AQUAMARINE LIMITED SOUTHLAND REGIONAL COUNCIL

Transcription

1 C79196 Aquamarine Ltd v Southland R. C. 2 ELRNZ 361 Appellant Respondent Decision Number Tribunal Judgment Date Counsell Appearances Quoted Statutes Full text pages: effects; off-site effects AQUAMARINE LIMITED SOUTHLAND REGIONAL COUNCIL C Judge Skelton sitting alone 6/11/1996 Milligan, JR; Slowley, B; Cameron, AFD; Ibbotson, RH 5 Falkner v Gisbome District Council [1995] NZRMA 462; Fuller Cruises Northland Limited v Bay of Islands Enterprises (Barker J, HC Whangarei, CP1/92, 13/ ); Marlborough District Council v NZ Rail Limited [1995] NZRMA 357; Stewart v Grey County Council 10 [1978] 2 NZLR 577; Burton v Auckland City Council [1994] NZRMA 544 Resource Management Act 1991, 1991/69, s2, s3, s5, s88(4)(b), s23, s88(6), s104(1)(a), s343, s418, Fourth Schedule, cl2; Harbours Act 1950, s Keywords Significant in Law s3 20 Consideration of" effects" must take into account relevant cumulative effects of the development as a whole irrespective of whether some effects can be subjecr to control or are outside the control of the applicant. SYNOPSIS 25 Appeal against refusal of resource consent for freshwater exporting venture at Deep Cove in Doubtful Sound. Interlocutory application to determine question of law relating to whether two issues are relevant to a proper determination of the substantive appeal. These are: 30 Effects on the environment occasioned by the passage of water tankers along Doubtful Sound. Likelihood and nature of discharges, including ballast water from tankers. The basis of the argument was that resource consents are not being sought nor are required for the passage of vessels or discharges from vessels. These 35 are discrete activities for which no consent is required and in any case are not activities which are to be carried on by the appellant. Tankers in Doubtful Sound will be exercising a common law right of passage and no regional plan provides otherwise. Likewise navigation issues come under s6 of the Harbours Act Held, relevance in terms of assessing the effects is not dependant upon the need or otherwise for resource consents or whether such effects can be subject of controls (2 ELRNZ 366 at 29). The court citing Burton v Auckland C.C. 1

2 2ELRNZ362 Environmental Law Reports of New Zealand stated that an assessment of actual or potential effects prepared in accordance 1 with the Fourth Schedule must take into account relevant cumulative effects "of the development as a whole" (2 ELRNZ 365 at 37). As such all facets of the proposal fall to be considered. It is not relevant whether a common law right of passage is being exercised. Rather it is dependant upon giving a sufficiently wide interpretation to sl 04(1)( a) RMA. Both the points in question 5 were held to be relevant. FULL TEXT OF DECISION C79/96 Decision on Interlocutory Application This appeal arises out of a decision issued by the respondent on 26 June refusing the appellant's application for certain resource consents for its proposal to establish a freshwater exporting venture at Deep Cove in Doubtful Sound. On 8 November 1995 I conducted a pre-hearing conference in respect of these proceedings and ascertained that if they are to proceed to a contested 15 hearing, which is now virtually certain, some two to three weeks hearing time will be required. In an effort to shorten the hearing time and better define the issues, Mr Milligan for the appellant has filed an interlocutory application to determine certain questions of law. The pre-hearing conference currently stands adjourned sine die. The hearing of this application 20 commenced at Invercargill on 8 February 1996 and concluded on 15 April On 26 June 1996 I sought further assistance from counsel in terms of a Minute issued that day. In due course I received further submissions as requested 25 but, due to a combination of circumstances including an intervening period of leave and other duties since my return, I have been unable to give this matter the attention it deserves until now. I regret the delay. This interlocutory application raises a short but important point concerning the Court's jurisdiction to consider certain matters as potential effects of the 30 activities proposed by the appellant. In his application Mr Milligan has asked the Court to determine whether two issues are relevant to a proper determination of the substantive appeal. These are: H( a) The nature, likelihood and/or extent of effects on the environment 35 occasioned by the passage of water tankers along Doubtful Sound; and (b) The likelihood and/or nature of discharges (including discharges of ballast water)from water tankers in the coastal marine area." Originally a third issue was also included concerning the holding capacity and strength of moorings in Deep Cove, but this has been withdrawn at Mr 40 Milligan's request and with the agreement of other counsel. In substance I am asked to determine whether, as a matter of law, the effects

3 C79/96 Aquamarine Ltd v Southland R.C. 2ELRNZ363 on the environment, if there are any, of the passage of water tankers along 1 Doubtful Sound and of discharges from those tankers, particularly discharges of ballast water in the coastal marine area, are relevant issues for consideration by the Court in this appeal. At this point it may be helpful to provide a brief description of the appellant's proposal and the consents sought. I should add that for the purposes of 5 determining this interlocutory application the following description is common ground. It is derived from the assessment of effects filed with the application as required by s88(4)(b) ofthe Act and from the respondent's decision. The proposal is to take fresh water of very high quality from the surface of Deep Cove where it enters from the Lake Manapouri tailrace. Taking will be 10 achieved via a pipeline running on or under the seabed from an inlet structure in the tailrace plume to a tanker moored in Deep Cove. Loading and mooring of the tanker will be assisted by a support vessel which will be permanently based in Deep Cove, apart from supply trips to Bluff. All of this will take place below mean high water springs, in other words within the coastal marine 15 area as defined in 82 of the Act. The appellant has applied for resource consents to lay, fix and use a water pipeline from the tailrace outfall plume to a support vessel; to install and use moorings for a vessel; to occupy part of the coastal marine area by vessels; and to take water from the outfall plume. In effect, four coastal permits are 20 sought. It is important to record at this point that the Court is not being asked to determine the relevance of any evidence that might be called relating to the passage of vessels in Doubtful Sound or discharges from such vessels. It is 25 being asked to determine whether the passage of vessels and/or discharges from those vessels are relevant considerations. It is common ground that these are questions of law because if the Court has regard to irrelevant matters, it will have erred in law. It is also common ground that determination of these questions requires interpretation of the relevant provisions of the Act. 30 In other words, the answer lies in statutory interpretation. It is well established that words in a statute should be given their ordinary meaning unless this leads to an absurdity. However, where there is ambiguity assistance can be gained by having regard to the object or purpose of the Act. In this case the purpose of promoting the sustainable management of natural 35 and physical resources is stated explicitly in s5 of the Act. It was referred to by Barker J. in Falkner -v- Gisborne District Council [1995] NZRMA 462 in a passage at page 477, where the learned Judge said this: "The Act prescribes a comprehensive, inter-related system of rules, plans, policy statements and procedures, all guided by the touchstone of 40 sustainable management of resources. The whole thrust of the regime is the regulation and control of the use of land, sea, and air. There is

4 2ELRNZ364 Environmental Law Reports of New Zealand nothing ambiguous or equivocal about this. It is a necessary implication 1 of such a regime that common law property rights pertaining to the use of land or sea are to be subject to it. " In summary, it was Mr Milligan's principal submission that the only relevant considerations are those relating to the activities for which resource consents are being sought. No resource consents are being sought for the passage of 5 vessels or for discharges from such vessels. These, in Mr Milligan's submission, are discrete activities for which no consent is required and, in any event, they are not activities which are to be carried on by the appellant. On the passage of vessels, Mr Milligan pointed out that tankers transiting Doubtful Sound will be exercising a common law right of passage. He referred 10 in particular to Fuller Cruises Northland Limited -v- Bay ofislands Entemrises (Barker J., H.C. Whangarei C.P.1I92 13 January 1992). If he was wrong about that Mr Milligan relied on s418 of the Act which amongst other things protects existing lawful activities in the coastal marine area until a regional plan provides otherwise. There is no regional plan providing otherwise in 15 this case. Reference was also made to the decision of the former Planning Tribunal in Marlborough District Council-v- NZ Rail Limited [1995] NZRMA 357 which concerned the passage of fast ferries in Tory Channel. I should say immediately as regards that decision, that I did not understand Judge Treadwell to hold that it would not be competent for the appropriate authority to control the passage of ships in the coastal marine area to achieve the purpose of the Act. I did understand him to hold that adverse effects of passage could be the subject of successful enforcement proceedings in an appropriate case. However, for the reasons given in his judgment, the leamed 25 Judge determined that it was not appropriate to make an enforcement order in that case. Nor, for reasons that will appear later, do I think s418 assists the appellant. It does no more than exempt certain activities from control for a period of time. Mr Milligan also submitted that navigational issues are the province of the 30 Minister of Transport under s6 of the Harbours Act 1950, and in any event it can be assumed for present purposes that there will be no adverse effects. Then too, because the appellant will not be operating the ships, (they are to be foreign registered vessels - an agreed fact for present purposes) it is not required to obtain any resource consents. 35 As regards these last two matters, with respect to Mr Milligan, I do not think they really bear on the issue he has asked me to determine. The fact that there may not be any adverse effects arising from the passage of tankers in Doubtful Sound is not a matter I need to consider at this point. That would require consideration of the evidence. Nor is it in point to say that the appellant 40 will not be operating the ships. It does not follow that the potential effects of passage are not matters to be considered. As for the Harbours Act 1950, I

5 C79/96 Aquamarine Ltd v Southland R. C. 2ELRNZ365 accept the submission of counsel opposing that the provisions of that Act and 1 the provisions of the Resource Management Act are not in conflict. They have different purposes. The first has to do relevantly, with safety issues. The second, as I have said already, has to do with the sustainable management of resources which includes avoiding, remedying, or mitigating adverse effects on the environment. Consequently, applying the well established tests laid 5 down by the Court of Appeal in Stewart -v- Grey County Council [1978] 2 NZLR 577 and subsequent judgments of the High Court and of this Court on this topic, these two statutes can live together and are to be given effect to accordingly. On discharges from tankers Mr Milligan submitted that s343 of the Act 10 exempts such discharges from the requirements of the Act. This submission was again based on the agreed fact that the tankers will be foreign ships and not New Zealand ships. He also submitted that by virtue of the relevant provisions of the Maritime Transport Act 1994, which amends and adds to various provisions in the Resource Management Act, it is the Legislature's 15 intention to control such discharges by regulations once those provisions come into force. This he submitted should encourage interpretation of the Act as it stands today in such a w~y as to exclude such discharges from its controls. Counsel opposing this application joined issue with Mr Milligan directly on some of the matters to which I have just referred, but generally it was their 20 submission that s104(1)(a) of the Act should be construed sufficiently widely to include as relevant considerations the effects of the passage of tankers and discharges from those tankers. In other words, to accept Mr Milligan's submissions would amount to placing too narrow an interpretation on this 25 particular provision which, of course, is one of the key provisions identifying relevant considerations on an application for resource consent. Counsel also drew my attention to the definition of "effect" in s3 of the Act, and to subsections 88(4)(b) and (6) and the Fourth Schedule to the Act concerning the requirement for an assessment of environmental effects to 30 accompany an application for resource consent. In this regard, counsel also referred to Burton -v- Auckland City Council [1994] NZRMA 544 and, in particular, to page 554 where Blanchard J. mentioned these provisions in the context of an application for judicial review of a decision to determine an application for resource consent on a non-notified basis. In this part of his 35 judgment Blanchard J. held that an assessment of actual or potential effects prepared in accordance with the Fourth Schedule must take into account relevant cumulative effects "of the development as a whole". It had been argued to the contrary, that relevant considerations arising from an application for consent to remove a tree should be confined to the effects of that removal 40 in which case it would not have been necessary to notify the application. However, because the removal might have had adverse effects on other

6 2ELRNZ366 Environmental Law Reports of New Zealand persons, particularly as regards land instability problems, this argument did 1 not prevail. With respect, this judgment, seems to me to provide solid support for the submissions of counsel opposing this application. The Fourth Schedule to the Act may be confusing to the extent that in some places it refers to "the activity ", and in other places to "the proposal". But there can be no doubt 5 that clause 2 of the Fourth Schedule is wide enough to include the effects that this application seeks to exclude. In this case, the appellant has referred to tankers and their effects at berth, as well as to discharges, although no specific reference is made to the matters now sought to be excluded from consideration. In the course of his submissions, Mr Slowley for the respondent drew an 10 analogy with cases involving proposals to develop traffic generating activities such as supermarkets and other forms of retail outlets, which seems to me to be quite helpful. He pointed out that with a supermarket, for example, one of the potential effects often considered is traffic effects on the surrounding area. In such a case it is never suggested that resource consents are required 15 for the traffic activity, nor that controls by way of conditions can be placed on the consent sought to mitigate those effects, except perhaps within the immediate vicinity of the site. Nevertheless, as Mr Slowley correctly submitted, those effects are regularly and hitherto without question, regarded as relevant considerations in such a case. It should be noted too that the traffic is usually proceeding on public roads pursuant to the common law right to pass and repass. Mr Milligan responded by submitting that such effects gain relevance by virtue of the provisions of the district Plan involved. But this may not always 25 be the case. A proposal to establish a traffic generating activity could conceivably be put forward in an area where traffic effects were not even addressed by the district Plan and they would still be regarded as relevant. I have concluded that in this context, relevance is not dependant upon the need or otherwise for resource consents or whether such effects can be the 30 subject of controls. Nor is it dependent on whether a common law right of passage is being exercised - see Falkner's case (supra). Rather, it is dependent upon giving a sufficiently wide interpretation to s 104( 1 )( a) of the Act to ensure that in achieving its purpose, all reasonably foreseeable effects whether positive or adverse can be considered by the consent authority, and on appeal 35 by this Court. To exclude such effects on the grounds that a resource consent is not required or that they cannot be controlled by conditions, could lead to the granting of resource consents that, because of those effects, may not achieve the purpose of the Act. In the present case, granting the consents sought by the appellant will lead 40 inevitably to the passage of tankers in Doubtful Sound, and probably to discharges from those tankers in that Sound. Indeed, it may well lead to.1' 20 ~j til

7 C79/96 Aquamarine Ltd v Southland R.C. 2ELRNZ 367 discharges from those tankers at berth in the course of the loading process. 1 In my view these are reasonably foreseeable effects of allowing the activities for which consent is sought and are therefore relevant considerations for this Court when it comes to hear this appeal. The appellant's application is determined accordingly. I said earlier, that the pre-hearing conference stands adjourned sine die. I am 5 aware that the appellant, in particular, is anxious for an early fixture. Indeed, at one stage this matter was set down for hearing in October. But because this interlocutory application had not been determined, and for some other reasons that I need not go into now, that fixture was vacated. After discussions with counsel in a telephone conference call in September, fresh dates were 10 sought and these have now been arranged for the weeks commencing 24 February 1997 and 3 March 1997 at Invercargill. If more hearing time is required, further arrangements will have to be made. So far as I am concerned these are firm dates and the Registrar is requested to issue a notice of hearing accordingly. The pre-hearing conference is now concluded but leave is 15 reserved for any party to make any further applications for directions that may be necessary. All questions of costs are reserved