Queenstown Lakes District Council v Hawthorn Estate Limited (Court of Appeal, 12 June 2006, William Young P, Robertson and Cooper JJ, CA45/05)

Environment; appeal; permitted baseline

1. Hawthorn Estate Limited applied for consent for a subdivision and a system of mounds and ponds across the subdivided sites. The Council declined the application, and the applicant appealed successfully to the Environment Court, who granted the resource consents. The Council and several submitters appealed unsuccessfully to the High Court (High Court Christchurch, 17 December 2004, Fogarty J, CIV-2004-485-1441).

2. In considering the proposal's effects on the environment (under the pre-2003 RMA), the Environment Court had taken into account approved but unimplemented resource consents for building platforms near the proposed subdivision. The Council argued that the Court's consideration should be limited to the environment at the time the application was considered, and not include any consents that had been granted but not implemented. The Environment Court and the High Court both rejected this argument.

3. The Council appealed unsuccessfully to the Court of Appeal. The Court concluded that no error of law had been made out on any of the grounds. It held that it is permissible (and often desirable or necessary) to consider the future state of the environment upon which effects will occur. The word "environment" embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activities. "Environment" also includes the environment as it might be modified by the implementation of resource consents that have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented. "Environment" does not however include the environment as it might be modified by the implementation of future resource consent applications (because these involve considerations and effects that are too speculative).

4. The Court also confirmed the distinction between the permitted baseline analysis and the analysis of the receiving environment. The permitted baseline, which applies to permitted activities on the subject site, removes the effects of those activities from consideration under section 104(1)(a) of the RMA. The receiving environment (beyond the subject site) is the environment upon which a proposed activity might have effects.

5. While this case was considered under the pre-2003 RMA, because of the Court of Appeal's conclusions as to the meaning of the "environment" for both notification and substantive decisions, it is likely to apply to the RMA as it currently stands.