Auckland Regional Council v Arrigato Investments Limited and Ors [2001] NZRMA 158 (HC, 14 September 2000); [2001] NZRMA 481; [2002] 1 NZLR 323 (CA, 11 July 2001)

Permitted baseline; unimplemented resource consents

1. This case involved an application to subdivide coastal pastoral land. The Environment Court granted the consent and the matter was appealed to the High Court and then the Court of Appeal. One of the grounds for appeal was that the Environment Court had erred by assessing effects in comparison with the wrong state of affairs. It was submitted that the comparison should be with the environment as it currently exists, whereas the Environment Court used the test ‘as likely to be varied in light of existing resource consents and/or evidence relating to a development as of right ’.

2. In the Court of Appeal it was argued that taking into account unimplemented resource consents as part of the permitted baseline would result in ‘environmental creep’, whereby an applicant could first seek a resource consent for a minor subdivision and then use that to apply again and again for more extensive subdivisions.

3. The Court held that the permitted baseline test provided by Bayley was applicable by extension to the interpretation of section 105(2A)(a). Adverse effects already inherent in an unimplemented resource consent can be argued to be irrelevant because they are effects which the holder of the consent already has a right to impose on the environment. In the end, whether an existing resource consent should be considered will depend on the circumstances of each case.

4. In Arrigato, taking into account the existing consent was appropriate. The judgement suggests this is because it was an inevitable or necessary precursor of the activity envisaged by the new proposal. Consent authorities now have the flexibility to exercise their judgment as to what bearing unimplemented resource consents should have on the question of effects for each separate proposal. This allows applicants for consent to seek a factually realistic appraisal. What is permitted as of right by a plan is deemed to be part of the relevant environment. But, beyond what is permitted as of right by a plan, assessments of the relevant environment and effects are essentially factual matters not to be overlaid by refinements or rules of law.