Severinsen, Greg --- "To prove or not to prove? Precaution, the burden of proof and discretionary judgment under the Resource Management Act" [2014] OtaLawRw 6; (2014) 13 Otago LR 351

Last Updated: 21 May 2016

To Prove or Not to Prove?

^{Precaution, the Burden of Proof and Discretionary}

^{Judgment Under the Resource Management Act}

Greg Severinsen^*

I Introduction

Over the past two decades, the concept of environmental precaution has come to the forefront of debates over sustainability. As a general statement, the precautionary principle is an environmental equivalent of the old maxim “it is better to be safe than sorry”.¹ If there is uncertainty over the extent to which a proposal will impact on the environment, a lack of absolute proof should not prevent action being taken to prevent or at least mitigate such effects. A number of statutes in New Zealand concerned with the environment, such as the Fisheries Act 1996 and recently enacted exclusive economic zone legislation, contain express references to the need for precaution.²

However, the environmental statute that is broadest in its application, the Resource Management Act 1991 (RMA), does not mention precaution specifically in the consenting context. This is not to say that the Act is necessarily deficient in protecting the environment, although some may argue this. Such debates fall outside the scope of this article. The Act simply provides a framework through which the social and economic benefits of development can be weighed against the need to protect and preserve the environment under the rubric of sustainable management, and contains some strongly protective elements.³ Due to this protective “flavour” evident in parts of the Act, the Courts have been eager to remedy its precautionary deficiencies by reading in precaution at

^* BA LLB(Hons), Teaching Fellow and PhD Candidate, Faculty of Law, Victoria University of Wellington.

¹ Alexander Gillespie “Precautionary New Zealand” (2011) 24 NZULR 364 at 365.

² Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, ss 34, 61; Fisheries Act 1996, s 10. A useful analysis of precaution in this statute can be found in C Iorns Magallanes “The Precautionary Principle in the New Zealand Fisheries Act: Challenges in the New Zealand Court of Appeal” (2006) ALTA Refereed Conference Papers 3.

³ See s 6. The concept of “weighing” a variety of matters under an overall broad judgment is one that has been generally accepted since the judgment in New Zealand Rail Ltd v Marlborough District Council [1993] NZCA 327; [1994] NZRMA 70 (HC). The recent Supreme Court decision in Environmental Defence Soc Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] NZRMA 195 (King Salmon) casts some doubt on the correctness of this approach. Some may see room for an environmental bottom line approach, endorsed by the Supreme Court in King Salmon (in the planning context) to be extended to the consenting context. However, the position has not yet been clarified. The implications of the King Salmon litigation for this article are discussed further below.

various stages of the planning process. In particular, arguments over precaution have been prominent in the consenting context, because it is here that particular proposals with potential or uncertain effects on the environment are often subjected to a public participatory process.⁴ The ways in which precaution has been recognised in the consenting process are various. Some have seen room for a precautionary standard of proof to operate in the fact finding exercise, others have seen it as necessary to impose a burden of proof on an applicant, while others have recognised the ability of a consent authority to consider a separate precautionary principle in exercising its overall broad judgment.

One of the few conclusions that can be drawn from the case law with certainty is that the approach of the Courts has been characterised by inconsistency, and that “it is difficult to discern a common approach to the matter”.⁵ This article is intended to present a relatively narrow critique of one way in which precaution has been recognised by the Courts: in the imposition of an overall burden of proof on an applicant. Although intuitively one may think that imposing an overall burden of proof on an applicant to prove sustainable management is an obvious and effective means of giving the environment the benefit of the doubt, the solution is not as simple or workable as it appears. This article suggests that such a method is conceptually unsound and practically problematic, along with being an unnecessary and untargeted method of achieving precaution under the Act. Although this article itself has a narrow scope, it forms part of and is consistent with a wider body of work concerned with all forms of precaution in the consenting context. This work as a whole concludes that there is hope for precaution under the RMA, and that there exists a coherent approach to managing environmental risk that can both address the concerns of the Courts while avoiding strained interpretations under the Act.

II Assumptions and Recent Case Law Developments

The consenting process under the RMA can be complex. Different rules and considerations apply depending on the activity status of a proposal, whether it is notified, the geographical area in which it is located, and the body by which an application is heard. However, debates over the overall role of precaution in the burden of proof are largely independent of these factors, and common to most consent applications.⁶ For this

⁴ The Environment Court in Wratten v Tasman District Council (1998)

^{[1998] NZEnvC 65; 4 ELRNZ 148 (EnvC) at 170 doubted that the precautionary principle}

^{could be considered in the planning context. Since then, 2003 and 2013}

^{amendments to s 32 of the Act make clear that a planning authority is}

^{required to consider the risk of acting or not acting where information}

^{is uncertain.}

^{5 D Nolan (ed) Environmental and Resource Management Law (4th ed, Lexis}

^{Nexis, Wellington, 2011) at 1186.}

^{6 Obvious exceptions exist, such as if an activity is permitted (in which}

^{case no consent is actually required), or controlled (in which case a}

^{precautionary burden of proof could not affect whether consent is granted}

reason, this article proceeds on certain assumptions, to ensure consistency of terminology. It is assumed here that the consent application is for an activity that has a discretionary activity status, is heard de novo by the Environment Court as consent authority on appeal or via direct referral, is subject to public notification, and that the Court has the power of decision rather than recommendation.⁷

It is also worth outlining at this point the basic structure of the hearing process, and the purposes for which each stage exists. Generally, the Court in conducting a hearing will hear expert evidence from witnesses qualified to give opinion evidence. Such evidence usually focuses on factual matters such as the predicted effects of an activity, although some expert planning evidence may comment on non-factual matters such as the interpretation of relevant objectives and policies, or on whether a proposal in their view amounts to sustainable management. When considering evidence that concerns factual matters, the role of the Court is to measure assertions to come to a conclusion on whether the assertion has been proved to the required standard, and by the party required to prove it. If satisfied of these matters, the Court can conclude that the burden of proof in relation to that allegation of fact has been discharged. Such proved facts, if they fall within the broad class of “actual or potential effects” then become mandatory considerations in the Court’s overall broad judgment under s 104B of the Act.⁸ In making this discretionary judgment, the Court assigns varying degrees of weight to all mandatory considerations, along with others that it deems relevant, and decides whether on a holistic view the application would promote sustainable management, with or without conditions.⁹ If so, consent is granted. This brief sketch of the consent hearing process reflects the two basic stages, of fact finding and judgment, laid down in Ngati Kahu Ki Whangaroa Co-operative Society Ltd v Northland Regional Council: “the Court makes a judgment on ... an application after finding facts ...”¹⁰

or declined, only the conditions that could be imposed).

^{7 A discretionary activity status is convenient, because it allows an analysis}

^{of the full range of matters available for consideration by the Court,}

^{without being limited by rules restricting its discretion or control that}

^{may vary according to geographical location. For simplicity, the term}

^{“submitter” is used for an interested party to proceedings, even though}

^{the term “s 274 party” may be more accurate where the hearing is not}

^{one at first instance.}

^{8 Since this article uses the example of an application for a discretionary}

^{activity, the overall broad judgment referred to is that under s104B.}

^{The overall broad judgment in relation to controlled and restricted}

^{discretionary activities is provided for in ss 104A and 104C respectively.}

^{Again, the correctness of characterising the exercise as one of overall}

^{broad judgment (rather than bottom lines) may be called into question in}

^{future litigation in light of the Supreme Court’s decision in King Salmon.}

^{9 Resource Management Act 1991, s 5.}

^{10 Ngati Kahu Ki Whangaroa Co-operative Society Ltd v Northland Regional}

^{Council [2001] NZRMA 299 (EC) at [161].}

At this juncture it is worth noting that the Supreme Court has recently addressed the issue of precaution, and the broader concept of a consent authority’s overall broad judgment, in its substantive decisions on the King Salmon litigation. In short, two separate appeals were brought to the Supreme Court against a decision to grant plan changes and resource consent for four salmon farming sites. Two separate substantive judgments were given.¹¹ Although it is considered that these judgments do not detract from the validity of the arguments expressed in this article and are of indirect relevance only, two features of these decisions are nevertheless worthy of note. Firstly, they may impact on the nature of the overall broad judgment of a consent authority. Secondly, the Court’s comments regarding environmental precaution are worth noting in general terms, given the position of the Court in the judicial hierarchy.

Firstly, the decision arguably has weakened the hitherto widely accepted view that the discretionary decision of a consent authority is one of “overall broad judgment”.¹² The overall broad judgment has been presented in this article as a decision made by an expert body, constrained by legal parameters, in which discretionary weight is assigned to various relevant considerations to arrive at a holistic and expert decision. The Court in King Salmon characterised an overall broad judgment rather differently, as one involving, at least in some cases, environmental bottom lines (although it stopped short of entirely discarding the concept of a weighing exercise).¹³

While the King Salmon decision was limited to the context of the amendment of planning provisions, and its comments do not automatically translate to the consenting context,¹⁴ in a number of places the Court’s observations on the overall broad judgment appear to go beyond the planning context.¹⁵ The question is likely to be tested before the Courts in the future. Differences between the planning and consenting provisions of the Act may mean that the stricter bottom line approach endorsed in the planning context would not apply to decisions on consent applications, but there remains substantial room for argument.¹⁶

If the bottom line approach to the purpose of the RMA were extended

¹¹ King Salmon, above n 3; Sustain our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 40. The first instance decision by a Board of Inquiry was appealed unsuccessfully to the High Court in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2013] NZHC

^{1992[2013] NZHC 1992; , [2013] NZRMA 371.}

^{12 New Zealand Rail Ltd, above n 3.}

^{13 King Salmon, above n 3, at [136]–[153].}

^{14 King Salmon, above n 3, at [17].}

^{15 To the extent that this is the case, such comment must be considered to}

^{be obiter dicta only.}

^{16 For example, s 104 of the Act expressly states that a consent authority}

^{must “have regard to” relevant provisions of policy documents such as}

^{the NZCPS. In contrast, the direction in s 67(3) in the regional planning}

^{context is much more directive (and therefore less discretionary): that a}

^{regional plan must “give effect to” such documents.}

to decision making on resource consents, the question posed by this article remains valid: whether an overall burden of proof exists on an applicant to prove that a proposal promotes sustainable management. Treating prescriptive national level policies effectively as standards to be met by applicants, rather than matters for a consent authority to consider, would be another legal parameter within which an expert decision would need to be made. In other words, significant discretion would still remain outside the topics subject to prescriptive policies. It would not alter the debate over whether an applicant, or another party, had a burden to prove this revised conception of sustainable management. The question may simply be recast as one asking whether an applicant has an overall burden to prove that no environmental bottom lines have been infringed. However, given that it is questionable whether the King Salmon approach would be applicable to the consenting context and has not yet been extended in this way by the Courts, this article continues to describe the s 104B exercise as one of overall broad judgment.

^{In the second substantive decision in the King Salmon litigation, the}

^{Supreme Court commented on aspects of precaution under the RMA.17}

^{It confirmed that adaptive management conditions can be a legitimately}

^{precautionary response under the Act, at least in cases where the New}

^{Zealand Coastal Policy Statement (NZCPS) is a relevant instrument.18}

^{However, it did not comment on the implications that precaution has for}

^{the burden of proof, or whether the sustainable management equation}

^{itself is amenable to the concept of proof. It thus has only background}

^{relevance to the arguments presented in this article.}

III The Burden of Proof under the Resource Management Act

In adversarial proceedings, a burden of proof is a necessary element of a fact finding framework. It is sometimes characterised as an onus, or a rebuttable presumption in favour of one party, where an assertion will be presumed to be false if the burdened party fails to meet the required standard of proof.¹⁹ In the context of factual matters such as the existence or non-existence of potential effects, an unproven assertion by a burdened applicant that an effect has a low or no chance of occurrence would result in a presumption that such an effect may occur. In this context, rather than imposing a burden only on an applicant, a number of cases have recognised a “swinging evidential burden” that shifts to the party who would fail without further evidence.²⁰

However, some cases have identified a wider persuasive burden on

^{an applicant to prove its overall case. Here, a failure by a burdened}

¹⁷ Sustain our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] NZSC

^40.

^{18 King Salmon, above n 17, at [140], [158].}

^{19 D Mathieson (ed) Cross on Evidence (9th ed, Lexis Nexis, Wellington, 2013)}

^{at 527.}

^{20 Shirley Primary School v Christchurch City Council [1998] NZEnvC 394; [1999] NZRMA 66 (EC)}

^{at [121].}

applicant to prove, to the required standard, that a proposal fulfils the purpose of the Act would result in a presumption that it does not amount to sustainable management, and that consent will be declined. In other words, this approach sees proof as being relevant to the exercise of the Court’s overall broad judgment under s 104B.²¹ This imposition of a burden on a party claiming an activity will not be harmful, commonly referred to as a “reversal” of the burden, is arguably precautionary.²²

This is because, if there is uncertainty over whether a proposal amounts to sustainable management, then the benefit of the doubt is given to the status quo, which in most cases would represent the preservation of the environment.

^{The Environment Court held in the seminal case of Shirley Primary}

^{School v Christchurch City Council that:23}

...there are statutory reasons why there is ... a legal burden on an applicant for a resource consent. Since the ultimate issue in each case is always whether granting the resource consent will meet the single purpose of sustainable management, even if the Court hears no evidence from anyone other than the applicant it would still be entitled to decline consent.

In Clifford Bay Marine Farms v Marlborough District Council, it was accepted as common ground that a legal burden exists on an applicant to show the purpose of the Act will be fulfilled.²⁴ This was confirmed in the Court’s second interim decision:²⁵

[t]he applicant for any resource consent has a legal or persuasive burden

^{– which may be a heavy one if there is a matter of national importance}

^{such as the protection of the coastal environment to be recognised and}

^{provided for – to persuade the adjudicator to grant the resource consent:}

^{Shirley Primary School v Christchurch City Council.}

The principle enunciated in Shirley has been taken to mean that it is “the consent applicant’s burden to satisfy the Court that the single purpose in s 5 is met by granting rather than refusing consent”²⁶ because “[a] fundamental requirement of any judicial system is that the person who desires the Court to take action must prove his or her case to its satisfaction.”²⁷

²¹ Assuming, again, that the application is for a discretionary activity.

^{22 Elli Louka International Environmental Law (Cambridge University Press,}

^{Cambridge, 2006) at 50.}

^{23 Shirley, above n 20, at [122]. This approach was adopted by the Court of}

^{Appeal in Ngati Rangi Trust v Genesis Power Ltd [2009] NZCA 222, [2009]}

^{NZRMA 312 at [23].}

^{24 Clifford Bay Marine Farms Ltd v Marlborough District Council EC}

^{Christchurch C131/2003, 22 September 2003 at [56].}

^{25 Director General of Conservation v Marlborough District Council EC}

^{Christchurch C113/2004, 17 August 2004 at [46].}

^{26 C Kirman, E Gould and C Somerville “Carrying the Burden: Considering}

^{the Appropriate Evidential Tests in Resource Management Decisions”}

^{(August 2006) RMJ 3 at 9.}

^{27 Kirman, above n 26, at 3; citing Dickinson v Minister of Pensions [1953] 1}

It has not necessarily been spelt out in the case law that such a burden on an applicant has been imposed specifically to infer precaution into an Act that does not expressly mention it. In Shirley, for example, the Environment Court justified its overall burden by referring to established legal principles and the clear ability of a decision maker to decline consent where there are no other parties to proceedings, rather than the need for an extra-statutory “precautionary” interpretation. However, on a wider view, it is clear that the Court’s underlying motivation behind recognising a burden on an applicant has been to defend the precautionary flavour of the Act. For example, in Shirley, the Court conducted its assessment of the burden of proof on the basis of an express assumption that the scheme of the Act is precautionary.²⁸ Precaution, it was held, had direct implications for the correct approach to a burden of proof (which was subsequently discussed).²⁹ Similarly, the Environment Court in the Clifford Bay litigation adopted the Shirley approach without revisiting its underlying reason for doing so.³⁰ The fact that a precautionary burden of proof has been defended through reference to other legal principles does not take away from the fact that these have been used in order to enhance precaution under the Act.

However, it is not beyond argument that such an overall burden of proof on an applicant, or any other party, should be recognised. The more general conclusion in Shirley that “[i]n a basic way there is always a persuasive burden resting on an applicant for a resource consent ...”³¹ highlights the confusion over the role of proof in the s 104B judgment, because it is difficult to reconcile this with other comments in the decision that reject the utility of proof in making judgments under the Act. For example, the Court held that:³²

[t]here is no one standard of proof, if that phrase is of any use under the Act. The Court must simply evaluate all the matters to be taken into account under s 104 on the evidence before it in a rational way, based on the evidence and its experience; and giving its reasons for exercising its judgment the way it does.

Other case law has more clearly rejected the idea that one can “prove” sustainable management. In Telecom v Christchurch City Council it was held that the two steps of proof and judgment are separate:³³

[t]he first [step] is to decide whether or not the scientific evidence meets the test of relevance and probative value ... What is to be considered at this stage is, [sic] whether or not the methodology and scientific principles upon which the evidence is tendered is soundly based. It is only when the

QB 228.

^{28 Shirley, above n 20, at [114]. See also [147] and [219].}

^{29 At [114].}

^{30 Director General of Conservation, above n 25, at [46].}

^{31 At [121], [136].}

^{32 At [136].}

^{33 Telecom New Zealand Ltd v Christchurch City Council EC Christchurch}

^{W165/96, 15 November 1996 at 11.}

Court has decided that the evidence is sufficiently relevant and probative to be admitted to consideration that it is then enjoined to have regard to the matters raised in the sections of the Resource Management Act set out above ...

It was common ground in Sea-Tow v Auckland Regional Council that there exists no overall legal burden of proof on the applicant for resource consent,³⁴ a conclusion that was also reached in Contact Energy v Waikato Regional Council.³⁵ Similarly, the Environment Court in Baker Boys Ltd v Christchurch City Council rejected the existence of an overall burden of proof,³⁶ and carefully distinguished between the proof of facts and the judgment associated with weight (emphasis added):³⁷

[i]n our view counsel who addressed us on these evidential issues were all making valid but different points: ... as to the questions of fact to be decided by the Court under section 104(I); ... as to the evidential onus in respect of proving each such fact and the standard of proof in respect of the same; and ... as to what an applicant for a resource consent has to satisfy us of when making our overall judgment under section 105(1).

The High Court in D and K Franks v Canterbury Regional Council also held that:³⁸

[f]actual issues may be susceptible of [sic] a conventional approach in terms of proof, but invariably the important final judgments in terms of the Act required the decision-maker to assess a range of matters in order to decide whether the statutory purpose was satisfied.

Academic comment has stressed the need for care to be taken in applying tests of judgment or proof. Kirman, Gould and Somerville have rightly concluded that “there is confusion regarding the application of the balance of probabilities to: (a) the fact finding stage, and to (b) the evaluation(s) undertaken by decision makers, which may involve the application of different standards by virtue of the wording of the Act.”³⁹

Similarly, in a more general context, Cross on Evidence states that “the onus of persuading the Court to exercise a discretion ... is not an onus of proof”.⁴⁰ The debate over the applicability of the concept of proof to the Court’s overall broad judgment raises fundamental questions as to the role of the Environment Court, and the relationship between matters of fact and law.

³⁴ Sea-Tow Ltd v Auckland Regional Council EC Auckland A066/2006, 30 May

^{2006 at [343].}

^{35 Contact Energy Ltd v Waikato Regional Council [2000] NZEnvC 23; (2000) 6 ELRNZ 1 at [42].}

^{36 Baker Boys Ltd v Christchurch City Council [1998] NZEnvC 144; [1998] NZRMA 433 (EC) at [23].}

^{37 At [20].}

^{38 D and K Francks v Canterbury Regional Council [2005] NZRMA 97 (HC) at}

^[20].

^{39 Kirman, above n 26, at 8.}

^{40 Mathieson, above n 19, at 552.}

^{IV Fact and Law under the Resource Management Act}

The distinction between matters of fact and matters of law is a long standing one in the common law. A basic difference between factual and legal matters is that the former must be proven through the provision of evidence and the discharging of a burden of proof to the requisite standard, whereas the latter cannot. Matters of law are capable only of legal argument and (due to the legislative basis of the resource management regime) statutory construction. While a party can argue that a legal provision in an Act has been fulfilled, based on the proof of the requisite facts, no amount of evidence is conceptually capable of “proving” the fulfilment of a legal provision. A Court uses its knowledge of the law and an established set of facts to decide whether a legal test has been met. It is the subject of legal submission rather than expert evidence.⁴¹ Dixon CJ in Balenzuela v De Gail distinguished the “processes of reasoning” associated with legal submission and persuasion from “proof of an issue of fact”.⁴² It is therefore important to determine whether the exercise of the Court’s overall broad judgment in s 104B amounts to a question of fact or of law. If it is the former, an overall burden of proof may be possible, while if it is the latter, it cannot.

Case law has consistently distinguished between matters of law and arguments relating to the merits of a decision (the Court’s overall judgment). A conclusion that the overall judgment of the Court is not a matter of law is undoubtedly correct in the contexts in which it has been expressed. These have been concerned primarily with whether a matter is capable of appeal to the High Court, because the Act provides that a party to Environment Court proceedings can appeal to the High Court only on a matter of law.⁴³ The exercise of the Environment Court’s overall broad judgment and the allocation of weight (even if it is presented in the form of a question of law) has been held not to be a matter of law, and thus not a valid ground for appeal.⁴⁴

⁴¹ In the RMA context, the boundary between legal argument and expert planning evidence as to the interpretation of objectives and policies is sometimes blurred. However, the distinction between assertions of facts (for example, effects) and assertions not related to facts (for example, the interpretation of a planning provision) remains valid, even though both may legitimately be contained in the same statement of expert planning evidence.

^{42 Balenzuela v De Gail [1959] HCA 1; (1959) 101 CLR 226 at 234.}

^{43 Section 299.}

^{44 Moriarty v North Shore City Council [1994] NZRMA 433 (HC); Wise v Thames-}

^{Coromandel District Council HC Auckland CIV–2004–485–278, 14 December}

^{2005 at [52]. In only limited circumstances can the exercise of discretion}

^{legitimately form a question of law, which are roughly comparable}

^{to the grounds upon which judicial review can be initiated, such as}

^{where relevant matters were not considered or irrelevant matters were}

^{considered, or where the findings on facts in issue were not reasonably}

^{arrived at based on the evidence: Centrepoint Community Growth Trust}

^{v Takapuna City Council [1984] NZCA 107; [1985] 1 NZLR 702 (CA) at 706; Rodney District}

^{Council v Gould [2006] NZRMA 217 (HC).}

It is tempting to see this conclusion, that the s 104B judgment is not a matter of law, as requiring that it be characterised as a matter of fact, and thus amenable to proof. In Rodney District Council v Gould the High Court implied that it was a factual issue, and held that drawing parallels between the failure to consider a relevant consideration (a question of law) and an allegedly incorrect exercise of discretion in making an overall judgment “simply confuses law and fact”.⁴⁵ Similarly, in Manukau City Council v Trustees of Mangere Lawn Cemetery the High Court held that, when interpreting planning provisions in allocating weight to matters, “[i]f a word is used in its usual sense, then that is a question of fact and one for the Tribunal to consider”.⁴⁶

However, while it is certainly untenable to characterise the Court’s overall broad judgment as a matter of law, it is equally awkward to see it as a matter of fact and something that can be proved. It is sometimes tempting to accept that a legal provision has been “proved” if a clear statutory test dictates a certain legal outcome that is a direct result of the proof of facts. For example, in the criminal context a guilty verdict usually follows from the fulfilment of the legal elements of the offence.⁴⁷

These elements are generally clearly fulfilled if the prosecution can prove (to the required standard) a series of facts – for example, that an accused had the intention to perform a certain act, and in fact did perform that act. However, the proof of facts does not necessarily result in the fulfilment of a legal test, which is particularly noticeable in the RMA’s test of “sustainable management”. Simply because the proof of facts is important, and often determinative of a legal outcome in many cases, does not mean that the fulfilment of a legal test is itself an exercise in proof.

The establishment of a potential effect is a factual matter requiring proof rather than legal assessment.⁴⁸ A Court should not be able to use its judgment or discretion in determining whether a potential effect exists, because this could undermine the objectivity essential to a finding of fact, which is concerned with the “truth” of an assertion.⁴⁹ In contrast, the exercise of the Court’s overall broad judgment and allocation of weight to the various matters in s 104(1) is not factual, because it relies on the interpretation and discretionary application of principles, objectives, policies, and other relevant matters to a set of already established facts.⁵⁰

⁴⁵ At [18].

^{46 Manukau City Council v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA}

^{58 (HC) at 63.}

^{47 This assumes the absence of any defence.}

^{48 Although there may, of course, be incidental legal arguments as to the}

^{correct legal interpretation of the term.}

^{49 See Telecom, above n 33, at 12.}

^{50 The English Court of Appeal determined in R v Spens [1991] 1 WLR 624}

^{(Crim App) at 632 that the construction of local government legislation is}

^{a matter for a judge, not jury. Cross on Evidence suggests that this would}

^{likely be followed in New Zealand (Mathieson, above n 19, at 500.)}

A conclusion as to what should happen rather than what is true necessarily involves a subjective value judgment rather than objective proof, even if it is a judgment tightly constrained by legal parameters. One could imagine a theoretical scenario in which competing considerations of development and protection were perfectly balanced in the mind of the Court when making its judgment. Here, the Act would not support a finding that consent should be declined simply because an applicant has failed to prove beyond a 50 per cent standard that the application fulfils the purpose of the Act. The obligation of the Court is to determine, using its judgment, whether a proposal does or does not promote sustainable management. If matters appear finely balanced, it must simply consider matters in greater depth. It would be an abdication of the duty of the decision maker to rely on the operation of a standard of proof divorced from its expert judgment.

Although such a finely balanced scenario seems largely theoretical, the language used in judicial decisions is important. To use the language of “proof” implies wrongly that a consent authority is obliged to make a decision against an applicant where it concludes that matters are perfectly balanced, because a burden of proof brings with it a presumption in favour of an unburdened party.⁵¹ It also wrongly suggests that an applicant who failed to address a number of important principles, objectives and policies in planning evidence or legal submissions could never be granted consent, because proof generally requires some form of evidence.⁵² Although in practice the failure to engage with key policy matters may weaken an applicant’s case, the Court is not limited to the arguments (or lack of arguments) of the parties in reaching its discretionary decision in the same way that it would be limited by the lack of persuasive evidence in accepting alleged facts.

The language of “proof” may also overemphasise the importance of factual matters and evidence in the exercise of discretion. The weight to be given to established facts is not necessarily guided by the degree to which that fact has been proved.⁵³ A potential effect may be proven to a high degree to be likely to occur, and yet legitimately receive little weight if justified by other matters.⁵⁴ Thus in practice, although the recognition of a test of proof in the Court’s overall broad judgment has not necessarily led to incorrect outcomes in cases like Shirley or Clifford Bay, the language used remains potentially misleading. The Court’s discretion is not constrained by the limitations associated with the concept of proof. Furthermore, a failure by an applicant to persuade the Court that its application amounts to sustainable management

⁵¹ Miller v Minister of Pensions [1947] 2 All ER 372 (KB) at 374.

^{52 Except in the comparatively rare cases in which judicial notice is taken}

^{of a fact.}

^{53 Although the degree to which the Court was persuaded of the existence}

^{of the potential effect above the required standard may be a relevant}

^{consideration in the Court’s wide discretion.}

^{54 Stirling v Christchurch City Council [2011] NZHC 966; (2011) 16 ELRNZ 798 (HC) at [52]–[58].}

does not necessarily mean that consent will be declined. The Court, in effect, retains the ability to remedy flaws in the applicant’s proposal by requesting further information, calling its own evidence, or imposing a wide range of conditions.⁵⁵ The power of the Court effectively to salvage a deficient application through conditions suggests that no burden of proof exists on an applicant. If it did, then any failure of the applicant to prove that an application amounted to sustainable management would require consent to be declined.

It is worth noting finally that, to the extent a bottom line rather than overall broad judgment approach is applied to the consenting context in the future (an arguable position as a result of the King Salmon decision),⁵⁶ prescriptive policy documents may fetter the discretion of the Court. For example, the classification of an area as an outstanding natural landscape may mean that a forceful policy requiring avoidance of effects becomes a relevant matter. This could mean that a legal outcome (declining consent) would result more directly from the proof of facts (the classification of the area and the potential for an effect to occur). Conceptually, this is nothing new; for example, proving as a matter of fact that an activity only has effects permitted under a regional or district plan effectively means that it is deemed to promote sustainable management (that is, no consent is required).⁵⁷ A bottom line approach would not, however, remove all discretion from the Court. To the extent that a proposal did not infringe bottom lines, the Court would retain an ability to use its expert judgment to weigh various relevant matters.⁵⁸

For the reasons described above, it would be inappropriate to characterise this remaining sphere of discretion as one involving proof.

V Fact, Law and Discretion

Ultimately, the s 104B exercise is not concerned with pursuit of factual truth, but rather with an expert and legal assessment of whether the purpose of the Act has been fulfilled. As Kirman, Gould and Somerville correctly identify, “[t]he balance of probabilities ... is germane to the fact finding stage, but has no place in the Court’s ultimate evaluation or assessment of a case...”.⁵⁹ It is more accurate to see the overall broad judgment, and the allocation of weight,⁶⁰ as an exercise that involves

⁵⁵ RMA 1991, ss 92, 108, 276.

^{56 King Salmon, above n 3.}

^{57 The novel aspect would be that the bottom line nature of rules and}

^{standards would be extended to prescriptive policies.}

^{58 King Salmon, above n 3, at [127].}

^{59 Kirman, above n 26, at 8.}

^{60 In many civil contexts, the term “weight” refers to the degree to which}

^{evidence is persuasive to the Court in coming to a finding of fact.}

^{This is also true under the RMA when the Court acts as a fact finder.}

^{However, this concept of weight is different to the process under s}

^{104B, where weight is allocated on a discretionary basis to a variety of}

^{matters, including effects that have been proven, to determine the relative}

^{importance of each in the particular context.}

neither questions of law nor questions of fact.⁶¹ It is clearly not a question of law, because the merits of a decision are generally incapable of being appealed to the High Court, yet it is not a question of fact, because a discretionary judgment is not conceptually capable of proof. It is best characterised as fitting within the general category of an “evaluation”, which Cross on Evidence sees as being incompatible with proof.⁶²

In this sense the role of the Environment Court, as a body with specialist expertise, is unusual in the judicial system. Proceedings before it are adversarial, as in the Courts of general civil jurisdiction, but the ultimate question before it is in the nature of an inquiry. Although the judgment of the Court has the practical effect of resolving disputes, that is not its primary purpose. This is highlighted by the fact that an overall judgment is still required from a consent authority if an application is uncontested or non-notified,⁶³ and the fact that the Court retains a degree of supervision over private settlements reached between the parties, through the approval of draft consent orders.⁶⁴ As noted with approval in Baker Boys:⁶⁵

[a]t each stage of the process the statute is looking to solutions based upon inquiry rather than to decisions in favour of successful contestants.

In a context where ensuring the sustainable management of natural and physical resources is the primary goal, and where adjudication between parties is only a secondary consideration, it is not surprising that the Court’s ultimate decision is one characterised most comfortably neither as one of fact nor of law. The primary role of factual and legal matters under the Act is to provide a framework, guidance and constraints within which the Court can exercise this discretion. The nature of the overall broad judgment is more analogous to the exercise of ministerial discretion under other statutes, where decisions must be made within certain legal parameters and based on established facts. The primary difference in the resource management context is that a right of appeal from such decisions to a specialist Court, on a de novo basis, has been established by legislation, rather than limiting legal action to judicial review, as in

⁶¹ Although the unreasonable exercise of discretion can amount to a question of law: Centrepoint, above n 44, at 706; Rodney District Council v Gould, above n 44.

^{62 Mathieson, above n 19, at 572.}

^{63 Uncontested proceedings are more likely to occur where a consent}

^{authority is a Council. However, the Environment Court also retains the}

^{role of a first instance decision maker on applications that are directly}

^{referred, which in theory could be (although are unlikely to be in practice)}

^uncontested.

^{64 RMA 1991, s 279(1)(b), Tai Tapu and Motukarara Branches of Federated Farmers}

^{v Canterbury Regional Council [1990] NZPT 246; (1990) 15 NZTPA 7 (PT), Green & McCahill}

^{Properties Ltd v North Shore City Council [1991] NZPT 40; (1991) 15 NZTPA 79 (PT), Bonifant}

^{Investments Ltd v Canterbury Regional Council EC Christchurch C078/96,}

^{5 November 1996 at 4, 5.}

^{65 Baker Boys, above n 36, at [23].}

^{most other cases involving public decision making discretion.}

While not expressly recognising the importance of distinguishing matters of discretion from matters of fact, a number of cases have in practice treated the s 104B exercise (or equivalents) as one of neither fact nor law. Such cases have described it, for example, as “the application of well recognised planning principles”,⁶⁶ “a matter of opinion on which a specialist tribunal has expressed its view”,⁶⁷ and “based on the sound judgment of its members, without needing or even being able to relate them to specific findings of fact.”⁶⁸ A powerfully simple formulation was used by the High Court in Westfield v Hamilton City Council:⁶⁹

Parliament has circumscribed rights of appeal from the Environment Court for the obvious reason that the Judges of that Court are better equipped to address the merits of their determinations on subjects within their particular sphere of expertise.

VI Issues with Recognising an Overall Burden in Practice

Given that the Court’s overall broad judgment is not an exercise of fact finding and therefore not amenable to proof, the consequence is that the Act does not support the imposition of an overall burden to prove that a proposal promotes sustainable management. However, one may claim that this is a matter of semantics only, with little practical difference being made by the abandonment of the language of proof. In practice, an applicant is required to convince a consent authority to grant consent to a proposal by providing it with full information, strong evidence, and persuasive legal argument. Although this is true, the acceptance of an overall burden of proof on an applicant could produce awkward results in practice, along with being semantically unsustainable under the Act. For example, in Director-General of Conservation v Marlborough District Council the Environment Court held that:⁷⁰

... the legal or persuasive burden was on the applicant to produce evidence so that, if no other evidence was given, the Court was persuaded that recommending the grant of coastal permits was more likely than not to achieve the purpose of the Act.

Here, the recognition of a burden of proof brings with it an acceptance of an accompanying civil standard of proof. Although a standard of proof can exist in isolation from a burden (usually in inquisitorial proceedings),

⁶⁶ Hutchinson Bros Ltd v Auckland City Council [1988] NZHC 2454; (1988) 13 NZTPA 39 at 44.

^{67 J Rattray & Son Ltd v Christchurch City Council [1983] NZHC 136; (1983) 9 NZTPA 385 (HC)}

^{at 396.}

^{68 Lynley Buildings Ltd v Auckland City Council [1984] NZHC 117; (1984) 10 NZTPA 145 (HC) at}

^{160. Compare Environmental Defence Society v Mangonui County Council}

^{[1987] NZHC 385; (1987) 12 NZTPA 349 (HC) and Terrace Tower (NZ) Pty Ltd v Queenstown}

^{Lakes District Council [2001] NZRMA 193 (HC) at [20].}

^{69 Westfield (New Zealand) Ltd v Hamilton City Council [2004] NZRMA 556}

^{(HC) at [17].}

^{70 Director General of Conservation, above n 25, at [27].}

a burden to prove something cannot realistically exist without a standard to which that thing must be proved. Although decision makers frequently encounter practical difficulties in determining whether a proposal promotes sustainable management, in theory any given proposal either fulfils the purpose of the Act or it does not. A standard of proof of “more likely than not” undermines the requirement that in any case the purpose of the Act must be fulfilled for consent to be granted, because it leaves a substantial degree of doubt (almost 50 percent) as to whether the purpose of the Act has actually been achieved. Parliament cannot have intended that the purpose of the Act did not need to be achieved in all cases. The use of the language of “burden” or “proof” in this context may mislead decision makers into applying a factual test to an evaluative judgment that must promote sustainable management in all instances.

Furthermore, given that an overall judgment is made via the discretion of the Court itself, rather than the Court assessing the assertion of an external witness, it makes little sense for the Court to be able to claim it is convinced of its own judgment only on the balance of probabilities. Thus even if one were to reject any overall burden of proof on a particular party, and simply recognise a standard to which sustainable management needed to be accepted as proved, these problems associated with treating the overall broad judgment as one of “proof” still exist.

Admittedly, a complete rejection of an overall burden on an applicant may seem somewhat strained. An applicant clearly has obligations under the Act that other parties do not. An applicant is required to submit a complete application, including a full assessment of environmental effects, and an application can be declined on the grounds that it contains inadequate information.⁷¹ Such an active burden, obviously, does not apply to a submitter or to an appellant in opposition. However, this can be distinguished from an overall burden of “proof”. The above obligations are not designed to prove that a proposal promotes sustainable management, but rather to ensure that sufficient information is before the consent authority to enable it to make a decision one way or another. The provision of adequate information does not mean that the overall broad judgment will be exercised in a particular way. Similarly, although a failure to provide adequate information necessarily results in the declining of consent, this is not because the applicant has failed to prove that the proposal promotes sustainable management. It is simply a practical method of clarifying that this question is not yet capable of being answered, and that the cost of doing so should fall on an applicant rather than the consent authority (or submitters).

A more conceptual problem with recognising an overall burden of proof on an applicant, on the grounds of precaution, concerns the proper role of precaution itself. The concept is not designed to be a replacement for sustainable management or a guide to environmental decision making in general. It can apply only in cases of uncertainty.

⁷¹ Sections 88(2)(b), 104(6).

Furthermore, it has relevance only in contexts where there is scientific or factual uncertainty as to the future, such as where the likelihood or impact of a potential effect is in issue.⁷² Ambiguities in the wording of statutory provisions or in planning objectives or policies are, therefore, the concern of substantive expert planning evidence or legal submission, rather than precautionary argument. Similarly, uncertainty over whether the purpose of the Act has been fulfilled does not reflect scientific or factual ignorance. The imposition of an overall burden of proof on an applicant, on the grounds of precaution, would overreach the purpose of the concept. If such a burden applied in cases where the effects of an activity were known and understood, yet finely balanced in the overall judgment, it would be “protectionist” rather than “precautionary”. By favouring protection and preservation over development through the inflexible application of a rule of procedure, the balance inherent in the concept of sustainable management, as carefully developed through district, regional and national planning instruments, could be skewed.

In addition to the practical and conceptual problems of recognising an overall burden on an applicant, the basic reason behind recognising a burden of proof on a plaintiff in civil cases is largely inapplicable in the RMA context. In most civil contexts, an overall burden of proof is imposed on the plaintiff because this is the party wishing to challenge the status quo. As the Court commented in Shirley, it is “a fundamental requirement of any judicial system ... that the person who desires the Court to take action must prove his case”.⁷³ However, while this approach is clear and workable in the ordinary civil context, identifying the party seeking to alter the status quo is not beyond argument in the context of the RMA. On one hand, an opponent to a proposal appealing a grant of consent to the Environment Court can be seen as analogous to a plaintiff or appellant in an ordinary civil case, in that she or he is seeking to overturn a consent that has already been granted. On the other hand, however, an applicant can be seen as the party who is requesting the Court to allow a proposal, which requires express planning permission, to proceed. This is because the hearing on appeal is by way of a full re-hearing and remains de novo, with the status quo arguably being an absence of consent. Thus the imposition of an overall burden on an applicant in an Environment Court hearing may not be justifiable through analogy to the position of a plaintiff in ordinary civil proceedings.

VII Conclusion

Over the past two decades the Courts have attempted to read in a precautionary approach to the RMA. One way in which this has been done has been by imposing a burden of proof on an applicant, bringing with it a presumption in favour of opponents to an application. A number of cases have required an applicant to prove factual matters, including the degree or likelihood of potential effects of an activity, with a presumption

⁷² Sea-Tow, above n 34, at [463], [464].

^{73 At [121].}

that such allegations are false if they do not meet the required standard of proof.⁷⁴ However, some cases have suggested that the burden of proof plays a larger role under the RMA, and is not limited to the proof of facts. On this view, an applicant also has an overall burden to show that a proposal achieves the purpose of the Act and that the Court should therefore exercise its overall broad judgment to grant consent. This would appear precautionary, because it would result in consent being declined where there is uncertainty over whether an application would promote sustainable management.

Although the imposition on an applicant of an overall burden to prove a “case” may seem logical and intuitive in achieving precaution, the use of the language of proof is ultimately inappropriate. While the overall broad judgment of the Court is not a matter of law, it cannot be assumed from this that it is a matter of fact amenable to proof. Treating it as such is risky, because it imports various constraints on the Court’s discretion that are not supported by the Act, such as the automatic rejection of an applicant’s case if matters are finely balanced, and the assumption that a proposal only needs to be more likely than not to achieve the Act’s purpose for consent to be granted. The Court’s judgment needs to be characterised as a matter of discretion that is neither open to appeal as a matter of law nor provable as a matter of fact. In a regime such as the RMA, where the concerns of protection and development exist in a fine balance and where a consent authority’s role is primarily inquisitorial, the operation of fixed rules of evidence should not be allowed to dictate whether an outcome is precautionary. This role is properly reserved for the Court’s expert and discretionary judgment, which is sensitive to the purpose and principles of the Act, relevant policy guidance, and proven potential effects of all probabilities and magnitudes.

Finally, using a burden of proof to achieve precaution in the exercise of the Court’s discretion is conceptually strained, because it addresses a type of uncertainty with which precaution is not concerned, and because the normal civil procedure rationale behind imposing an overall burden on a plaintiff can arguably apply equally to either an applicant or an opponent under the RMA. Although an applicant has certain practical administrative obligations, such as the provision of adequate information, this should not be misread as an overall burden of proof to show that a proposal promotes sustainable management.

The above conclusions should not be read as an attempt to downplay the importance of precaution in the RMA. It is essential to read precaution into the Act, because it contains no express reference to it and yet has a strong protective focus. This article simply seeks to identify one way in which precaution can be treated in a more targeted manner. This can be achieved by transferring the debate away from inflexible rules of

⁷⁴ See McIntyre v Christchurch City Council [1996] NZPT 47; (1996) 2 ELRNZ 84 (PT),

^{Transpower New Zealand Ltd v Rodney District Council PT Auckland A85/94,}

^{14 November 1994.}

evidence like the burden of proof, which are designed to enable rather than guarantee precautionary outcomes, and towards the manner in which the Court exercises its substantive judgment. In particular, it is submitted that the development of national level instruments, such as national policy statements, are of paramount importance in shifting the Court’s and Councils’ focus towards substantively precautionary outcomes.