Biomarine Limited (Appellant) v. Auckland Regional Council (Respondent)

The respondent, the Auckland Regional Council, granted the appellant, Biomarine Limited, resource consent to construct and operate a mussel farm. The environment court later quashed the resource consent. Biomarine appealed the environment court’s decision to the high court. When quashing the resource consent, the environment court had taken into account the recreational activity, particularly the prospect of a more developed walkway and the creation of a new regional park. It was of the view that people walking north from the regional park would find the proposed mussel farm an intrusion in a natural setting. The new regional park was likely to become a stepping off point for increased use of the coast generally in this area, so the adverse effects would be likely to be experienced by increasing numbers of people. The regional park, however, would not have been fully developed until at least 2013. The high court emphasized that under a recent decision by the court of appeals, when a consent authority was assessing the “actual and potential effects on the environment of allowing the activity”, it was confined to the future of the environment as it might be modified by the implementation of resource consents already granted at the time the application was considered. The effects of future activities and consents which were not yet sought and granted were not to be taken into account. The potential increase in walking and the attraction of the regional park when implemented required the granting of resource consents for the necessary infrastructure so these were not effects on the environment through activities for which resource consent existed at the time of the hearing. Therefore it was impermissible for the court to consider a functioning regional park as part of the effects against which the mussel farm should be assessed. The appeal was accordingly allowed on that ground and the matter remitted to the Environment Court to reconsider its decision.