RMLA NATIONAL ROADSHOW Defining the environment

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RMLA NATIONAL ROADSHOWDefining the
environment

• Chris Fowler
• November 2007

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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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Preliminary matters
Hawthorn Estate
x
x
x
x

x


x
x



KEY proposed dwellings x existing
dwellings application site receiving
environment (present)
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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)
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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
Permitted Baseline case law
Receiving Environmental case law
Receiving Environment case law
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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.

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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 submitters
  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 Coopers 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
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Comparison with the permitted baseline
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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