Marlborough Aquaculture Ltd v Chief Executive of the Ministry of Fisheries
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 18 July 2005 |
| Neutral Citation | [2005] UKPC 29 |
| Court | Privy Council |
| Docket Number | Appeal No. 31 of 2004 |
| Date | 18 July 2005 |
[2005] UKPC 29
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Brown of Eaton-under-Heywood
Sir Stephen Sedley
The appellants are an association of marine farmers. Their members wish to establish commercial marine farms in the coastal marine area around the top of the South Island, especially in the Marlborough Sounds where most marine farming in New Zealand takes place. The first respondent is the Chief Executive of the Ministry of Fisheries. He is responsible for the administration of the Fisheries Acts 1983 and 1996. The second respondents appear in these proceedings on behalf of others who are interested in fishing in the Marlborough Sounds and the surrounding area. They represent commercial fishers who are not marine farmers such as scallop dredgers and persons interested in fishing for recreation, all of whose activities are liable to be restricted by the presence of marine farms in the areas where they wish to fish.
In recent years New Zealand's coastal marine area has come under increasing pressure as a result of the development of marine-based aquaculture. The Marlborough Sounds area in particular is rich in marine life, much of which is capable of being harvested for recreational and commercial purposes. It is also capable of supporting artificially created structures known as marine farms. They are designed to enable fishing operations to be carried out in the coastal marine area more intensively. Some consist of cages in which fish, especially salmon, are grown in captive conditions until they have reached the stage when they can be harvested. Others – the great majority in New Zealand – consist of floating structures for farming mussels. Typically they consist of parallel rope longlines anchored at each end to the sea floor and held up on the surface by floatation buoys, from which culture ropes known as droppers are suspended in the water column. The droppers attract mussels, dredge oysters, scallops and other species of shellfish whose habit is to attach themselves to any stationary object that they can find in the water. The structures are designed to attract them in sufficiently large quantities for harvesting commercially.
Marine farms have their value, particularly as their products are an important component in New Zealand's export trade. But the space which they occupy restricts the ability of others to carry on fishing operations by conventional methods in and close to the boundaries of the same area, as well as inshore of the marine farm. They tend also to modify the marine environment beneath them and close to their boundaries. The process of construction can cause considerable disturbance to the sea floor and to marine life growing or living there. Some forms of marine farming, such as salmon farming, may require the provision of large structures which cast a shadow on the seabed. The substances used to cultivate fish grown in cages and shell and other material falling off droppers used for mussel farming during harvesting alter the quality and characteristics of the water and of the sea bed. The local environment is also affected by the consumption by fish and other aquatic organisms within the marine farm of the nutrients which are to be found in the water column. In small quantities these effects are relatively insignificant. But on a large scale these structures have the potential to have a considerable impact on other fishery resources and on those who use them. Mussel farms in particular can cover a very large area. Those in the Marlborough Sounds area range from less than one hectare to 500 hectares, and there are applications in the pipeline for areas up to 10,000 hectares. From an early stage it was recognised that this was an activity that would have to be regulated.
Comprehensive legislation governing the development of marine-based aquaculture in New Zealand was first enacted in the Marine Farming Act 1971. Under the system which it laid down a single permission was required for this activity. It took the form of a lease or licence granted by the then Ministry of Agriculture and Fisheries. In 1991 the legislation was replaced by the Resource Management Act 1991 ("the RMA"). The purpose of that Act, as stated in section 5, was to promote the sustainable management of natural resources. Leases or licences granted by the Ministry were no longer necessary. From the commencement of that Act on 1 October 1991 until 6 July 1993 the establishment of a new marine farm required a new type of resource consent known as a coastal permit granted under section 12 by the local authority. On 7 July 1993 Part 4A of the Fisheries Act 1983 ("the FA 1983") consisting of sections 67I to 67S, inserted by section 6 of the Fisheries Amendment Act 1993, came into force. The establishment of a new marine farm now required two permits. The first was a coastal permit granted by the local authority. The second was a marine farming permit issued by the Director-General, who is the Chief Executive of the Ministry of Fisheries, under Part 4A of the FA 1983. That was the system which was in force at the commencement of this litigation.
With effect from 28 November 2001 a moratorium was imposed on aquaculture activities which required a coastal permit from the local authority. The legislation giving effect to it was contained in amendments to the RMA which were made by the Resource Management (Aquaculture Amendment) Act 2002 which came into force on 26 March 2002. But by section 150E(2) of RMA, as amended by the 2002 Act, it was provided that the moratorium did not apply to a coastal permit for aquaculture activities in a coastal marine area that was the subject of a coastal permit immediately before the moratorium. Legislation was then enacted in a series of seven statutes which comprehensively reformed the system for the regulation of aquaculture that was in force prior to the moratorium. These reforms do not apply to applications for coastal permits which had been notified before 28 November 2001 or which had been granted before 26 March 2002: sections 25 and 50 of the Aquaculture Reform (Transitional Provisions) Act 2004. Applications for a marine farming permit by persons such as those whom the appellants represent who hold coastal permits granted to them before 26 March 2002 will continue to be determined under the provisions of the RMA and the FA 1983 which were in force prior to the commencement of the moratorium.
Section 67J(2) of the FA 1983 provides that a marine farming permit shall only be issued to a person who holds a coastal permit granted under section 12 of the RMA for the area applied for. A dispute has arisen between the parties as to how the relevant provisions of these two statutes are to be interpreted and implemented in relation to marine farming activities in the coastal marine area. The issue relates to the division of responsibility between the regional council as the consent authority under the RMA and the Director-General as the consent authority under the FA 1983.
Marlborough District Council is the consent authority under the RMA for the coastal marine area of the Marlborough Sounds. On 7 June 1995 it granted to three individual marine farmers, J R Cowin, R J Curtis and J M Goulding ("the applicants"), a coastal permit to occupy a three hectare space in Waitata Bay and to disturb the seabed for the purpose of farming greenshell mussels, blue mussels, dredge oysters and scallops using standard mussel line equipment and suspended culture systems. Among the grounds for its decision (communicated by letter dated 22 June 1995) was the following:
"The Committee did not consider that the proposed marine farm would have a significantly adverse effect on commercial scallop harvesting."
The Challenger Scallop Enhancement Company Limited appealed against this decision to the Environment Court. On 15 September 1997 the Environment Court allowed the appeal in part by reducing the area of the proposed marine farm to 2.4 hectares. On 23 September 1997 the applicants applied to the first respondent for a marine farming permit under section 67J of the FA 1983. By letter dated 13 September 1999 an official in the Ministry of Fisheries, acting on behalf of the Director-General, informed the applicants that he had declined their application. He gave the following reason for his decision:
"In consideration of the merits of the application and of the additional material, presented both by yourself and your legal counsel, I am not satisfied that there will be no undue adverse effect on the recreational scallop fishery from the granting of [a] marine farming permit at the Waitata Bay site."
In April 2000 the applicants erected some of the structures for which a coastal permit had been issued at the site of the proposed marine farm. They did so to prevent the lapsing of their coastal permit under section 125 of the RMA, which provided that a resource consent lapsed after two years (the period is now five years) unless an extension was obtained. In order to obtain an extension it would have been necessary for them to show that they had made substantial progress or effort towards giving effect to the consent and to obtain approval from all adversely affected persons. They took the view that for this and other practical reasons it was desirable that those who had obtained a coastal permit should be able immediately after it had been issued to erect the structures which they proposed to use for their marine farms.
The applicants disputed the...
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