THE NEW ZEALAND KING SALMON CO LIMITED v MARLBOROUGH DISTRICT COUNCIL [2018] NZHC 1357

THE NEW ZEALAND KING SALMON CO LIMITED v MARLBOROUGH DISTRICT COUNCIL [2018]NZHC 1357 [8 June 2018]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHARAKEKE ROHECIV-2017-406-4[2018] NZHC 1357UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an Application for Judicial ReviewBETWEEN THE NEW ZEALAND KING SALMONCOMPANY LIMITEDApplicantAND MARLBOROUGH DISTRICT COUNCILFirst RespondentMARLBOROUGH AQUACULTURELIMITEDSecond RespondentHearing: 30 August 2017(Further submissions filed 15, 18 and 19 September 2017Appearances: Q A M Davies for ApplicantM Radich for First RespondentD J Clark for Second RespondentJudgment: 8 June 2018JUDGMENT OF CLARK JIntroduction[1] This application for judicial review arises in the context of a 'turf war' in theMarlborough Sounds between the applicant, New Zealand King Salmon Co Ltd andMarlborough Aquaculture Ltd, the second respondent.[2] King Salmon wishes to expand its salmon fishing operations in Marlboroughand has identified a site at Blowhole Point. Marlborough Aquaculture has an existingmussel farm at Blowhole Point adjoining the site. It too, wishes to expand.King Salmon intended to formally set in motion a process under s 360A of theResource Management Act 1991 (RMA) which would enable it to circumvent theresource consent process by having regulations promulgated to allow salmon fishingactivity at six new sites in the Marlborough Sounds, one of which was Blowhole Point.Before this could be achieved, however, Marlborough Aquaculture submitted aresource consent application for its proposed activity at the site and the MarlboroughDistrict Council accepted the application as complete under s 88 of the RMA. Theconsequence of the Council's acceptance of Marlborough Aquaculture's application isthat King Salmon cannot progress its application for use of its proposed site untilMarlborough Aquaculture's application has been determined.[3] King Salmon challenges the Council's decision to accept, as complete unders 88 of the RMA, Marlborough Aquaculture's resource consent application.King Salmon contends the Council erred in law in accepting MarlboroughAquaculture's application when the information provided in support of the applicationwas inadequate to meet the statutory requirements and therefore the application wasincomplete and should have been returned. King Salmon pleads alternativeformulations of its judicial challenge review but each centres on this same allegederror.Issues[4] Three issues are raised by the statement of claim:(a) To what extent is the Council's decision to accept as complete, anapplication for resource consent, discretionary in nature?(b) Is the decision amenable to judicial review and, if it is, what standardof review should be applied?(c) Did the Council err in accepting, as complete, MarlboroughAquaculture's resource consent application?[5] Before turning to the issues, I set out the relevant statutory provisions and thenthe relevant facts.Statutory framework[6] The Resource Management Act has been described as codifying the lawbearing on access to natural resources.1 A person seeking resource consent for amarine farm in the Marlborough Sounds is required to apply to the MarlboroughDistrict Council. The Council is then required to deal with the application inaccordance with Part 6 of the RMA. Part 6 sets out the requirements of an applicationfor resource consent and the statutory responsibilities of a consent authority in relationto applications for resource consent.2[7] A consent authority may receive an application for resource consent madeunder s 88 of the RMA. Section 88 reads:88 Making an application(1) A person may apply to the relevant consent authority for a resourceconsent.(1A) (2) An application must—(a) be made in the prescribed form and manner; and(b) include the information relating to the activity, including anassessment of the activity's effects on the environment, asrequired by Schedule 4.(2A) (3) A consent authority may, within 10 working days after an applicationwas first lodged, determine that the application is incomplete if theapplication does not—(a) include the information prescribed by regulations; or(b) include the information required by Schedule 4.1 Central Plains Water Trust v Synlait Ltd [2009] NZCA 609, [2010] 2 NZLR 363 at [74].2 A "consent authority" is defined in s 2 of the Resource Management Act 1991 as the regionalcouncil, territorial authority, or a local authority that is both a regional council and a territorialauthority, whose permission is required to carry out an activity for which a resource consent isrequired under the RMA. The Marlborough District Council is both a regional council andterritorial authority.(3A) The consent authority must immediately return an incompleteapplication to the applicant, with written reasons for thedetermination.(4) If, after an application has been returned as incomplete, thatapplication is lodged again with the consent authority, that applicationis to be treated as a new application.[8] A person whose application is determined to be incomplete has a right ofobjection to the consent authority and may appeal to the Environment Court againstthe decision on the objection.3 An applicant who first lodges a complete applicationis presumptively entitled to the first hearing.4[9] If the consent authority does not determine under subs (3) that the applicationis incomplete it may request further information under s 92. Section 92 provides:92 Further information, or agreement, may be requested(1) A consent authority may, at any reasonable time before the hearing ofan application for a resource consent or before the decision to grant orrefuse the application (if there is no hearing), by written notice,request the applicant for the consent to provide further informationrelating to the application.(2) At any reasonable time before a hearing or, if no hearing is to be held,before the decision is made, a consent authority may commission anyperson to prepare a report on any matter relating to an application,including information provided by the applicant in the application orunder this section, if all the following apply:(a) the activity for which the resource consent is sought may, inthe authority's opinion, have a significant adverseenvironmental effect; and(b) the applicant is notified before the authority commissions thereport; and(c) the applicant does not refuse, under section 92B(1), to agreeto the commissioning of the report.(3) The consent authority must notify the applicant, in writing, of itsreasons for—(a) requesting further information under subsection (1); or3 Resource Management Act, ss 357(3) and 358(1).4 Central Plains Water Trust v Synlait Ltd, above n 1, at [89].(b) wanting to commission a report under subsection (2).(3A) The information or report must be available at the office of the consentauthority no later than 10 working days before the hearing of anapplication. This subsection does not apply if—(a) the applicant refuses, under section 92A, to provide thefurther information; or(b) the applicant refuses, under section 92B, to agree to thecommissioning of the report.[10] The information required by ss 88(2)(b) and 88(3)(b) to be included inapplications for resource consents is specified in sch 4. Any information required bysch 4 must be specified in sufficient detail to satisfy the purpose for which it isrequired.5 The information to be included in all applications for resource consent isset out in cl 2 of sch 4:2 Information required in all applications(1) An application for a resource consent for an activity (the activity)must include the following:(a) a description of the activity:(b) a description of the site at which the activity is to occur:(c) the full name and address of each owner or occupier of thesite:(d) a description of any other activities that are part of theproposal to which the application relates:(e) a description of any other resource consents required for theproposal to which the application relates:(f) an assessment of the activity against the matters set out in Part2:(g) an assessment of the activity against any relevant provisionsof a document referred to in section 104(1)(b).(3) An application must also include an assessment of the activity'seffects on the environment that—(a) includes the information required by clause 6; and5 Resource Management Act, sch 4, cl 1.(b) addresses the matters specified in clause 7; and(c) includes such detail as corresponds with the scale andsignificance of the effects that the activity may have on theenvironment.Relevant background[11] Marlborough Aquaculture submitted its application to the Council on11 October 2016. A 14-page document containing the information required by sch 4accompanied the application. The assessment of the activity's effects on theenvironment required by cl 2(3) of sch 4 drew upon a report prepared by DavidsonEnvironmental Ltd (the Davidson report). The Davidson report also accompanied theapplication.[12] The Davidson report had been prepared for Marlborough Aquaculture inrespect of a resource consent application in March 2014. It records the results of asurvey of the previous proposed site and an assessment of the environmental effectsof marine farming on that site. There is some overlap between that site and the site atissue although King Salmon says 6.8 hectares of the present 10.3-hectare site is notcovered by the Davidson report. That area has not been surveyed.[13] On receipt of the application on 11 October 2016, a Council officercommenced the process of checking the documents to ensure the application accordedwith the requirement of s 88 and sch 4 of the RMA. The Council advised MarlboroughAquaculture that, within 10 working days, it would confirm acceptance of theapplication for processing or would return the application if it was not considered tobe complete.[14] Peter Johnson, the resource management officer in charge, began hisassessment of the application on 13 October 2016. He completed his assessment and,on 19 October 2016, recorded in the Council's document management system, that theapplication had been accepted and finalised. The following day Mr Johnson asked theCouncil's coastal scientist, Dr Steve Urlich, for his input into the biological reportspecifically, whether it was necessary to have a benthic assessment covering theseaward extension area. Mr Johnson wrote:For the most part the information provided is adequate to meet therequirements of s 88 and schedule 4 of the RMA.My only misgiving is the adequacy of the 2014 Davidson report, specificallythe coverage area of his sonar run and drop camera photographs. I attach amap illustrating his drop camera points in relation to the boundaries of thecurrent proposal ("2016 proposed farm"). The area not covered by thosecamera points is about 7 hectares. However, typically in Pelorus Sound suchseaward areas of a farm would comprise flat, featureless mud. The marinechart for the area indicates the sits is not flat, with a shallower area at thesouthern corner, but no other notable features.In your view is it necessary to receive an additional benthic assessmentcovering the seaward extension area?[15] On 25 October 2017, Dr Urlich replied. Dr Urlich viewed it as "essential thatan additional (and comprehensive) benthic assessment covering the ~7ha extension bereceived".[16] On 26 October 2017, the Council confirmed to Marlborough Aquaculture theapplication had been accepted as complete under s 88 of the RMA. In the same letterthe Council requested, pursuant to s 92, further information relating to the application,specifically:(a) an additional and comprehensive benthic assessment covering the areanot addressed by the Davidson report; and(b) an assessment of the actual and potential effects of the proposal on thebenthos within the extension area.Issue 1: What is the nature of the decision to accept as complete a resourceconsent application?Parties' submissions[17] King Salmon holds the view the Council could not have accepted theapplication as complete. Mr Johnson, the resource management officer who processedthe application, recognised it was incomplete before the decision to accept it wasmade.[18] Mr Davies, counsel for King Salmon, rejected the proposition consentauthorities have a discretion to accept or reject an incomplete application. Hesubmitted the word "may" in s 88(3) is to be read as "must" such that any applicationthat is not objectively complete must be rejected. In support of his position Mr Daviesreferred to a series of decisions in which the word "may" has been held to bemandatory.6[19] Referring to the legislative history Mr Davies noted the Resource ManagementAmendment Act 2013 amended s 88(3), inserted s 88(3A), and inserted the currentversion of sch 4. The Ministry for the Environment advised the amendment wasintended to provide certainty for applicants by imposing absolute timeframes fordecisions.7 The 2013 amendment was also aimed at clarifying the required content ofan application, and strengthening the initial check for completeness of applications.Mr Davies referred also to the explanatory note to the Resource Management ReformBill which stated the changes were intended "to require an application for a resourceconsent to include all information required by new Schedule 4". In counsel'ssubmission, these statements indicate the amendments were enacted to tighten upquality control of applications – lending support to a strict approach to sub-standardapplications. Mr Davies submitted an application is either complete or it is not. Itcannot be almost complete.[20] Mr Davies drew my attention to a line of Australian authorities determiningthat, where a statutory regime confers power on the executive government to grantexclusive rights to exploit natural resources, compliance with the requirements of theregime is an essential prerequisite to a valid grant. Mr Davies submitted the sameapproach should be taken in this case as was taken in Forrest & Forrest Pty Ltd vWilson where the High Court of Australia declared there was no jurisdiction to hear an6 Dong Won Fisheries Co Ltd v Canterbury Regional Council HC Timaru AP10/99, 11 October1999 at [7]; Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27,[2016] 1 NZLR 1 at [123]; Re New Zealand Oil & Gas Ltd [2015] NZHC 39 at [19]; Parker vMinistry of Transport [1982] 1 NZLR 209 (CA) at 210; Petterson v Browne [2016] NZCA 189 at[118]; and Air New Zealand Ltd v Director of Civil Aviation [2002] 3 NZLR 796 (HC) at [42].7 Ministry for the Environment Regulatory Impact Statement: Progress of Phase Two of theResource Management Reforms (13 September 2012).application for a mining lease as the application was not accompanied by the reportwhich the legislation required.8[21] Both the Council and Marlborough Aquaculture submit s 88(3) gives consentauthorities a discretion whether to accept or reject an incomplete application. The useof the word "may" in s 88(3) both before and after the 2013 Amendment Act conferson a consent authority a discretion to determine whether or not an application isincomplete.[22] Ms Radich, counsel for the first respondent, submitted Part 6 of the RMAidentifies three "threshold points" at which information included in a resource consentapplication can be assessed by a consent authority. The assessment made when anapplication is lodged is a simple "tick the box" process to determine whether, as amatter of form, the application meets the requirements of s 88(2)(a) and (b). The laterassessments are evaluative and engage the consent authority in the content of theapplication. King Salmon's challenge is based on a construction of s 88 that iserroneous. There is no obligation to reject applications that are incomplete at the pointwhen they are first made.[23] On behalf of Marlborough Aquaculture, Mr Clark submitted the applicationwas not incomplete, nor a nullity. There was reasonable compliance with therequirements of sch 4 and the Council's decision to accept the application was withinthe bounds of its discretion. The grant of relief to King Salmon would be a "triumphof form over substance". The proceeding amounts to a collateral challenge byKing Salmon whose sole motivation is to gain priority over MarlboroughAquaculture's application.Analysis[24] It seems reasonably clear that Parliament intended to confer, and has conferred,on consent authorities a discretion to determine an application is incomplete if it doesnot include the information required by s 88(3)(a) or (b). The discretionary power8 Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30, (2017) 346 ALR 1 at [64]–[66].conferred by s 88(3) before the 2013 legislative amendments was unaltered by the2013 Amendment Act.[25] Within the context of s 88 itself "must" is used in contra-distinction to "may".For example, an application must be made in the prescribed form and manner and mustcontain the information required by sch 4, including an assessment of the activity'seffects on the environment (AEE).9 By contrast, a consent authority may determinean application is incomplete.10 The drafting is careful and clear, reflecting thelegislative intent to distinguish, within the context of s 88, between the mandatory andthe permissive.[26] I have not found the authorities referred to at note 6 above to be of particularassistance. One of the decisions was overturned on the point by the Court of Appeal.11And the others, as is to be expected, turn on their particular facts and statutorycontexts. For example, in Quake Outcasts "may" was read as importing a mandatoryobligation because, when the Act was passed, it was not known whether the conditionsunder which the power was to be exercised would eventuate.12 Part 6 of the RMAbrings no such inherent uncertainty. Each statute must be interpreted in its own contextaccording to established canons of statutory interpretation.[27] King Salmon was unable to offer any compelling basis for its contention thatthe permissive "may" in s 88(3) should be read as an obligatory "must". The fact s 88and sch 4 contain some mandatory obligations and requirements does not transformthe clearly discretionary nature of the power conferred by s 88(3) into a mandatoryobligation. The mandatory requirement, for instance, to "immediately return anincomplete application to the applicant, with written reasons for the determination"13does not make a determination under s 88(3) non-discretionary.[28] In fact, the scheme of the application process tells against such a construction.Section 92 permits a consent authority to seek further information from an applicant9 Resource Management Act, s 88(2).10 Section 88(3).11 Dong Won Fisheries Co Ltd v Canterbury Regional Council, above n 6; overturned in CanterburyRegional Council v Dong Won Fisheries Co Ltd CA264/99, 24 November 1999.12 Quake Outcasts v Minister for Canterbury Earthquake Recovery, above n 6, at [123].13 Resource Management Act, s 88(3A).after its application has been accepted under s 88. While I would not go so far as tosay a mandatory reading of s 88(3) would render s 92 of little utility (as s 92 has abroad application beyond s 88), the ability to rectify deficits in an application after itis accepted is consistent with a discretion to accept applications which the consentauthority appreciates at the time will require to be supplemented with furtherinformation or detail.[29] King Salmon accepts some decisions prior to the 2013 amendments confirmthe discretionary nature of the power conferred on consent authorities by s 88(3).[30] Forrest & Forrest Pty Ltd v Wilson does not take the point any further forKing Salmon. The issue before the High Court of Australia was whether non-compliance with provisions of the Mining Act 1978 (WA) in relation to matterspreliminary to the granting of a mining lease would render invalid mining leasesgranted by the Minister. Forrest & Forrest is distinguishable on many bases. Mostparticularly, the relevant sections of the Mining Act 1978 (WA) do not appear tocontain any power similar to that conferred on consent authorities by s 88(3) of theRMA.[31] Accordingly, if King Salmon is to be successful in its review, it must showmore than just that Marlborough Aquaculture's application was incomplete. It wouldbe necessary to show the Council unlawfully exercised its discretion to accept theapplication, incomplete or otherwise. But the second respondent argues the Council'sdecision is not amenable to review. That is the next issue for determination.Issue 2: Amenability of decision under s 88 to judicial review?Parties' submissions[32] Mr Davies, for King Salmon, submitted the Council's decision to accept theapplication for processing is amenable to judicial review and that the Court shouldadopt the approach used in reviews of notification decisions under the RMA.14 In14 Notification decisions come after applications have been accepted as complete, and involve adecision whether public notification of the application, or notification to any affected persons, isnecessary.Auckland Council v Wendco (NZ) Ltd, the Supreme Court confirmed the correctapproach in the notification context is to check whether the consent authority askeditself the right question(s) and had sufficient evidence to justify its conclusion(s).15This approach falls within the "hard look" line of authority in judicial reviewjurisprudence.[33] Mr Clark, for Marlborough Agriculture, submitted the decision is not amenableto judicial review as it was purely mechanical, or procedural, in nature, and unrelatedto the merits of the consent application. Mr Clark submitted a "veritable Pandora'sbox" would be opened if judicial review were available at that early procedural stage.Judicial review would create a technical barrier in the field of applications for resourceconsent even in respect of relatively simple applications.[34] Ms Radich, on behalf of the Council, did not go so far. But, Ms Radichsubmitted, this is not a case where a 'hard look' approach should be applied. Theconsequence of accepting an application is to exclude others from applying to occupythe same space. The close judicial scrutiny of what is "essentially a tick the boxexercise" is not therefore warranted. Ms Radich commended the High Court'sapproach in Coro Mainstreet (Inc) v Thames-Coromandel District Council as thecorrect approach to judicial review in this area. The Court should not undertake anassessment of the application with a view to determining whether it was complete butshould satisfy itself as to whether the Council exceeded its statutory jurisdiction;whether proper procedures were followed, and all relevant and no irrelevant,considerations taken into account and whether the decision was manifestlyreasonable.16Analysis[35] In AgResearch Ltd v GE Free NZ in Food and the Environment Inc, the Courtof Appeal decided a similar issue in the context of the Hazardous Substances andNew Organisms Act 1996 (HSNO Act):1715 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [7(b)].16 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013]NZRMA 442 at [40].17 AgResearch Ltd v GE Free NZ in Food and the Environment Inc [2010] NZCA 89, [2014] NZAR70 at [59].We regard the decision of ERMA officials to register the AgResearchapplications as essentially mechanical. We do not consider that decision to beof sufficient moment to be appropriately the focus of orders in judicial reviewproceedings.[36] The Court of Appeal's decision has since been followed in Greenpeace vEnvironmental Protection Authority where MacKenzie J was required to consider theacceptance of an application under s 41 of the Exclusive Economic Zone andContinental Shelf (Environmental Effects) Act 2012 (EEZ Act).18 Acknowledging thatthe Court of Appeal's consideration had been in the context of s 40 of the HSNO Act,McKenzie J considered the two provisions were sufficiently analogous to make theCourt of Appeal's observations applicable to the case before him.19 McKenzie Jfurther added:20A decision which is "wholly administrative in nature" and "essentiallymechanical" is not readily susceptible to the sort of error which may justifyjudicial review. To succeed on the present application, Greenpeace mustdemonstrate an error of law by EPA.[37] The application regimes in s 40(2) of the HSNO Act, and s 41 of the EEZ Actwere21 similar to the application regime in Part 6 of the RMA. However, I do not takethe AgResearch or Greenpeace decisions as excluding amenability to judicial review.Such an approach is tantamount to raising a jurisdictional bar to judicial review when,in principle, all exercises of public power are reviewable.22 A central aspect of theconstitutional responsibility which the courts of higher jurisdiction have for upholdingthe rule of law is to ensure public officials act in accordance with the powers conferredon them.23 Where important principles of public administration are engaged, forexample in ensuring consistency of treatment and avoiding material error in decision-making, the courts' supervisory jurisdiction is more obviously engaged.2418 Greenpeace of New Zealand Inc v Environmental Protection Authority [2013] NZHC 3482, [2014]NZRMA 112.19 The relevant difference between the provisions being that, unlike s 88(3) RMA and s 41 EEZ Act,the HSNO Act made no provision for non-compliance with the s 40 requirements as to the formof the application and the inclusion of prescribed information.20 At [33].21 The application regime under the Exclusive Economic Zone and Continental Shelf(Environmental Effects) Act 2012 has subsequently been amended.22 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].23 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR153 at [3].24 Ririnui v Landcorp Farming Ltd, above n 22, at [89]–[93].[38] In the context of a challenge to "mechanistic" decisions, such as the decisionat issue in this case, the relevant question concerns the limits of review rather thanwhether the power is reviewable at all.[39] I do not accept the position advanced by King Salmon in reliance on AucklandCouncil v Wendco. The issue and facts of that case are not analogous to the issues andfacts in this proceeding. A notification decision attracts a "hard look" approachbecause the consequence of a decision not to notify an application may be to shut outparticipation in the substantive process by interested parties.25[40] A decision to accept an application as complete has no such substantive impact.The decision is preliminary in nature. It may be that further information is yet to besought. The decision to accept an application occurs prior to the notification process.The fact acceptance gives priority to that applicant is insufficient to warrant moreintense judicial scrutiny, as that consequence is secondary to the primary function of s88. The consent authority is not committed at this early stage to any finaldeterminations about the consent. A decision to accept an application for processingdoes not engage the merits of the application and does not therefore warrant judicialscrutiny beyond being satisfied that the decision was plainly wrong or the decision-maker plainly acted without power.[41] Insufficiency of information is a substantive ground for refusing an applicationfor a resource consent for a controlled activity.26 Therefore, when the ground ofjudicial review is insufficiency of information, only in the rarest of cases will theHigh Court's supervisory jurisdiction be appropriately engaged ahead of the consentauthority's determination of the substance of the application.2725 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at[116].26 Resource Management Act, s 104A.27 GE Free NZ in Food and the Environment Inc v AgResearch [2010] NZSC 71 at [3].Issue 3: Did the Council err in accepting Marlborough Aquaculture's resourceconsent application as complete?Parties' submissions[42] Relying on the word "must" in s 88(2), Mr Davies emphasised the mandatorynature of the requirement to include in the application all information prescribed bysch 4. Without all of the information anticipated by sch 4 an application will beincomplete. Schedule 4 itself prefaces each piece of required information with thephrase "must include". In this case, in breach of cl 2(1)(b), the consent applicationdid not describe the site at which the activities will occur. Consequently, in breach ofcls 6 and 7, the application did not include a description of the environmental effectson that site.[43] Mr Davies relied on the correspondence between Mr Johnson and Dr Urlich tosupport a finding that the application was not complete due to the limitations of theDavidson report.[44] The respondents contended the application had already been assessed ascompliant with s 88 by that stage and the subsequent correspondence was related tothe provision of further information and whether further information should be soughtunder s 92.[45] The position of both respondents is that the application was not incomplete.Mr Clark submitted only reasonable compliance with the requirements of s 88 isrequired. In support of this proposition, he relied on the Planning Tribunal decisionsin McFarland v Napier City Council28 and Hubbard v Tasman District Council.29[46] In Mr Clark's submission, an application is "complete" if the applicant hasfilled out the form and reasonably addressed the mandatory considerations outlined insch 4. The application does not require exhaustive detail at this early stage. Theproposition is supported by the fact the consent authority can request furtherinformation under s 92.28 McFarland v Napier City Council (1993) 2 NZRMA 440 (PT) at 3.29 Hubbard v Tasman District Council PT Nelson W1/95, 14 February 1995 at 12.[47] Mr Clark further submitted the present application did in fact provide adescription of the site, as required by cl 2(1)(b). The schedule does not require thedescription to include a scientific analysis, as contended by King Salmon. The sitewas described in the application in various ways, including by name as BlowholePoint, by reference to previous resource consents, in terms of several maps, graphicsand a layout plan, and by photograph.[48] Similarly, Mr Clark submitted, the assessment provided was adequate for thepurposes of sch 4. There is no national environmental standard for aquaculture andthe level of detail Dr Urlich desired is not strictly necessary. For a low value muddyhabitat, the degree of survey work required is arguable. Therefore, whether anassessment is adequate for the purposes of making the final decision is a matter bestdecided under s 92, rather than at the threshold stage of s 88.[49] Ms Radich argued the Court should not undertake the exercise whichKing Salmon asks it to undertake namely, to examine the resource consent applicationand determine whether the information provided was sufficient for the purposes ofcl (2)(1)(b) of sch 4.[50] Ms Radich further submitted there was no error in the form or content of theapplication at the time it was lodged. All parties accept more information was requiredbefore the application could be determined. That information was identified beforenotification, supplied by Marlborough Aquaculture and will be considered if and whenthe application is heard and determined.Analysis[51] The information to be included with an application for resource consent underthe RMA is determined chiefly by s 88 and sch 4. These provisions provide crucialguidance to applicants as to the content of their applications. In its guide to assistpractitioners to understand and implement the 2013 amendments to the RMA theMinistry for the Environment describes the new sch 4 as bridging a gap that previouslyexisted between information required to be provided with an application andinformation needed to reach a decision.30 Prior to the 2013 Amendment Act, s 88allowed consent authorities up to five working days to decide whether to accept orreturn applications. They now have 10 working days. This longer period recognisesmore time may be required to check that the application and accompanying (morecomprehensive) information meets the statutory requirements.[52] The prescribed form in which an application must be made invites an applicantto attach a sketch of the locality and activity points and to describe the location in amanner which will allow it to be readily identified. In addition to the descriptionwhich the application contained, Marlborough Aquaculture included a locality mapshowing Proposed Extension to Marine Farm 8630 Blowhole Point – Pelorus Sound;a site plan and schedule of coordinates; and a structures diagram with layout details.[53] King Salmon's case proceeds on the basis the full extent of the environmentalimpacts could not be assessed on the information contained in the application andAEE; that there is evidence to indicate parts of the site not subject to surveying involvedifferent marine conditions; and there is significant uncertainty around what theenvironmental impacts will be.[54] Contrary to Mr Davies' argument, in my view, there was an absence of detailrather than an absence of information. Ms Eatherley, the Council's manager ofresource consents, checked the application for basic compliance with s 88 and todetermine whether the application was sufficiently complete to be allocated to aresource management officer for a more detailed assessment. Having made that initialdetermination (which is not challenged) the application was assigned to Mr Johnson.It then became Mr Johnson's responsibility to complete the assessment for thepurposes of s 88.[55] Mr Johnson's affidavit evidence is that he scrutinised the application againstthe checklist which the Council has developed for the purpose. In a full and detailedaffidavit Mr Johnson traversed the information which Marlborough Aquaculture30 Ministry for the Environment A guide to section 88 and Schedule 4 of the Resource ManagementAct 1991: Incorporating changes as a result of the Resource Management Amendment Act 2013(December 2014) at 6.provided in response to each of the sch 4 requirements. Mr Johnson described hisparticular consideration of some of that material, for example, MarlboroughAquaculture's reliance on the Davidson report which formed part of the application.In respect of the requirement for an assessment of the effects on the environmentMr Johnson noted that, in his experience, whether the assessment of effects is corrector not is typically determined during the "more fine-grained analysis undertaken inlater stages of the resource consent process".[56] It is not necessary for me to engage with Mr Johnson's detailed considerationof each piece of information included in the application. I accept that Mr Johnsoncorresponded with Dr Urlich in anticipation of a request under s 92, rather than as partof his consideration under s 88. This is borne out by the subsequent request madeunder s 92, and the fact that an internal report was signed stating that the applicationwas complete under s 88 the day before Dr Urlich was first contacted.[57] The RMA expressly contemplates the consent authority assessing thesufficiency of the information before it and requesting, not only further information,but preparation of a report on any matter relating to a resource consent application.31Section 88 confers a discretion on the consent authority to decide whether or not toregard an application as complete for the purposes of accepting the application forprocessing. While there may have been deficits in the information provided with theapplication, those deficits could potentially be remedied in the consent process and thedecision-maker was cognisant of that.[58] Any information required by sch 4, including an assessment under cl 2(1)(f) or(g) must be specified in sufficient detail to satisfy the purpose for which it is required.32Mr Johnson deposed to his approach to cl 1. He said, "as a matter of practice" heneeds the information in order to understand "the who, what, where, when and how"of a proposed activity. With that basic information, the application can begin itsjourney through the resource consent process which may include intermediate stepsalong the way. The first intermediate step for Marlborough Aquaculture's applicationwas Mr Johnson's request under s 92 for further information.31 Resource Management Act, s 92.32 Schedule 4, cl 1.[59] Consistent with the level of judicial scrutiny it is appropriate to bring to bearon the Council's determination of whether an application is incomplete, it is plain tome that Mr Johnson acted within his delegated statutory authority.33[60] I have discerned no error, of law or otherwise, in the Council's decision unders 88(3) not to return the resource consent application as incomplete. It seems to meMarlborough Aquaculture's application was processed on receipt, and progressedthereafter, precisely as intended by Part 6 of the RMA.Summary[61] Section 88(3) of the RMA confers on consent authorities a discretionary powerto determine an application is incomplete if it does not contain the prescribedinformation. Applications themselves must conform to statutory requirements:applications must be in a prescribed form and manner and must include all necessaryinformation. But the compulsory nature of the obligation on applicants to ensure theirapplications comply with the statutory requirements does not bear on the fullydiscretionary nature of the power conferred upon consent authorities to determinewhether or not an application is complete.[62] The consent authority's power to determine whether an application is completemay be essentially mechanical but that of itself does not shield it from judicial review.The question is not whether the exercise of power is reviewable but where the limitsof review lie. The exercise of power must be lawful and the courts will be concernedto ensure that public officials have acted in accordance with the powers conferred onthem.[63] In this case Mr Johnson lawfully exercised the statutory power delegated tohim. In determining Marlborough Aquaculture's resource consent application was notincomplete, the Council did not err, in law or otherwise.33 There is no challenge to the operative delegations which have been provided in the Council'sevidence.Result[64] The application for judicial review is dismissed.[65] The successful respondents are entitled to costs which are awarded on a 2Bbasis._____________________________Karen Clark JSolicitors:Gascoigne Wicks, Blenheim for ApplicantRadich Law, Blenheim for First RespondentWisheart Macnab & Partners, Blenheim for Second Respondent