Understanding the Objective.pdf

Scenario to illustrate the point this approach

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scenario to illustrate the point, this approach accords with all other cases where the fears or other psychological effects are based upon the risk of an unwelcome emanation from the land, whether that concerns a technological risk or encompasses, for example, anti-social activities. Neighbours might be deeply concerned, for example, that a half-way house for probationers is to be sited in their midst, but only if they can demonstrate a real risk of increased crime in the area caused by the establishment of the home will their fears be given due weight in the planning decision. 27 Thirdly, we do not adopt a pure ‘might is right’ approach in any decision- making under the Resource Management Act and if we were meant to, the Act would be drafted in a wholly different manner. Certainly, there would be practical problems in operating a democratic decision making process within the framework of the present statute. Whilst the Act mandates that decision- makers must manage natural and physical resources in a way that enables “people and communities” to provide for their well-being, it is extremely hard to delimitate who or what the community might be in any given situation. The Simon Upton, Third Reading of the Resource Management Bill (4 July 1991) 516 NZPD 3018–3021. 26 The court is speculating as to what might happen in the future; to describe this as definite or as fact-finding is inaccurate and would be a fiction. And this is where the complexities (and arguments as to the correct approach to determining acceptable risk) manifest: why should the parents accept this speculation? But this is not so very different from traditional findings of fact – they too are a legal fiction but such findings are a necessary evil of litigation; we can do our best to refine the process, improve evidence and decision-making to try and improve accuracy but we can never do away with this inherent flaw completely. A major difference between risk assessment and fact-finding is that at some point in the future the Environment Court will be proven right or wrong and this can never happen in a traditional fact-finding exercise (hence the increasing use of adaptive management techniques in resource management). Nevertheless, if the court were not able to make an assessment or that assessment was not respected as a basis for the ultimate decision in the case then resource management as a discipline would fall into paralysis. And in fact if absolute truth were the standard, all litigation would be rendered impotent. So we have to accept this difficulty – and legal fiction — if we want to permit the court to decide between competing interests and competing visions of sustainability in resource management cases. 27 See, for example, applications for ‘mongrel mob’ headquarters ( AA Knight v Wairoa District Council PT Wellington W37/90, 19 July 1990); psychiatric units ( A’a v Manukau City Council EnvC Auckland A115/98, 24 September 1998; Hawkes Bay Hospital Board v Napier City Council (1986) 11 NZTPA 404 (PT)); and probation centres (
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