22 March 2012 - Part 2 analysis

Part 2 in the RMA
- a purpose section is new in statutes from around this era ie 1991. Quite commonly used in statutes – including environmental statutes - now.
- a purpose section is deliberately broad and invites an interpretation exercise
- every key decision and outcome under the Act needs to meet the purpose eg preparing district (s76) and regional plans (s??) and deciding whether to issue resource consents (s104 “subject to Part 2”).
- looked at Simon Upton discussion about what he intended with the Act. Ie no need to discuss the “need” for developments – the market decides that – regulators just have to look at their effects on biophysical bottom lines.
- examined how and whether section 5(2) meets his ‘environmental bottom lines’ approach
- s5(2)(a) future generations – note how ‘backed off’ that provision is – it is, not surprisingly, not much referred to or argued in case law.
- s5(2)(b) safeguarding air water soil. This is perhaps the purest of the biophysical bottom lines. See it reflected I provisions such as s15(1) – tight control.
- s5(2)(c) avoid remedy mitigate adverse effects. Note that you can simply seek to mitigate. No need to discuss whether you could avoid. Taranaki Thermal Power Station No 1 call in discussed that issue. See discussion in Brooker annotated RMA.
- note definitions of ‘effects’ and ‘environment’ – very broad, includes ‘amenity’ which is also defined – this means that much more than biophysical matters are involved.
- examined use of word ‘while’ and how that affects interpretation. Can be read to say that both the need for the project and its effects can be considered. Case law generally suggests that the more adverse effects an activity has the more “need” or positive effects will be examined and relevant in the final decision. Is there a 3rd way to read s5(2) – ie a development that meets the “biophysical bottom lines” of (a) (b) and (c) yet fails to, for example, provide for safety and health? Is that possible? What about a cigarette factory development selling into the NZ market?

Had a brief look at the ‘default’ provisions in Part 3
S9 for land use planning
S10, 10A etc governing existing uses, and also activities on surface of non-coastal waterbodies
S11 subdivision is the exception – and the reasons why

READING FOR NEXT LECTURE: Wellington City District Plan – residential rules section