MATTHEW CASEY QC Page ( 9

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1 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page ( 9 PART B - ASSSSMNT OF TH GMO PROVISIONS Test under the RMA - CD 45. The GMO prvisins will be subject t the same statutry cnsideratins as any ther prvisins prpsed as part f the PDP. 46. The Resurce Management Amendment Act 2013 (RMAA) came int effect after ntificatin f the PDP, but befre further submissins had clsed. The transitinal prvisins (as set ut in Schedule 12 f the RMA) prvide that if Part 2 f the RMAA came int frce n r after the last day fr making further submissins n a. prpsed plan, the further evaluatin must be undertaken as if Part 2 had nt cme int frce. Further submissins n the PDP had nt clsed prir t 3 December 2013 when Part 2 f the RMAA came int frce, thus the new prvisins apply t future stages f the PDP. 47. in particular, s 32AA requires that if any changes are made t the PDP, an assessment under the current (new) s 32(1) - (4) must be undertaken. The assessment is required t be at a level f detail that accrds with the scale and significance f the changes and must be published either in a separate reprt r as part f the decisin. (O 48, , Because submissins n the GMO prvisins f the PDP seek changes t them (including their deletin), a pre-hearing reprt, and the Panel's decisin, shuld prperly cnsider the impacts f any such changes as against the new s 32. Caseiaw regarding hw t test prvisins f a prpsed plan relates t the pre-rmaa prvisins. Under the new legislatin, the principles remain similar, hwever the sectin references have been amended and the s 32 requirements as they apply after ntificatin have changed. An amended versin f the test t be applied Is set ut in Attachment B. 14 The GMO prvisins are cnsidered as against key parts f this test belw. CD Cnsideratin f the bjectives and whether GMOs shuld be addressed at all 51. There are 2 relevant bjectives: HS03 T avid any unnecessary duplicatin f regulatin between the Hazardus Substances and New Organisms Act 1996 and the District Plan, HS04 T prtect the cmmunity and natural envirnment frm the adverse effects assciated with the release r field trlalling f [GMOs] thrugh the adptin f the precautinary apprach. 52. The Sectin 32 Reprt addresses HS03 in the hazardus substances sectin f the reprt, rather than the GMO sectin, hwever I cnsider it t be relevant t bth tpics. Indeed, while HS03 is nt specifically referenced in the GMOs sectin f the s 32 reprt, I cnsider the fficers have implicitly had regard t the bjective f aviding duplicatin. This is evidenced by the sectin 32 reprt acknwledging that HSNO is the primary legislatin fr management f GMOs, but identifying a number f "gaps' r exceptinal matters which are said nt t be adequately addressed by HSNO. These are discussed belw. 14 Nte this is my pst-rmaa adaptin f a summary given in Mighty River Pwer Ltd v Prirua City Cuncil [2012] NZnvC 213. Agenda Item: 2 Page 214

2 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page 10 Mst apprpriate way t achieve the purpse f the Act 53. The apprpriate management f land use activities invlving GMOs is clearly relevant t prmting the sustainable management f natural and physical resurces. There Is really n debate abut that, except that sme submitters say that purpse is achieved entirely thrugh HSIMO and the ther says that there Is a further rle fr the Cuncil under the RMA. 0 *: "j Fr bth field tests and releases, there are a number f matters that the PA is required t cnsider under HSN.O, with the ultimate test being whether the beneficial effects f allwing the applicatin utweigh the adverse effects. The Panel may cnsider that the RMA allws a brader view t be taken and that it is apprpriate fr the PDP t prvide mre guidance as t the weight t be placed n certain effects r issues, having regard t the particular interests f the Hastings cmmunity. Prvided any bjective t give effect t such a view is read in cnjunctin with HS03 (aviding unnecessary duplicatin), I cnsider there is a gd argument that this is a case similar t Glentanner Park (Mt Ck) Ltd v McKenzie District Cuncil (W50/94), where the distinctin between the Civil Aviatin Act and the RMA was cnsidered. The High Curt, n appeal, held: 13 While the essential functin f the Directr [f Civil Aviatin] Is t set the minimum safety standards that are acceptable, and that wuld invlve sme degree f risk, and while in an rdinary situatin that wuld nrmally satisfy a Cuncil r the Tribunal, nevertheless the Tribunal is entitled t take a mre particular lk at the cmmunities affected. CO The situatin wuld fall within the class f cases Dr Smerville cntemplated: 16 If fr R.MA purpses, which may relate t district-wide sci-ecnmic r cultural matters rather than just health and safety matters r ptential Impacts n bl-physlcal values f the area, further cntrls are needed, there is nthing in the HSNO Act t prevent such cntrls being included irt the District Plan In assessing whether the bjectives are the mst apprpriate way t achieve the purpse f the Act, it is imprtant nt t cnfuse the apprpriateness f the bjectives themselves, which are 'high level' statements, with hw thse bjectives are given effect thrugh the plicies, rules r ther methds. Fr instance, the bjectives culd be given effect t thrugh nn-regulatry methds, such as by Cuncil Indicating It will exercise rights f participatin In PA hearings n GMO release and field trial applicatins. As a higher level statement f what is imprtant t the district in terms f managing GMOs, I cnsider the Panel wuld be entitled t cnclude that HS03 and HS04 are the mst apprpriate way t achieve the Act's purpse. Assisting the Cuncil t cany ut its functins 59. A key part f the test fr bjectives Is whether they assist the Cuncil in carrying ut its functins under the Act. Relevant functins in this case include establishing bjectives, plicies and rules t achieve integrated management f the effects f the use, develpment r prtectin f land and assciated natural and physical resurces f the 15 Directr f Civil Aviatin v Planning Tribunal [1997] 3 NZLR 335 1S Interim Opinin n Land Use Cntrls and GMOs, p22. Agenda Item: 2 Page 215

3 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page 1 II district (s 31(l)(a); and the cntrl f any actual r ptential effects f the use, develpment r prtectin f land (s 3i(l)(b)). 0! 60. In my view, read tgether, the GMO bjectives prvide cnsiderable assistance t the Cuncil in relatin t the management f the effects f GMO land use activities. They indicate firstly that duplicatin f HSNO cntrls shuld be minimised, and secndly that, where effects are t be managed under tile PDP, a precautinary apprach is t be adpted. 61. By cntrast, if these (r similar) bjectives were nt included, I cnsider there wuld be a lacuna in the PDP and a lack f guidance as t hw land use activities with a GMO cmpnent were t be treated. 62. As cncluded abve, it is cnsidered that there Is jurisdictin under the RMA t regulate the effects f GMO activities. The majrity f the submissins ppsing the PDP appear t assume that if the PDP des nt mentin GMOs, then they will nt be relevant at all when it cmes t establishing a land use activity invlving GMOs. I d nt cnsider that t necessarily be the case. Fr instance, a field trial f GMO crps in a rural zne may nt fall within the definitin f Mand based primary prductin' (a permitted activity), but might be seen as a cmmercial, industrial r unspecified activity. Depending n the particular characteristics f the activity, it culd fall t be treated as a discretinary r nn-cmplying activity, and the prcessing planners wuld be faced with the issue f hw t assess any adverse effects f the GMO aspect f the activity when they came t prcess the cnsent. In the absence f specific statutry r District Plan guidance, a decisin t simply ignre the GMO aspects f an applicatin might be susceptible t challenge, fr instance by grups challenging a nn-ntificatin decisin r becming invlved in hearings and appeals. CO c Q) j= 63. In my view, it is apprpriate fr the PDP t refer t GMOs and indicate hw they are t be managed in rder t assist the Cuncil in its functin f managing the use f land and effects. Frm this perspective, I cnsider the bjectives can be supprted. T nt include any bjectives directing the apprpriate apprach t GMOs wuld risk failing t assist the Cuncil t carry ut its functins. Apprpriateness f precautinary apprach HS04 specifically references a 'precautinary apprach' and this is challenged by a number f submissins. Objective HS04 refers t prtecting the cmmunity thrugh adptin f a precautinary apprach. HSNO explicitly adpts a precautinary apprach in s 7 in that "All persns exercising functins... under this Act... shall take int accunt the need fr cautin in managing adverse effects where there is scientific and technical uncertainty abut thse effects". In relatin t the questin f whether HS04 meets the RMA's purpse, the Sectin 32 Reprt states: This bjective seeks t find a balance in the management f GMOs... Its intent Is t be cmplementary t the HSNO assessment with regard t field trials and the key fcus is n ecnmic effects, rather than resulting in duplicatin. Prviding fr the weiibeing f the cmmunity by giving certainty regarding the management f GMOs is cnsidered Justified fr these reasns. 66. In my view, the fact that the bjective indicates an verlap is nt a significant cncern particularly as it needs t be read in cnjunctin with HS03, As nted abve, bjectives Agenda Item: 2 Page 216

4 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page 12 are necessarily general and high level, and it is hw the bjective is Implemented (specifically in relatin t rules) where an verlap wuld be f mre cncern. In my view, the bjective is supprtable, hwever the manner in which the bjective is given effect t will need t be carefully cnsidered. CD Assessment f plicies The Sectin 32 Reprt indicates that the Hastings cmmunity has requested greater certainty than is available under HSNO. 17 This desire fr certainty is reflected particularly in HSP5, Plicy HSP5, which is the plicy which implements bjective HS04, refers t prviding "certainty t the cmmunity that they are free f any risks assciated with the release r field Mailing fgmos". I nte that the RMA is nt a n-risk statute, and fficers and/r the Panel may wish t recnsider the exact wrding f this plicy. Plicy HSP6 refers t reviewing the Plan in the future if there is general cmmunity acceptance f GMOs and there is greater certainty abut their effects. This plicy recgnises that the PDP takes a cnservative / precautinary apprach t GMOs and signals the circumstances in which the Cuncil might cnsider a relaxing f the standards apprpriate. In my view this plicy is particularly useful If the prhibited activity status is retained, as it prvides a signal t a plan change prpnent as t what the Cuncil and cmmunity wuld expect t be demnstrated (i.e. GMOs being safe and ecnmically beneficial withut adversely affecting the envirnment and the general scial and ecnmic wellbeing f the cmmunity) befre a change t the plan wuld likely be acceptable, Of curse, the plan change wuld need t g thrugh a separate statutry prcess, hwever sme advance guidance Is useful. CO c (1) «s Assessment f Rules , Where the real dispute lies is the methd by which GMOs are prpsed t be regulated. The key questin fr determining whether the PDP shuld cntrl GMO activities within the Hastings district is whether the prpsed methds are the mst apprpriate fr achieving the bjectives, having regard t reasnably practicable ptins and their efficiency and effectiveness. The terms 'efficient' and 'effective' are nt defined in the RMA, hwever the Ministry fr the nvirnment's publicatin, 'A guide t sectin 32 f the Resurce Management Act 199;r (December 2014) cntains useful wrking definitins as fllws: ffectiveness assesses the cntributin new prvisins make twards achieving the bjective, and hw successful they are likely t be in slving the prblem they were designed t address. fficiency measures whether the prvisins will be likely t achieve the bjectives at the lwest ttal cst t all members f sciety, r achieves the highest net benefit t all f sciety. The assessment f efficiency under the RMA Invlves the inclusin f a brad range f csts and benefits, many intangible and nn-mnetary As nted abve, the new s 32, which applies t any changes made as part f a decisin, requires the 'efficiency and effectiveness' cnsideratin t extend t benefits and csts f the envirnmental, ecnmic, scial and cultural effects anticipated and pprtunities fr ecnmic grwth and emplyment benefits. Sectin 32 Reprt, p 24. Agenda Item: 2 Page 217

5 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page The cmpeting psitins (in rder frm least t mst restrictive) are: (a) Remval f all mentin in the PDP f GMOs; 18 0 (b) (c) Making GMO activities a permitted activity if they have apprval under HSNO; w Changing the activity status t cntrlled r restricted discretinary t limit the matters that Cuncil can have regard t, t thse nt cvered by HSNO; 20 (d) Keeping field testing as a discretinary activity and general release as prhibited; 31 (e) Making bth field testing and general release a prhibited activity I cmment n these pssibilities belw, befre cmmenting separately n the apprpriateness f the prpsal t require a bnd fr GMO activities. Remving reference t GMOs Because f the cnclusin that the RMA applies t GMO activities, my pinin is that remving all references t GMOs in the PDP, as sught by a number f submissins, wuld nt be efficient r effective. As discussed abve in relatin t the bjectives, because the RMA applies t GMO activities, there is a risk that applicatins invlving such activities will be assessed in a planning vacuum unless there is sme statement in the PDP as t activity status fr GMOs. T that extent, the Sectin 32 Reprt's assessment f the csts and benefits f the "d nthing/status qu' may verstate the benefit f nt addressing GMOs at all when It refers t that apprach having "... n csts t Cuncil in terms f time and resurces / n csts fr ptential resurce cnsent submitters wh may becme invlved in the prcess"^ In my view this cnclusin wuld be crrect if GMO activities were given permitted status, but arguably nt where the PDP is simply silent n GMOs. In my view, it wuld be inefficient and cstly fr this issue t be litigated n a case-bycase basis. Fr this reasn, there is a gd argument in favur f the PDP having sme express prvisin fr GMO activities. CO Q) t ^^3 GMOs as a permitted activity 78. If the Panel Is satisfied that the adverse effects f GMOs are adequately addressed under HSNO, the apprpriate measure may be t make such activities a permitted activity if they have HSNO apprval, as sught in the submissin f NZBi. This wuld prvide certainty t plan users, rather than leaving the issue unreslved fr future cases. 79. A permitted activity status wuld be cnsistent with HS03 and, if the Panel were satisfied all adverse effects were addressed thrugh the HSNO prcess, wuld be cnsistent with HS04. Permitted activity status wuld be unlikely t fully implement HSP5 in its current frm. HSP6 wuld essentially be redundant if the Panel reached the view that there was 18 As sught by, e.g. New Zealand Frest Research institute. Federated Farmers, Ministry fr the nvirnment, Pastral Genmics Ltd. 19 As sught by MZi. 20 Nt sught in any submissins, but within scpe. 21 As ntified In the PDP and supprted by WIcGuiness Institute, N2 Frest Managers Ltd, Linda Grammer. 22 As sught by Te Ukaip Hldings Ud, Pure Hawke's Bay, Patrick Malney, Ngatl Kahungunu Iwl Inc. 23 Sectin 32 Reprt, p 26, Agenda Item: 2 Page 218

6 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page 14 such sufficient certainty under HSNO that it was satisfied it culd make GMO activities permitted nte that permitted activity status culd be cmplemented by nn-regulatrv methds, such as an indicatin that Cuncil wuld participate In applicatins fr field testing and/r general releases under HSIMO t advcate fr a precautinary apprach and fr strict cntrls t be impsed n any apprvals issued under the Act, Public ntificatin, and specific ntice t lcal authrities, is prvided fr in s 53 HSNO, It culd als indicate it will prvide assistance t the cmmunity in advertising the right t participate in any HSNO hearing, and prviding assistance If apprpriate. As a bnd can nly be required t secure a cnditin f cnsent under s 108A RMA, a bnd culd nt be required in relatin t a permitted activity. Cnsideratin f cntrlled r restricted discretinary status The Sectin 32 Reprt recgnises a ptential 'cst' f requiring discretinary activity cnsent fr field testing f GMOs is a duplicatin f cnsenting requirements but ntes that "... the Cuncil cnsent is targeted at matters nt cvered by the PA cnsenting prcess". The matters nt cvered are the ability t require a bnd and mnitring csts. This stated Intentin t fill a gap in HSNO may be able t be adequately achieved by cntrlled r restricted discretinary status. A cuncil must grant cnsent fr an applicatin fr a cntrlled activity, but cnditins may be impsed in relatin t matters ver which the plan reserves cntrl (ss 87A(2) and 104A RMA). Fr a restricted discretinary cnsent, a cuncil may decline r grant cnsent and Impse cnditins but may nly have regard t matters ver which discretin is restricted (ss 87A(3) and 104C RMA), Cuncil culd ptentially restrict Its cntrl / discretin t thse matters currently cntained in sectin C f the POP (that is, ptential ecnmic effects f an escape f GMO material and the requirement fr a bnd fr perfrmance f any cnditins required t avid such effects). Sme thught wuld need t be given t wrding f cntrls t minimise duplicatin but prvide sufficient scpe fr a cnditin which culd be secured by a bnd f sufficient size t cver the risk. T the extent that the 'efficiency' f genera! discretinary status is challenged due t duplicatin f the PA's rle under HSNO, I cnsider reducing the activity status t cntrlled r restricted discretinary culd g a significant way t addressing this criticism. CO 0 C j) Ntified versin - Field tests discretinary / Release prhibited 87. The Sectin 32 Reprt states that the purpse f the discretinary activity rule is "nt t duplicate PA apprval but rather t assess thse matters that are beynd the scpe f the PA prcess relating t financial liability" 88. The nature f a discretinary activity cnsent is that all effects must be cnsidered, and discretin is nt strictly limited t financial liability. This means that an applicant culd nt prperly limit their applicatin t fcus n liability issues, nr culd a decisin t ntify r grant an applicatin be limited t such issues, I cnsider the Sectin 32 Reprt Agenda Item: 2 Page 219

7 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page 15 prbably understates the csts f discretinary activity status by assuming the fcus wuld necessarily remain n the financial viability issues. fit & 89. The Sectin 32 Reprt recmmends prhibited activity status fr release f GMOs as a precautinary apprach and t avid a lack f certainty f utcme inherent in the cnsent prcess. 90. Prhibited activity status is relatively sparingly used. In Crmandel Watchdg f Hauraki Inc v Chief xecutive f the Ministry f cnmic Develpment [2008] 1 NZLR 562, the Curt f Appeal accepted that a lcal authrity, having gne thrugh the required prcess under the RMA, culd ratinally cnclude that prhibited activity status was the mst apprpriate activity status. 2 * 1 One f the example given by cunsel as t when such an activity status might be apprpriate included: 25 Where the cuncil takes a precautinary apprach. If the lcal authrity has insufficient infrmatiri abut an activity t determine what prvisin shuld be made fr that activity in the lcal authrity's plan, the mst apprpriate activity status may be prhibited activity. This wuld allw prper cnsideratin f the likely effects f the activity at a future time during the currency f the plan when a particular prpsal makes it necessary t cnsider the matter, but that can be dne in the light f the Infrmatin then available. [Cunsel) gave an example f a plan in which mining was a prhibited activity, but prspecting was nt, The bjective f this was t ensure that the decisin n whether, and n what terms, mining shuld be permitted wuld then be made nly when the infrmatin derived frm prspecting abut the extent f the mineral resurce culd be evaluated. Where it Is necessary t allw an expressin f scial r cultural utcmes r expectatins. Prhibited activity status may be apprpriate fr an activity such as nuclear pwer generatin which is unacceptable given current scial, plitical and cultural attitudes, even if It were pssible that thse attitudes may change during the term f the plan. c Q) m 91, Bth f these scenaris culd be said t apply In this case. At this stage, the cmmunity has n clarity abut the type f GMOs that might be subject t an applicatin fr release (whether cnditinal r full) and it is nt unreasnable fr the cmmunity t have that infrmatin befre it cntemplated whether release was apprpriate. While there is pprtunity fr the cmmunity t participate in the PA prcess, the Panel may cnsider it is apprpriate t allw fr a wider, RMA-based assessment at the apprpriate time. 92. As I understand it, there Is cnsidered t be an ecnmic benefit in making GMO release a prhibited activity in Hastings, in that it can advertise itself as GMO free. I understand the Cuncil has sught ecnmic advice as t whether this benefit can be supprted and quantified. 93. In my view, there is n fundamental legal impediment t the Panel cncluding! that prhibited activity status is apprpriate, if that is the cnclusin it reaches having regard t the cmpeting arguments. I nte that when undertaking Its assessment, the Panel will need t be careful that it is nt cnsidering an unregulated / unassessed release, but rather ne which has been thrugh the HSNO prcess, which includes regard having been had t the precautinary apprach and t aviding adverse effects n the envirnment, albeit under a different statutry regime. 21 J At [36], At [34], Agenda Item: 2 Page 220

8 GMO Legal Opinin Attachment 6 MATTHW CASY QC Field testing and general release as prhibited activity Page 1A 94. The PDP currently mates general release f GMOs a prhibited activity, but sme ; i i submitters have sught that this status be extended t field trials. s \ 0) ill Because f the strict requirements fr cntainment fr field testing under HSNO, I cnsider it may be difficult t justify prhibited status fr thse activities n an effects basis. The justificatin wuld need t essentially be a philsphical ppsitin t GMOs, which is nt readily supprted by the purpse f the RMA. There may be further infrmatin prvided by submitters at the hearing t justify a prhibited activity apprach, which will need t be had regard t in the usual way. Issue - Is it apprpriate t require a bnd? 97. The Sectin 32 reprt indicates that a primary reasn why the cuncil seeks t cntrl GMOs is t fill a 'gap' in HSNO and t require a bnd t prtect against unfreseen adverse effects arising frm GMO field trials. 98. The Sectin 32 Reprt states: C 0) With regard t GMO Field Trials, it Is a requirement fr GMO material t be cntained within the field trial site under the HSNO Act, but that legislatin des nt have an ability t make the applicant financially accuntable fr any damages arising in the event f an escape f GMO material. 99, The Andersn Llyd pinin criticises this aspect f the s 32 apprach n the basis that the Ryal Cmmissin n GMOs cnsidered that it was "best t leave the current [liability] regime as It currently stands, at least In the shrt term", and did nt recmmend changes t HSNO t enhance liability. The pinin criticises the Sectin 32 Reprt fr nt prviding any justificatin fr the Impsitin f additinal liability ver and abve HSNO The Andersn Llyd pinin ftntes a subsequent paper by the Law Cmmissin. In relatin t bnds, that paper states; 20 The requirement f perfrmance bnds is anther pssibility fr ensuring that GMO develpers have sme funds available fr cmpensating damage caused. A real difficulty arises, hwever, in attempting t set a level that Is realistic in this uncertain area. The level f the bnd set t ensure cmpensatin fr all thse wh suffer injury may stifle the develpment f ptentially beneficial scientific prcesses. In additin: because f the likely time lapse befre damage caused by GMOs is discvered, the bnd may act as a fee; and 9 O» any bnd is likely t be Insufficient in the face f catastrphic r irreversible damage The Law Cmmissin, at part 10 f its paper, set ut a number f cnclusins and identified difficulties fr any liability regime fr GMOs, as well as a range f alternatives fr dealing with it (including cmpulsry r discretinary bnds). "Liability fr Lss Resulting Frm the Develpment, Supply, r Use f Genetically Mdified Organisms", Law Cmmissin, May 2002, p34, Agenda Item: 2 27/05/2013 Page 221

9 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page , In 2003, HSNO was amended t, in part, address cncerns abut liability. As such HSNO nw prvides fr: O (a) Pecuniary penalties payable t the Crwn, including fr breaching cntrls impsed by any apprval granted under the HSNO; (b) Orders that a persn mitigate r remedy any adverse effects n peple r the envirnment, r pay the csts f ding s; (c) Civil liability fr damages caused by, amng ther things, failing t cmply with any cntrls relating t a new rganism impsed by any apprval granted under HSNO The 2003 amendments did nt, hwever, prvide a requirement nr a discretin fr the PA t require security fr damages r clean-up csts, In my view this is a legitimate "gap' which Is nt able t be cntrlled under HSNO, but fr which there is scpe under the RMA, 104. Sectin 108A RMA prvides a brad pwer fr cuncils t require bnds fr the perfrmance f cnditins f cnsent, and can cntinue after the resurce cnsent has expired. Fr instance, s 108A(2}(d) states that bnd cnditins can "require the bnd t be given t secure perfrmance f... cnditins relating t adverse effects n the envirnment that becme apparent during r after the expiry f the cnsent" and s 108{2)(d) prvides that a guarantr can be required t "pay fr the carrying ut f a cnditin in the event f... the ccurrence f an adverse effect requiring remedy". The POP flags that a bnd may be required, but des nt make it cmpulsry The Andersn Llyd pinin suggests that the prblems the Ryal Cmmissin raised with bnds mean it is inapprpriate fr bnds t be prvided fr as a pssibility under the PDP. t! c D 106. The Panel will need t cnsider whether prviding fr the pssibility f a bnd per se is inapprpriate, r rather whether it will depend n the terms f the cnditin actually Impsed, which can nly be assessed at the time. In my view, the pssibility that an unreasnable cnditin might be impsed n a cnsent granted under the PDP des nt render the rule inherently inapprpriate. Presumably there is sme level f bnd that might be set which wuld balance the interests f the envirnment and neighburing landwners wh might be affected with thse f the applicant wh needs t bear the csts f psting the bnd. A cnditin requiring a very high bnd might be susceptible t challenge n the basis f being unreasnable and/r having the effect f frustrating the cnsent. The apprpriate amunt f a bnd, if any, fr a particular prpsed GMO activity, wuld need t be assessed at the time, in the cntext f the particular applicatin and its specific characteristics and risks. 107, Therefre, in my pinin, the ptential fr a (reasnable) bnd t be impsed under the PDP, where this is nt an ptin available under HSNO, is a matter that can, if the Panel decides it is apprpriate, be prvided fr under the PDP. Cnclusin 108, Fr the reasns set ut abve, I cnsider there is jurisdictin under the RMA fr the Hearings Panel t decide t cnfirm the GMO prvisins, pssibly with sme amendments. In its decisins n the PDP. Hastings District Plan Hearings Cmmittes Agenda Item: 2 Page 222

10 GMO Legal Opinin Attachment 6 MATTHW CASY QC Page , I am happy t address the Panel further shuld there be any queries arising frm this pinin r during the curse f the hearing. 0) nte that I can prvide further advice when the nvirnment Curt's decisin n the Nrthland Reginal Plicy Statement's cverage f GMOs is released. Yurs faithfully.r-'' Asher Davidsn DDI: 9) mail: asher@casey.c.nz t c 0 C 5 m Agenda Item: 2 Page 223