] There are a large number of other provisions which are relevant to a greater or lesserextent.79 Environment Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 3, at [90].80 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil, above n 1, at [35].[111] Policy 6(1)(a) seeks to recognise, in relation to the coastal environment, that theprovision of infrastructure is an activity important to the social, economic and culturalwellbeing of people in communities. Policy 6(1)(b) enjoins decision-makers to consider therate at which built development and public infrastructure should be enabled to provide forthe reasonable foreseeable needs of population growth without compromising the othervalues of the coastal environment. Policy 6(2) refers to the need to recognise potentialcontributions to the social, economic and cultural wellbeing of people in communities fromuse and development of the coastal marine area, and to the need to recognise those activitiesthat have a functional need to locate in the coastal marine area, and to provide for them inappropriate places. Relevantly, it is also recognised that activities that do not have afunctional need to locate in the coastal marine area generally should not be located there.[112] Policy 7 deals with strategic planning. It provides that, in the preparation of regionalplans, there is a need to consider where, how and when to provide for future residential andrural residential settlement, urban development and other activities in the coastalenvironment at both a regional and district level. There is also a need to identify areas ofthe coastal environment where particular activities and forms of subdivision, use anddevelopment are inappropriate, or may be inappropriate without consideration of the effectsthrough a resource consent application.[113] These policies are broadly about planning, providing for growth, and the associatedprovision of infrastructure, in a sustainable and interpreted way. They are less prescriptivepolicies.[114] In contrast, policy 11 seeks to protect indigenous biological diversity in parts of thecoastal environment, by avoiding adverse effects on indigenous taxa, indigenousecosystems, the habitats of indigenous species, areas containing nationally significantexamples of indigenous community types, and areas set aside for full or partial protection ofindigenous biological diversity. It also seeks to avoid significant adverse effects and avoid,remedy or mitigate other adverse effects on activities on areas of predominantly indigenousvegetation in the coastal environment.[115] As I have recorded earlier in this judgment, Indigenous Biological Diversity Areas Adetailed in the RCEP are areas singled out and identified in the RCEP because they meet thecriteria contained in policy 11(a). Insofar as I am aware, there has been no challenge to thispart of the RCEP, or to the areas identified as Indigenous Biological Diversity Areas A in theRCEP. It was common ground before me that Indigenous Biological Diversity Areas A areareas in the coastal environment with outstanding natural character.[116] Policy 13 is directed to the preservation of the natural character of the coastalenvironment, and the need to protect it from inappropriate subdivision, use anddevelopment. It records the requirement to avoid adverse effects of activities on naturalcharacter in areas of the coastal environment with outstanding natural character.[117] Policy 15 is directed at the need to protect the natural features and natural landscapesof the coastal environment from inappropriate subdivision, use and development, and again,by avoiding adverse effects of activities on outstanding natural features and outstandingnatural landscapes in the coastal environment.[118] The Supreme Court in King Salmon noted, in relation to policies 13 and 15, asfollows:81The overall purpose of these directions is to preserve the natural character of thecoastal environment and to protect it from inappropriate subdivision, use anddevelopment (policy 13) or to protect the natural features and natural landscapes(including seascapes) from inappropriate subdivision, use and development (policy15). Accordingly, then, the local authority's obligations vary depending on the natureof the area at issue. Areas which are "outstanding" receive the greatest protection:the requirement is to "avoid adverse effects". Areas that are not "outstanding"receive less protection: the requirement is to avoid significant adverse effects andavoid, remedy or mitigate other adverse effects. In this context, "avoid" appears tomean "not allow" or "prevent the occurrence of", but that is an issue to which wereturn at [92] below.Policies 13(1)(a) and 15(a) were described by the majority as providing "something of anature of a bottom line",82 and the Court saw "no justification for reading down or otherwiseundermining the clear terms in which those two policies have been expressed".83[119] Another decision of the Environment Court has accepted that the Supreme Court'sapproach to policies 13 and 15 is equally applicable to policy 11.8481 Environment Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 3, at [62].82 At [132].83 At [146].[120] In King Salmon, the Supreme Court reconciled policies 8, 13 and 15 (policy 8recognises the contribution of aquaculture and provides for it to be recognised in regionalpolicy statements and plans in appropriate places). The majority considered that policies 13and 15 are in more directive terms, and that they carry greater weight than policy 8 – whichis in more prescriptive terms. The majority held that policy 8 does not permit aquaculture inareas where it would adversely affect an outstanding natural landscape.[121] It is difficult to see that policies 6 and 7, which provide for regionally significantinfrastructure, are stronger or more directive than policy 8. There are differences inwording, but I doubt that those differences are sufficient to justify a decision-makerreaching an outcome different from that reached by the Supreme Court in relation to policy8.85[122] As I have noted, the Environment Court's consideration of the NZCPS policies wasbrief and incomplete. The Court concluded that policy 11(a) is "not absolute or binary"86but it did not attempt to reconcile policy 11, or policies 13 and 15, with those policies whichrecognise regionally significant infrastructure and development in the coastal marine area.[123] In my judgment, the Environment Court erred in approving policies and a rule thatdo not give effect to the requirements set out in policies 11(a), 13(1)(a) and 15(a).[124] Turning to the RPS, the most significant objectives for present purposes areobjectives 2, 4, 6, 7, 18, 19, 20 and 23. Some seek protection of the natural environment;others seek to enable use and development.[125] There are a number of policies that seek to implement these objectives. Relevantly,policy CE 2B(a) seeks to preserve the natural character of the coastal environment andprotect from "inappropriate" subdivision use and development by including provisions inthe regional plan which avoid adverse effects of activities on attributes that comprise natural84 R J Davidson Family Trust v Marlborough District Council [2016] NZEnvC 81 at [162]. This decisionwas upheld by this Court, (although the appeal was not in respect of this finding) – R J Davidson FamilyTrust v Marlborough District Council [2017] NZHC 52, [2017] NZRMA 227. Leave has been granted toappeal this Court's decision to the Court of Appeal.85 And see Opoutere Ratepayers and Residents' Association v Waikato Regional Council [2015] NZEnvC105, (2015) 19 ELRNZ 254 where the Environment Court considered the relationship between policy7(1)(b) and policy 11.86 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil, above n 1, at [52].character in areas of a coastal environment identified in the RPS as having outstandingnatural character. Policy CE 6B refers to using the criteria in policy 11 of the NZCPS toidentify and protect areas of indigenous biological diversity in the coastal environmentrequiring protection.[126] The applicable parts of these policies are directive. They either use the word"avoid", or cross-refer to it. They do not say "avoid where practicable" or "avoid, remedyor mitigate".[127] Policy EI 5B seeks to give priority to ensuring development or upgrades toregionally significant infrastructure avoid adverse effects on natural and physical resourcesidentified in policy MN 1B87 as matters of national importance, and to appropriately remedyor mitigate adverse effects that cannot practicably be avoided.[128] The Environment Court discussed these various policies,88 but without consideringtheir specific wording. It found that there is nothing within the RPS or in the RCEP whichisolates one issue or objective as being the pre-eminent consideration when setting methodsand rules. It considered that the RPS and the RCEP seek to integrate the various issues andobjectives within the broader context of the other documents relevant to the region.89[129] In my judgment, the Environment Court erred by failing to consider the directivenature of relevant policies – particularly policies CE 2B, and CE 6B. It failed to considerwhether or not these policies had pre-eminence in the sense discussed in King Salmon, andas a result, it failed to take into account the effect of the directive provisions on the RCEPpolicies and rule that it put in place.Did the Environment Court err in its interpretation and implementation of relevantRCEP objectives?[130] The Environment Court largely focused its attention on unchallenged RCEPobjectives. It referred to objectives 1, 2, 2A, 3, 4, 25A, 25B and 26.87 Policy MN1B is concerned with recognising and providing for matters of national importance.88 Royal Forest and Bird Protection Society Incorporated v Bay of Plenty Regional Council, above 1, at[21]-[28].89 At [30].[131] I have already referred to these various objectives above.90 As is clear from thatdiscussion, objective 2 seeks to protect the attributes and values of high value areas from"inappropriate" subdivision use and development. Objective 2A seeks to protect IndigenousBiological Diversity Areas A and objective 3 seeks to prevent the loss of threatened habitats.Objective 25 refers to "appropriate locations"; objective 25A to "appropriatecircumstances", and objective 25B to "appropriate locations".[132] The majority in King Salmon considered the meaning of the words "appropriate" and"inappropriate" in not dissimilar provisions. I have discussed this above and quoted therelevant paragraph from the majority judgment at [55(b)] above. The Supreme Court alsoconsidered how provision for activities in appropriate places can be reconciled withprotective avoid policies – see [56] above.[133] Objectives 2, 2A and 3 can be reconciled with objectives 25, 25A and 25B in asimilar manner. Objectives 25, 25A and 25B recognise that provision needs to be made foractivities with a functional need to locate in the coastal marine area or which are dependenton its resources, along with regionally significant infrastructure, in areas suitable for thoseactivities. This is not inconsistent with the requirement that such activities cannot occur inone of the areas described in objectives 2, 2A and 3, particularly if the activities would notprotect – that is keep safe from harm – the values and attributes of the identified areas.Objectives 25, 25A and 25B do not suggest that provision must be made for the activitiesthey refer to in all parts of the coastal environment.[134] This is supported by objective 26. It requires that activities and structures in thecoastal marine area should be located, designed and undertaken in a manner that isappropriate given the values and existing uses of their location. This reinforces the idea thatsome high value locations will be inappropriate for activities and structures. It linksobjectives 25, 25A and 25B with objectives 2, 2A and 3.[135] In my judgment, the Environment Court misconstrued the objectives contained in theRCEP. Read carefully, and following the King Salmon approach, they recognise thatprovision needs to be made for regionally significant infrastructure, but not in all locationsin the coastal marine area.90 Above at [9] and [10].Did the Environment Court err in its interpretation of ss 87A, 104 and 104D in theAct?[136] The Environment Court found that according regionally significant infrastructure,seeking to locate in an Indigenous Biological Diversity Area A, status as a non-complyingactivity, might have less prospect of avoiding adverse effects than if it were given status as adiscretionary activity.[137] The Environment Court said as follows:91Beyond that, the status of the activity as non-complying may have less prospect ofavoiding adverse effects than a discretionary consent. Our reasons for this commentare:(i) on an application for discretionary consent the objectives and policies of theplan are clearly to be given effect to and achieved in the granting of theconsent. All parties agree that the objectives and policies of the plan (and thesuperior documents) are clear, and NH 4 itself is clear in its intent thatadverse effects are avoided; and(ii) any application for consent as a discretionary consent would therefore haveto pass a high hurdle, including specifically addressing all matters in NH 11and NH 11A (proportionate to the application and its context).(iii) if treated as a non-complying activity, it is clear that it would be contrary tothe objectives and policies of the plan given Ms Gepp's interpretation of theavoidance policy. This would mean that the effects could be no more thanminor. Clearly, this does not, in itself, mean that effects would be avoided.(iv) such a conclusion would require a judgement again of the level of effects,and a proportionate response to all elements of the application to properlyconsider a non-complying consent.What concerns the Court, particularly, is that such a non-complying evaluation maythen seek to avoid reference to the objectives and policies of the RCEP because it isclearly contrary to those policies of the plan (which would by definition be contraryif the obligation is to avoid). It could then be argued that the policies were notapplicable and the application could be considered on a more generic basis. Theconcern of this Court is that non-complying status might not lead to an appropriateand integrated approach to management, taking into account the many other aspectsof the plan that would be applicable to ascertaining whether a particular applicationshould be granted consent.However, overall and in practical terms, we consider there is little differencebetween non-complying and discretionary consent status 91 Royal Forest and Bird Protection Society of New Zealand Incorporated v Bay of Plenty RegionalCouncil, above n 1, at [53]-[54].[138] Royal Forest and Bird argued that the Environment Court erred to the extent that itappears to have thought that objectives and policies in applicable planning documents areless relevant to an application for a non-complying activity than to an application for adiscretionary activity.[139] Under s 87A, resource consent may be granted for a non-complying activity if theconsent authority, inter alia, is satisfied that the requirements of s 104D are met. Section104D of the Act operates as a gateway for non-complying activities. It provides as follows:Particular restrictions for non-complying activities(1) Despite any decision made for the purpose of notification in relation toadverse effects, a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that either—(a) the adverse effects of the activity on the environment (other than anyeffect to which section 104(3)(a)(ii) applies) will be minor; or(b) the application is for an activity that will not be contrary to theobjectives and policies of—(i) the relevant plan, if there is a plan but no proposed plan inrespect of the activity; or(ii) the relevant proposed plan, if there is a proposed plan but norelevant plan in respect of the activity; or(iii) both the relevant plan and the relevant proposed plan, ifthere is both a plan and a proposed plan in respect of theactivity.(2) To avoid doubt, section 104(2) applies to the determination of an applicationfor a non-complying activity.[140] Section 104 sets out the matters that are to be considered when considering anapplication for a resource consent for a non-complying activity. Relevantly, it provides asfollows:When considering an application for a resource consent and any submissionsreceived, the consent authority must, subject to Part 2, have regard to–(a) (b) any relevant provisions of—(i) a national environmental standard:(ii) other regulations:(iii) a national policy statement:(iv) a New Zealand coastal policy statement:(v) a regional policy statement or proposed regional policy statement:(vi) a plan or proposed plan; and[141] While the Environment Court's comments are curious, and not particularly easy tofollow given the statutory provisions, I do not consider that they were findings made by it.The Environment Court did not expressly make any finding as to the relative importance ofobjectives and policies when considering an application for either a discretionary activity ora non-complying activity. Rather, its comments were conceptual – the word "may" wasused repeatedly, and the Court simply observed that it "could be argued" that policies mightbe more relevant in one context than the other.[142] I do not consider that the Environment Court made an erroneous finding in thisregard.Materiality[143] Each of the above errors I have identified – issues 1 to 3 (inclusive) – were materialto the Environment Court decision. No party contended to the contrary, and the materialityof the errors is self-evident.Relief[144] Royal Forest and Bird initially sought that the Environment Court's decision shouldbe quashed, and that this Court should itself amend the policies. In the course of thehearing, it resiled from this position. It accepted that the more appropriate course is to remitthe matter to the Environment Court, so that it can reconsider matters, in light of this Court'sjudgment. All other parties took the same approach. It seems to me that this is appropriate,particularly given that the Court is still to finalise its decision in relation to iwi resourcemanagement issues.Result[145] The appeal is allowed in part. In my judgment, the Environment Court erred in itsinterpretation and application of the King Salmon decision, of various provisions in theNZCPS, the RPS, and the RCEP.[146] The matter is remitted to the Environment Court, to reconsider in light of thisjudgment.Costs[147] Royal Forest and Bird is entitled to its reasonable costs and disbursements. In thatregard, I direct as follows:(a) unless the parties can agree on costs and disbursements, Royal Forest andBird is to file a memorandum, setting out the costs and disbursements itseeks, and indicating how it considers they should be apportioned betweenthe parties (other than Ngāti Mākino), within 15 working days of the date ofthis decision;(b) those parties against whom costs are sought, are to file memoranda inopposition, within a further 15 working days;(c) Royal Forest and Bird's memoranda is not to exceed 15 pages in length;(d) memoranda from other parties are not to exceed 10 pages in length;I will then deal with the issue of costs and disbursements on the papers, unless I require theassistance of counsel.__________________________Wylie JClV-2017-470-S7 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional Council Table showing three versions of Proposed Regional Coastal Environment Plan provisions in dispute:1. PRCEP Version 9.1(d): version provided to the Environment Court for the natural heritage hearing 2. Relief sought by Forest & Bird3. PRCEP Version 9.1(g): version approved by the Environment Court in the decision appealed from.PRCEP Version 9 .1(d): version provided to the Environment Court for the Relief sought by Forest & Bird in with new text underlined PRCEP Version 9.1(g): version approved by the Environment Court inPolicy NH 1 natural heritage hearing'In relation to the natural heritage of the coastal environment, activities may be considered appropriate if they contribute to the restoration and rehabilitation of natural heritage or cultural values associated with natural heritage (including kaimoana resources and cultural landscape features), or if they: (ee) Involve the operation, maintenance, upgrading or development of existing regionally significant infrastructure; or (c) Have a functional need to be located in or near the coastalenvironment in general, or in or near a specific part of the coastalen vironment and no reasonably practicable alternative locations exist; and (a) Are compatible with the existing built environment and level ofmodification to the en v ironment . This includes but is not limited to:(i) Modification that is anticipated as a permitted or controlledactivity in an operative District or City Plan; and(ii) Urban development activities and associated provision of quality open spaces in Urban Growth Areas contained in the RegionalPolicy Statement where urban development has been provided for in that area in the relevant District or Cit y Plan , and the development is consistent with the Urban and Rural Gro wth Management Policies (UG policies) of the RPS; and (b) Are compact, and do not add to sprawl or sporadic development; and (d) Are of an appropriate form, scale and design to be compatible with the existing landforms, geological features and vegetation or will only have temporary and short-term effects on such features; and (e) Will not, by themselves or in combination with effects of other activitie s, have Significant adverse effects on the natural processes or ecologicalfunctioning of the coastal marine area;except that clauses (a), (b), (d) and (e) do not apply for the National Grid . and deleted text struck through •n relation to the natural heritage of the coastal environment, activities may be considered appropriate if they contribute to the restoration and rehabilitation of natural heritage or cultural values associated with natural heritage (including kaimoana resources and culturallandscape features), or if they: (ee) Involve the operation, maintenance, upgrading or development ofexisting regionally significant infrastructure; or(c) Have a functional need to be located in or near the coastalenvironment in general, or in or near a specific part of the coastalenvironment and no reasonably practicable alternative locations exist;and (c) Are compatible with the existing built environment and level ofmodification to the environment. This includes but is not limited to:(i) Modification that is anticipated as a permitted or controlledactivity in an operative District or City Plan; and(ii) Urban development activities and associated provision of quality open spaces in Urban Growth Areas contained in the RegionalPolicy Statement where urban development has been provided for in that area in the relevant District or City Plan, and the development is consistent with the Urban and Rural Growth Management Policies (UG policies) of the RPS ; and (d) Are compact, and do not add to sprawl or sporadic development; and (d) Are of an appropriate form, scale and design to be compatible with the existing landforms, geological features and vegetation or will only have temporary and short-term effects on such features; and (e) Will not, by themselves or in combination with effects of other activities, have significant adverse effects on the natural processes or ecologicalfunctioning of the coastal marine area;except that clauses (a), (b), (d) and (e) do not apply for the National Grid. the decision appealed from. Changes from Version 9.1(d) are shownunderlined (new text) or strikethrough (deleted text).In relation to the natural heritage of the coastal environment, activities may be considered appropriate if they contribute to the restoration and rehabilitation of natural heritage or cultural values associated with natural heritage (including kaimoana resources and cultural landscape features ), or if they: (ee) Involve the operation, maintenance, upgrading or development ofexisting regionally significant infrastructure; or(c) Have a functional need to be located in or near the coastalenvironment in general, or in or near a specific part of the coastal environment and no reasonably practicable alternative locationsexist; and (a) Are compatible with the existing built environment and level ofmodification to the en v ironment. This includes but is not limited to :(i) Modification that is antiCipated as a permitted or controlled activity in an operative District or City Plan ; and (ii) Urban development activities and associated provision of quality open spaces in Urban Growth Areas contained in the RegionalPolicy Statement where urban development has been provided for in that area in the relevant District or City Plan , and the development is consistent with the Urban and Rural Growth Management Policies (UG policies) of the RPS; and (b) Are compact, and do not add to spra wl or sporadic development; and (d) Are of an appropriate form, scale and deSign to be compatible with the existing landforms, geological features and vegetation or will onlyhave temporary and short-term effects on such features; and (e) Will not, by themselves or in combination with effects of otheractivities, have significant adverse effects on the natural processesor ecological functioning of the coastal marine area; except that clauses (a), ( b) , (d) and (e) do not apply for the National Grid.Advice note: Particular consideration must be given to Policies NH 4 NH4A, NH 5 and NH 11 if an activity may have adverse effects on the values and attributes of an Outstanding Natural Feature and landscape (ONFll.an area of Out standing Natural Character (ONe) or an IndigenousBiological Diversity Area A (lBDA Al.CIV-2017-470-S7 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional CouncilPolicy NH 5 While having particular regard to the level of protection afforded by PolicyNH 4, consider providing for subdivision, use and development proposals that will adversely affect the values and attributes associated with the areas listed in Policy NH 4 where: (a a) After an assessment of a proposal in accordance with Policy NH4A, transient or minor adver se effects are found to be acceptable; or(a) The proposal:(i) Relates to the construction, maintenance or upgrading of regionally significant infrastructure that is consistent with Policy SO 4(b) as if that policy applied to the coastalenvironment; or(ii) Relates to the provision of access to offshore islands, or use and development, as set out in Schedule 15 to this Plan; or (iii) Relates to the operation, maintenance and protection of anexisting River Scheme or l and Drainage Scheme; or(iv) Relates to the continuation of a use that was lawfully established on or before 22 June 2014, provided there has been no change to the scale and Significance of effectsassociated with an activity; or(v) Provides for the restoration or rehabilitation of indigenous biodiversity, natural features and landscapes or the natural character of the coastal environment in a manner thatmaintains or enhances the va lu es and attributes associatedwith the area s listed in Policy NH 4; or (vi) Provides for public walking, cycling or boating access to and along the coasta l marine area in a manner that maintains or enhances the values and attributes associated with the areas listed in Policy NH 4; and (b) There are no practical alternative locations available outside the areas listed in Policy NH 4; and (ba) Th e avoidance of effects required by Policy NH 4 is not possible; and (c) The associated adverse effects on natural heritage values and attributes will be managed in accordance with Policy NH 11. While ha vi ng particular regard to the level of protection afforded by PolicyNH 4, consider providing fo r subdivision, use and development proposals that will adversely affect the values and attributes associated with the areas listed in Policy NH 4 where: (aa) After an assessment of a proposal in accordance with Policy NH4A, transient or minor adverse effects are found to be acceptable; or(a) The proposal:(i)(ii) Relates to the provision of access to offshore islands, or use and development, as set out in Schedule 15 to this Plan; or (iii ) Relates to the operation, maintenan ce and protection of anexisting River Scheme or Land Drainage Scheme; or(iv)(v)Relates to the continuation of a use that was lawfully established on or before 22 June 2014, provided there has been no change to the sca le and significance of effectsassociated wi th an activity; orProvides for the restoration or rehabilitation of indigenous biodiversity, natural features and landscapes or the natural character of the coastal environment in a manner that maintains or enhances the val ues and attributes associated with the areas listed in Policy NH 4; or (v i) Provides for public walking, cycling or boating access to and along the coastal marine area in a manner that maintains or enhances the va l ues and attributes associated wit h the areas listed in Policy NH 4; and (b) There are no practical alternative locations available outside the areas listed in Policy NH 4; and (ba) The avoidance of effects required by Policy NH 4 is not possible; and (c) The associated adverse effects on natural heritage va lu es and attributes will be managed in accordance with Policy NH 11.While haBiAg ~artiE"laF FegaF~ te the leBel ef ~FeteEtieA afleF~e~ ~YPeliE', Pili ~, EConsider providing for subdivision, use and development proposals that will adversely affect the va lues and attributes associated with the areas in Policy NH 4 QDJy where: (aa) After an assessment of a proposal in accordance with Policy NH 4A transient or minor adverse effects are found to be acceptable; or (a) The proposal: (i) Relates to the construction, maintenance or upgrading of regionally sig nificant infrastructure that is consistent with Policy SO 4(b) as if that policy applied to the coastalenvironment; or(ii ) Relates to the provision of access to offshore islands, or use and development, as set out in Schedule 15 to this Plan ; or (iii) Relates to the operation, maintenance and protection of anexisting River Scheme or Land Drainage Scheme; or(Iv) Relates to the continuation of a use that was la wfully established on or before 22 June 2014, provided there has been no change to the scale and significance of effectsassociated wi th an activity; or(v) Provides for the restoration or rehabilitation of indigenous biodiversity, natural features and landscapes or the natural character of the coastal environment in a manner that maintains or enhances the values and attributes associated with the areas listed in Policy NH 4; or (vi) Provides for public wa lking, cycling or boating access to and along t he coastal marine area in a manner thatmai nt ains or enhances the values and attributes associatedwith the areas listed in Policy NH 4.(~) TheFe aFe Ae ~FaEtiEal alteFAati"e leEatieAs a' aila~le e"tsi~e theaFeasliste~ iA PeliEY PIli ~; aA~(~a) The a' ei~aAEe ef efleEts Fe~"iFe~ ~I PeIiE, PIli ~ is Aet ~essi~le;aA<i(EI The asseEiate~ a~"eFse efleEts eA Aat"Fal heFitage Bal"es aA~attFi~"tes .. ill ae ",aAage~ iA aEEeF~aAEe "ith PeliEY PIli 11.ClV-2017-470-S7 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional CouncilPolicy NH 11 Manage the adverse effects of subdivision, use, maintenance and development activities that meet the criteria in Policy NH 5(a) on the values and attributes of the areas listed in Policy NH 4, in accordance with the following management regime: (a) Route or site selection considers the avoidance of significant natural heritage areas listed in Policy NH 4 or, where avoidanceis not practicable, considers utilising the more modified parts ofthese areas; (b) Adverse effects are avoided to the extent practicable, havingregard to the activity's technical and operational requirements;(c) Adverse effects which cannot be avoided are remedied or mitigated; and (d) The Regional Council will consider allowing a biodiversity offsetfor residual adverse effects that are more than minor but tessthan significant on the values and attributes of any IndigenousBiological Diversity Area A (as identified in Schedule 2, Table 1) or on any taxa that meet the criteria listed in Policy 11(a)(i) or (ii) of the NZCPS where the offset results in no net biodiversityJossand preferably a net biodiversity gain.If a biodiversity offset is to be used, it should be developed in a manner consistent with the principles contained in Schedule 13. Advisory note:Some significant natural heritage areas are located next to existing and future urban areas.Adverse effects could be caused by people accessing the coast forrecreational purposes in inappropriate locations.In some instances, appropriately located, designed and constructedstructures, such as board walks and public toilets, may assist in remedyingor mitigating these adverse effects Manage the adverse effects of subdivision, use, maintenance and development activities that meet the criteria in Policy NH S(a) on the values and attributes of the areas listed in Policy NH 4, in accordance with the following management regime: (a) Route or site selection considers the avoidance of significant natural heritage areas listed in Policy NH 4 or, where avoidance is notpracticable, considers utilising the more modified parts of theseareas;(b)(c)Adverse effects are avoided to the extent practicable, having regard to the activity's technical and operational requirements; Adverse effects which cannot be avoided are remedied or mitigated; and (d) The Regional Council will consider allowing a biodiversity offset for residual adverse effects that are more than minor but less than significant on the values and attributes of any Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1) or on any taxa that meet the criteria listed in Policy 11(a)(i) or (ii) of the NZCPSwhere the offset results in no net biodiversityJoss and preferably a net biodiversity gain.If a biodiversity offset is to be used, it should be developed in a manner consistent with the principles contained in Schedule 13.,qaAage tRe aa"erse effeEts ef s"B9i"isieA, "se, FAaiAteAaAEe aA9ae"ele~FAeAt aEti 'ities tRat FAeet tRe E,ite,ia iA PeliEY Nil 5(a) eA tReall;les aREI attrisl;ltes sf tAe areas listeel iR Pslicy PH I 4, iA accsfelaAce, itR tRe felle"'iAg FAaAageFAeAI ,egiFAe: An application for a proposal listed in Policy NH 5(a) must demonstrate that :(i) There are no practical alternative locations available outside the arealisted in Policy NH 4 · and {moved from Policv NH 5 above}(iiI The avoidance of effects required by Policy NH 4 is not possible; and(moved from Policv NH 5 above)(iii) Route or site selection has considered£ the avoidance of significant natural heritage areas listed in Policy NH 4 or, where avoidance is not practicable, it has considerfl!s utilising the more modified parts of these areas; and(iv) Adverse effects are avoided to the extent practicable, having regard to the activity's technical and operational requirements; and (v) Adverse effects that cannot be avoided are remedied or mitigated to the extent practicable.(al TAe RegisAal CSI;lAcil . 'ill cSAsieler aile iRg a aiesi ersity sffset fer,esia"al aa"erse efleEts tRat a'e FAe,e tRaA FAiAer B"t less tRaRsigAiliEaAt eA tRe 'al"es aAa att,iB"tes ef aAI IAaigeAe"S BielegiEalDi"ersity Area Q (as ieleAtifieel iA SCAesI;lle 2, Tasle 1) sr SA aA') talEaIRat FAeel tRe E,ite,ia listea iA PeIiEI' l1(a)(i) e, (ii) el IRe NlCPS, 'Re,e tRe e#Set ,es"lts iA Ae Aet Bieai' ersityJess aAa ~,ele,aBly aAet eiseli"ersit) gaiA.II a Bie9i"ersity elfset is te Be "sea, it sRe"la Be ae' ele~ea iA a FAaAAe' EeAsisteAt "'itR tRe ~'iAEi~les EeAtaiAea iA SERea"le 13. SeFAe sigAifiEaAt Aat",al Re,itage a'eas a'e leEatea AelEt te elEistiAg aAafl;ltl;lre I;lrsaR areas.Aa"erse effeEIs Ee"la Be Ea"Sea B\, ~ee~le aEEessiA. tRe Eeast fe,recreatisAal j3l;rj39SeS i!=1 iRaj3j3r9j3Fiate lecatieFis.IR same iRstaAces, aj3l3Fsj3riately Is cates, elesigAeel aAe! C9F1strl;lcteeist'"Et"reS, S"ER as Bea'9 "'all<5 aAa ~"BIiE teilets, FAaI' assist iA,eFAeayiAg e, FAitigatiAg IRese aa"erse effeEtsCIV-2017-470-S7 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional Councilpolicy NH nfa nfa For QroQosals listed in Policy NH S(a), the Regional Council will considerllA allowing a biodiversity offset develol2ed in a manner consistent with theQrincigles contained in Schedule 13 to comQensate for more than minoradverse effects on Indigenous Biological Diversity Area A (as identified inSchedule 2, Table 1) or on any taxa that meet the criteria listed in Policy11(al(i) or (ii) of the NZCPS that cannot be avoided, remedied or mitigated.Advisory note:Some significant natural heritage areas are located next to existing andfuture urban areas.Adverse effects could be caused by QeoQle accessing the coast forrecreational QurQoses in inagQroQriate locations.In some instances! aQQroQriately located! designed and constructedstructures such as board walks and Qublic toilets, may assist inremedying or mitigating these adverse effectsCIV-2017-470- S7 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regio nal Cou ncil Rule SO 10 Dis cret iona ry - St ructure s, occup ation and use in the coa stal ma r ine areain I nd ige nou s Biologica l Div ersity Ar ea A or an Area of Ou tsta nd ingNa tur al Cha racter The3Occupation of any part of the common marine and coastal area; Erection and placement of new struct ur es, and the reco n st ru ction,maintenance, alteration, exten sio n, demo lition, remova l orabandonment of existing structures; andCha nge in use of an ex i sting structure in the coastal marine area.In an Indigenous Biological Diversity Ar ea A (as identified in Sched ule 2,Table 1) or an Area of Outstanding Natural Character (as identified in Appendix I to the Regio n al Policy Statement), or that is not otherwise a pe rmitted activity under a rul e in this Plan, is a discretiona ry activi ty where the structu re is one for one or more of the fo ll owing purposes: (a) Providing protection, restoration or rehabilitation of the biodiversityval u es assoc iated with such areas;(aa) Improvi ng water qua lity, con nections between water bodies or between freshwater bodies and coasta l water, or improving other cultural connections or natu r al pr ocesses in the Area; (b) Providing education al, scientific or p assive recrea ti ona l opportunities that will enhance the understanding and long-term protection of the biodiversity values of the area; (c) Navigational aids; (d) Structu res erect ed, reconstructed, plac ed, altered, or extended prior to the da t e on which th is Plan was publicly notified; (e) The operation, maintenance, and protection of existing and new regionally Significant infrastructu r e; (f) The operation, mai nte nan ce and protection of Existing River Schemes and Land Drainage Sche m es L(g) The mai ntenance or enhancement of navigational safety in permanently navigable ha rbour waters L(h) Use and development identified in Schedule 15 Offshore Islands; or (i) Associated with ma ritime incident s and their management.D is cret ionary - St ructu res, occup at ion an d u se in t he coa st al marine areain Indigen ous Biolo gica l Diversi ty Area A or an Ar ea of Outstanding Na tu r al Character TheOcc upation of any part of the com mon mar in e and coastal area; Erection and placement of new structures, and the reconstruction, maintenance, al te rat io n, exten sio n, demolition, remova l orabandonment of existi ng structu res; andChange in use of an existing structu re in the coasta l marine area.In an Indigenous Biological Dive rsity Area A (as identified in Schedule 2,Tab le 1) or an Ar ea of Outstanding Natura l Character (as identified in Appendix I to the Reg ional Policy Statement), or that is not otherwise apermit t ed activity under a ru le in this Plan, is a discretionary activity wheret he structure is one for one or more of the fo llowing purposes: (a) Providing protection, restoration or rehabilitation of the biodiversityva lues associated with such areas;(a a) Improving water quality, connections between water bodies or between freshwater bodies and coastal water, or improving other cu ltura l connections or natu ra l pr ocesses in the Area; (b) Providi ng educationa l, sc ientific or passive recreational opportu nities that will enhance the un de rstanding and long-term protection of the biodiversity va l ues of t he area; (c) Navigation al aids; (d) Structures erected, r eco n st ru cted, placed, altered, or extended prior to the date on which t his Pl an was publicly notified;(e)(f) The operation, maintenance and protection of Existing Rive r Schemes and Land Drai n age Schemes L(g) The maint ena n ce or enhancement of navigational sa f ety in permanently navigable harbou r water s; (h) Use and development identified in Schedu le 15 Offshore Islands; or(i) Associated with maritime inciden t s and their ma n agement . D is creti o nary - Structures, occu p at ion an d u se in the coasta l marine are a in Indigeno us Bi ological Diversity Area A or an A rea of Ou tstandingNatur al Cha racter The:2Occupation of any pa rt of the common marine and coastal area; Erection and placement of new structures, and the reconst ruction,maintenance, alteration, extension, demolitio n, removal or abandonment of existing structures; andCha n ge in use of an existing structure in the coastal marine area .In an Indigenous Biologica l Dive rsity Area A (as identified in Schedule 2,Tab le 1) or an Area of Outstandi ng Natural Character (as identified in Appendix I to the Regional Policy Statement), or that is not otherwise apermitted activity under a rule in this Plan, is a discreti onary activitywhere the structure is one for one or more of the following purposes: (a) Providing protection, restorati on or rehabilitation of the biodiversityvalues associated with such areas;(aa) Improving water qua lity, connections between water bodies or between freshwater bodies and coastal water, or improving other cultural connections or natu ra l processes in the Area; (b) Providing educati ona l, scientific or passive recreational opportunities that will enhance the understanding and long-term protection of the biodiversity values of the area; (c) Navigational aids; (d) Structures erected, recon st ructed, placed, altered, or extended prior to the date on which this Plan was publicly notified; (e) The operation, maintenance, and protection of ex isting and newregio nally significant infrastructure;(f) The operation, maintenance and protection of Existing River Schemes and Land Drainage Schemes; (g) The maintenance or enh ancement of navigation al safety in perma nently navigable harbour waters; (h) Use and development identified in Sc hedule 15 Offshore Islands; or (i) Assoc iated with ma ritime incidents and their management.• Th ese versions incorporated additional tracked change text (n ew text un der li ned, de l eted text struck t hrough) t o show am endments agreed between the pa rt ies but subject at tha t t i me to the Environment Cou rt's approval. As those aspects oft he provisions are not in d ispute, the track changes are not shown.