Barrhill Chertsey Irrigation Limited v Canterbury Regional Council
[2018] NZHC 1960
•2 August 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000490 CIV-2017-409-000491 CIV-2017-409-000493
CIV-2017-409-000500 [2018] NZHC 1960
BETWEEN BARRHILL CHERTSEY IRRIGATION LIMITED
Appellant
AND
IRRIGATION NEW ZEALAND LIMITED
Appellant
AND
DAIRY HOLDINGS LIMITED
Appellant
AND
RANGITATA DIVERSION RACE MANAGEMENT LIMITED
Appellant
AND
CANTERBURY REGIONAL COUNCIL
Respondent
Hearing: On the papers Appearances:
B G Williams for Barrhill Chertsey Irrigation Limited and Dairy Holdings Limited
J R King for Irrigation New Zealand Limited
V J Hamm for Rangitata Diversion Race Management Limited P A C Maw for Respondent
P R Gardner for First Interested Party
P D Anderson for Second Interested Party
JGA Winchester and C J McCallum for Third Interested PartyJudgment:
2 August 2018
JUDGMENT OF DUNNINGHAM J
BARRHILL CHERTSEY IRRIGATION LIMITED v CANTERBURY REGIONAL COUNCIL [2018] NZHC 1960 [2 August 2018]
AND COMBINED CANTERBURY PROVINCES, FEDERATED FARMERS OF NEW ZEALAND INCORPORATED
First Interested Party
AND
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED
Second Interested Party
AND
TE RUNANGA O NGAI TAHU
Third Interested Party
[1] This judgment deals with the proposed settlement of appeals against the decision of the Canterbury Regional Council (the Council) on Plan Change 5 to the Canterbury Land and Water Regional Plan (Plan Change 5).
[2] The proposed settlement relates to four separate appeals made by Barrhill Chertsey Irrigation Limited (BCIL), Dairy Holdings Limited (DHL), Irrigation New Zealand Limited (INZ) and Rangitata Diversion Race Management Limited (RDRML).
[3] All four appellants and the Council have reached agreement on how those appeals should be resolved. That agreement is supported by the following parties, all of whom have joined each of the appeals:
(a)Combined Canterbury Provinces, Federated Farmers of New Zealand Incorporated;
(b)Royal Forest and Bird Protection Society of New Zealand Incorporated; and
(c)Te Rūnanga o Ngāi Tahu.
[4] The agreement is also supported by Neil Barton, who joined the appeal lodged by DHL.
[5] The parties seek the Court’s approval of the proposed amendments to the Canterbury Land and Water Regional Plan (the Plan) as negotiated, under the Court’s power to substitute its decision for that of the Council.
[6] In support of the request that orders are made in accordance with the settlement negotiated, the parties have filed a detailed memorandum setting out:
(a)the issues each of the four appellants raise in their appeals;
(b)the agreed position on the alleged errors of law made by the Council; and
(c)the proposed amendments to Plan Change 5.
The appeals
Background
[7] Plan Change 5 was publicly notified on 13 February 2016 pursuant to clause 5 of the First Schedule of the Resource Management Act 1991. BCIL, DHL, INZ and RDRML each lodged submissions and further submissions on Plan Change 5, as did a number of other parties.
[8] The Council delegated the hearing of submissions on Plan Change 5 to independent hearing commissioners. Their recommendations in the form of a narrative report dated 1 June 2017 and appendices containing the provisions were adopted by the Council as its decision on 15 June 2017 (the decision). The decision was publicly notified on 24 June 2017.
[9] Section 66 of the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (the ECan Act) restricts appeals to the High Court on errors of law only. All the appeals made by the appellants are under this section.
[10] The issues raised in the four appeals primarily relate to the policy framework as it relates to irrigation schemes, and the Good Management Practice modelling proxies introduced into the Plan by Plan Change 5.
[11] Part A of Plan Change 5 amends the provisions of the Plan applicable through the Canterbury region for managing land use activities that discharge nutrients into the environment. An integral part of Plan Change 5 is the Farm Portal, an online spatial data portal developed by the Council for two purposes; it enables the Council to fulfil its freshwater accounting obligations, and it provides users with an estimate of nutrient leaching losses for farming activities if operated at Good Management Practice.
[12] During the hearing on Plan Change 5, a number of submitters sought an alternative to the Farm Portal for estimating nutrient leaching losses if operated at Good Management Practice. In response to those submissions, the decision version of Plan Change 5 provides for an alternative consent framework to the Farm Portal (alternative pathway). The alternative pathway allows, in limited circumstances, an application for resource consent to be made with the relevant Good Management Practice nutrient loss rates to be determined through the resource consent process.
BCIL’s appeal
[13] BCIL’s appeal alleges five errors of law and raises six questions of law in relation to Policy 4.41C(b); alleges three errors of law and raises three questions of law in relation to Table s28 and Method s28.4 of Schedule 28 (irrigation proxy); and alleges two errors of law and raises two questions of law in relation to Method s28.3 of Schedule 28 (fertiliser proxy).
[14] BCIL’s appeal concerns the way that the decision treats irrigation schemes, particularly in respect of the policy framework (namely Policy 4.41C(b)) that would apply on the reconsenting of activities authorised under existing consented irrigation schemes, and the application of the alternative pathway to irrigation schemes. The appeal also raises questions regarding the decision to delete an exception under Method s28.4 contained in the irrigation proxy, and raises issues with the fertiliser proxy.
DHL’s appeal
[15] DHL’s appeal alleges four errors of law and raises four questions of law in relation to Policy 4.38A; alleges two errors of law and raises two questions of law in relation to Policy 4.38AB alleges five errors of law and raises seven questions of law in relation to Policy 4.41C(b); and alleges three errors of law and raises three questions of law in relation to the irrigation proxy.
[16] DHL’s appeal concerns the way that the decision treats irrigation schemes, particularly the policy framework (namely Policy 4.41C(b) and Policy 4.38A) that would apply on the reconsenting of activities authorised under existing consented irrigation schemes, and the application of the alternative pathway to irrigation schemes. The appeal also relates to the decision to include Policy 4.38AB which provides guidance on the application of the permitted baseline in particular circumstances. DHL’s appeal also raises questions regarding the decision to delete an exception under Method s28.4 contained in the irrigation proxy.
RDRML’s appeal
[17] RDRML’s appeal alleges seven errors of law and raises seven questions of law in relation to Policy 4.41C(b) and alleges three errors of law and raises three questions of law in relation to the irrigation proxy.
[18] RDRML’s appeal concerns the way that the decision treats irrigation schemes, particularly in respect of the policy framework (namely Policy 4.41C(b)) that would apply on the reconsenting of activities authorised under existing consented irrigation schemes, and the application of the alternative pathway to irrigation schemes. The appeal also raises questions regarding the decision to delete an exception under Method s28.4 contained in the irrigation proxy, and raises issues with the fertiliser proxy.
INZ’s appeal
[19] INZ’s appeal alleges seven errors of law and raises seven questions of law in relation to the irrigation proxy.
[20] INZ’s appeal challenges the Council’s decision in relation to the irrigation proxy, including the decision to delete an exception under Method s28.4 contained in the irrigation proxy.
Proposed settlement
[21] The Council has engaged in settlement discussions with BCIL, DHL, INZ and RDRML together with the interested parties. The parties consider that two errors of law have occurred in relation to:
(a)Policy 4.41C(b); and
(b)Method s28.4 (which forms part of the irrigation proxy).
[22] If the Court accepts the errors of law alleged to have been made by the Council and grants the orders sought by the parties, the four appellants will not pursue the remaining alleged errors and corresponding questions of law in each of their appeals.
Policy 4.41C(b) issue
[23] This issue relates to the question of whether irrigation schemes and principal water suppliers can access the alternative pathway to estimate nutrient loss rates. The Council inserted the alternative pathway into the decision in response to submissions. Policy 4.41C(b) appears to provide for the use of the alternative pathway in relation to irrigation schemes and principal water suppliers. However, BCIL, DHL and RDRML each allege that the Council’s decision on Policy 4.41C(b) does not properly provide for irrigation schemes and principal water suppliers to access the alternative pathway.
[24] BCIL, DHL and RDRML allege that errors of law were made in respect of the alleged failure of Policy 4.41C(b) to provide a clear alternative pathway for irrigation schemes and principal water suppliers. In summary, the alleged errors are that the decision to word Policy 4.41C(b) as it stands:
(a)does not give effect to the reasons for the decision; and
(b)lacks clarity and is a decision which on the evidence could not reasonably be made.
[25] The questions of law raised by the appellants in relation to Policy 4.41C(b) as it relates to the application of the alternative pathway are:
(a)Did the Council reach a decision on the wording of Policy 4.41C(b) that does not give effect to the reasons for the decision?
(b)Did the Council reach a decision on the wording of Policy 4.41C(b) (as it relates to use of an alternative consenting pathway) that lacks clarity such that it is a decision that could not have been reasonably reached?
[26] The agreed position between all parties is that while the Council’s amendments to Policy 4.41C(b) appear to enable irrigation schemes and principal water suppliers to use the alternative pathway in certain circumstances, on a close reading they may not always have access to it. There is no indication that this was an intended consequence.
[27] This part of the Council’s decision on the amendments to Policy 4.41C(b) is inconsistent with the Council’s decision on the use of the alternative pathway. In particular, the parties consider that the inconsistency between the reasoning in the decision and the wording of the Policy amounted to an error of law.
[28] In order to remedy the error of law, the parties consider that amendments to Policy 4.41C(b) are required. The proposed amendments are set out in Appendix A to the joint memorandum. These amendments would enable irrigation schemes and principal water suppliers to also have access to the alternative pathway.
Method s28.4 issue
[29] This issue relates to the Council’s decision to delete the exception in Method s28.4, as raised in the appeals by BCIL, DHL, INZ and RDRML.
[30] Table s28 in Schedule 28 sets out each of the Good Management Practices modelled by the Farm Portal. One of the Good Management Practices in Table s28 relates to “irrigation and water use”. For cropping blocks, Table s28 requires that irrigation occurs in accordance with Method s28.4, which contains the methodology for the application of irrigation water by spray irrigation systems under Good Management Practices.
[31] In the notified version of Plan Change 5, Method s28.4 included an “exception” to Good Management Practices for cropping blocks using travelling and sprayline irrigation systems on medium soils to recognise the specific constraints of those irrigation systems, which restrict the minimum depth of irrigation application.
[32] In the decision, the exception in Method s28.4 was deleted and Method s28.4 was amended so that a consistent application rate is applied to travelling irrigators and sprayline irrigators irrespective of the physical constraints of those systems. The decisions version also notes that the required application rate is unachievable with travelling irrigation systems, requiring a system change to linear or centre pivot.
[33] All four appellants allege that the Council’s decision to delete the “exception” for travelling and sprayline irrigators on medium soils in Method s28.4 will have the effect of requiring a large number of farming activities irrigating on light to medium soils to make substantial capital investments in upgrading or implementing irrigation system changes. The appellants allege that the decision to delete the “exception” was an error of law in that it was a decision:
(a)for which the Council had no jurisdiction to make;
(b)for which there was no evidence or which on the evidence could not reasonably have been made; and
(c)for which a further evaluation in accordance with s 32AA of the Resource Management Act was required but not undertaken.
[34]The questions of law raised by the appellants in relation to Method s28.4 are:
(a)Did the Council have jurisdiction to delete the exception and make consequential changes to Method s28.4?
(b)Did the Council, in deleting the exception and making consequential changes to Method s28.4, make a decision that was not open to it on the evidence?
(c)Did the Council fail to undertake a proper analysis under s 32AA of the Resource Management Act, in that it failed to:
(i)identify and assess the benefits and costs of the environmental, economic, social and cultural effects that are anticipated through the implementation of Method s28.4 as amended by the decision, as required by ss 32(2) and 32AA(1)(b)?
(ii)undertake an evaluation at a level of detail that corresponds to the scale and significance of the environment, economic, social and cultural effects that are anticipated through the implementation of Method s28.4 as amended by the decision, as required by ss 32(1)(c) and 32AA(1)(c)?
[35] The agreed position between all parties is that the Council had no jurisdiction to delete the exception for travelling and sprayline irrigators on medium soils from Method s28.4. The Council had no jurisdiction because no submitter sought that such a change be made, nor was there scope within the ambit of issues fairly and reasonably raised in submissions on Plan Change 5 to provide jurisdiction for such a change. Accordingly, the parties consider that the Council made an error of law.
[36] In order to remedy the error of law, the parties consider that amendments to Method s28.4 are required. The proposed amendments are set out in Appendix A to the joint memorandum. These amendments would reinstate the exception for travelling and sprayline irrigators on medium soils, having the effect of reinstating the irrigation proxy as notified.
Jurisdiction to determine appeal
[37] The Court has jurisdiction to determine this appeal under r 20.19 of the High Court Rules 2016. It provides:
(1)After hearing an appeal, the court may do any 1 or more of the following:
(a)make any decision it thinks should have been made:
(b)direct the decision-maker—
(i)to rehear the proceedings concerned; or
(ii)to consider or determine (whether for the first time or again) any matters the court directs; or
(iii)to enter judgment for any party to the proceedings the court directs:
(c)make any order the court thinks just, including any order as to costs.
…
[38] I am satisfied that I have heard from the parties through the comprehensive joint memorandum they have filed. It is open to me to amend Plan Change 5 in accordance with the proposed changes set out at Appendix 1 to the memorandum.
[39] I am also satisfied that approval of the amendments is appropriate in the present circumstances because:
(a)the orders sought by consent address the issues raised in the appeals;
(b)the proposal to settle the appeal by making the proposed amendments represents a just, speedy and inexpensive way to determine this proceeding. In that regard, one of the fundamental purposes of the ECan Act is to enable Plan Change 5 to be made operative as soon as possible;
(c)agreement has been reached on the resolution by all parties joined to the appeal proceedings, with all parties accepting that there has been an error of law;
(d)the proposed amendment is consistent with the purpose and principles of the Resource Management Act, particularly Part 2; and
(e)given the scope of the relief jointly requested, it is not necessary for the matter to be remitted back to the Council for determination.
[40] The parties recognise that there can be no expectation that, in every case, consent orders are suitable for approval through appeals to the Court. As Whata J said in Meridian Energy Ltd v Canterbury Regional Council, “[t]his is a public law process and there must be due consideration given to the wider public interest in the promulgation of planning instruments”.1 Counsel acknowledge that statement applies in this situation, and as such all submitters on Plan Change 5 were served with a copy of the appeal and had an opportunity to join the proceedings as an interested party. I consider that Whata J’s concerns have been appropriately dealt with.
Outcome
[41] I am satisfied that it is appropriate to exercise the Court’s power under r 20.19 to amend the text of Plan Change 5, as proposed in the parties’ joint memorandum.
[42] Accordingly, I order that Plan Change 5 to the Canterbury Land and Water Regional Plan be amended as set out in Appendix A to the joint memorandum of counsel recording settlement dated 9 July 2018.
[43] The parties agree that there is no issue as to costs in respect of the resolution of these appeals.
Solicitors:
Chapman Tripp, Christchurch
Tavendale and Partners, Christchurch Holland Beckett Law, Tauranga Wynn Williams, Christchurch Simpson Grierson, Wellington
1 Meridian Energy Ltd v Canterbury Regional Council HC Christchurch CIV-2010-409-2604, 23 May 2011 at [11].
Copy To:
P R Gardner, Combined Canterbury Provinces and Federated Farmers of NZ Inc P Anderson, Forest and Bird Protection Society of New Zealand
Neil Barton
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