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Landmark Supreme Court decision protects ‘outstanding landscapes’

The Supreme Court has upheld resource consents for three salmon farms to be developed in the Marlborough Sounds by the King Salmon company, but in an important win for the protection of "outstanding landscapes", it has ruled against a fourth site.

The decision gives a major victory to the Environmental Defence Society, which took its appeal against the resource consent granted for a salmon farm at Paparua, Port Gore, because it believed the decision had failed to uphold important principles in the Coastal Policy Statement, which has legal force under the Resource Management Act.

"This is an incredibly important decision," said EDS coastal policy expert Raewyn Peart. "I've been working on the RMA since it came into force in 1991 and this is the first time this issue has gone to the Supreme Court.

"It looks at this whole issue of whether the legislation, with a National Policy Statement, provides a binding bottom line (for environmental protection), whether it protects special places, and the court has said 'yes'," she told BusinessDesk.

"This has enormous implications for any decision-making that's now going to affect our outstanding landscapes."

However, the Marlborough Sounds lobby group, Save Our Sounds, failed in its application to have a further three other salmon farm resource consents overturned, to the bitter disappointment of members who attended the reading of the judgment in Wellington.

That was essentially because the Board of Inquiry that heard the resource consent applications agreed the Paparua site met the standard for an area of "outstanding natural character and outstanding natural landscape", which qualified it for greater protection under the RMA than other areas.

The board was one of the first to consider a resource consent application under a fast-tracked RMA process enacted in 2011, and concluded it could exercise an "overall judgment" based on the principles of the RMA.

A majority of four of the five Supreme Court judges, including Chief Justice Sian Elias, who heard the case concluded the board was wrong. Justice William Young issued a dissenting judgment.

At the same time, today's two Supreme Court decisions clear the way for King Salmon, which originally applied for resource consents at eight sites in the Marlborough Sounds, to develop three of them.


Comments and questions

Principles of the RMA: Matters of national importance: All persons exercising functions and powers under the Act are required to recognise and provide for seven matters of national importance (see Approach page - section 6) which are detailed below. It is useful to note that there is a difference in the stringency of attention that is to be paid to these matters, according to whether a feature is to be 'preserved', 'protected' or 'maintained and enhanced'.

2 The protection of outstanding natural features and landscapes from inappropriate subdivision, use and development:

The meaning of 'landscapes' is not restricted to visual aspects but includes layers of association and meaning and different cultural values attributed over time. The extent to which a landscape is 'outstanding' will be assessed by considering a range of factors including geology, topography, ecology, aesthetic values, expressiveness, transient values such as occasional presence of wildlife, whether the values are shared and recognised and its value to tangata whenua. What is outstanding in terms of a district plan is to be assessed on a district-wide basis and similarly on a region-wide basis in respect of regional policy statements and plans. .

The scheduling of private land outstanding landscapes would be reasonable if there was compensation for the loss of use to the property owner for the taking presumably for the public benefit. In our case the Local Council continually asserted to the Courts that the private land was a reserve when this was clearly not the case. Simultaneously the Council excluded its land which was also professionally reported as being worthy of being scheduled as Outstanding Natural Landscape and is now progressing the same land for residential sections. How can the public have confidence in a system which provides for such inequitable treatment?

Another nail in the coffin of the anti-private property rights RMA!

How much money did the Environmental Defence Society and those associated with it make out of this prolonged legal action.

None I'd have thought. Very expensive to take anything to the Supreme Court.

Exactly. Who paid for it, taxpayers?

It is interesting to note that the Ministry for the Environment has a slush fund that contributes to causes which the Ministry considers noteworthy/worthwhile call it legal aid for the environmentalists.

And that taxpayer money slush fund is very lucrative for those environmentalists. What is curious is how the Ministry determines the funding in the first place, in particular to the EDS.