Be aware of “Avoidance Policies” when developing in coastal area

What are “Avoidance Policies”?

The NZCPS is a governmental policy statement that is designed to promote sustainable management of New Zealand’s coastal resources in accordance with the Resource Management Act 1991 (“the Act”).

The NZCPS uses the word “avoid” to protect certain stated values. For example, policy 11 provides that adverse effects are to be avoided in relation to indigenous biological diversity in the coastal environment. Likewise, policies 13, 15 and 16 (for example) instruct the public to avoid creating adverse effects on natural character, natural features and landscapes, and on surf breaks.[1] These policies are generally known as “Avoidance Policies”.

However, on the face of it, there appears to be conflict within the NZCPS between economic, social and community interests on the one hand, and the need to protect the listed environmental values (by avoidance policies) on the other hand. The wording of the NZCPS does not make it clear as to how to resolve those conflicts between the “Avoidance Policies” and other policies in the NZCPS.

How do the courts approach “Avoidance Policies”?

Recent cases indicate that New Zealand courts adopt a strict approach towards “avoidance policies” as they are seen to be the bottom lines that protect environmental values.

Environmental Defence Society (EDS) v Otago Regional Council (ORC)[2] is a recent case involving a successful appeal against an interim decision from the Environment Court.

One of the main issues in dispute was whether “Avoidance Policies” in Policies 11(a) , 13(1)(a) , 15(a) and 16 which protect environment values (in coastal biodiversity, natural character, natural landscapes/features and surf break), should take precedence over Policy 9 which recognises the need for efficient and safe operation of the ports system.[3]

The Environment Court found policy 9 of NZCPS was not necessarily subject to the “Avoidance Policies” in terms of policies 11(a) , 13(1)(a) , 15(a) and 16 because first: “when read as a whole, the NZCPS contemplates that adverse effects of port structures on certain landscapes or ecosystems are to be avoided in almost all circumstances but not in all”[4] and second; policy 7 (Strategic Planning) of the NZCPS  acts as a “procedural resolution for a substantive conflict”.

The High Court disagreed with the Environment Court’s approach and held that the “Avoidance Policies” in the NZCPS” require absolute avoidance and that they therefore have priority over other policies in the NZCPS. The Court referred to the “Avoidance Policies” as the last line of defence or “environmental bottom lines” by referring to the Supreme Court decision in King Salmon[5].

Essentially, the High Court suggests that when Avoidance Policies are triggered, remedies normally available under the RMA to address negative effects i.e. remediation, mitigation and/or adaptive management, will not be available. The Court also said that the NZCPS is an instrument at the top of the planning hierarchy which regional policies and plans must implement.

What impact will “Avoidance Policies” have on the public?

In our view the High Court’s interpretation of “Avoidance Policies” as set in EDC v ORC and other cases, will significantly restrict the ability to do work or development on and around coastal areas. That is, “Avoidance Policies” in the NZCPS prohibit any activities which would cause adverse effects on the stated coastal values.  If interpreted strictly, this would mean no resource consents would likely to be issued for activities that cause any adverse effect listed in the “Avoidance Policies”.  For example, in EDS v ORC, the Otago Port said that it could have to shut down if the “Avoidance Policies” were implemented strictly.

Regional policy statements and regional plans must implement the NZCPS to the same effect. If any “Avoidance Policies” in the NZCPS are triggered, the decision maker at local level would have to implement the NZCPS in its regional policy statement and coastal plan  and would have to decline an application without considering the merits and circumstances of an individual application.  Even if the adverse effects on the stated values arguably could be properly mitigated and remedied by adaptive management and such mitigation and remediation are consistent with the purpose and principles of the Act, that may not be sufficient if there are still adverse effects on those values.

Likewise, if this approach is to be applied to the application of other national policy statements which contain “Avoidance Policies”, there might also be significant restrictions in other resource consent areas.

If you wish to know how “Avoidance Policies” might impact on your life and business, our Resource Management Team will be able to discuss it with you.

Contact person: Alexandria Till  [email protected]

[1] New Zealand Coastal Policy Statement 2010, policy 11,13,15 and 16.

[2] Environmental Defence Society v Otago Regional Council [2019] NZHC 2278.

[3] NZCPS 11(a) , 13(1)(a) , 15(a) and 16 (relating to costal biodiversity, natural character, natural landscapes/features and surf break).

[4] Environmental Defence Society v Otago Regional Council [2019] NZHC 2278 at [42].

[5] Environmental Defence Society v New Zealand King Salmon Company Ltd [2014] NZSC 38.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.