David Thornton: ARC should avoid court wrangling

David Thornton

The Auckland Regional Council is to appeal against a High Court decision which, in effect, sets out stringent rules to be applied before a council can classify an activity as "prohibited" in its district plan. This decision supports an earlier Environment Court decision.

The specific issue was about mining in the Coromandel Peninsula. The ARC has no planning role in the Coromandel but wants to challenge these decisions in the Court of Appeal on the grounds that they emasculate a local authority's power to prohibit activities in its own areas of resource management jurisdiction.

This case revolves around the use by councils of the "prohibited" activity status in a district plan - as defined under the Resource Management Act.

The courts have decreed that prohibited status should only be given to an activity "when the activity in question should not be contemplated, in the relevant place, under any circumstances".

The original Environment Court ruling sets out compelling reasons for this view in relation to mining in large areas of the Coromandel Peninsula, and warns strongly against a liberal interpretation of "prohibited" in planning law.

In other words the courts say that councils should not be able to use the prohibited status except in the most extreme circumstances. In the Coromandel case the Thames Coromandel District Council sought to prohibit gold mining over a wide area of the Coromandel Peninsula.

The courts found that such a broad prohibition was not in keeping with the purpose of the Resource Management Act.

The courts also looked at the specific mining issue in the Coromandel and the requirements of the RMA for councils to manage natural and physical resources - gold and minerals obviously being such resources.

The courts concluded that while mining could be "prohibited" in some areas, where it should never be allowed, it could be classified as "non-complying" in less sensitive areas - thus allowing consideration of methods to mitigate adverse environmental effects. The point at issue was: did the Thames Coromandel District Council use the "prohibition" classification too widely in its district plan?

The courts said it did.

The present legislation certainly allows councils to classify some activities as "prohibited" and therefore no one can apply for resource consent for that activity - or if they do the council is legally barred from giving consent.

However, anyone can apply to the council for a plan change proposing that the prohibited status be changed to some other classification which would allow applications for resource consent.

There is a set process for councils to follow when considering requests for a plan change - a process which involves the same extensive public consultation required for a new district plan.

This process involves an appeal process - which ends up in the Environment Court.

If the applicant does not like the Environment Court decision he can go to the High Court on a point of law (as in the Coromandel case), then the court of Appeal (which is where the ARC is headed) - and ultimately, possibly, to the Supreme Court.

The courts were asked to give clarity as to what "prohibit" actually means, and rule whether it is an appropriate planning tool to be used at councils' discretion.

Imagine if a council decided to prohibit houses being painted red or blue in a particular neighbourhood because these colours were environmentally and visually intrusive.

Or, not impossibly, a council decided to prohibit new road construction in some areas due to environmental sensitivity.

In both these examples an applicant would still be able to apply for a plan change and then, if successful, a resource consent.

This would come at a huge financial cost to applicants and councils for planners, experts, and lawyers.

And undoubtedly the matter would still be ultimately decided in the courts.

As the courts concluded in the Coromandel case, this would be using the prohibited activity status as a planning tool to give councils wide powers to make life as difficult as possible for applicants.

So the judges were, in my view, absolutely right.

If councils want to prohibit certain activities then there must be a high degree of certainty that the activity should never be allowed.

And this is what the ARC wants to challenge.

The judgments call for the application of stringent tests before councils prohibit activities in their district plans.

The present liberal approach to the use of the prohibited status is wide open to abuse - prohibitions being introduced on the basis of political rather than environmental philosophy on resource management matters.

Subdivision of the entire Waitakere foothills had been cited as one example of why the present liberal view of prohibition is necessary.

But can anyone say that there will never be an occasion when, in some parts of the foothills, some sub-division will be acceptable if mitigating features are introduced?

And has it not been said that a permanent ban on sub-division in the foothills can only be achieved by definitive legislation?

While many people criticise the RMA, such criticism can often be laid at the door of the councils who implement the Act.

The councils then blame the Government for not giving clearer guidelines.

The community should welcome any legal direction that makes local councils give maximum consideration before reaching decisions on what can happen on both privately and publicly owned land.

If the definition of "prohibited activity" needs to be clarified it should be done in Parliament.

It should not be done through the courts at the ratepayers' expense.

The ARC has no mandate to expose ratepayers to potentially huge legal costs.

* David Thornton is a former member of the North Shore City Council, the Auckland Regional Land Transport Committee, and the Greater London Council.