By: Amanda Douglas
The Court of Appeal's decision in this case produced a major change in the approach which should be taken to prohibited activity status.  There was a very restricted view taken by the lower courts in this case, and other cases. 

The Court of Appeal has said that there are quite a few circumstances in which it is appropriate to make an activity a prohibited activity in a plan.

The case involved rules on mining in the Coromandel Proposed District Plan, and an argument about whether or not mining should be a prohibited activity in various parts of that district.

In the Environment Court and the High Court, it was accepted that prohibited activity status should only be used when the activity in question should not be contemplated in the relevant place, under any circumstances - a very strict test.

But in the Court of Appeal, there were a number of circumstances sanctioned as being appropriate for prohibited activity status:
  1. Where the council takes a precautionary approach.  If the Council doesn't have enough information about an activity to determine what provision should be made for that activity in the local authority's plan, the most appropriate status for that activity may be prohibited activity.  This would allow proper consideration of the likely effects of the activity at a future time, when a plan change application for a particular proposal makes it necessary to consider the matter, but that can be done in the light of the information then available;
  2. Where the council takes a purposively staged approach.  If the local authority wishes to prevent development in one area until another has been developed, prohibited activity status may be appropriate for the undeveloped area.  It may be contemplated that development will be permitted in the undeveloped area, by way of a plan change, if the pace of development in the other area is fast;
  3. Where the council is ensuring comprehensive development.  If the local authority wishes to ensure that new development should occur in a co-ordinated and interdependent manner, it may be appropriate to provide that any development which is premature or incompatible with the comprehensive development is a prohibited activity.  So again, the particular type of development which is initially prohibited might become appropriate during the term of the plan, depending on the level and type of development in other areas;
  4. Where it is necessary to allow an expression of social or cultural outcomes or expectations - in the case the example of nuclear power generation was given, but another example might be development on land where, for cultural reasons, that would be abhorrent to Maori;
  5. Where it is intended to restrict the allocation of resources - the Court gave the example of a regional council wishing to restrict aquaculture to a designated area, but other obvious examples are allocation of water resources past an environmentally acceptable standard, because determining that matter on a case by case, consent by consent basis might be seen as providing too little protection for environmental values - similarly with discharges of contaminant to air after guideline ambient values have been reached in an airshed; 
  6. Where the council wishes to establish priorities otherwise than on a "first in, first served" basis - now that's another whole can of worms, and one which is cropping up in other Court decisions such as the Central Plains Water litigation, and which will undoubtedly be considered in the moves to reform water management.
The broadening of those circumstances will no doubt be of assistance to local authorities if the provisions of the Amendment Bill which remove non-complying as an activity category are retained in the final form of the Act.  If that occurs, then those activities which are currently non-complying will need to be re-assigned, presumably to either discretionary activity or prohibited activity status.  The previous narrow ambit for inclusion of an activity within the prohibited category would have left local authorities with very little choice in many cases.

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