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RMLA NATIONAL ROADSHOW
Defining the environment
Chris Fowler
November 2007
AnthonyHarper
Lawyers
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
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proposed activity – 32 lot residential
subdivision
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application site – 33.9 ha fronting Lower
Shotover and Domain Roads
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receiving environment – The Triangle and
wider Wakatipu Basin
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Preliminary matters
Hawthorn Estate
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KEY:
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proposed dwellings
existing dwellings
application site
receiving environment (present)
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Preliminary matters
Hawthorn Estate
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KEY:
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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 –
(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
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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
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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
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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
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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
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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)
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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?
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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 Site
Common 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
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Other points of difference
– Permitted baseline is always a
discounting exercise
– Defining the receiving environment may
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Reduce effects (Hawthorn decision), or
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Increase effects (Wilson & Rickerby and
Stalker decisions)
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Practical application
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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
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Factors informing the discretion
– Likelihood of future activity occurring
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Permitted activities - “not unduly
speculative”
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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
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