RMLA NATIONAL ROADSHOW

Defining the environment

Chris Fowler

November 2007

AnthonyHarper Lawyers

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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

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Preliminary matters

Why is the topic important?

– Relevant to consent application process

– Informs preparation of accurate and robust AEE

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Preliminary matters

Key terms:

– “proposed activity” or “proposal”

– “application site”

– “receiving environment”

– “permitted baseline” concept

– “receiving environment” case law

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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

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KEY: * proposed dwellings

x existing dwellingsapplication sitereceiving environment (present)

Hawthorn Estate

*

* * ** *

x x

x x

xx

x

Preliminary matters

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Hawthorn Estate

KEY: * proposed dwellings

x existing dwellings x consented dwellings application site receiving environment (present and future)

*

*

* ** *

x

x

xx

x

xx

x

x

x

x

x

x x

x

x

x

x

x

x

x

x

x

xx xx

Preliminary matters

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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

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Preliminary matters

Permitted Baseline case law

Receiving Environment case law

Permitted Baseline case law

Receiving Environmental case law

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RMA definition of “environment”

Section 2 RMA– “Environment” includes –

(a) Ecosystems and their constituent parts, including people and communities; and

(b) All natural and physical resources; and

(c) Amenity values; and

(d) 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”.

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RMA definition of “environment”

Describes realm of application of RMA

Very broad and all encompassing

Unaltered for 16 years

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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

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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

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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

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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

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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”

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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)

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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 …”

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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.”

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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.”

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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

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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?

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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)

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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)

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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)

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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)

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Comparison with the permitted baseline

Application Site Common law and s104(2)

Parameters of assessment

Receiving Environment

Parameters of assessment

Application is discretionary Application is discretionary

Assessment applies only to (not fanciful) permitted activities

Assessment limited to (not unduly speculative) permitted activities

Assessment applies only to operative plans

Assessment appears limited to operative plans or plans beyond challenge

Includes unimplemented resource consents at discretion of consent authority*

Includes unimplemented resource consents that are “practically certain” of implementation

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Comparison with the permitted baseline

Application SiteCommon law and s104(2)

Methodology

Receiving Environment

Methodology

Identify permitted baseline Identify permitted environment

Compare with effects of proposal

Overlay the permitted environment onto the existing environment

Isolate and eliminate permitted baseline effects

Assess effects of proposal against the present and permitted future environment

Take into account only remaining effects

Assesses the remaining effects against the receiving environment

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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)

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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)

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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

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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