Giving effect to higher order instruments – Port Otago v Environmental Defence Society  NZCA 638
Authors: Ezekiel Hudspith, Partner, and Louise Espin, Senior Associate, Dentons Kensington Swan
In Port Otago Ltd v Environmental Defence Society Inc  NZCA 638 the Court of Appeal upheld a decision of the High Court that the language “avoid, remedy or mitigate” in a regional policy statement was not sufficient to give effect to the “avoid” directions in the NZ Coastal Policy Statement 2010 (NZCPS).
Beyond its immediate implications for activities in the coastal environment, this decision is notable in a number of respects. This summary explores:
- The principal findings of the Court of Appeal majority decision;
- The Majority’s summary of, and commentary on, the Supreme Court’s decision in Environmental Defence
Society Inc v The New Zealand King Salmon Co Ltd  NZSC 38 (King Salmon); and
- The broader implications for planning practice, particularly as we move to a new resource management
system under the proposed Natural and Built Environments Act (NBEA).
The Otago Regional Council notified the Proposed Regional Policy Statement (PRPS) in May 2015 and released its decision in October 2016. The decisions version of the PRPS did not contain any express provision for port activities at Port Chalmers or Port Dunedin. Port Otago Ltd appealed the decision and proposed a specific ports policy (Policy 4.3.7). It expressed concerns that the port would have to shut down in the absence of such a policy.
Following mediation, the Environment Court issued an interim decision recommending amended wording for Policy 4.3.7. In essence, this provided that adverse effects in areas of outstanding natural character could be “avoided, remedied or mitigated”.
The Environmental Defence Society (EDS) appealed the decision to the High Court. The High Court held (Environmental Defence Society Inc v Otago Regional Council  NZHC 2278) that the Environment Court had erred by recommending wording that did not give effect to the prescriptive “avoidance policies” of the NZCPS (namely Policies 11, 13, 15, and 16), contrary to s62(3) of the Resource Management Act 1991 (RMA), which states that a regional policy statement must “give effect” to an NZCPS.
Port Otago Ltd appealed to the Court of Appeal, and Marlborough District Council joined as a party.