After the Supreme Court issued its decision in Port Otago v the Environmental Defence Society (EDS), both sides claimed victory yesterday.
"We got everything we asked for and so we are very pleased with the outcome," Port Otago chief executive Kevin Winders said.
He previously told the Otago Daily Times the more than five-year legal battle was due to "real concerns" Port Otago had that the protection of the environment was being put too far ahead of actions that could be required to safely operate the port.
EDS chief executive Gary Taylor, alternatively, said most importantly this week’s decision had not reversed the landmark 2014 Supreme Court King Salmon decision.
Additionally, the relevance of the decision was "quite narrow", Mr Taylor said.
It applied to the safe and efficient operation of "existing" as opposed to new ports.
And it created an "appropriately high hurdle" for Port Otago when it applied for resource consent for work in the outstanding environmental areas in Otago Harbour.
"It’s a very cleverly and narrowly constructed decision, I think, in which you might say that we ‘lost the battle, but won the war’ in that King Salmon is still alive and well."
In 2014, the Supreme Court decision of EDS v New Zealand King Salmon Company confirmed the New Zealand coastal policy statement set a firm environmental bottom line for coastal landscapes.
The King Salmon decision overturned a regional plan change that would have made a salmon farm a discretionary activity in Papatua, Marlborough.
This week’s Supreme Court decision came after Port Otago appealed a 2021 Court of Appeal judgement that confirmed regional policies must adhere to the overarching policies of the New Zealand coastal policy statement.
In areas of outstanding natural character, adverse effects to the environment must be "avoided" rather than "avoided, remedied or mitigated" as is typical under the Resource Management Act.
That would unrealistically require Port Otago to avoid adverse effects to the outstanding environmental areas at its doorstep "in all instances", Mr Winders said before last year’s hearing.
If, for example, a navigation beacon fell over in a storm, to pull it out and replace it in the environmentally significant Aramoana saltmarsh might require "absolutely zero consequences for the environment", he said.
The decision this week said unlike the aquaculture policy at issue in King Salmon there was a requirement for a ports policy to provide for the existing port’s safe and efficient operation.
The issue of ports policies and "avoidance policies" should be addressed at the regional policy statement and plan level where possible, it said.
A decision-maker at the resource consent level had to be satisfied the work under consideration was "required" to ensure the safe and efficient operation of the port in question, and "not merely desirable".
In light of the judgement, the Otago Regional Council was directed to consult the affected parties and amend its proposed Otago regional policy statement.
Chief executive Richard Saunders said the council accepted the decision and did not anticipate a significant flow-on effect from it.
The decision affected the council’s partially operative regional policy statement, which had already in part been superseded by the proposed regional policy statement for which hearings are now under way.
"We understand the vital importance of our ports to the well-being of the broader community," Mr Saunders said.
"We appreciate the decision enables our proposed regional policy statement, and the regional plan: coast (when it is reviewed) to be able to appropriately provide for the activities necessary to safely and efficiently operate the port."
The proposed regional policy statement took a different approach to providing for the port than the partially operative one, he said.
