RMLA NATIONAL ROADSHOW Defining the environment

AnthonyHarper Lawyers RMLA NATIONAL ROADSHOWDefining the environment Chris Fowler November 2007

Outline of presentation • Defining the environment to include future activities • Preliminary matters • Legal context • RMA definition of “environment” • Permitted baseline concept • Receiving environment case law • Comparison with permitted baseline • Practical application of Hawthorn approach

Preliminary matters • Why is the topic important? • Relevant to consent application process • Informs preparation of accurate and robust AEE

Preliminary matters • Key terms: • “proposed activity” or “proposal” • “application site” • “receiving environment” • “permitted baseline” concept • “receiving environment” case law

Preliminary matters • Key terms: • Hawthorn Estates case • proposed activity – 32 lot residential subdivision • application site – 33.9 ha fronting Lower Shotover and Domain Roads • receiving environment – The Triangle and wider Wakatipu Basin

Preliminary matters Hawthorn Estate x x x x * x * * x x * * * KEY:*proposed dwellings x existing dwellings application site receiving environment (present)

Preliminary matters Hawthorn Estate x x x x x x x x x x x x x x x x * x x x * * x x x x * * * x x x x KEY:*proposed dwellings x existing dwellings x consented dwellings application site receiving environment (present and future)

Preliminary matters • What has changed? • Historically the environment assessed as it exists • This approach easy, straight forward and obvious • Evolution of permitted baseline concept • Recent case law regarding the receiving environment

Preliminary matters Permitted Baseline case law Permitted Baseline case law Receiving Environmental case law Receiving Environment case law

RMA definition of “environment” • Section 2 RMA • “Environment” includes – • Ecosystems and their constituent parts, including people and communities; and • All natural and physical resources; and • Amenity values; and • The social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters”.

RMA definition of “environment” • Describes realm of application of RMA • Very broad and all encompassing • Unaltered for 16 years

Permitted baseline concept • Initially a common law creation • Assessment of the environment “as it exists” • Aley v North Shore City Council [1998] NZRMA 361 • Next four years – fresh approach to assessment of effects • Bayley v Manukau City Council [1999] 1 NZLR 568 • Smith Chilcott v Auckland City Council [2001] 3 NZLR 473 • Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323

Permitted baseline concept • Method of eliminating effects of permitted activities • Identify permitted baseline • Lawful activities occurring on site • Permitted hypothetical activities (not being fanciful) • Activities authorised by unimplemented resource consents • Compare and eliminate permitted effects • Only remaining effects are assessed against the receiving environment

Permitted baseline concept • Rationale behind this approach • Planning instrument is product of community consultation • Permitted activities unregulated because effects no more than minor • Legitimate to compare the effects of proposed activity with those permitted on the application site

Permitted baseline concept • Broad Summary • Reasonable to identify activities permitted on site • Even though such activities do not currently exist • Provided not too speculative or fanciful

Section 104(2) RMA • RMA Amendment Act 2003 inserted s104(2): “When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect”

Section 104(2) RMA • Section 104(2) modifies the permitted baseline • Discretionary rather than mandatory • Applies only to permitted activities • Applies only to operative plans • s104(2) does not effect a total substitution of baseline principal • Rodney District Council v Eyres Eco-Park Ltd (High Court 13 March 2006) • Tairua Marine Ltd v Waikato Regional Council (High Court 29 June 2006)

Receiving environment case law • Stalker v Queenstown Lakes District Council C40/2004 • A dog kennel and cattery on subject site • Deer farming permitted on adjacent land • Legitimate to take into account - “the reasonably foreseeable environment on which the effects of the proposal will impact …”

Receiving environment case law • Cashmere Trust v Canterbury Regional Council C48/2004 • Court concerned about potentially significant cumulative stormwater effects • Necessary to examine potential future effects “If there is relevant evidence of realistic, not fanciful, permitted activities of a sufficiently direct connection with the effects to be generated by the activity for which resource consent is sought, then we consider the obligation on the consent authority to have regard to the total effect on a submitter’s natural and physical resources becomes quite powerful.”

Receiving environment case law • Wilson & Rickerby – High Court decision (24 August 2004) • Pragmatic v liberal arguments • Court dismisses practical impediments • RMA requires a forward looking perspective • Court concluded that: “The Environment Court took an unduly simplified approach to the impact of adverse odour, and perhaps noise, on the Wilson land. It looked only at the current state of the Wilson land, and ignored the effects of the proposed expansion on the potential for development of that land.”

Receiving environment case law • A number of unanswered questions arising from Wilson & Rickerby • Approach adopted appeared to: • Encompass both permitted and controlled (and possibly discretionary activities) • Include activities provided for in proposed plan • Broader and more liberal than permitted baseline concept and s104(2) RMA

Receiving environment case law • Hawthorn Estates Ltd • Wakatipu Basin – application for subdivision and land use consents • 32 lot subdivision with nominated building platforms • Unimplemented consents to erect 63 dwellings in vicinity • Relevant assessment criteria for subdivision • Sympathetic to character of visual amenity landscape? • Adverse effects on naturalness and rural quality of the landscape?

Receiving environment case law • Environment Court conclusion (ENVC 83/04) • Effects of proposal on retention of rural qualities of landscape “on the cusp”, but “… In the context of consented development on this and other sites in the vicinity the proposal is just compatible with the level of rural development likely to arise in the area.” (Para 82)

Receiving environment case law • Court of Appeal decision [2006] NZRMA 424 • Detailed analysis of pragmatic v liberal arguments • Justice Cooper - necessary to have regard to the future environment “In summary, all the provisions of the Act to which we have referred lead to the conclusion that when considering the actual and potential effects on the environment of allowing an activity, it is permissible, and will often be desirable or even necessary, for the consent authority to consider the future state of the environment, on which such effects will occur.” (Para 57)

Receiving environment case law • Justice Cooper’s broad conclusion: “In our view the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time the particular application is considered, where it appears likely that those resource consents will be implemented.” (Para 84)

Receiving environment case law • A workable marriage of pragmatic and liberal arguments • Logical extension of case law • Dramatic reduction in scope and extent of required assessment We think Fogarty J erred when he suggested that the effects of resource consents that might in the future be made should be brought to account in considering the likely future state of the environment.” (Para 84)

Comparison with the permitted baseline

Comparison with the permitted baseline • Other points of difference • Permitted baseline is always a discounting exercise • Defining the receiving environment may • Reduce effects (Hawthorn decision), or • Increase effects (Wilson & Rickerby and Stalker decisions)

Practical application • Future environment should not be ignored • Not relevant in every case • Consent authority has discretion • Exercise of discretionary power • “decision … has to be made deliberately and in a reasoned way for the purpose for which the power is conferred” (Refer Living Earth Limited v Auckland RC A126/06)

Practical application • Factors informing the discretion • Likelihood of future activity occurring • Permitted activities - “not unduly speculative” • Unimplemented consents - “practically certain” • Sufficient evidential basis to enable adequate effects assessment • Part 2 considerations

Conclusion • Key outcomes • Future focus of RMA recognised • Parameters consistent with community expectations • Logical and reasonably straightforward to apply • Parity between application site and receiving environment

RMLA NATIONAL ROADSHOW Defining the environment